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Judgment
K.N. Shrivastava, Member (A)
Through the medium of this OA filed under Section 19 of the Administrative Tribunals Act, 1985, the applicants have prayed for the following reliefs:-
"(a) to quash the impugned order dated 21.7.2016 & 21.1.2017 as illegal and unconstitutional;
(b) to issue direction to the respondents to consider the name of the applications for promotion against the post of Executive Engineer(Civil) and further implement condition No. vii of impugned orders dated 21.7.2016 and 21.1.2017."
The factual matrix of the case, as noticed from the records, is as under:
2.1 The applicants are Civil Engineering Diploma holders. They were appointed as Junior Engineer (Civil) on 29.04.1981, 30.04.1981 and 13.08.1979 in the erstwhile Municipal Corporation of Delhi(MCD) which has since been trifurcated. After the trifurcation of MCD, all these applicants are working under North Delhi Municipal Corporation (North DMC)-respondent organization. In compliance of a direction of this Tribunal, a review DPC was held on 18th and 22nd September, 2015 to review the DPC of Assistant Engineer(Civil) held on 09.12.1997, 14.05.1998, 25.01.2002, 23.02.2006 and 14.06.2007. The applicants were recommended for regular promotion to the post of Assistant Engineer(Civil) w.e.f. 21.04.2006 by the Review DPC. An office order promoting them to the post of Assistant Engineer (Civil) was issued on 01.12.2015.
It is stated that the respondents are promoting eligible Assistant Engineers(Civil) to the post of Executive Engineer(Civil) on ad hoc basis against the vacancies of the year 2015-2016. The final seniority list of Assistant Engineer (Civil) was published on 10.03.2016. There are two streams through which Assistant Engineer(Civil) are appointed, namely, by promotion from the cadre of Junior Engineer(Civil) and by direct recruitment. However, a common seniority list is prepared of all Assistant Engineers(Civil).
It is stated that in its meeting held on 14.03.2017, the Departmental Screening Committee (DSC) recommended juniors of the applicants for promotion, on ad hoc basis, to the post of Executive Engineer(Civil) ignoring their legitimate claim. They assailed the said action of the respondents before the Tribunal in OA No. 1305/2017 along with MA No.1439/2017. The Tribunal vide its Order dated 25.04.2017 directed the respondents not to violate the rule of seniority while making ad hoc promotions to the post of Executive Engineer(Civil) till the next date of hearing i.e. 18.07.2017.
The respondents challenged the order of the Tribunal dated 25.04.2017 in WP(C) 4376/2017. The Hon'ble High Court refused to interfere in the order of the Tribunal. However, it made the following significant observations:-
"Thus, even if Assistant Engineers (Graduates) are granted ad hoc promotion, by operation of the aforesaid clause(vii), from 01.04.2017, the respondents/diploma holder Assistant Engineers, who are senior in that grade, would be entitled to be granted the ad hoc promotions and the junior most Executive Engineer(Civil), who are appointed on ad hoc basis and are graduate engineers, would have to make way for them.
In these circumstances, we are not inclined to interfere with the impugned order. The writ petition is dismissed."
The respondents have issued the impugned Annexure A-1 orders dated 21.07.2016 and 31.01.2017 whereby some graduate Assistant Engineers(Civil) have been promoted to the post of Executive Engineer (Civil) on ad hoc basis. Aggrieved by these impugned orders, the applicants have filed the instant OA praying for the reliefs as indicated in the foregoing paragraphs. The main grounds pleaded in support of the reliefs claimed is that:-
(i) The applicants have right for consideration for promotion to the post of Executive Engineer(Civil) on ad hoc basis and without considering them for such promotions their juniors could not have been promoted.
Pursuant to the notice issued, the respondents entered appearance and filed reply in which they made following main averments:-
(i) No cause of action accrued to the applicants to file OA inasmuch as no enforceable rights of the applicants have been violated;
(ii) There are several officers who are likely to be affected in case the reliefs prayed for are granted but they have not been impleaded as respondents. Hence, for non-joinder of necessary parties, the OA is liable to be dismissed;
(iii) The DSC in its meeting held on 14.03.2017 had considered 59 persons for ad hoc promotion including the applicants. It found that 25 persons were "not yet fit" in view of the crucial date of eligibility being 01.04.2017 and in respect of 11 persons, the DSC adopted the sealed cover procedure. It found only 21 persons fit for ad hoc promotion and accordingly made its recommendations. Two persons were recommended "not to be assessed" in view of DOP&T's OM dated 08.02.2002.
At the time when the ad hoc promotions were undertaken, the Delhi Municipal Corporations elections had been notified. The State Election Commission vide its letter dated 06.04.2017 (Annexure R-3) advised that the promotions may be made effective from the due date as recommended by the DPC(DSC) and be issued after 25.04.2017 i.e. after the conclusion of the elections.
As per the RRs for the post of Executive Engineer(Civil), Assistant Engineer(Civil) with five years of regular service in the grade possessing degree in Civil Engineering are eligible whereas the Assistant Engineer(Civil) having diploma in Civil engineering acquired such eligibility only after putting in 10 years of regular service in the grade of Assistant Engineer(Civil). The applicants acquired eligibility for consideration for promotion to the grade of Executive Engineer(Civil) on 01.04.2017 and hence they were not eligible on the date when the DSC had met on 14.03.2017.
The private respondent Nos. 4-6 in their reply have broadly stated as under:-
(i) They are graduate Engineers and have put in five years regular service as AE(Civil) and thus, are eligible for promotion to the post of Executive Engineer(Civil) in terms of the extant Recruitment Rules.
(ii). They have been considered for ad-hoc promotion to the post of EE(C) by the respondents for vacancies of the year 2016-2017 for which none of the applicants were eligible for regular or ad hoc promotion. The applicants completed 10 years of regular service as AE(Civil) on 20.04.2016 and thus would acquire eligibility for promotion against the vacancies of the year 2017-2018.
The applicant have filed the rejoinder to the reply filed on behalf of respondents in which more or less the issues in the OA have been reiterated.
After the completion of the pleadings the case was taken up for hearing the arguments of the learned counsel for the parties on 25.04.2018.
Shri Rajeev Sharma, learned counsel for the applicants, besides reiterating the averments made in the OA, submitted that during the course of hearing on 25.04.2017 the Hon'ble Tribunal was pleased to pass an interim order directing the respondents not to violate the rule of seniority while making ad hoc promotions to the post of Executive Engineer (EE) (Civil) till the next date of hearing. The ibid order of the Tribunal was challenged by the respondents in Writ Petition (Civil) No.4376/2017, which was dismissed by the Hon'ble High Court of Delhi vide order dated 19.05.2017. Thus the official respondents were obliged to follow the principle of seniority while making ad hoc promotions to the post of EE (Civil).
14.1 Shri Sharma argued that in terms of the DoPT OM dated 04.12.2013 (Annexure R-4) both for ad hoc promotions as well as regular promotions the crucial date of eligibility would be January 1. He submitted that the DSC had met on 14.03.2017 to consider ad hoc promotions to the post of EE (Civil) from the cadre of AE (Civil) and thus the applicants were eligible for consideration. He argued that the DoPT OM No.22011/5/86-Estt. (D) dated 10.04.1989, as amended by the OM dated 27.03.2017 deals with the procedure of DPC. It prescribes zone of consideration and in the case of SC/ST candidates extended the zone of consideration. He submitted that the zone of consideration is not relevant for ad hoc promotion; the only relevant factor is the date when such ad hoc promotions are being made.
14.2 Concluding his arguments, Shri Sharma submitted that the applicants were admittedly senior to the private respondents and when the DSC met on 14.03.2017 they were eligible for ad hoc promotion to the post of EE (Civil) and hence they ought to have been granted such promotion.
Per contra, Shri R.N. Singh, learned counsel for the respondents 1&2 submitted that the order dated 25.04.2017 of the Tribunal and so also the order dated 19.05.2017 of the Hon'ble High Court of Delhi are interim orders. The applicants have not impleaded all the persons who are likely to be affected in case the reliefs prayed for by them are granted; only three such officials have been impleaded. He vehemently argued that the procedure to be observed by DPC is laid down in DoPT OM dated 08.02.2002 (Annexure R-2). He further submitted that as per DoPT OM No. No.22011/9/98-Estt. (D) dated 08.09.1998, January 1st is the sole crucial date for determining eligibility of candidates to be considered for promotion during the panel year; whether the panel year began on January 1 (calendar year), or April 1, i.e,. financial year. He said that DoPT OM dated 04.12.2013 (Annexure R-4) has made it clear that even for considering ad hoc promotion crucial date of eligibility would be the same as for regular promotion, i.e., January 1, which has been subsequently amended vide DoPT OM dated 28.05.2014 (Annexure R-1) after due consultation with the UPSC as 1st April of the vacancy year.
15.1 Shri Singh thus argued that the applicants acquired eligibility for consideration for promotion on 01.04.2017 whereas the ad hoc promotions were to be made for the vacancy year 2016-17 and the crucial date of eligibility was April 1 of the vacancy year, i.e., 01.04.2016. He thus argued that the applicants were not eligible for consideration for ad hoc promotion.
Shri A.K. Behera, learned counsel for respondents 4&5, supplementing the arguments of Shri R.N. Singh stated that the vacancies being considered for ad hoc promotions were of the year 2016-17 and hence the crucial date for eligibility was 01.04.2016. He vehemently argued that the crucial eligibility date is April 1, was both for regular and ad hoc promotions. He argued that respondent no.4 completed five years of residency on 11.04.2006, respondent no.5 on 31.08.2006 and respondent no.6 on 15.07.2006, i.e., much before 14.03.2017 when the DSC had met.
16.1 Shri Behera also drew our attention to Annexure R-3 letter of State Election Commission wherein it is stated that the promotion orders would be effective from the date(s) as recommended by the DSC but issued after 25.04.2017.
We have considered the arguments of the learned counsel for the parties and have perused the records. It is not in dispute that regular promotions from the cadre of AE (Civil) to EE (Civil) are to be made on the basis of the recommendations of the DPC constituted in UPSC. In the present case, since the promotions from the cadre of AE (Civil) to EE (Civil) were to be made on ad hoc basis, the DPC in UPSC was not required and the DSC was fully empowered to make recommendations for such promotions. The DoPT OMs referred to hereinabove do not make any distinction in regard to crucial date of eligibility as well as the benchmarks between the regular promotions and ad hoc promotions. Shri Rajeev Sharma, learned counsel for the applicants failed to provide any official instructions/guidelines or rules, distinguishing the criteria for regular and ad hoc promotions. He only stated that ad hoc promotions are made to meet the exigency of situation and hence as on the date when the DSC meets it should look only at the seniority list and as on that date the officers who have acquired eligibility and are also satisfying the seniority criteria will have to be promoted.
From the DoPT OMs we find that the eligibility criteria, as also the crucial date of eligibility both for regular promotion and ad hoc promotions are the same. The only difference is that the ad hoc promotion can be made on the recommendations of the DSC and that too only for a period of one year to meet any situation of exigency. The crucial date of eligibility in both the cases is the April 1 of the vacancy year. In the instant case, the vacancies were pertaining to the year 2016-17 and thus the crucial date of eligibility was 01.04.2016. The applicants had not completed 10 years of residency as on that date and hence they were not eligible for the ad hoc promotions. We do not agree with the contention of Shri Sharma that the crucial date of eligibility is to be ignored by the DSC.
From the discussions in the foregoing paras, we are of the view that the official respondents have correctly granted ad hoc promotions to the eligible officers considering the crucial date of eligibility being 1st April, 2016. The applicants have rightly been ignored for such ad hoc promotions as they have not completed the residency of 10 years as on that date.
In the conspectus, this OA is dismissed being found devoid of any merit.
There shall be no order as to costs.