Satish Kumar & Anr. vs Delhi Metro Rail Corporation Ltd. & Anr.

Hon’ble Mr. Mohd Jamshed, Member (A)

The applicants joined Civil Construction Wing of All India Radio as Junior Engineer (Civil) in the year 1989 and thereafter joined Employees Provident Fund Organisation (EPFO) as Assistant Engineer on deputation basis with effect from 06.04.2005. Subsequently, vide orders dated 05.08.2007/28.06.2007, the applicants were relieved from EPFO to join the respondents as AEN (C) on deputation basis for a period of 3 years. The applicants thereafter continued with the respondents on deputation upto 05.09.2012. They submitted their willingness for permanent absorption. The respondents vide order dated 12.06.2012 found the applicants suitable for permanent absorption as Senior Supervisory Engineer (SSE) with direction to officiate as AEN on ad hoc basis till the date of passing of the Limited Departmental Examination of DMRC. The applicants were aggrieved by the order of their absorption in DMRC as SSE instead of AEN in view of their having been appointed as AEN on deputation in 2007. A representation was made by the applicants on 25.06.2012 seeking redressal of their grievances, stating that they have already completed 7 years of service in Executive Grade of AEN and are, therefore, entitled for absorption as AEN. The applicants further submitted their resignation to their parent department. Before the technical resignation could be accepted by their parent department, they got their promotion as AE (C) in their parent Department vide order dated 11.01.2013. No action was taken by the respondents in this regard and they continued to work as AEN on ad hoc basis till passing of Limited Departmental Competitive Examination (LDCE), as was communicated to them vide order dated 14.02.2013. The applicants are also aggrieved by the fact that vide order dated 21.01.2014, the respondents issued order regularising AEN/AM (Civil) who were appointed on contract basis. Further, representations were made by the applicants on 19.02.2015 highlighting their grievances. The respondents vide impugned order dated 11.05.2015 rejected the representation on the basis of the Policy Guidelines dated 15.02.2013 of the DMRC. Thereafter, the respondents vide impugned order dated 02.07.2015 once again rejected the representation citing the Policy of the DMRC.

Aggrieved by these actions on the part of the respondents, the applicants have filed the present O.A. seeking the following relief(s):-

Primarily, the applicants are seeking absorption as Assistant Engineer and promotion to Executive Engineer by taking into consideration their service as Assistant Engineer w.e.f. 06.09.2007. They are also seeking quashing of the impugned orders dated 02.07.2015 and 11.05.2015.

During the arguments, the learned counsel for the applicants cited the following judgments:-

The respondents have filed their counter affidavit opposing the O.A. At the outset, it is submitted that the O.A. is barred by limitation as the respondents had already communicated their decision to the applicants vide office order dated 14.02.2013 and the same was reiterated by the impugned orders dated 11.05.2015 and 02.07.2015. It is further stated that for absorption in Delhi Metro Railway Corporation (DMRC), the applicants are governed by the Rules dated 26.06.2007. Item 2 (I) of the Rules clearly stipulates that, “Officers/staff shall normally be absorbed in the grade held by them in their parent cadre. However, nobody will be absorbed in a grade which is more than one grade higher than the substantive grade/post held by them in the parent unit/department” and Rule 2(V) mentions that “such non-executive staff of other departments who have been working in DMRC in the Executive posts after passing the written examination conducted by DMRC for Executive posts, will be allowed absorption, at their request, in the lowest rung of Executive grade provided he has put in at least 2 years continuous service in that grade of DMRC. Regularisation of contract employees is governed under separate policy and cannot be linked with absorption of deputationists. It is also submitted that the applicants were intimated vide Office Note dated 12.06.2012 regarding their absorption at SSE level only. They were permitted to officiate as AEN till such time they qualify for the post of AM/Civil through LDCE Examination. The applicants submitted their resignation on a subsequent date to their parent department. The claim of the applicants regarding their promotion to AE in their parent department vide order dated 11.01.2013 is not based on facts as the promotion order clearly mentions that this is on in-situ basis and will not entitle the officers any claim for regular appointment as Assistant Engineer or seniority in the grade. However, DMRC on its own permitted them to officiate at AEN level to maintain and continuity of services even though they were absorbed under non-executive category of SSE. It is also the policy of the DMRC that non-executive can only be promoted to executive cadre through LDCE. It is also obvious that the applicants were not holding regular post of AE (Executive) in their parent department in terms of the order dated 11.01.2013 and thus their claim was rightly rejected vide impugned orders.

Additional documents have been provided by the respondents in terms of the order passed by this Tribunal during the hearing on 10.03.2022 with regard to details of departmental examinations conducted by DMRC and rules governing the promotion of contractual employees in DMRC.

Heard Mr. M.K. Bhardwaj along with Ms. Ridam Arora and Ms. Alisha, learned counsel for the applicants and Ms. Peehu Singh proxy for Mr. Kunal Sharma, learned counsel for respondents and perused the judgments and the record including the written submissions.

We have gone through the decisions and judgments relied upon by the applicants and found them distinguishable from the facts of the present O.A.

The applicants were working as Junior Engineer in Prasar Bharti since 15.05.1989. They joined EPFO on deputation basis with effect from 13.04.2005 as Assistant Engineer but continued to hold the substantive grade of Junior Engineer in their parent department. Subsequently, they joined DMRC on deputation with effect from 07.09.2007 for an initial period of 3 years as Assistant Engineer (AEN). On completion of their deputation period, the applicants requested for further extension of their deputation period on 23.08.2010. In the meanwhile, they continued to hold their substantive post of JE in their parent department. Vide order dated 12.06.2012, the respondents found them suitable for permanent absorption in DMRC in the post of SSE. However, they were permitted to continue to officiate as AEN on ad hoc basis till they qualify for the post of AEN through LDCE of DMRC. The applicants further gave their willingness for permanent absorption in DMRC on 27.06.2012 and 28.06.2012 giving their technical resignation to their parent department. Vide order dated 04.07.2012, they were permanently absorbed in DMRC after having completed more than 4 years of service as deputationist. The records reveal that initial order of deputation issued by respondents dated 05.09.2007 clearly mentions their designation in Prasar Bharti as Junior Engineer (C). The applicants in their request for permanent absorption in DMRC submitted on 27.06.2012 and 28.06.2012 have also clearly indicated their substantive post and grade in the parent organisation as Junior Engineer (Civil). In the meanwhile, vide order dated 11.01.2013, the parent organisation, i.e., the Director General, All India Radio, Civil Construction Wing, published a list promoting Junior Engineers (C/E) in the grade of Assistant Engineer (Civil)/ purely on personal/in-situ basis without any financial benefits from the dates they assume charge and until further orders. The applicants figured in this order. It is also mentioned in this order that the officers being promoted on in-situ basis will be known by the designation Assistant Engineer (Personal/in-situ) and they will continue to perform the same duties/functions as they are doing at present. This promotion will not entitle the officers for any claim for regular appointment as Assistant Engineers. The applicants contend that in view of this order dated 11.01.2013 they should have been absorbed in DMRC as Assistant Engineers.

However, the respondents vide order dated 14.02.2013 accepted the request of the applicants for permanent absorption with effect from 01.02.2013. Their absorption was done in IDA Grade of Rs.18500-35600. The respondents had found the applicants suitable for permanent absorption in DMRC in the post of SSE (Senior Supervisory Engineer) a grade higher to their substantive post in their parent department of JEs. They were, however, continued to officiate as AEN on ad hoc basis subject to their qualifying for the regular post of AEN after passing the Limited Departmental Examination of DMRC. It has also been clarified that applicants’ promotion in their parent department as Assistant Engineer vide order dated 11.01.2013 was purely on in-situ basis and not on substantive basis and, therefore, the same has not been considered. Subsequently, the services of the applicants as AEN were regularised with effect from 08.06.2014.

The records reveal that Limited Departmental Competitive Examinations were regularly held by the respondents vide Notice dated 24.01.2012, 23.07.2013, 06.04.2016 and thereafter. Applicants have, however, failed to submit whether they appeared and qualified any LDCE. Vide Office Order No.PP/1564/2013 issued on 15.02.2013, the rules were revised by the respondents on Cadre formation/absorption/promotion/seniority etc. In terms of these rules, the absorption of a deputationist shall be given in the grade, “in which one is working in DMRC, provided this grade is not more than one grade higher than his/her substantive grade in parent department”. It is also laid down that no non-Executive of other department can be inducted at AM level in DMRC until he passes the LDCE of parent department or of DMRC. The applicants claim that they have not been absorbed as Assistant Engineer and, therefore, not considered for promotion to the post of Executive Engineer as their service as Assistant Engineer has not been taken into account with effect from 06.09.2007. This position has been clarified vide the impugned orders under challenge dated 11.05.2015 and 02.07.2015. The provisions of the policy issued by the respondents have been quoted and the position with regard to their promotion on in-situ basis in their parent department has also been clarified.

The applicants in the O.A. have sought to compare their services with those of the contractual staff who have been regularized and granted the scales whereas the applicants have been denied the same. Although this challenge is not part of the main relief sought, it was reiterated by the respondents that rule for absorption of deputationists and appointment of contractual employees and their subsequent regularization are part of separate rules and cannot be challenged by the applicants. It is observed from the Compendium of the Rules of DMRC that there is a provision for engagement of contractual staff in Executive grades and they are governed by different set of rules issued from time to time for their regularization, probation period and confirmation. The very fact that the contractual staff being compared by the applicants was recruited in Executive category and are governed by separate set of rules, does not make the claim of the applicants vis-à-vis comparison tenable.

It is evident that the applicants were holding the post of Junior Engineers as substantive post in the parent department when they joined DMRC on deputation basis. On 14.02.2013 they were promoted purely on in-situ basis in their parent department as AEN. The policy provisions existing in DMRC clearly indicate that the services can only be regularized by granting one higher grade and that is what has been done by regularizing them in DMRC as SSE. However, the respondents have continued to provide them the added advantage of holding the post of AEN on ad hoc basis in order to avoid any financial loss. The promotion on in-situ basis has been rightly rejected. The promotion to the post of AEN in DMRC is subject to qualifying the LDCE. LDCEs have been held regularly, however, there is no record of applicants having cleared the same. Be that as it may, in the interregnum the services of the applicants have been regularized as AEN w.e.f. 08.06.2014. Not only that, both the applicants have been promoted to the post of XEN w.e.f. 08.06.2019 and 19.06.2019.

From the above facts and circumstances, the claim of the applicants seeking consideration of their services as Assistant Engineers since 06.09.2007 cannot be sustained. There is no infirmity or illegality in the impugned orders dated 11.05.2015 and 02.07.2015 issued by the respondents in response to the representations made by the applicants. It is also a fact that the applicants have already been regularized as AEN and thereafter promoted to the post of XEN.

In view of above, we are of the view that the O.A. is devoid of merits and the same is accordingly dismissed. No costs.