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Cites 5 docs
Suraj Bhan Meena & Anr vs State Of Rajasthan & Ors on 7 December, 2010
M. Nagaraj & Others vs Union Of India & Others on 19 October, 2006
K Ajit Babu And Others vs Union Of India And Others on 25 July, 1997
Union Of India & Others vs Gopal Singh & Others on 1 October, 2010
M.A. Khalsa vs Union Of India (Uoi) And Ors. on 7 September, 1987

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Central Administrative Tribunal - Delhi
Shri Bengali Babu & Ors vs Director (Local Bodies) & Ors on 18 October, 2012
      

  

  

 CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH : NEW DELHI

M.A. NO. 2412/2012
IN
O.A. NO.2449/2012

New Delhi, this the  18th day of October, 2012

CORAM:	HONBLE  DR. VEENA CHHOTRAY, MEMBER (A)
		HONBLE DR. DHARAM PAUL SHARMA, MEMBER (J)

Shri Bengali Babu & Ors				   .	                   Applicants
(By Advocate:  Shri M.K. Bhardwaj)

Versus

Director (Local Bodies) & Ors			  .	                 Respondents
(By Advocate: Shri Rajeev Sharma and Shri Arun Bhardwaj)

O R D E R

By Dr. Veena Chhotray:

MA 2412/2012 has been filed by Shri N.C. Meena, the Pvt. Respondent in the OA 2449/2012. Through this MA the maintainability of the OA has been challenged with a prayer for its dismissal at the initial stage itself.

The MA is being disposed after considering the written reply filed by the original applicant and hearing the counsels on all sides. Shri Rajeev Sharma, learned counsel would argue in support of the MA; Shri M.K. Bhardwaj, the learned counsel for the original applicant would oppose the same. Shri Arun Bhardwaj, learned counsel would appear for the official respondent, the MCD.

2. Both the applicants of the instant OA are Assistant Engineers in the MCD. They are challenging the act of the Respondents in giving benefit of reservation in the matter of promotion and fixation of seniority in the Grade of Executive Engineer. The impugned order dated 11.4.2012 (Annex A/2) calling for requisite information in order to hold a review DPC for promotion to the post of Executive Engineer is also under challenge. The steps for the review DPC are stated to be taken in compliance of the Tribunals Order dated 28.09.2010 in OA No.2605/2009 (N.C. Meena vs MCD & Ors). As per the applicants, this action of the respondents is by ignoring the law laid down by the Honble Supreme Court in the cases of M. Nagaraj Vs Union of India {(2006) 8 SCC 212} and Suraj Bhan Meena & Anr vs State of Rajasthan & Ors {(2011) 1 SCC 467}. The OA seeks the following reliefs:-

(a) To declare the action of respondents in initiating process for holding review DPC vide impugned letter dated 11.04.2012 just to give reservation in the matter of promotion as illegal, arbitrary and unconstitutional.

(b) To declare that order dated 28.09.10 passed by Honble Tribunal in OA No.2605/2009 is not binding being contrary to law laid down by the Honble Supreme Court in the case of M. Nagraj vs UOI or set aside the same being contrary to law laid down in the same case.

(c) To direct the respondents not to hold review DPC of the earlier years i.e. years prior to your2009 to give benefit of reservation in promotion in the grade of EE (Civil).

(d) To direct the respondents for refixing/lowering the seniority position of the SC/ST candidates giving consideration to the fact that there is no reservation in promotion and no consequential seniority thereof in view of decision in M. Nagaraj case.

3. While dealing the issue of maintainability of the OA, the first and foremost point that has arisen for our consideration is the competence of a Division Bench of this Tribunal to consider and set aside the decision of a Coordinate Bench. This refers to the relief as per clause 8 (b). Shri Rajeev Sharma, the learned counsel for the MA would contend about the same not being within the competence of this Bench and hence the OA not being maintainable. However, Shri M.K. Bhardwaj, the learned counsel for the original applicants would submit that since the applicants had not been impleaded in the OA No. 2605/2009 (N.C. Meenas case) and their service interests had been prejudiced by the order in that OA; they could now seek redressal of their grievances by filing an application before the Tribunal under Section 19 of the AT Act. As per the learned counsel, this was the appropriate methodology in accordance with the law laid down by the Honble Apex Court in K. Ajit Babu & Others vs Union of India & Ors {1998 (1) SC 85}.

4. Another argument put forward in support of the MA is that proceeding further in the instant OA would tantamount to the Tribunals sitting in judgment over the decisions/directions by the Honble Delhi High Court. It would be submitted that relief in N.C. Meenas case had been granted by relying on the Honble Delhi High Courts judgment in Writ Petition (Civil) No.356/2008 in Union of India & Ors vs Shri Gopal Meena & Ors decided on 23.4.2009. Adverting to the submissions in the reply to para 4 in response to the MA, Shri Rajeev Sharma, the learned counsel would contend that the Tribunal could not be prayed to declare a particular decision of the High Court as per incuriam. A related plea has also been taken in the MA that the original DPC in this case had been convened in compliance of the orders of the Delhi High Court dated 22.3.2007 in the Writ Petition No.12134/2006. Consideration of the prayer in the present OA is averred to be amounting to non-compliance of the orders dated 22.3.2007 and 23.4.2009 of the Honble Delhi High Court.

As per the learned counsel, Shri Rajeev Sharma, the instant OA was not challenging the original DPC convened in July-August, 2008. Without the challenge to original DPC, a challenge to the proposed review DPC would be averred to be against the settled law on the subject.

Both these contentions, however, have been sought to be rebutted in the reply filed on behalf of the original applicants. It is submitted that the Writ Petition No.12134/2006 had dealt with altogether a different issue and the DPC convened by the MCD in 2008 in compliance of the Honble Delhi High Courts directions vide its order dated 22.3.2007 was a regular DPC. Besides, it did not involve the issue presently under contention regarding a separate zone of consideration for SC/ST candidates. Thus, according to the original applicants, by making such pleas the private respondent is only trying to mislead the Tribunal.

5. There have been arguments and counter arguments as regards the law on the subject. The plea taken in the OA is that by convening the proposed review DPC, the respondents are ignoring the law laid down by the Honble Apex Court in N. Nagaraj vs Union of India besides Suraj Bhan Meena vs State of Rajasthan and the latest decision in U.P. Power Corporation - that about the benefit of reservation not being extendable in the matters of promotion automatically and the same being subject to certain preconditions.

However, the stand in the MA is that the Apex Courts Judgment in N. Nagarajs case was essentially in respect of the OBCs and not for the SC/STs. Shri Rajeev Sharma, the learned counsel would also submit that in any case there were vacancies prior to the year 2006 when the decision in N. Nagaraj took place.

6. It would also be argued by the learned counsel, Shri Sharma that the OA had been making factually incorrect averments. Para 4.4 of the OA would be adverted to. Besides, the MA avers about neither of the applicants coming within the zone of consideration as per their position in the Seniority List and accordingly the present OA not being maintainable.

7. No separate reply to the MA has been filed on behalf of the MCD. However, in its short reply to the OA itself they have explained the background of the various decisions and the context under which the original DPC was held in 2008. As per the official respondents, they should be allowed to go ahead with the convening of the review DPC in compliance of the Tribunals order in the OA No.2606/2009 (N.C. Meena vs MCD & Ors). A prayer for vacation of the interim direction restraining the respondents from convening the review DPC has also been made.

8. We have carefully considered the respective submissions and the material on record. The limited issue for our consideration at this stage is whether the OA deserves dismissal right at the threshold as being non-maintainable in law. Viewed from this limited perspective, many of the arguments and cross-arguments being advanced on both the sides are not really relevant to the core issue.

8.1 As per the applicants, the Tribunals Order dated 28.9.2010 in the OA 2605/2009 has adversely affected their promotional prospects as Ex. Engineer. Further as they had not been impleaded in the aforesaid OA, they have a right for approaching the Tribunal for redressal of their grievances, under its original jurisdiction in Section 19 of the Act.

The issue had come in for consideration of the Honble Apex Court in its judgment in K. Ajit Babus case (supra). In this case, the Honble Apex Court had been seized with the fact that in service matters decisions may not really be in personam, as they affect others too so it may be in rem. While distinguishing the limited scope of review jurisdiction of the Tribunal, it was held that persons affected by decisions of CAT in which they were not a party can file an application under Section 19 of the Act).

The view taken by the Tribunal in that case that the only remedy available to the affected persons is to file a review of the judgment and a fresh application under Section 10 of the AT Act had not found favour with the Honble Apex Court.

In Ajit Babus case also the Tribunal had rejected the application filed under Section 19 of the AT Act merely on the ground that the applicant was seeking setting aside of the judgment rendered by the CAT (Ahmedabad Bench) in an earlier case. As per the Honble Apex Court, such a view of the Tribunal was erroneous. Further it was held that the application filed now should have been dealt with in accordance with law, despite the same making a claim contrary to an earlier decision of the Tribunal.

Emphasizing the doctrine of precedent and the benefits of consistency, certainty and uniformity accruing in the field of judicial decisions by observance of the detailed methodology of in accordance with law had also been elaborated. The relevant extracts from Para-6 of the Order are reproduced as here under:

Whenever an application under Section 19 of the Act is filed and the question involved in the said application stands concluded by some earlier decision of the Tribunal, the Tribunal necessarily has to take into account the judgment rendered in earlier case, as a precedent and decide the application accordingly. The Tribunal may either agree with the view taken in the earlier judgment or its may dissent. If it dissents, then the matter can be referred to a larger bench/full bench and place the matter before the Chairman for constituting a larger bench so that there may be no conflict upon the two Benches. The larger Bench, then, has to consider the correctness of earlier decision in disposing of the later application. The larger Bench can over-rule the view taken in the earlier judgment and declare the law, which would be binding on all the Benches (see Jhon Lucas (supra). In the present case, what we find is that the tribunal rejected the application of the appellants thinking that appellants are seeking setting aside of the decision of the tribunal in Transfer Application No.263 of 1986. This view taken by the Tribunal was not correct. The application of the appellant was required to be decided in accordance with law. Thus, applying the law as laid by the Honble Apex Court in Ajit Babus case, the relief prayed for in Clause 8 (b) of the OA would not post pose an impediment in the maintainability of the OA.

8.3 The other strand of legal argument about proceeding with this OA would amount to non-compliance of the orders of the Honble Delhi High Court either in the earlier Writ Petition No.12134/2006 or Sri Gopal Meenas case, would also be virtually prejudging the issues. We are also of the view that referring to the law on the subject also cannot be the issue for our consideration at the initial stage itself.

8.4 The other grounds raised such as non-challenge to the original DPC; alleged factually incorrect averments; the averment of the applicants not being within the consideration zone  are issues that would require to be appropriately dealt with while dealing the OA on merit.

8.5 As regards the prayer for vacation of the interim directions restraining from convening the review DPC, even though the caption of the MA mentions this too, however, this is not the specific prayer in the MA. This is not also the thrust in the MA as argued before us. Hence we have refrained from dealing with this aspect while confining ourselves to the issue of maintainability of the OA. This, of course, is to be considered separately as we proceed with the OA.

9. To conclude, after a careful consideration of the various contentions raised, we are of the view that the instant OA does not deserve to be dismissed at the threshold as non-maintainable; on the other hand as per the law laid by the Honble Apex Court in Ajit Babus case. The MA 2412/2012 is accordingly dismissed as devoid of merit. The respondents, both official and private are directed to file detailed counter affidavit in the OA for dealing with the issues raised in the OA on merit and in accordance with law.

(Dr. Dharam Paul Sharma)			            (Dr. Veena Chhotray)
            Member (J)						           Member (A)

/pkr/