Full Text
HIGH COURT OF DELHI
Date of Decision: 17th October, 2023
JUDGMENT
(9) + W.P.(C) 5597/2015 & CM Appls. 10062/2015, 48228/2018 UNION OF INDIA & ORS..... Petitioners Through: Mr. Rajeev Sharma, Sr. Adv. with Ms. Radha Lakshmi R., Mr. Saket Chandra, Mr. Sahil Bhalaik, Mr. Siddharth Anil Khanna, Mr. Uddyam Mukherjee and Mr. Swapnil Pattnayak, Advs. for UOI versus RISHI RAJ & ORS...... Respondents Through: Mr. M.K. Bhardwaj, Mrs. Priyanka
Mr. Mana Mugesh Kannan H., Advs. Mr. Manish K. Bishnoi, Mr. Nirmal Prasad, Ms. Palavi Singh and Mr. Hitesh Lodwal, Advs. Mr. Harshit Anand, Adv. for Mr. Shadan Farasat, ASC (GNCTD) for R-1 to 8, 11, 13 and 17 AND (10) + W.P.(C) 10215/2015 & CM Appls. 25305/2015, 25308/2015, 13408/2016 W.P.(C)5597/2015 and connected matters Page 2 JAGAT SINGH & ORS..... Respondents Through: Mr. Harshit Anand, Adv. for AND (11)+ W.P.(C) 10218/2015 & CM APPL. 25318/2015 ASSOCIATION OF RADIO & TELEVISION ENGINEERING EMPLOYEES & ORS..... Respondents Through Mr. Manish K. Bishnoi, Mr. Nirmal Prasad, Ms. Palavi Singh and Mr. Hitesh Lodwal, Advs. Mr. D.P. Sharma, Adv. for R-2 W.P.(C)5597/2015 and connected matters Page 3 Mr. Harshit Anand, Adv. for AND (12)+ W.P.(C) 8735/2019 & CM APPL. 41238/2022 HOOBRAJ SINGH THAKUR & ORS...... Petitioners Through: Dr. Ashwani Bhardwaj, Adv.
VERSUS
AJAY MITTAL & ORS...... Respondents Through: Mr. Harshit Anand, Adv. for Mr. Jitesh Vikram Srivastava, Sr. Panel Counsel with Mr. P.V. Srivastava, Adv. for UOI with Mr. Jitendra Kumar Tripathi, GP CORAM: HON'BLE MR.
JUSTICE V. KAMESWAR RAO HON’BLE MR.
JUSTICE ANOOP KUMAR MENDIRATTA
V. KAMESWAR RAO, J. (ORAL)
1. These four petitions have been filed by the petitioners namely Union of India and others in [W.P.(C) Nos.5597/2015, 10215/2015 & 10218/2015] and Hoobraj Singh Thakur & Ors. in [W.P.(C) No.8735/2019]. The Union of India and others have challenged the order dated April 03, 2014 in OA 1949/2012, order dated September 26, 2014 in OA 3474/2014 and order dated October 10, 2014 in OA NO. 3607/2014 (‘OAs’, for short). Whereas, Hoobraj Singh Thakur and W.P.(C)5597/2015 and connected matters Page 4 others have challenged the judgment and order dated January 18, 2019 in C.P. No. 390/2017 in OA 3394/2016.
2. The challenge by the Union of India in the aforesaid three writ petitions being W.P.(C) Nos.5597/2015, 10215/2015 & 10218/2015 is primarily with regard to the grant of scale of ₹4500-7000/- as a first financial upgradation, which is the scale of Technician, to the respondents in the said writ petitions. The writ petition being W.P.(C) No.8735/2019 has been filed by Hoobraj Singh Thakur and others, challenging the dismissal of the contempt petition being C.P. No.390/2017, by the Tribunal which was filed on the ground that the respondents in the said writ petition have violated the order of the Tribunal dated October 04, 2016, passed in O.A. 3394/2016 in favour of Hoobraj Singh Thakur and others.
3. The brief facts in writ petitions being W.P.(C) Nos.5597/2015, 10215/2015 & 10218/2015 are, that the respondents herein had approached the Tribunal by stating that they work as Helpers in the Prasar Bharti (Doordarshan / All India Radio) and as such entitled to first financial upgradation under the ACP Scheme in the pay scale of ₹4500-7000/-, which is the scale of Technician and not in the pay scale of ₹3050-5490/-, which is the pay scale of LDC, which has been granted by the petitioners herein to them. The Tribunal has allowed the OAs by inter-alia holding that as per the Recruitment Rules of the post of LDC as well as the post of Technician, the Helpers are eligible to compete for promotion in limited departmental examination for both the posts i.e., LDC as well as Technician but the post of LDC is not exclusively meant for Helpers and it is open to all Group-D staff. On W.P.(C)5597/2015 and connected matters Page 5 the other hand, the post of Technician is not open under promotion quota to all Group-D staff, but only for Helpers. By holding so, the Tribunal rejected the contention of the petitioners herein that the post of Technician is not a hierarchical post of Helper. This ratio of the Tribunal as laid down in O.A. No. 1949/2012 is the subject matter of challenge in W.P.(C) No. 5597/2015, which is the lead matter before us, inasmuch as the order passed by the Tribunal in the aforesaid O.A. has been followed by the Tribunal in O.A. being 3474/2014 and 3607/2014 which are the subject matter of challenge in the other two writ petitions being W.P.(C) 10215/2015 and 10218/2015. The relevant paragraphs being 3.2, 3.[3] and 4 of the order dated April 03,2014, passed in O.A. 1949/2012 is reproduced as under:- “3.[2] We are conscious of the fact that AGP Scheme has been introduced to do away with stagnation, which may result on account of non-availability of promotional posts. One of the conditions for grant of ACP benefit is that the person being given this benefit is otherwise eligible for promotion. In the instant case we notice that while the benefit of financial upgradation under the ACP Scheme is to be given after 12 years, the requirement of promotion to the grade of Technician is 11 years of service. Thus, any helper being granted ACP benefit after 121 years of service would also have requisite service for promotion to the post of Technician. From this angle also, there is no hindrance in granting Technician’s grade as ACP. 3.[3] The applicants have also prayed that the respondents be directed to designate them as Broadcast Assistants and give oil consequential benefits from the due date. They have stated that a Cadre Review Committee had acknowledged the fact that promotional prospects of helper were very bad and had recommended that this post be re-designated as Broadcast W.P.(C)5597/2015 and connected matters Page 6 Assistant with PB-I with grade pay of Rs.2800. However, the respondents have not implemented, this recommendation so far. In reply the respondents have stated that the recommendations of Cadre Review Committee have still not been accepted by the department. Under these circumstances, it would suffice for us to direct the department to take appropriate decision in the matter expeditiously.
4. On the basis of above analysis, we allow this O.A. and direct the respondents to grant the scale of Technician i.e. ₹4500-7000/- to the applicants from the due date. This will be done within a period of eight weeks from the date of receipt of a certified copy of this order. The applicants will also be entitled for grant of arrears as a result of re-fixation of their pay. The respondents are also directed to take a decision on the recommendations of cadre review Committee expeditiously, in so far as the applicants are concerned. No costs.”
4. Since a common issue arises in all the writ petitions, we have already given the facts above, which are relevant to decide the said issue.
5. Mr. Rajeev Sharma, learned Senior Counsel appearing for the petitioners in writ petitions being W.P.(C) Nos.5597/2015, 10215/2015 & 10218/2015 would submit that the Tribunal has erroneously passed the order directing the petitioners to grant ACP benefits to the respondents on the basis of a promotional pay scale applicable to a selection post as against the pay scale applicable to the post to be filled by seniority. According to him, there is an apparent error on the face of the order of the Tribunal, inasmuch as, where two promotional avenues are available from a post, the next post in hierarchy would be the one to which the promotion can be claimed as a matter of right based on W.P.(C)5597/2015 and connected matters Page 7 seniority and not the scale attached to a post to which promotion can be claimed only by clearance of an examination.
6. He submits that the Tribunal has not considered the fact that giving an upgradation to the pay scale of Technician to Helpers under the ACP Scheme is in fact against the terms of the ACP Scheme, which contemplates financial upgradation to the next post in hierarchy. The post of Technician is not the next post in hierarchy for a Helper but is in fact several posts higher. The next post in hierarchy for a Helper is the post of LDC since Helpers are eligible to be promoted to the post of LDC in regular course without clearing any examination as per the Recruitment Rules. He has also relied upon the instructions issued by the DoPT on July 18, 2001, which makes it clear that if for promotion an additional qualification is required, the same would have to be met even for consideration for grant of ACP benefit. He submits, the order of the Tribunal, directing grant of ACP benefit to the respondents even when they have not appeared and cleared the examination, is untenable. In support of his submissions, Mr. Sharma has drawn our attention to the Rules governing the promotion to the post of LDC and also Technician. He has also drawn our attention to the Office Memorandum dated February 10, 2000 of the DoPT.
7. On the other hand, Mr. M.K. Bhardwaj, Advocate, Mr. Harshit Anand, Advocate and Mr. Manish K. Bishnoi, Advocate, appearing for the respondents herein in support of their contentions would reiterate the submissions as were advanced before the Tribunal, inasmuch as the post of LDC though, filled on seniority basis but that is with regard to the persons holding Group-D post and in that sense it is not only W.P.(C)5597/2015 and connected matters Page 8 confined to Helpers but persons working on other Group-D post. However, insofar as the Rules governing the post of Technician is concerned, the same is filled through the process of promotion, which is confined to Helpers only.
8. That apart, they have also relied upon the judgment of the Supreme Court in the case of Amresh Kumar Singh and Ors. v. The Sate of Bihar and Ors., MANU/SC/0462/2023, wherein the Supreme Court has clearly held that the purpose of grant of ACP is only to remove stagnation and as such the law being no more res-integra, the order of the Tribunal need to be upheld.
9. Having heard the learned counsel for the parties, we agree with the submissions made by Mr. Bhardwaj, Mr. Bishnoi and Mr. Anand, more specifically in view of the Rules stipulated for the post of LDC and Technician, which we reproduce as under, perusal of which reveal that the post of LDC has a larger zone of consideration, wherein, any employee working in Group-D is eligible for promotion to the said post. “RECRUITMENT RULES FOR THE POST OF LDC W.P.(C)5597/2015 and connected matters Page 9 RECRUITMENT RULES FOR THE POST OF TECHNICIAN W.P.(C)5597/2015 and connected matters Page 10 ”
10. Insofar as, the post of Technician is concerned, the same is confined to Helpers and it is not the case of the petitioners that the respondents are not working as Helpers. If that be so, the petitioners shall be entitled to first financial upgradation to the scale of ₹4500- 7000/-, as has rightly been granted by the Tribunal.
11. We agree with the reliance placed by Mr. Bhardwaj, Mr. Bishnoi and Mr. Anand on the judgment of the Supreme Court in the case of Amresh Kumar Singh (supra) wherein the Supreme Court in paragraphs 14 to 17 has held as under.
12. In view of the above, we are of the view, that the orders of the Tribunal cannot be faulted and the petitions being without any merit, are dismissed.
13. Insofar as the writ petition being W.P.(C) No. 8735/2019 is concerned, as stated above, the same has been filed by the petitioners therein challenging the order of the Tribunal in C.P. No. 390/2017 in OA No.3394/2016. The contempt petition was filed alleging noncompliance of order dated October 04, 2016, passed by the Tribunal in OA 3394/2016 in favour of the petitioners therein. Vide order dated October 04, 2016, the Tribunal had in paragraphs 2 and 3 directed as under:- W.P.(C)5597/2015 and connected matters Page 12
14. In compliance with the order of the Tribunal dated October 04, 2016, the petitioners in the above three writ petitions being W.P.(C) Nos.5597/2015, 10215/2015 & 10218/2015 passed the speaking order, which forms part of the impugned order passed in CP 390/2017 and has been reproduced as under for ready reference:-
15. The submission of Dr. Ashwani Bhardwaj before the Tribunal was that, as the respondents herein have complied with the order of the Tribunal in OA No. 1949/2012, which became the subject matter of W.P.(C) No.5597/2015 i.e. Union of India and Ors. v. Rishi Raj (lead matter before us) and the order passed by the Tribunal in the aforesaid OA has not been stayed by this Court and also when the said order has already been implemented partially, the action of the respondents herein in not granting the same benefit to the petitioners herein is in violation of the order of the Tribunal.
16. Suffice to state, the Tribunal while closing the petition, has in paragraph 8, stated as under:-
17. It may be true that the Tribunal has said that the writ petition being W.P.(C) Nos.5597/2015, is pending consideration before this Court and the implementation of the remaining of the order passed by the Tribunal has been stayed by this Court, as we have dismissed the said writ petitions and, it is the conceded case that the petitioners herein are similarly placed like the respondents in the aforesaid three writ petitions, therefore, as corollary, they should also get the same benefit. We instead of relegating the petitioners herein to the Tribunal for filing fresh OA, allow, W.P.(C) 8735/2019 by setting aside the order dated January 18, 2019 and directing that the petitioners, in this writ petition, shall be entitled to same benefit, as the respondents in the three petitions have got.
18. As we have dismissed the writ petitions being W.P.(C) Nos.5597/2015, 10215/2015 & 10218/2015, the benefits arising from the order of the Tribunal passed in OA 1949/2012, dated April 03, 2014, if not been granted to the respondents in the aforesaid three writ petitions, the same shall be granted from the due date, in terms of the orders of the Tribunal. The benefits shall be released in terms of this order within three months from today. No costs. CM APPL. 48228/2018 in W.P.(C) 5597/2015 This is an application filed by some of the respondents seeking a direction to the petitioners herein to release the pension and other pensionary benefits of the respondents as per their last pay drawn. We say nothing on the prayer made, as the same doesn’t arise from the W.P.(C)5597/2015 and connected matters Page 17 issue, which arose for consideration before the Tribunal. If any grievance of the respondents subsists, they are within their rights to seek appropriate remedy. CM APPL. 25308/2015 in W.P.(C) 10215/2015 This is an application filed by the petitioners herein, to place certain additional documents on record. For the reasons stated in the application, the same is allowed. Application is disposed of. CM APPL. 10062/2015 in W.P.(C) 5597/2015 CM APPLs. 25305/2015 & 13408/2016 in W.P.(C) 10215/2015 CM APPL. 25318/2015 in W.P.(C) 10218/2015 CM APPL. 41238/2022 in W.P.(C) 8735/2019 Dismissed as infructuous.
V. KAMESWAR RAO, J
ANOOP KUMAR MENDIRATTA, J OCTOBER 17, 2023