GOVT. OF NCT OF DELHI v. RAJ KUMAR

1. The GNCTD has preferred these writ petitions to assail the common order passed by the Central Administrative Tribunal,Principal Bench,New Delhi(CAT/ Tribunal)in O.A.No.2194/2010(preferred by the respondent Roop Ram Meena in W.P. (C.) No. 8191/2018); O.A. No. 1084/2011 (preferred by the respondent Sunil Kumar in W.P.(C.)No.7154/2018),and; O.A. No. 4767/2010 (preferred by the respondent Raj Kumar in W.P.(C.) No.7107/2018). The tribunal has allowed the said O.As and passed the following directions: "(i) The respondents to grant the benefit ofseniority to the applicantsfrom the dates oftheir initialad hocpromotions, i.e., w.e.f. 08.12.1997 in case of applicant of OA No.2194/2010, w.e.f. 30.12.1997in case ofapplicant ofOA No.1084/2011 and w.e.f. 04.04.1997in case ofapplicantofOA No.2767/2010. (a) The impugned tentative seniority list dated 04.12.2002, amended tentative seniority list dated 21.07.2009 and thefinal seniority list dated 05.03.2010 are hereby quashed to the extent the applicants have been allocated seniorityfrom the date of their regularpromotion to thepostofPGTw.e.f. 14.07.2000. (Hi) The respondents are directed to fix seniority of applicants in OA Nos.2194/2010, 1084/2011 &2767/2010from the dates oftheir initial ad hoc promotions, i.e., 08.12.1997, 30.12.1997and04.04.1997respectively.

(iv) As a consequence of the changed position of their seniority, applicants shall be consideredfor theirpromotion to the post of Vice Principal taking into consideration their refixedseniority. Review DPC be heldfor thispurpose within the period oftwo months. JT found fit by Review DPC, the applicants shall be promoted to thepostofVice Principal. The applicantsshall not be entitled to any arrears on the promotional post of Vice Principalfrom such retrospective promotions. However, their salary shall be fixed giving them the benefit of such retrospective promotions. The actual financial benefit of promotion would befrom the date, promotions are made and the incumbentsjoined their promotionalpost. No order as to costs".

2. The respondents were initially appointed as Trained Graduate Teacher (TOT). They were granted ad-hoc promotion to the post ofPost Graduate Teacher (PGT) on different dates, taken note of by the tribunal in the impugned order. There is no dispute that on the date oftheir respective adhoc promotions as PGT,they were eligible for promotion to the said post; there were sanctioned posts available for PGT, and; there was no impedimentin theregular promotion ofthe respondents asPGT.

3. The promotion order in respect ofeach ofthe respondents contained the following stipulation: "77/e promotion of all teachers who have been assigned tentative seniority or have not been assigned seniority at all, will befullysubjectto assignmentoffinalseniorityin thefeeder cadre from which being promoted. In such cases the Dy. Director ofEducations may verify their date ofappointment as TGTfrom the service book before any offer ofpromotion is made. These promotions have been given on the emergent basis,for the convenience ofthe students, promotees have been sent in accordance with the vacancies available district wise, so keeping in view the student's interestDistricts ofthepromotees willnot be changed".

4. The petitioner held the DPC for regularisation ofthe promotion ofthe respondents in the year 2000 and they were given regular promotion vide order dated 14.07.2000, on the recommendations of the DPC held on 30.06.2000.Thetentative seniority list ofPGTs(Male&Female)appointed, promoted and absorbed on regular basis between 01.04.1990 to 31.03.2001 was issued vide officer order dated 04.12.2002, wherein in respect ofthe respondents their names were shown in the panel corresponding to the date of their ad-hoc promotion, and the date of promotion was shown as 14.07.2000. The seniority ofthe respondent was fixed on the basis oftheir regular promotion with effectfrom 14.07.2000.

5. Unlike the case of the respondents, in respect of TGT who were similarly promoted on ad-hoc basis in the year 1996, upon their regular promotion on a later date,they were treated as regularly promoted from the dates when the vacancies were available in the year 1996 i.e.25.02.1996.

6. In this background,the respondent/ applicant in each ofthe aforesaid writ petition approached the tribunal. The tribunal,as aforesaid,has allowed the said OAs. The tribunal while allowing the OAs,takes note ofthe fact that it was notin dispute thatthe applicants were eligible at the time oftheir ad-hoc promotions,to be considered for promotion to the post ofPGT. It was also the admitted position that they were granted ad-hoc promotion against available vacancies. The petitioner had indicated in the promotion orders thatpromotion ofteachers who have been assigned tentative seniority or have not been assigned seniority at all, will be fully subjectto assignment offinal seniority in the feeder cadre from which they were promoted. The tribunal also takes note ofthe fact thatthere was no dispute that none ofthe promotees had been promoted on ad-hoc basis in contravention of the seniority in the feeder cadre and all the promotees have been regularised.

7. To hold that the respondents were entitled to reckon their seniority in the promotional post from the date of their ad-hoc promotion in the aforesaid factual background,thetribunal placed reliance on thejudgmentof the Supreme Court in The Direct Recruit Class-II Engineering Officers' Association and Ors. v. State ofMaharashtra & Ors., AIR 1990 SC 1607, ^ wherein one of the principles recognised by the Supreme Court was as follows: 'fA) Once an incumbent is appointed to apost according to rule, his seniority has to be counted from the date of his appointmentand notaccording to the date ofhisconfirmation".

8. The tribunal also held the conduct of the respondents to be discriminatory in relation to the respondent/ applicants, viz-a-viz the ad-hoc promotees of 1996 who were given seniority retrospectively while regularising their promotion. Pertinently, they had been given seniority from the date of the vacancies i.e. from dates even prior to their adhoc promotions. However,in the case ofthe respondent/ applicants, they were being denied regular promotion even from the date of their ad-hoc promotions.

9. The submission ofMs.Ahlawat is that the exercise that the petitioner has been required to undertake would leave all other similarly situated promotees at a disadvantage inasmuch,as,the petitioners would rank senior even to those who were senior to them in the feeder cadre. I

10. We cannot accept this submission. It is for the petitioner to treat all the TGTs who were promoted like the respondent/ applicant on the same footing. The tribunal has not determined the inter se seniority of the respondent/ applicant viz-a-viz others similarly situated. All that the tribunal has directed is that the promotion of the respondents to the post of TGT should be reckoned from the date of their ad-hoc promotion in the factual background taken note ofherein above.

11. The further submission of Ms. Ahlawat is that since the ad-hoc promotions were granted strictly in terms ofseniority in the feeder cadre,the exercise would be one in futility.

12. We cannot accept this submission either. If the respondents are entitled to reckon their seniority in the TGT from the date oftheir ad-hoc promotion, since they were eligible for promotion on the said date and vacancies were also available,there is no reason to deny them that relief. If the submission ofthe petitioner is correct, then we fail to appreciate as to why the petitioner has preferred these petitions in the first place.

13. For the aforesaid reasons, we find no merit in these petitions. The same are,accordingly,dismissed.

VIPIN SANGHI,J 11k A.K.CHAWLA,J NOVEMBER 01,2018 sr