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2006 DIGILAW 818 (DEL)

YOGENDER SINGH v. GOVT. OF NCT OF DELHI

2006-05-01

MUKUL MUDGAL, P.K.BHASIN

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P. K. BHASIN, J. ( 1 ) THE petitioners joined the Delhi Administration Subordinate Service (DASS) in early eighties on ad-hoc basis but later on in 1997 as a result of legal battle they were regularised from the dates of their initial appointment. There were four Grades in DASS, Grade I, Grade II, Grade III and Grade IV. Before 1972 the employees of the Development department, who were holding ex- cadre non-gazetted technical posts of Horticulture Asstt. , Extension officers (Agriculture) SDA etc. were not eligible for being promoted to Grade-I of DASS but in May, 1972 those posts were also included in the feeder line for promotion to Grade-I of DASS cadre by way of amendment in Rule 6 of the Delhi administration Subordinate Service Rules. After the inclusion of these ex-cadre posts in the feeder channel for promotion to Grade-I of DASS some officials from the Development Department holding such ex-cadre technical posts were promoted to Grade-I during the period from 1972 to 1992. ( 2 ) THE amendment in Rule 6 in 1972 and promotions to Grade-I of DASS of the employees of Development Department from 1972 to 1992 do not appear to have been challenged by any other category of employees of DASS including those employed in the Development Department during that long period. ( 3 ) EVEN though the petitioners were regularized in 1997 and on completion of five years of regular service from 1984 they became eligible to be promoted to Grade I as per the Rule 6 (as amended in 1972) but they were not considered for promotion because in the meantime vide notification dated 2. 11. 1992 the Government had excluded the ex-cadre posts of Horticulture Asstt. etc. in the Development Department from the feeder channel for promotion to grade-I in DASS. Representations were made by the petitioners for their promotion to Grade-I of DASS wherein they challenged the validity of the said notification dated 2. 11. 1992. It appears that by that time only 19 employees including the present 17 petitioners were left in the Development Department and the Government had stopped fresh recruitments in the Development Department and considering the fact that the Development Department was going to be wound up and in order to secure the future of the 19 employees left in that Department the government vide order dated 2. 6. 6. 2000 reverted those 19 employees including the present petitioners back to the position which existed for them prior to the issuance of the above referred notification dated 2. 11. 1992 whereby the ex-cadre posts of the development department occupied by them were excluded from the feeder channel for promotion to Grade-I of DASS. Later a notification dated 21/01/2002 was also issued to the same effect specifying that 19 employees of development department holding ex-cadre posts of Horticulture Assistants etc. would be promoted as Grade-I DASS from the dates they became eligible. ( 4 ) THIS time, however, one Federation of employees of Delhi Administration and one employee of Development Department working as an Extension officer (Agriculture) who also claimed to be similarly situated as the petitioners herein, challenged the aforesaid order dated 2. 6. 2000 and notification dated 21/01/2002 before the Central Administrative Tribunal, New delhi (for short ?the tribunal ). Finally the two petitions filed by the federation and employee Jai Parkash were allowed by the Tribunal vide common order dated 19. 9. 2003. Aggrieved by that order the petitioners filed two separate writ petitions alongwith applications for staying the operation of the impugned order dated 19/09/93. ( 5 ) AS a consequence of the Tribunal quashing the order dated 2/6/2000 and notification dated 21/02/2002 the government passed a reversion order on 6. 9. 2004 in respect of the 19 concerned employees of the Development Department including the petitioners herein. Feeling aggrieved with that order, the petitioners filed a petition before the Tribunal (being OA No. 2973/04) and during the hearing of that petition the Tribunal passed the following order on 14. 12. 2004:-"by way of interim orders, operations of Annexure A-24 dated 6. 9. 2004 is stayed till the next date of hearing when the prayer for interim relief shall be heard. Till then, applicants shall be allowed to function in Grade-I DASS. " ( 6 ) HOWEVER, the Tribunal finally dismissed the petition of the petitioners vide its impugned order dated 18. 2. 2005 primarily on the ground that since the petitioners had not earlier challenged the Government s notification dated 2. 11. 1992 when the posts which they were holding in the development department had been excluded from the feeder channel for promotion to Grade-I DASS they could not now be permitted to contend that the ex-cadre posts of Horticulture asstts. etc. 2005 primarily on the ground that since the petitioners had not earlier challenged the Government s notification dated 2. 11. 1992 when the posts which they were holding in the development department had been excluded from the feeder channel for promotion to Grade-I DASS they could not now be permitted to contend that the ex-cadre posts of Horticulture asstts. etc. in development department could not have been so excluded from the feeder channel. ( 7 ) FEELING aggrieved, the petitioners filed another writ petition when the government initiated the process for promotion to Grade-I of the officials of organized cadre of DASS. The petitioners also filed an application for staying that process and not to fill up the posts occupied by them in Grade-I and also to allow them to continue to work in Grade-I. During the hearing of those applications the respondents informed this court that 19 posts had been kept aside for the employees of development department including the present petitioners for promotion to Grade-I. ( 8 ) ALL the applications for stay and directions were heard in all the writ petitions analogously and since all the matters raised common points all the applications are being disposed of by this common order. ( 9 ) MR. R. K. Anand, learned senior counsel for the petitioners contended that during the pendency of the matter before the Tribunal the petitioners had been permitted to work as Grade-I employees and earlier also employees of the development department had been promoted to Grade-I of DASS after they had been included in the feeder channel for promotion to Grade-I of DASS. Mr. Anand further submitted that the fate of the petitioners regarding their promotion to grade-I had all along being uncertain because of the various notifications/orders issued by the respondents whereby at one time they were included in the feeder channel for promotion to Grade-I and later on excluded from that feeder line and since it was initially the Government s own decision to make them eligible for promotion to Grade-I they should be permitted to continue to work as Grade-I officers as had been done by the Tribunal vide its order dated 14. 12. 2004, referred to already. 12. 2004, referred to already. ( 10 ) IT was also contended that in case the petitioners are reverted back from the gazetted posts of Grade I to their earlier cadre where they were holding non-gazetted posts it would be humiliating for them and they would suffer irreparable harm and injury which cannot be compensated in terms of money and as far as the member-employees of Delhi Administration Employees Federation are concerned they would suffer no harm since they were not even born in the cadre on 2. 11. 1992 when the petitioners were excluded from the feeder channel for Grade-I of DASS. ( 11 ) ON the other hand, it was contended by Sh. A. S. Chandhiok, learned senior counsel for the respondents that since the petitioners already stand reverted and relieved from Grade-I posts which had occupied pursuant to the notification dated 21. 1. 2002 which now stand quashed by the Tribunal and the fact that the government has already kept 19 Grade-I posts vacant for the petitioners in the event of their succeeding in this court, no further directions need to be passed in the matter and they should not be permitted to work as Grade-I employees. Mr. Chandhihok also cited one judgment reported in 1962 (Supp.) SCC 144 another rendered in Civil Appeal No. 3595-3612/99 on 10/04/06. ( 12 ) REGARDING the stand of the respondents that the petitioners stood relieved of Grade-I posts the plea of the petitioners, is that despite those orders which actually were never served on them, on 14. 12. 2004 the Tribunal had permitted them to continue working as Grade-I officers. ( 13 ) WE have given our thoughtful consideration to all the aspects of the matter and have come to the conclusion that, prima facie, the prayer made by the petitioners for allowing them to continue to work as Grade-I officers in DASS is justified. It was because of the government s decision taken way back in november, 1972 that the ex-cadre posts of development department to which the petitioners belong were included in the feeder channel for promotion to Grade-I in DASS At that time no challenge was made to that amendment in the Rules. The petitioners were promoted also to Grade-I by Government s decision only. In these circumstances, we agree with the submission made on behalf of the petitioners by Mr. The petitioners were promoted also to Grade-I by Government s decision only. In these circumstances, we agree with the submission made on behalf of the petitioners by Mr. Anand that in case now they are asked to work on non-gazetted posts they would be put to unnecessary humiliation for no fault of theirs and simply keeping 19 posts reserved for them will not serve any good purpose. Consequently, we direct that the petitioners would be allowed to continue to work as Grade-I Officers in DASS during the pendency of these writ petitions and in case they are not being allowed to work in Grade-I the Government would pass necessary orders of their posting within a month from today. Various CMs stand disposed of accordingly. It is needless to state that ultimate fate of the petitioners would depend upon the final outcome in their writ petitions and in fact during one of the hearings it had been submitted on their behalf by their counsel that they would have no objection to being reverted back in case they do not succeed here. .