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Judgment
A.K. Bishnoi, Member (A)
The instant OA has been filed by the applicants seeking the following reliefs:-
"(a) To hold and declare that the applicants are eligible and entitled for consideration of their promotions to HSG-I Cadre and to quash and set aside the impugned orders dated 7.1.2011 & 20.5.2011, (Annexure A/1 & A/2 respectively).
(b) To direct the respondents to hold review DPC to consider the applicants for promotion to HSG-I in accordance with provisions of R.Rs of 1976 and grant promotions w.e.f. the dates their juniors stood promoted and grant all consequential benefits to the applicants in a time bound manner, as if the impugned orders had not been passed.
(c) To pass such other order or further directions this Hon'ble Tribunal may deem fit in the interest of justice.
(d) To award to cost of this application to the applicants".
The background of the case is that the applicants had earlier filed OA No.3217/2011 which was disposed of vide order dated 03.05.2012 by this Tribunal, subsequent to which the respondents filed Writ Petition (Civil) No.1934/2013 before the Hon'ble High Court of Delhi stating that certain matters could not be pressed before the Tribunal at the time of arguments. The said Writ Petition was accordingly dismissed giving liberty to the respondents to file Review Application (RA) before this Tribunal.
Meanwhile, the applicants filed another OA No.3098/2012, which was disposed of by this Tribunal keeping in view the submission of the respondents that the applicants have been promoted from Higher Selection Grade (HSG) II to HSG-I on regular basis, vide order dated 13.05.2013. However, the same was made subject to the outcome of the instant OA, i.e., OA No.3217/2011 and RA No.29/2014 (sic-79/2014).
Respondents filed RA No.79/2014 before this Tribunal, which was allowed and the OA was restored to its original number.
Briefly, the facts of the case relating to the reliefs sought by the applicants are that they were initially appointed as regular Sorting Assistants in RMS Divisions of Delhi Circle in the years 1989-1990 and after certain promotions reached the level of Lower Selection Grade (LSG) Accountants w.e.f. 01.11.2001. They were further promoted to HSG-II w.e.f. 22.08.2006. Subsequently, their juniors vide order dated 07.01.2011 (Annexure A-1) were promoted to HSG-I whereas the applicants were not so promoted.
5.1 The applicants made representations (Annexure A-4 colly.) dated 21/24.02.2011 against the impugned order dated 07.01.2011, which were rejected by a combined order dated 20.05.2011.
The respondents have filed their counter-affidavit on 06.01.2012, and additional affidavit on 12.04.2012, wherein, initially, their primary contention was that the case of the applicants for promotion to HSG-II was not to be considered under the Recruitment Rules (RRs) of 1976 since the applicants were promoted in the year 2006 by which time the relevant RRs had been amended in the Gazette Notification dated 18.05.2006. As per the amended RRs of 2006, the applicants were not eligible to be considered for promotion to HSG-II. Since their promotion to HSG-II itself was irregular they were not considered for promotion to HSG-I.
Subsequently, the respondents have filed Additional Affidavit dated 23.11.2017 whereby they have submitted that the RRs were amended in the year 2002 also and as per the amended RRs of 2002 the applicants were not eligible for promotion to HSG-II. They have further submitted that their case cannot be considered for further promotion from HSG-II to HSG-I, as their appointment to HSG-II was de hors the RRs of 2002.
The applicants have filed their rejoinder dated 10.02.2012 and reply to the additional affidavit dated 12.12.2017. The main points agitated in these are that the RRs of 2002 have been replaced by the RRs of 2006 and so have no force and that the respondents have taken contradictory stands in their pleadings to which no satisfactory explanation has been given and the respondents are thus bound by their pleadings.
Heard the learned counsels for both the parties and perused the material placed on record.
Admittedly, the promotion of the applicants upto the level of LSG (Accountants) is not in dispute. It is also not disputed that the vacancies for promotion to HSG-II have arisen in 2005. As per the decision of the Hon'ble Apex Court in the case of Y.V. Rangaiah & Ors. v. J. Sreeenivasa Rao & Ors., [(1983) 3 SCC 284] in similar circumstances it has been held that when Service Rules are amended, vacancies which had occurred prior to the amended Rules would be governed by the old Rules and not by the amended Rules. So it is settled law that for determining which RRs apply, the relevant point of time is that when the vacancies arose.
It is not disputed that the vacancies arose in the year 2005. Hence, there is no doubt that the relevant RRs are the RRs of 2002.
The applicants have challenged the order dated 20.05.2011 (Annexure A-2) in which the respondents have basically said that since the applicants were wrongly promoted to HSG-II, at present they cannot be considered for promotion to HSG-I.
Thus, it was for the applicants to establish that their promotion to HSG-II was as per rules. However, their pleadings and the case rely and revolve around RRs of 1976 whereas the relevant rules are those of 2002. The respondents, on the other hand, after initially basing their contention on the RRs of 2006, have clearly stated that as per the RRs of 2002 the applicants could not be considered for promotion to HSG-II. The applicants have not controverted it.
We have perused the RRs of the years 1976, 2002 & 2006. The provisions that relate to the applicants are different in these RRs. However, a detailed examination in this regard is unnecessary, unwarranted and beyond the scope of this O.A. It was for the applicants to establish that the respondents order dated 20.05.2011 (Annexure A-2) was wrong and that they have totally failed to do. Thus, the order dated 20.05.2011 (Annexure A-2) cannot be set aside. Consequently, order dated 07.01.2011 (Annexure A-1) can also not be interfered with.
The OA being devoid of merit is accordingly dismissed. No order as to costs.