Sushil Kumar vs Government of NCT of Delhi and others

Anil Kumar, J.—The petitioner has challenged the order dated 20.11.2008 passed by the Central Administrative Tribunal, Principal Bench, New Delhi in O.A No. 2470/2008, tilted as Sh. Sushil Kumar v. Government of NCT of Delhi and others dismissing his original application, seeking direction to the respondent for relaxation of the rule, and consequent thereto change of his cadre from the driver to that of Operation Theatre Assistant.

The brief facts to comprehend the controversies are that the petitioner was initially appointed as Nursing Orderly on 17th April, 2000, and he worked on the said post till 5th November, 2004. He was promoted as Staff Car Driver w.e.f. 6th November, 2004 and his cadre was changed.

For promotion to Operation Theatre Assistant, petitioner required 5 years experience. Since he did not have 5 years experience and promotion also required changing petitioner''s cadre from Staff Car Driver, he made a representation to the concerned authorities, which was rejected by order dated 26th June, 2007.

On rejection of the representation, the petitioner had filed an Original Application No. 1948/2007, which was disposed of by order dated 22nd April, 2008 directing the respondents that competent authority should decide the relaxation sought by the petitioner. The competent authority was Lieutenant Governor, and therefore, the plea of the petitioner for relaxation for promotion to the post of Operation Theatre Assistant was considered to be considered by the Lieutenant Governor.

The request of the petitioner for relaxation for promotion to the post of Operation Theatre Assistant was thereafter considered by the Lieutenant Governor, and rejected by order dated 18th July, 2008. The Lieutenant Governor also did not agree to change of cadre of the petitioner. According to petitioner, he was not given any reason for relaxing the eligibility criteria for promotion, and therefore, he sought information under ''Right to Information Act, 2005.'' The petitioner thereafter, challenged the order dated 18th July, 2008 declining the request of the petitioner for relaxation in the eligibility criteria for promotion, and also relied on the Office Nothings regarding relaxations which were obtained by the petitioner under ''Right to Information Act 2005.

The Tribunal has considered the pleas and contentions of the petitioner including the copies of the Office Noting which were obtained by the petitioner under the ''Right to Information Act 2005''. It was held that the post of Staff Car Driver is not the feeder post for promotion to the post of Operation Theatre Assistant. The Tribunal also noticed that the writ petitioner had earlier changed his cadre from Nursing Orderly to the staff Car Driver on account of availing higher scale, and he again wanted to go to other cadre by shortening and circumventing the eligibility rules, and in the circumstances, the decision of the authorities not to grant him age relaxation was not found to be illegal or irregular under and rules and regulations.

The Tribunal also noted that the relaxations were granted only with a view to accommodate certain dependants/children of the deceased employee in various departments as suitable post were not available, and the post available in the hospital required experience of certain years. Apparently, the petitioner cannot compare himself with those who had been considered on humanitarian grounds as some of them were appointed on the compassionate ground after the demise of sole bread earner in their family.

Learned counsel for the petitioner has not been able to establish that the petitioner has a right to change his cadre from the Driver to that of Operation Theatre Assistant. It is noted that the petitioner had not been permitted to change his cadre nor not allowing petitioner to change cadre can be construed to illegal and unlawful.

In fact, since the petitioner wanted to avail higher scale, he had changed his cadre from Operation Theatre orderly to that of the Driver which was higher scale. The petitioner in order to cut short the avenues of promotion as a right cannot claim that his cadre should be changed again and he should also be granted relaxation which is 5 years for promotion to the post of Operation Theatre Assistant. Since the relaxation and change of cadre is within the discretion of the respondent, the petitioner cannot claim the same as a matter of right.

Though the discretion is also to be exercised by the respondent within certain norms, however, the learned counsel for the petitioner has failed to make out any such case which will require any interference by this court to direct the respondent to exercise the discretion for change of cadre, and for relaxation of rules for promotion in favor of the petitioner.

In the facts and circumstances, this Court does not find any such illegality or irregularity in the order of the Tribunal which will necessitate any interference by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India.

The writ petition, therefore, is without any merit, and it is dismissed.