Uttarakhand High Court
Smt Tejvinder Kaur Ahuja And Others vs M.D.Gupta And Others on 28 November, 2016
Author: Alok Singh
Bench: K.M. Joseph, Alok Singh
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Special Appeal No. 348 of 2015
Smt. Tejvinder Kaur Ahuja and others ............ Appellants
Versus
M.D. Gupta and others ............. Respondents
With
Special Appeal No. 338 of 2015
A.K. Dubey ............ Appellant
Versus
Wild Life Institute of India and others ............. Respondents
Mr. Manoj Tiwari, Senior Advocate assisted by Mr. Alok Mahra, Advocate and
Mr. Bhagwat Mehra, Advocate for the appellants.
Mr. Rakesh Thapliyal, Assistant Solicitor General for the Union of India/Institute.
Mr. Kishore Kumar, Advocate holding brief of Mr. M.C. Pant, Advocate for the
writ petitioner.
Dated: 28th November, 2016
Coram: Hon'ble K.M. Joseph, C.J.
Hon'ble Alok Singh, J.
K.M. JOSEPH, C.J. (Oral) These two appeals being connected, we dispose of the same by this common judgment.
2. These appeals relate to the service conditions of the employees of the Wild Life Institute of India (from hereinafter referred to as "the Institute"). Appellants in Special Appeal No. 348 of 2015 are respondent nos. 10, 11 and 7 respectively in the writ petition. Appellant in Special Appeal No. 338 of 2015 is respondent no. 6 in the Writ Petition. The first respondent in 2 Special Appeal No. 348 of 2015 is the writ petitioner and will be referred to as such.
3. The writ petitioner approached this Court seeking the following two reliefs in the writ petition :
"1. Issue writ Issue writ rule or direction in the nature of certiorari quashing the impugned order dated 8.11.2011 along with its effect and operation also after calling the entire records from the respondents and further to declare the condition provide in the service rules 2007 to treat the presently working as Hindi translator for promotion in the feeding cadre is unconstitutional and ultra virus to the Constitution of India and declare the same nonest in law.
2. Issue writ rule or direction in the nature of mandamus directing the respondents to rectify their mistakes as indicated by the respondents in its letter dated 9.1.2004 and also not to carry out any promotional exercise or consider the promotion of the beneficiary of the earlier illegal persons during the year 1993‐2000 in utter disregard to the recruitment rules of 1986 and further to direct the respondents to make promotional exercise in tune of rules of 1986 on the post and vacancies available during the period of 1993‐2000 strictly in terms of the rules of 1986 and to consider the case of the petitioner for the same or in alternate to grant the benefit of promotion to the petitioner on the basis of his eligibility and seniority w.e.f. the date when the same has been given to other ineligible persons ignoring the service rules."
4. The learned Single Judge allowed the writ petition. The judgment passed by the learned Single Judge comprises of three pages. We deem it appropriate to extract the same as under :
3
"Having heard learned counsel for all the parties, it transpires that innumerable illegalities and irregularities have been done by the Directors of this Wild Life Institute (an autonomous body working under the Ministry of Forest and Environment, Union of India), the outcome whereof is the illegal appointments and promotions on the whims and caprices of Directors of this Institute, de hors all the recruitment and promotion rules, for the reasons best known to them. By such whimsical and arbitrary action on the part of directors, from time to time, respondent nos.4 to 11 were favoured in the manner of appointment or promotion. If the appointments were made on a particular post, then those were without publication of any advertisement, at any time, rendering an equal opportunity to the competent persons and likewise, the promotions were made by such officer de hors the rules favouring persons of their choice. Such an action on the part of responsible officers, inasmuch as holding the rank of Director, made the petitioner victim. So, he moved to the Government of India. Furthermore, one of the Directors Mr. S. Singsit, when noticed these irregularities and illegalities, he wrote a letter to the Government of India entailing the clause as under: ‐ "Since the procedure for promotions made were not in confirmation to the Recruitment Rules approved by the Governing Body and because of which eligible candidates could not get opportunity to be considered for promotion, it is proposed that the promotions in question should be done afresh and all eligible candidates should be given opportunity to appear in the competitive examination as stipulated in the Recruitment Rules."
In response to that letter, the Government of India, vide letter dated 9.1.2004, issued appropriate directions which are as follows: ‐ "Kindly refer to your letter No.A/2‐ 154/2003‐WII dated 21.10.2003 on the above cited 4 subject. In this regard, the undersigned is directed to convey that the appointing authority should take the decision at his level. If any mistake has been committed, the same has to be rectified and responsibility fixed and disciplinary action be taken against those found guilty by following the prescribed rules and procedure."
Even so, nothing happened, much less conducting any disciplinary action against the delinquents and they remained in service for quite a long time and many of them even retired. Some of them have completed more than two decades of their service.
It is pertinent to mention that in the year 2007, fresh recruitment Rules were framed. The last clause appended to those Rules seems to be indicted in order to render special favour to the Hindi Translator who is respondent no.7‐ Smt. Baljeet Kaur, herein, and this lady was appointed without issuing any advertisement just on the basis of pick and choose policy by the then Director. That apart, certain persons, who were not even possessing the minimum qualification, prescribed under the Rules, got appointments at the pleasure of Director. Since all these candidates have completed more than two decades of their service and the Directors, who played such a felonious role, have also since been retired, so, perhaps, it would not be feasible to take any stringent action against those delinquents and to issue the termination orders of these persons but, at least, the petitioner should be safeguarded from injustice.
The seniority list of the petitioner has not been finalized so far. Attention of this Court was drawn to the letter dated 25.10.2011 issued by the Government of India to close up the matter. The Court do not agree with the contents of such letter and quashes the directions, whatever issued, in such letter because illegality always remains the same and that can never attain the status of legality. 5
Looking to the above facts, the Court has restrained itself to issue any hard and harsh order against these respondents but at the same time, orders the present Director of the Institute to prepare and finalize the Seniority List of all the Class‐III employees, working in the Institute, on different posts giving the notional promotion to the petitioner from the date on which he became entitled on the post of his next gradation and so on. At the same time, the Court quashes the clause 'The present incumbent on the post of Hindi Translator will remain in the feeder channel for promotion to the post of Section Officer. In future, the isolated post of Hindi Translator will get promotional avenues as per GoI guidelines.' The Director of the Institute is also ordered to take appropriate steps to revert back those respondents who have got illegal promotions de hors the Rules.
Let the compliance of the order be made as quickly as possible but not later than within six weeks, otherwise the Court may contemplate to lodge the FIR against such delinquent officials and the office superintendent as well, who may be in conspiracy with the Director. The Court may further consider to lodge an FIR against the Director as well as the Office Superintendent besides entrusting the matter to the CBI for holding enquiry in the matter.
The petition stands disposed of accordingly."
5. Feeling aggrieved, the appellants are before us.
6. We have heard Mr. Manoj Tiwari, learned senior counsel in both the appeals on behalf of the appellants, Mr. Rakesh Thapliyal, learned Assistant Solicitor General on behalf of the 6 Institute and Mr. Kishore Kumar, learned counsel on behalf of the writ petitioner.
7. The writ petition was filed with the following brief allegations :
(i) The writ petitioner was appointed on 21.02.1985 as LDC.
The Institute was the department of the Respondent no. 3 (Union of India). The Institute was converted into a Society and was given autonomy and since the year 1986, it became an autonomous body. The services of the writ petitioner were regularized vide order dated 25.06.1986. The writ petitioner was promoted on ad‐hoc basis on the post of UDC vide order dated 28.05.1990. A gradation list of LDC cadre was issued vide Annexure No. 5. The promotion given to the writ petitioner was regularized vide order dated 21.07.1994 with effect from 25.1.1990.
(ii) The Service Rules were framed in the year 1986. O‐(1) corresponds to LDC and O‐(2) corresponds to UDC. It is also provided that a UDC may work as Cashier, Assistant Storekeeper, Assistant Hostel Superintendent. O‐(3) comprises of Store Keeper‐I, Hostel Superintendent‐I, Hindi Translator‐I and Stenographer Grade II. O‐(4) comprises of the sole post of Accountant. O‐(5) provides for Senior Personal Assistant (Stenographer Grade I) and O‐(6) provides for Administrative Officer/Finance Officer. It would appear, in short, that for promotion from O‐(2) to O‐(3), the Rules provided for the following mode of recruitment :
7
"100% by promotion by Grade O‐(2), who have put in at least 5 years in that grade, through competitive examination and record evaluation by DPC (Deputation on stop gap basis)"
(iii) The case of the writ petitioner appears to be that flouting the Rules, promotions were given. The matter engaged the attention of the authority and it suffices for us to refer to a few communications. Annexure No. 19 is addressed by the Director of the Institute to the Deputy Inspector General, Wild Life, Ministry of Environment & Forests. It is necessary in order to appreciate the contentions to refer to it and extract the same as under:
"No.A/2‐154/2003‐WII Dated: 21st October 2003 To, Shri Aseem Srivastava, IFS Deputy Inspector General (WL), Ministry of Environment & Forests, Paryavaran Bhawan, 'B' Block, CGO Complex, Lodi Road, New Delhi - 110 003 Sub: Violation of Recruitment Rules in promotions.
Sir, This has reference to your letter NO. 22‐5/2002‐WL‐I dated 28th August, 2003 on the above subject. The Recruitment Rules for the Administrative and Technical Services for the Wildlife Institute of India was approved by the Governing Body in its 1st meeting held on 20.3.1986 (copy enclosed).
Recruitment and promotion rules for L.D.C. / U.D.C. Storekeeper / Hostel Superintendent / Hindi translator and Accountant as approved by the Governing Body are as under :‐ Group & Minimum Age Mode of Recruitment Grade Essential Qualification O‐(1) S.S.S.C., Typing 30 18‐28 years Direct recruitment 100%.
w.p.m, Departmental candidates
L.D.C. eligible upto 35 years, but no
relaxation in minimum
qualifications.
8
O‐(2) University degree Not (i) 50% by promotion from
for direct recruits. applicable Grade O‐1, with 5 years
U.D.C. Typing 30 w.p.m. service in that grade, through
DPC based on record and
interview, (Deputation on
stop gap basis)
19‐28 years (ii) 50% by direct recruitment
through competitive
examination and interview by
DPC.
Departmental Candidates
possessing minimum
qualifications also eligible
(with age relaxed upto 40
years) for direct recruitment.
O‐(3) University Degree Not 100% by promotion from
applicable Grade O‐2, who have put in at
Store least 5 years of service in that
Keeper, grade, through competitive
Hostel examination and record
Suptd, evaluation by DPC
Hindi (Deputation on stop gap
Translator basis)
O‐(4) Not (i) 100% by promotion from
applicable Grade O‐3 (i) of those who
Accountant have put in 8 years in that
grade, through competitive
examination and record
evaluation by DPC
(Deputation of stop gap basis
or absorption of
deputationists over 45 years)
As per the above approved Recruitment Rules, promotion to Store Keeper/Hostel Superintendent/Hindi Translator shall be 100% by promotion from Grade O‐2 who have put in at least 5 years service in that grade, through competitive examination and record evaluation by DPC.
Contrary to the above provisions, promotion to the above posts were made by Departmental Promotion Committee (DPC) without conducting the competitive examination amongst all those UDCs who were eligible at that point of time.
It is evident that the Recruitment Rules as approved by the Governing Body to be adopted by WII, have, prima‐ facie been violated to the extent mentioned above in the promotions of UDCs to Store Keeper/Hostel Superintendent/Hindi Translator and Accountants.
The promotions to the above posts were recommended by the Departmental Promotion Committee, which were approved by the then Director, WII.
Since the procedure for promotions made were not in confirmation to the Recruitment Rules approved by the Governing Body and because of which eligible candidates 9 could not get opportunity to be considered for promotions, it is proposed that the promotions in question should be done afresh and all eligible candidates should be given opportunity to appear in the competitive examination as stipulated in the Recruitment Rules.
The decision of the MoEF on the above issue may be communicated to us at the earliest.
Yours faithfully, (S. Singsit) Director Encl: As above"
(iv) Referring to the said letter, the Deputy Inspector General wrote to the Director on 09.01.2004 as follows :
F.No.22‐5/2002 WL‐1 Government of India Ministry of Environment and Forests Paryavaran Bhawan, CGO Complex, Lodhi Road, New Delhi - 11 00 03 Dated:9.1.2004 To, The Director Wildlife Institute of India P.B. No. 18, Chandrabani Dehra Dun Sub: Violation of Recruitment Rules in promotion.
Sir, Kindly refer to your letter No.A/2‐154/2003‐WII dated 21.10.2003 on the above cited subject. In this regard, the undersigned is directed to convey that the appointing authority should take the decision at his level. If any mistake has been committed, the same has to be rectified and responsibility fixed and disciplinary action taken against those found guilty by following the prescribed rules and procedure.
Yours Faithfully, SD/ (ASEEM SRIVASTAVA) DEPUTY INSPECTOR GENERAL (WL) 10
(v) It was the complaint of the writ petitioner that respondent no. 2 (Registrar, Wild Life Institute of India) was inert and trying to circumvent the order of the Ministry. The writ petitioner alleges that he had sent subsequent reminders on 29.04.2008, 24.06.2008, 01.09.2008 and 03.08.2009, which were not disposed of and which are produced as Annexure No. 20.
(vi) Thereafter, the writ petitioner vide letter dated 13.11.2009 requested for financial up‐gradation under the ACP Scheme. The ACP benefit was given to him with delay, but the inaction of the management is questionable. It is, thereafter, that Annexure No. 1 order was passed, which is impugned in the first relief, which we have already extracted. The said order is dated 08.11.2011 and it reads as follows :
No. A/2‐154/2003‐WII Dated: 8th November, 2011 OFFICE MEMORANDUM Sub: Representations of Shri M.D. Gupta, Assistant Grade II regarding alleged violation of Recruitment Rules in promotions.
Ref. (i) Representation dated 22.07.2003 addressed to Director, Wildlife Institute of India (WII), Dehradun.
(ii) Representation dated 19.8.2003 addressed to Chairman, Governing Body, WII & Secretary, Ministry of Environment & Forests (MoEF), New Delhi.
(iii) Reminder letters dated 29.4.2008, 24.06.2008 and 01.09.2008 addressed to Director, WII
(iv) Representation dated 26.09.2011 addressed to Hon'ble Union Minister of Environment & Forests and President, WII‐Society.
In the representations of Shri M.D. Gupta, Assistant‐II cited above, he has stated that his promotions from Upper Division Clerks (O‐2) to higher grades would have accrued 11 to him had the WII authorities followed the method of Competitive Examination along with evaluation of record as per the extant recruitment rules of the Institute. The relevant promotions referred by him in his representations however, were given on seniority basis and evaluation of ACRs by the WII authorities. Shri Gupta has also alleged concealment of facts by WII authorities in putting up the case before Ministry. The matter has been carefully examined in the Ministry and I am directed to convey the following decision taken by the MoEF on his aforesaid representations:
(1) The chances of promotion the Petitioner thought that would accrue were only notional and would have been subject to the outcome of a Competitive Examination. His promotion has, thus, not been affected directly.
(2) The officials of the Administrative Cadre of Wildlife Institute of India were promoted on the basis of DoPT guidelines during 1993‐2000. Since, the WII has amended and harmonized the RRs based on DoPT rules in 2007, therefore, promotions made during 1993‐2000 may not be reverted/revoked and may be regularized.
(3) The allegation vide his letter dated 26.09.2011 (under reference iv above) regarding concealment of facts by present Institute authorities to MoEF for obtaining its views/consent from the Governing Body and MoEF has also been examined by the MoEF and found not to be true, hence, not acceptable.
All his representations mentioned above stand disposed accordingly.
Registrar Wildlife Institute of India Dehradun To, Shri M.D. Gupta Assistant Grade‐II Wildlife Institute of India Dehradun Copy to Deputy Inspector General (WL), Ministry of Environment & Forests, Paryavaran Bhawan, CGO Complex, Lodi Road, New Delhi for information.
Registrar Wildlife Institute of India Dehradun 12
8. It is appropriate at this stage also to advert to certain subsequent developments. In the year 2007, the Institute decided to revise the Recruitment and Promotion Rules. Accordingly, the Rules were made and they came into force with effect from 01.08.2007. In the said Rules, it is inter alia provided that for Hindi Translator, the post was to be filled by direct recruitment (this was to be done through Test and Interview or failing which by deputation or short term contract). At the end of Schedule 4, which deals with Recruitment Rules for Hindi Translator, the following was added:
"The present incumbent on the post of Hindi Translator will remain in the feeder channel for promotion to the post of Section Officer. In future, the isolated post of Hindi Translator will get promotional avenues as per Government of India guidelines."
9. A perusal of the prayer would show that the writ petitioner mounted a challenge to the portion providing for "the present incumbent remaining in the feeder channel for promotion to the post of Section Officer".
10. It is now ripe to advert to the case of the appellants. Appellants were all directly recruited as Upper Division Clerks, which, as we noted, fall in Grade O‐(2). They were recruited in the year 1987 pursuant to selection held in the year 1986. The first appellant in Special Appeal No. 348 of 2015 was promoted to Grade O‐(3) vide order dated 22.09.1999, whereas the appellant nos. 2 and 3 were promoted vide order dated 20.11.2000. Appellant in Special Appeal No. 338 of 2015 was 13 selected on the basis of direct recruitment conducted through Staff Selection Commission as Hindi Translator vide order dated 21.07.1989 and thereafter, he was promoted in the year 1999 to Grade O‐(4).
11. Mr. Manoj Tiwari, learned senior counsel for the appellants would submit that the learned Single Judge has granted relief in a writ petition, which was filed in the year 2011. In other words, he points out laches on the part of the writ petitioner. He would point out that by the impugned judgment, the learned Single Judge has issued directions, which will unsettle the promotions, which have been given nearly 15 years' earlier. He would further submit that even accepting the case of the writ petitioner, the learned Single Judge erred in directing notional promotion to be given. In other words, it is contended that if it is a case that examination was not held, the question is posed as to how the learned Single Judge could have directed notional promotion to be given de hors holding of examination. No reason has been given in support of the conclusions or directions. In fact, he would pray that the matter may be set aside and remitted back for fresh consideration. He would also submit that the promotions were actually effected in terms of the Government of India guidelines as is made clear in the impugned order and no reliance can be placed on the decision of the Governing Body of the Institute taken in the year 1986 as they are not statutory in nature.
12. Mr. Rakesh Thapliyal, learned counsel appearing for the Institute would point out that actually as far as the Institute is 14 concerned, it has accepted the judgment of the learned Single Judge. What is more, it is contended that the judgment of the learned Single Judge was implemented by passing fresh orders as per which, in fact, appellants have also been benefited.
13. Mr. Kishore Kumar, learned counsel appearing for the writ petitioner would also submit that having regard to the subsequent developments in the form of implementation of the judgment by the Institute as per which in fact, the writ petitioner has been given the due promotions, no interference with the judgment of the learned Single Judge is called for.
14. It is true that the learned Single Judge has not given the details of contentions of the parties with reference to the particulars, which we have attempted to do in our judgment. But we do not think it necessary in the circumstances of the case to remit it back for further consideration, as the pleadings were complete before the learned Single Judge. As already noticed, the Institute was once a part of the department of the Government of India. Sometime in the year 1986, it was transformed into an autonomous body as a Society was formed. The supreme body of the Society appears to be the Governing Body. The Governing Body has formulated the Rules relating to recruitment in the year 1986. We must, at this juncture, deal with one argument of the learned Senior Counsel for the appellants that these Rules are liable to be ignored, as they are not statutory in nature. This area is no longer res integra as the Apex Court has spoken authoritatively on this issue in a catena of decisions and we need only refer to the judgment of the 15 Apex Court in the case of B.S. Minhas Vs. Indian Statistical Institute and others reported in (1983) 4 Supreme Court Cases
582. We need only advert to paragraph nos. 23 and 24, which reads as under :
"23. The next question that arises for consideration is whether the appointment of respondent No.4 as Director of respondent No.1 is illegal because of non‐compliance with bye‐law 2. Bye‐law 2 does require that before appointment, the vacancy in the post of Director should be suitably publicised. In the instant case, it is admitted on both sides that no publicity whatsoever was given in respect of the 410 vacancy. The contention of Shri Garg, however, is that the bye‐law having no force of statute, non‐compliance with its requirement can not in any way affect the appointment of respondent No. 4 as Director of respondent No. 1. Shri Tarkunde, however, contended that assuming that the bye‐ law is not statutory, even so respondent No. 1 was bound to comply with it. In support of his contention he strongly relied upon Ramana Dayaram Shetty v. International Airport Authority of India. The Court in that case held:
ʺIt is a well settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged a and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. This rule was enunciated by Mr. Justice Frankfurter in Vitarelli v. Seaton where the learned Judge said:
An executive agency must be rigorously held to the standards by which it professes its action to be judged. Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed.... This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with the sword.
The aforesaid principle laid down by Mr. Justice Frankfurter in Vitarelli v. Seaton has been accepted as applicable in India by this Court in Amarjeet Singh. Ahluwalia v. State of Punjab and in subsequent decision given in Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi. Mathew J. quoted the above referred observation of Mr. Justice Frankfurter with approval.16
24. In view of the pronouncement of this Court on the point it must be held to be obligatory on the part of respondent No. 1 to follow the bye‐laws, if the bye‐laws have been framed for the conduct of its affairs to avoid arbitrariness. Respondent No. 1 cannot, 411 therefore, escape the liability for not following the procedure prescribed by bye‐law 2."
15. Therefore, we have no hesitation in rejecting the contention of the learned senior counsel for the appellants that the 1986 decision of the Governing Body of the Institute, which is undisputedly an authority under Article 12 of the Constitution of India, was binding and it could be departed only on pain of invalidation of action in deviation therefrom.
16. Taking the 1986 Rules as binding on all the parties, we have to necessarily find, having regard to the communications which we have extracted between the Director and the Deputy Inspector General of Wild Life, that promotions were effected in violation of the 1986 Rules. Promotions, in other words, given to the appellants in Special Appeal No. 348 of 2015 were in naked violation of the requirement that promotion be effected only on the basis of the result of the examination. It is in fact, not in dispute by the learned counsel for the Institute that promotions were effected without holding any examination.
17. At this juncture, we should also advert to the aspect relating to laches on the part of the writ petitioner. True it is that the appellants were promoted nearly more than a decade before the filing of the writ petition; but we must also notice in this case that the appellants had moved the authority, the 17 Director of the Institute had admitted the violation in the communication to the Government of India, the Government of India had issued the communication dated 09.01.2004 directing rectification, which apparently was to be done in terms of the admitted position by the Director. The matter lingered on without any further consequential action. The writ petitioner appears to have addressed representations and finally the impugned order was passed in the year 2011. The writ petition was filed in the year 2011 itself. Therefore, in the facts of this case, we are not impressed with the contention that the writ petition should have been dismissed on the ground of laches.
18. The resultant position is that the promotions, which were given, were illegal in the context of the 1986 Rules. The question further arises that on finding that the promotions were given illegally, what is the further action to be undertaken. We are dealing with this matter after nearly one and a half decades of the promotions being given in the years 1999 and 2000. The matter becomes further complicated by the aspect that many persons have retired and gone. Acting pursuant to the judgment of the learned Single Judge, the Institute has purported to implement it and, on the basis of the report of the committee, given notional promotion to the writ petitioner. In the circumstances of this case, we would agree with the learned Single Judge that the impugned order cannot be sustained, as the reason given for not interfering with the illegal promotions was that they were being given in accordance with the Government of India guidelines. When there was a decision taken by the Governing Body, which is binding as we have 18 already held, promotions given contrary to the same were to be revisited and illegality rectified. Therefore, the reason given in Annexure no. 1 does not appeal to us as legal and therefore, it cannot be sustained. Equally unappealing to us is the reason that the chances of promotion the petitioner thought that would accrue were only notional and would have been subject to the outcome of the competitive examination and that his promotion is not directly affected. The holding of the competitive examination was a mandatory requirement under the Rules and it would have made a mark on the destiny of the candidates and it is not merely a question of chances of promotion. It is a direct violation of the writ petitioner's right to be considered for promotion as per the 1986 Rules. Therefore, the two main reasons given for passing the order cannot be sustained. Accordingly, we agree with the learned Single Judge that Annexure No. 1 must go. The learned Single Judge has also declared the portion, which we have extracted, relating to the Hindi Translator continuing to be in the feeder category for promotion to the post of Section Officer as illegal and unconstitutional. The reason given is that it is done to favour the 7th respondent, who had been promoted as Hindi Translator. According to the learned senior counsel for the appellants, the 7th respondent was promoted as Hindi Translator as per the Rules then in force in the year 1986; but we have already noticed that the promotion given to the appellant no. 3 (respondent no. 7 in the writ petition) was without holding the examination. According to Mr. Rakesh Thapliyal learned counsel for the Institute, in the year 1988, the 19 Governing Body decided to fill up the post of Hindi Translator by direct recruitment.
19. It may be noted that the appellant in Special Appeal No. 338 of 2015 was appointed as Hindi Translator by way of direct recruitment in the year 1989 and it is thereafter that in the year 2000, the third appellant in Special Appeal No. 348 of 2015 was promoted as Hindi Translator.
20. We are also not inclined to interfere with the quashing of the portion providing that the incumbent translator will remain in the feeder category for promotion as Section Officer. Under the 2007 Rules, in fact, Section Officers are to be appointed by way of promotion from Assistant Grade I inter alia. The remaining question is only the direction to give notional promotion to the writ petitioner.
21. We would think that once it is found that the promotions given to the appellants are bad for violation of the decisions of the Governing Body, which we have held to be binding, the proper thing to do would be to direct that the promotional exercise be held strictly in accordance with the Rules as in force from time to time. The Rules of 1986 will, in other words, continue to hold the field till they are modified or superseded. They have indeed been superseded with effect from 01.08.2007 and till they were superseded, the promotional exercise must be conducted in terms of the 1986 Rules. For promotion from O‐ (2) to O‐(3), in other words, the candidate must satisfy the requirement of having been successful in the departmental 20 examination. All the candidates, who are eligible and who are in service, in other words, must undergo the examination and their eligibility for promotion must be determined on the said basis. Therefore, the direction to give notional promotion to the writ petitioner without reference to the requirement of the Rules cannot be sustained.
22. Resultantly, the appeals are partly allowed. In place of the direction given by the learned Single Judge to give notional promotion to the writ petitioner, we direct that the Institute will carry out the promotional exercise for the posts in terms of the decisions of the Governing Body of the Institute beginning with the Governing Body's decision of 1986 and also culminating in the Rules of 2007, which came into effect on 01.08.2007. This is besides the decision taken by the Governing Body in the year 1988 which is, as submitted before us, in modification of the 1986 Rules. In fact, it is brought to our notice that the appellant in Special Appeal No. 338 of 2015, who was directly recruited as Hindi Translator, was wrongly given promotion as Accountant [O‐(4)]; he stands reverted and he is holding the post of Hindi Translator; there is only one post of Hindi Translator; and appellant no. 3 in Special Appeal No. 348 of 2015 is given promotion as Assistant Grade I after the impugned judgment. We only direct that the process of filling up the vacancies be undertaken strictly as per the decisions taken in the years 1986, 1988 and 2007. We make it clear that this will not result in deprivation of any benefit, which persons, who have served and retired, have secured or are securing. Till the exercise is concluded, the notional promotion, which has 21 already been given to the writ petitioner, will continue on ad‐ hoc basis and it will finally be decided on the basis of the exercise to be undertaken by the Institute. This exercise should be concluded within a period of three months from the date of receipt of a certified copy of this judgment. We also make it clear that the promotions given to the parties to these appeals contrary to the Rules will be treated as ad‐hoc and will be subject to the outcome of the promotional exercise.
23. We record the submission of the learned counsel for the Institute that after the judgment of the learned Single Judge a seniority list has been prepared. The directions, which we have given to hold the promotional exercise, would necessarily take note of all the rights of the employees with reference to the vacancies, as and when they arose.
(Alok Singh, J.) (K.M. Joseph, C. J.)
28.11.2016 28.11.2016
Rahul