Delhi High Court
S.K. Baharal And Ors. vs The Administrator Of Delhi And Anr. on 8 February, 1993
Equivalent citations: 1993(27)DRJ58
JUDGMENT P.N. Nag, J.
(1) In this petition the petitioners, who are working in the subordinate courts of Delhi, have challenged the Administrative Instructions dated 22nd September, 1978 (Annexure- P.3) issued by the High Court of Delhi and the consequent promotions of respondents 4 and 5 as Assistants and respondents 6 to 15 as Upper Division Clerks from the post of Naib Nazirs, which belong to Process Serving Establishment, and not to General Line.
(2) The relevant facts set out in the petition are that the petitioners are working in the subordinate courts in the Ministerial Establishment (General Line) and are governed under the provisions of Chapter 18-A of the Punjab High Court Rules and Orders (Volume 1), in the matter of appointment and promotion. They have right to be promoted as Upper Division Clerks, whereas Naib Nazirs under these rules have no right to be promoted as Upper Division Clerks. As a matter of fact the ministerial staff in the subordinate courts have been divided into two categories i.e. the general line establishment and the process serving establishment. The two categories of services are separate and independent of each other for the purposes of appointment and promotion. Process serving establishment shall, for the purposes of appointment and promotion, be treated as separate from the general line establishment.
(3) The High Court has issue instructions dated 22nd September, 1978 on the Administrative Side (Annexure P.3) which has provided that till the draft rules, governing appointment and conditions of service of the employees of subordinate courts are finalised, appointment/promotion to the posts of Readers/Upper Division Clerks be made purely on ad hoc basis from the general line officials and Naib Nazirs in the ratio of 6:1 i.e. six candidates from the general line and one candidate from the process serving establishment (Naib Nazirs) on the condition that the said appointment would not confer any right on the persons so appointed for regular appointment, which would be made in accordance with the rules under consideration. According to the petitioners these Instructions are violative of Rules contained in Chapter 18-A of Punjab High Court Rules and Orders. Rule Ii of Punjab High Court Rules (Volume 1), classifies various ministerial officers of the lower courts and according to this classification, the ministerial officers from Nos. (1) to (8) shall be classified as General Lines and Nos.(9) to (II) shall be classified as Process Serving Establishment. In note, it has been clarified that although all these posts form a joint cadre, the process-serving establishment shall for the purpose of promotion be treated as separate from the general line up to the post of Civil Nazir. The Civil Nazir's post shall be treated as equivalent to the grade ofRs.30-70/25 and in the general line for promotion to the grade of Rs.40-90/35-75 and upwards. Rule I refers to such employees of subordinate courts as Ministerial Establishment. According to Rule Vi, appointments to the higher grades of the ministerial establishment should ordinarily be made by seniority from lower grades. In para-7 of the petition, the petitioners have stated that both the categories of services are promoted in accordance with the provisions of Rules Vi in Chapter 18-A ibid. It is evident that each employee is entitled to be promoted in his own category of service, i.e. the lower division clerk of the general line category is entitled to be promoted to the post of Upper Division Clerk in the general line category and the Process Server is entitled to be promoted to the post of Naib Nazir/Madad Naib Nazir and the Naib Nazir/Madad is entitled to be promoted to the post of Civil Nazir (U.D.C.) in the process serving establishment. In fact according to the petitioners, respondent No.3 followed the aforesaid Rule Vi and made the promotions, in the general line establishment, strictly in accordance with the said Rule Vi till the year 1978, when it received executive instructions from respondent No.2 (on the administrative side) in the letter dated 22nd September, 1978 and stopped adhering to Rule VI. As a result of this policy, the respondents 4 to 15, who are previously Naib Nazirs, have been promoted as Upper Division Clerks, which is against the Rules and some of them i.e. respondents 4 and 5 have been further promoted from the posts of Upper Division Clerks to the posts of Assistants during the pendency of the writ petition. The petitioners, therefore, have prayed that since the promotions of respondents 4 to 15, as aforesaid, is against the rules, those appointments being violative thereof cannot be legally sustained.
(4) The respondent No.2 High Court, in its counter affidavit dated 13th November, 1991, has admitted the position given by the petitioners in regard to the appointment and promotion of Ministerial Establishment and also different line of promotion of General Line and Process Serving Establishment. They have further admitted that rules contained in Chapter 18-A of the High Court Rules and Orders Vol. 1 continue to govern the service conditions of the employees serving in Delhi Subordinate Courts till new rules are framed. However, in order to provide better opportunities of promotion to Naib Nazirs, the draft rules are proposed to be amended. However, till the new rules are framed, it has been provided in the executive instructions (Annexure P 3) that till the draft rules, governing appointment and conditions of service of the employees of the subordinate courts are finalised, appointment/promotion to the posts of Readers/Upper Division Clerks be made purely on ad hoc basis from the general line officials and Naib Nazirs in the ratio of 6:1 i.e. six candidates from general line and one candidate from process serving establishment (Naib Nazirs). I have been informed that the High Court has sent these draft rules to the Delhi Administration but they have not been finally approved as yet and the instructions still govern the promotion from the post of Naib Nazir to the post of Upper Division clerk. However, it is denied that respondent No.2 has no legal authority to issue the Executive Instructions. Under Article 235 of the Constitution the High Court does not only enjoy the full control over the subordinate judiciary but also over the employees of the subordinate courts. It has been denied that the Executive Instructions dated 22.9.1978 are illegal,unconstitutional and prejudicial. It is further stated that the aforesaid Executions were issued only after considering the paucity in the promotional avenues available to Naib Nazirs. Prior to the date of issue of Executive Instructions, Naib Nazirs chances of promotion were quite bleak as there was only one post of Civil Nazir in U.D.C. grade. Naib Nazirs made representations to the High Court. Finally, on consideration of the entire matter, the said executive instructions dated 22.9.78 were issued pending finalisation of the draft Rules.
(5) Mr. Lamba, learned counsel vehemently contends that instructions (Annexure P.3) are ultra vires of the High Court Rules and Orders, and the promotions made on that basis are necessarily to be set aside. On the other hand, Mr. Rohtagi as sited by Mr. P.O. Mehta, Assistant Registrar, contends that the High Court, has every right to issue administrative instructions to supplement the rules and to remove lacuna particularly when hardship is being caused to the Naib Nazirs in the matter of further promotion.
(6) After hearing both the parties, I am of the opinion that the contention of the petitioners must prevail. The undisputed facts which emerge from the pleadings are:( 1 ) that Chapter 18-A of High Court Rules and Orders governs the conditions of the appointment and conditions of service of present employees; (2) each employee is entitled to be promoted to his own category of service i.e. Lower Division Clerk in the general line category is entitled to the post of Upper Division Clerk in the general line category and the Process Server is entitled to be promoted to the post of Naib Nazir/Madad Naib Nazir and the Naib Nazir/Madad Naib Nazir is entitled to be promoted to the post of Civil Nazir (Upper Division Clerk) in the process serving establishment and (3) and the Executive Instructions issued by the High Court dated 22nd September, 1978 (Annexure- P.3) under which appointment/promotion to the posts of Readers/U.D.C. are being made from the general line official and Naib Nazirs in the ratio of 6:1 i.e. six candidate from the general line and one candidate from the process serving establishment (Naib Nazirs).
(7) If this position is accepted by the High Court, there is left no manner of doubt that the instructions issued by the High Court (Annexure P-3), which provide appointment/ promotion to the posts of Readers/Upper Division Clerks from general line officials and Naib Nazirs in the ratio of 6:1 violate the rules provided in Chapter 18-A, which govern terms and conditions of service of these employees. By providing appointment/ promotion to the posts of Readers/Upper Division Clerks from General Line official and Naib Nazirs in the ratio of 6:1 the Instructions, Annexure-P.3 has made Naib Nazirs eligible for promotion to the post of Upper Division Clerks/Readers and consequently taken away the corresponding right of Lower Division Clerks of General Line to be promoted as Upper Division Clerks/Readers, which is not permissible under the High Court Rules & Orders, as mentioned above, and as such such instructions are, therefore, ultra vires of the Rules. As aforementioned the Naib Nazirs being different establishment Process Serving Establishment cannot be directly promoted to the general line of Upper Division Clerk. The position being so, the administrative instructions (AnnexureP.3) being violative of rules provided in Chapter 18-A of High Court Rules and Orders (Volume I) are ultra vires and need to be struck down.
(8) In Sant Ram Sharma v. state of Rajasthan and others, , it has been held:- "IT is true that there is no specific provision in the rules laying down the principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. It is true that Government cannot amend or supersede statutory Rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed."
(9) In view of the law laid down by the Supreme Court, there is no option left to the Court except to declare the instructions (Annexure- P.3) dated 22nd September, 1978 ultra vires of the rules and are liable to be struck down.
(10) In the light of what has been discussed above, the administrative instructions dated 22nd September, 1978 (Annexure- P.3) being ultra vires of the Rules provided in Chapter 18-A of High Court Rules and Orders (Volume 1) are struck down and the promotion of respondents 4 to 15 are declared illegal. The petitioners shall be considered for promotion to the posts of Upper Division Clerk/Readers from the dates whenever these fall due to them, as if such instructions have not been issued, and in case they are eventually promoted, they will be entitled to all consequential benefits. There will be no order as to costs.