Central Administrative Tribunal - Delhi
Smt. Krishna Chhikara vs Municipal Corporation Of Delhi on 27 January, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DLEHI.
TA No.154/2009
(W.P. {C} 4316/2008) Reserved On:29.11.2011
Date of Decision:27.1.2012
New Delhi this the 27th day of January, 2012
Honble Smt. Meera Chhibber, Member (J)
Honble Shri M.L. Chauhan, Member (J)
Honble Shri Shailendra Pandey, Member (A)
Honble Dr. A.K. Mishra, Member (A)
Honble Dr. Dharam Paul Sharma, Member (J)
1. Smt. Krishna Chhikara
W/o Shri Rajinder Singh Chhikara
R/o DP-245, Pitampura,
Delhi.
2. Shri Om Prakash Yaduvanshi
S/o Shri Netal Singh Yadhuvanshi,
R/o D-106, Dashrathpuri,
Delhi-110 045.
3. Smt. Krishna Sharma
W/o Shri Hari Mohan
R/o Village & P.O. Chhawla,
New Delhi.
4. Smt. Shanti Soren Beck
W/o Shri Piyur Soren
R/o D-1/3 Naniwala Bagh, MCD Flats, Azadpur,
Delhi.
5. Smt. Savita Rani
W/o Shri Jagmohan
R/o H.No. 1652/33, Naiwala Street,
Karol Bagh,
New Delhi.
6. Smt. Premlata Kataria
W/o Shri Y.P. Kataria
R/o 395, Sector 15-A,
NOIDA (up).
7. Shri R.K.S. Gaur
S/o Shri K.S. Gaur,
R/o H.No.254/A Tomar Colony,
Burari, Delhi. Applicants
By Advocate: Shri V.K. Garg.
Versus
1. Municipal Corporation of Delhi
Through its Commissioner,
Town Hall, Delhi-110 006.
2. Union Public Service Commission,
through its Secretary,
Dholpur House,
Shahjahan Road,
New Delhi.
3. Shri N.K. Ghai
S/o Shri P.N. Ghai
R/o D-5 Kailash Colony,
New Delhi.
4. Smt. Pushpa Devi
W/o Dr. Ram Kishan
Working as DEO (Phy.)
Department of Education,
MCD, Najafgarh Zone,
Delhi. ..Respondents
By Advocate: Mr. Rajinder Khatter, Counsel for R-1.
Mr. Naresh Kaushik, Counsel for R-2
Mr. Raman Duggal, Counsel for R-3.
ORDER
By Honble Mrs. Meera Chhibber, Member (J)
7 petitioners had filed W.P. No. 4316/2008 before Honble High Court of Delhi seeking the following relief:-
(i) Issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus quashing order dated 26.4.2007 promoting respondents No.3 & 4 as DEO on regular basis; and
(ii) Direct respondent-MCD to convene year-wise DPCs for promotion of the petitioners on their respective posts as per their respective eligibility in accordance with law and order their respective promotion with all consequential benefits such as seniority etc..
In view of Notification dated 1.12.2008, the Writ Petition was transferred to the Tribunal by the Honble High Court of Delhi vide order dated 20.1.2009. It was numbered as TA 154/2009.
2. After hearing all the parties, detailed order was passed on 16.7.2009 by the Division Bench taking the view that the regular promotion of R-3 and R-4 as DEO Physical, who were earlier AEO (Physical) was not sustainable in law because the RRs had not yet been amended for the purpose. However, the Division Bench was informed by the counsel for R-3 that in other TAs bearing No.115/2009 and 116/2009 contrary directions have been given by the Co-ordinate Bench viz. that AEO (Physical) should be considered for the post of DEO (Physical) by holding review DPC. Since there would have been apparent contradiction in implementing the directions as mentioned above, therefore, as a measure of abundant precaution, keeping in view the mandate of Honble Supreme Court in the case of SI Roop Lal and Another Vs. Lt. Governor through Chief Secretary, Delhi and Others reported in 2000 (1) SCC 644, the matter was referred to the Full Bench by framing 2 questions viz.-
(1) whether AEO (Physical) can be considered for promotion to the post of DEO (Physical) merely on the basis of resolution which has not been notified in the Gazette in terms of Section 480 (2) of the MCD Act 1957.
(2) whether AEO (Physical) can be considered for the sanctioned post of DEO without the RRs being amended.
3. Initially, the Full Bench in its order dated 15.9.2009 framed 3 additional questions viz.-
(1) As to whether the present TA is competent without calling in question Resolution No.5686 dated 31.01.1997 passed by Special Officer, who is vested with powers under Section 490 of the Municipal Corporation Act at a time when Municipal Corporation was dissolved.
(2) As to whether the applicants are entitled to any relief in the context of their having taken advantage of the Resolution dated 31.01.1997 as regards increase in the strength of DEO from one to ten, and pleading non-entitlement of the private respondents for promotion on the post of DEO (Physical) allowed through the same very Resolution.
(3) Whether the applicants can claim promotion against the posts created vide resolution dated 31.01.1997 of DEO (Physical), and if not, whether the order issued by this Tribunal when may not accord any benefit to the applicants, there would be any use of issuing any writ, order or direction.
4. Finally the Full Bench returned the reference vide order dated 18.10.2010 by observing it was not competent because the Division Bench had already taken a final view on all the points. It was further observed as follows:-
There is no conflict insofar as, the order passed by the Division Bench and the one passed by the coordinate Bench in TA Nos.115/2009 and 116/2009 are concerned. The conflict, if at all, may be, would be in implementing the two judgments. To that extent, of course, there would be some difficulty. It is for the Division Bench to see whether in these circumstances the matter needs to be referred to the Full Bench, or the parties are to be left to seek appropriate remedy. Either the Division Bench may clarify that the views expressed by the Division Bench were tentative, else it may proceed to dispose of the matter. While doing so Division Bench may decide the additional questions framed by the Full Bench.
5. At this stage counsel for R-3 filed RA No.304/2010 seeking the following relief:-
(i) Review the order dated 16.7.2009 passed in the above matter;
(ii) To dismiss the TA of the applicants;
(iii) Thereupon to set aside the order dated 16.7.2009;
(iv) Pass such order(s) as this Honble Court deem fit and proper in the interest of justice; and
(v) To impose exemplary costs against the applicants in TA in view of the circumstances of the present case.
The RA was adjourned from time to time either on request of the counsel for parties or as the same bench could not assemble because it was not a regular bench any longer. On 21.7.2011, direction was given to the Registry to constitute a special bench on 10.8.2011 at 2.00 P.M. so that the RA may be taken as it had been pending for quite some time. However, on the next date, i.e., 10.8.2011 the RA was adjourned to 1.9.2011 on joint request of all the counsel including counsel for the Review Applicant.
6. On 1.9.2011, when the matter was called out, the Division Bench was informed by counsel for petitioners that R-3 has filed P.T before the Honble Chairman for transferring the case to some other bench. In view of above, matter had to be adjourned.
7. The P.T. was dismissed by the Honble Chairman by a detailed order dated 13.9.2011 holding it to be bereft of any merit. However, in the larger interest of justice, Honble Chairman referred the matter to a five Member Bench by making it clear that his Lordships would not like to be a member of the Larger Bench having expressed the view as regard contempt committed by the applicant in the PT.
8. It is in these circumstances, that the RA and TA were listed before the Larger five Member Bench. RA was disposed of on 25.11.2011 by observing that the TA No.154/2009 had not yet been disposed of finally by the Division Bench. Moreover the matter has now been referred to the five Member Bench, therefore, the case has necessarily to be heard on merit and decided finally.
9. Counsel for the petitioners took an objection that the Full Bench could not have framed further questions nor could have gone beyond the reference and even if any directions are given by the Full Bench, these were not binding. He placed reliance on the following judgments:-
(i) T.A. Hamed Vs. M. Vishwanathan reported in 2008 (3) SCC 243 wherein it was held as follows:-
Since only a reference was made to the Full Bench of the High Court, the Full Bench should have answered only the question referred to it and remitted the matter to the Division Bench for deciding the matter on merits.
(ii) Kesho Nath Kurana Vs. U.O.I. & Others reported in 1981 Supp(1) SCC 38 where it was held as under:-
Where only a question of law is referred by single Judge to Division Bench, held, the Bench must decide that question and send the case back to the single Judge along with its answer to the question After determining the question, held, the Bench is not entitled to proceed to dispose of the second appeal on merits and dismiss it with costs.
10. However, we are informed that petitioners had challenged the order dated 15.9.2009 passed by Full Bench but the Honble High Court did not interfere in the matter. Moreover, questions framed by the Full Bench go to the root of the matter, therefore, this objection is overruled.
11. The issues involved in this case are very simple and pure question of law viz.:
(i) Whether AEO (Physical) in Education Department of MCD could have been promoted on regular basis as DEO (Physical) in 2007 when neither any post of DEO (Physical) was ever created nor were they in the feeder category for promotion to the post of DEO (which posts were created) and were governed by the notified RRs, without carrying out amendment in the notified RRs simply on the basis of an administrative decision which is contrary to the statutory rules, that too by ignoring AEOs who were indeed in the feeder category for promotion to the post of DEO as per the notified RRs and had joined the service much earlier than R-3 and R-4.
(ii) Whether petitioners have any right to claim direction to the respondents to hold year-wise DPC for respective posts as per the statutory rules.
12. The brief facts of the case are that in Education Department of MCD, there were initially 4 streams viz. School Inspector (without any suffix), School Inspector (Science), School Inspector (Physical) and School Inspector (Nursery) having separate recruitment regulations with different qualifications. As far as School Inspectors (Physical) were concerned, they could go up to AEO (Physical) but after that they had no promotional avenues because neither any post of Dy. Education Officer [hereinafter referred to as DEO (Physical)] was created nor they were in the feeder category of DEO. All the cadres were having separate seniority lists and respective promotions in their own channel. It was only AEO (without any suffix) who had further promotional avenue as DEO which is evident from the notified RRs of DEO which are as under:-
SCHEDULE
Recruitment Regulations for the post of Deputy Education Officer in the Municipal Corporation of Delhi:
1. Name of Post Deputy Education Officer
2. No. of Posts 1
3. Classification Equivalent to Class-I
4. Scale of pay Rs.900-1250 (pre-revised)
Rs.1300-1700 (revised)
5. Whether selection post or non-selection post Selection
6. Age limit for direct recruits Not exceeding 45 years (relaxable for Government servants) and employees of MCD.
Note: The crucial date for determining the age limit shall be the closing date for receipt of application from candidates in India (other than those in Andaman and Nicobar Islands and Lakshdweep)
7. Educational and other qualifications required for direct recruits Essential:-
(i) Masters degree from a recognized University or equivalent.
(ii) degree or post graduate diploma in teaching from a recognized university/institution or equivalent.
(iii) 7 years experience in the field of education including five years experience in Educational Administration.
(Qualification relaxable at the UPSCs discretion in case of candidates otherwise well qualified; in particular the qualification regarding experience is relaxable in case of candidates belonging to SC or ST)
Desirable
(i) Knowledge of local languages viz. Hindi or Urdu.
(ii) Experience of work in an examining body.
8. Whether age and educational
qualifications prescribed will apply in the case of promotion. Age: No
Educational
Qualifications: Yes
9. Period of probation, if any 2 years
10. Method of rectt. Whether by direct recruitment or by promotion or by deputation/transfer & percentage of the vacancies to be filled by various methods Promotion, failing which by transfer on deputation and failing both by direct rectt. The selection in both cases to be done in consultation with the UPSC.
9. Period of probation, if any 2 years
10. Method of rectt. Whether by direct recruitment or by promotion or by deputation/transfer & percentage of the vacancies to be filled by various methods Promotion, failing which by transfer on deputation and failing both by direct rectt. The selection in both cases to be done in consultation with the UPSC.
11. In case of recruitment by promotion/deputation
/transfer, Grades from which promotion/deputation/
transfer to be made. Promotion: Assistant Education Officer with 3 years service in the grade rendered after appointment thereto on regular basis.
Transfer on Deputation:
Suitable Officers holding/analogous posts in Central/State Governments or autonomous educational institutions (Period of deputation shall not ordinarily exceed 3 years)
12. If a DPC exists what is its composition Class-I DPC
13. Circumstances in which UPSC is to be consulted in making rectt. As required under Section 97 of the Delhi Municipal Corporation Act, 1957 and the UPSC (Consultation by DMC) Regulations, 1959
On 31.1.1997 through a Resolution, an administrative decision was taken for re-organisation and restructuring of zonal setup in view of the fast changing concept of primary education likely to become a fundamental right and in order to achieve 100% universalisation of primary education by 2002 by the Commissioner of MCD which was approved by the Special Officer under Section 490(2)(b) of the MCD Act as the house stood dissolved.
In para 3 (i) thereof it was proposed to (1) upgrade one post of School Inspector (Physical) Rs.2000-3500 to the post of AEO Physical in the scale of Rs.3000-4500. It was further proposed in sub-para (ii) (2) that since the pay scale of Sr. School Inspector and Assistant Education Officer is identical and their nature of duties are also more or less the same, therefore, SSIs should be designated as AEO.
In sub-para (iii) (3) it was further proposed that all the categories of AEOs viz. AEO General, AEO Physical, AEO Science and AEO Nursery will form the feeder grade for promotion to the post of DEO and (4) henceforth inter-se seniority in respect of AEO General, Physical, Science and Nursery shall be determined by CED in the ratio of 70:15:10:5 respectively on the basis of their joining the post of SSI/AEO either on current duty, ad hoc or regular basis for the purpose of promotion to the post of DEO.
In sub-para (iv) it was clarified that (5) promotion to the post of AEO in different categories would be made from their respective feeder posts of School Inspector.
In sub-para (v) (6) one post of School Inspector Nursery in the grade of Rs.2000-3500 was to be upgraded to the post of AEO Nursery in the grade of Rs.3000-4500. (7) Six posts of SI Nursery were also required to be created.
In para C-i it was proposed (8) to create 8 posts of DEOs in the pay scale of Rs.3000-5000 and (9) 4 posts of AEO General were to be upgraded as DEO. It was further proposed that (10) the remaining 12 posts of AEO General and 4 SSI (General) shall be amalgamated to make it AEO General.
In next sub-para it was proposed that (11) 6 posts of SSI (Science) shall be re-designated as AEO (Science) in the same pay scale.
From the above document three things broadly can be culled out viz.
(1) The decision was taken to reorganize and restructure the education department of MCD, as a result of it, some posts were created, some were upgraded and some were amalgamated.
(2) Promotional avenues for the post of DEO were made available to all the 4 streams viz. AEO General, AEO Physical, AEO Science and AEO Nursery. In other words the feeder category for the post of DEO were enlarged.
(3) It was decided to prepare inter-se seniority of all the 4 streams in the ratio of 70:15:10:5 on the basis of their joining the post of SSI/AEO either on current duty/ad hoc or regular basis for the purpose of their promotion to the post of DEO meaning thereby that a common seniority list was to be prepared as per the decision in the ratio of 70:15:10:5 on the basis of their joining the post of SSI/AEO whether on current duty, ad hoc or regular basis for promotion to the post of DEO.
13. In view of above an office order was issued by the MCD on 11.8.1997 (page 24) whereby all the posts of Sr. School Inspector were re-designated as AEO General and Science respectively.
Before 11.8.1997, petitioner No.1 who was posted as Sr. S.I. on current duty charge vide order dated 29.9.1995 (page 22) was posted as AEO General on 27.6.1996 (page 29) on ad hoc basis and further as DEO General on ad hoc vide order dated 15.6.2005 (page 27).
Petitioner No.2 who was earlier working on the post of Sr. S.I. was given current duty of AEO General and was later appointed as AEO (General) on ad hoc basis vide order dated 18.9.1998 (page 25 & 29).
Petitioner No.3 was promoted as AEO (General) vide order dated 1.5.2001 on ad hoc basis and further given look after charge of DEO (General) vide order dated 5.6.2006 and was promoted as DEO (General) on ad hoc basis on 20.11.2006.
Petitioner No.4 was given current duty charge of SSI General vide Office Order dated 23.8.1994 (page 37). She was initially entrusted with the current duty charge of AEO (General) vide order dated 30.3.1995. Later, vide order dated 25.7.1996 (page 41) she was appointed to the post of AEO on ad hoc basis.
Petitioner No.5 was promoted as School Inspector (General) on 6.11.1989 and was promoted as AEO (General) on ad hoc basis vide order dated 10.12.1998 (page 43). She was further promoted as DEO (General) on ad hoc basis vide order dated 29.9.2005 (page 45).
Petitioners No.6 and 7 had joined as AEO (without any suffix) under direct recruitment quota after being recommended by the UPSC in the year 1992 (page 47 & 50). Petitioner No.6 was promoted as DEO (General) on ad hoc basis and then as Additional Director (Primary Education) also on ad hoc basis vide order dated 26.5.2004 (page 49). Petitioner No.7 was promoted as DEO (General) on ad hoc basis vide order dated 10.9.1997 (page 52).
14. As compared to them, R-3/4 were appointed as AEO (Physical) under direct recruitment quota, on 31.8.1998 and 15.7.1999 respectively, i.e., much after the petitioners No. 6 and 7 were appointed as AEO and most of the other petitioners were promoted as SSI or AEO (General) on ad hoc basis. The grievance of the petitioners in this case is, that though petitioners No.6 and 7 had joined as AEO in May, 1992 and they were eligible for being considered to the next post of DEO (without any suffix) as per the existing RRs, which are still in-vogue, yet they were promoted as DEO (General) only on ad hoc basis in the year 1997 simply because after reorganization, the RRs with regard to other streams had not been notified while by the impugned order dated 26.4.2007 R-3 and R-4 have been promoted on regular basis as DEO (Physical) ignoring the claim of AEOs which was the feeder category for the post of DEO as per the existing RRs even as on date. They have further stated that neither any post of DEO (Physical) was created nor there are any RRs for the post of DEO (Physical) nor the existing RRs for the post of DEO have been amended till date to include the AEO (Physical) in the feeder category, therefore, there is no justification to promote only the stream of AEO (Physical) on regular basis in 2007 ignoring the AEOs completely.
15. They have further stated that R-3 had himself filed Writ Petition No.23600/2005 in the Honble High Court wherein he had sought a direction to the respondents to hold DPC for the post of DEO. He did not even seek promotion as DEO (Physical). Even the Honble High Court had directed the respondents to initiate steps for filling up regular vacancies in the post of DEO by ensuring that DPC for all eligible persons as per the regulations is conducted in respect of each vacancy year. In view of the above, there was absolutely no justification to consider only R-3 and R-4 who were AEO (Physical) for promotion as DEO (Physical) on regular basis ignoring the petitioners. In fact R-3 had himself objected to his promotion as DEO (Physical) by stating that there is no post of DEO (Physical) nor any direction was given by the Honble High Court to promote him as DEO (Physical). They have thus submitted that the regular promotion of R-3 and R-4 is liable to be quashed and set aside.
16. Counsel for the applicants further submitted that the instructions of the Government of India are very clear that DPC should be convened every year and the selected officers in the panel drawn up by the DPC should be utilized for promotion against vacancies occurring during the course of that year. Reference was made to OM dated 10.4.1989 to state that where there had been delay in holding DPCs for a year or more, vacancies should be indicated year-wise separately and those officers only, who were within the field of consideration with respect to the vacancies of each year should be considered. Counsel for the petitioners referred to the OM dated 30.3.1988 to state that ad hoc appointments or promotions should be made only until regular candidates become available. It is stated by the petitioners that they had given number of representations to the MCD to regularize them but no DPC was held by the MCD. They have been continued as DEO or DEO (General) on ad hoc basis and petitioner No.6 has been given further promotion also on ad hoc basis as Additional Director, Director whereas R-3 and R-4 have been given regular promotion as DEO (Physical) on 26.4.2007. They have thus submitted that in these circumstances, there is absolutely no justification to consider only R-3 and R-4 for regular promotion to the post of DEO (Physical) ignoring the claim of petitioners No.6 & 7 for regular promotion as DEO, who were indeed eligible for promotion to the post of DEO, as per the existing RRs for the post of DEO.
17. Counsel for the applicants further submitted that though a Government servant has no fundamental right to promotion but certainly he has a right of consideration as per his eligibility in terms of the statutory rules, therefore, they could not have been ignored, while R-3 and R-4 were considered for regular promotion to the post of DEO (Physical). They have thus prayed that the regular promotion of R-3 and R-4 be quashed and MCD be directed to convene year-wise DPCs for promotion of the petitioners on their respective posts as per their respective eligibility in accordance with law with all consequential benefits.
18. MCD has filed a short affidavit stating therein that in the year 1997, Corporation had decided to strengthen and upgrade the existing zones and set up by creating 15 more posts of DEOs on the proportionate ratio in respect of feeder cadre/post, namely, 70% for AEO (G), 15% for AEO (Physical), 10% for AEO (Science) and 5% for AEO (Nursery) vide Resolution/Decision dated 31.1.1997. However, since there were no notified RRs in respect of different categories of DEO like Physical, Science and Nursery except the notified RRs of 1976 for DEO, therefore, the cases of the concerned AEOs could not be sent to UPSC for promotion/regularisation to the post of DEO (General), DEO (Physical) etc. It was due to the exigency of the work that ad hoc promotions were given to the concerned AEOs including petitioners in respect of their own feeder cadre to the post of DEO (General).
They have further stated that it was in compliance with the orders passed by the Honble High Court of Delhi on 16.12.2005 in Writ Petition No. 23600/2005 that the matter was referred to the UPSC for holding DPC to the post of DEO (Physical) on regular basis. UPSC had raised certain queries. In the meantime, Shri N.K. Ghai,, i.e., Respondent No.3 had filed Contempt Petition against the Commissioner, MCD. The MCD had informed the UPSC that RRs for the post of DEO (Physical) are under process and notification may take some time, therefore, promotion to the post of DEO (Physical) might be done as one time mode of recruitment. Accordingly, R-3 and R-4 were promoted to the post of DEO (Physical) with effect from 25.4.2007 vide letter dated 26.4.2007.
In the meantime, number of cases had been filed by other officers of the MCD relating to their seniority, promotion or regularization to the post of DEO which are pending. In these circumstances, the matter was referred to the UPSC to either review the DPC for the post of DEO (Physical) or for considering the cases of other AEO or DEO (General) who are working on ad hoc basis since 1997 and regular AEO (General) since 1992 for their promotion as DEO (General) on the basis of existing notified RRs of 1976 from the date of their holding the post of DEO (General) on ad hoc basis on the same analogy in which Shri N.K. Ghai and Smt. Pushpa Devi were considered and promoted as DEO (Physical) on regular basis to avoid any further dispute/litigation in regard to their seniority.
As far as, holding the DPC for the post of AEO (General) with regard to petitioner No.1 to 5 are concerned, they have stated no RD/Police Case Reports, Currency of Punishment Report, Integrity Certificates and Annual Confidential Reports are being collected but some of the ACRs of most of the petitioners for last 10 years are not available till date. After receiving the same and completing other requisite formalities, the matter of petitioners along with other eligible candidates will be referred to UPSC for holding the DPC. They have further stated that prior to 1997 there were 3 posts of Deputy Education Officer in the Education Department which were being filled up from the feeder cadre of post of Assistant Education Officer on the basis of notified RRs of 1976. They have thus prayed that the petition may be dismissed.
19. UPSC has also filed reply. They have stated the RRs notified by the MCD on 19.10.1976 for the post of Dy. Education Officer stipulate that for promotion to the post of Dy. Education Officer, the feeder category is AEO with 3 years service in the grade on regular basis. The RRs further stipulate that the promotion shall be on selection basis. A proposal was received from MCD for considering promotion in the grade of DEO (Physical) for 2 vacancies on the directions of the Honble High Court of Delhi vide its order dated 16.12.2005 in Writ Petition No.23600/2005. Even though the RRs do not mention any category of post as DEO (Physical), the MCD informed that they had divided the grade of DEO in 4 categories and earmarked the vacancies for each of the categories. In the category of DEO (Physical), 2 posts were sanctioned and hence the MCD requested for considering promotion in the grade of DEO (Physical) by taking into consideration only the feeder grade of AEO (Physical), therefore, the other categories of AEO could not be considered for promotion in this grade. Accordingly, a DPC was held on 25.4.2007, as per the rules, regulations prescribed by DOP&T contained in their OM dated 10.4.1989.
They have further stated in para 6.2 (page 162) as follows:-
The MCD has now submitted a proposal for reviewing the DPC held on 25.4.2007 requesting for a comprehensive Review DPC to consider all the 4 categories of AEO. They have further admitted that holding of DPC on 25.4.2007 to consider promotion in the grade of DEO (Physical) only was a mistake because as per the notified RRs and resolution of MCD, all categories of AEOs, i.e., AEO (General), AEO (Physical), AEO (Science) and AEO (Nursery) form the feeder grade to DEO. They have further submitted that many eligible officers were not considered by the original DPC. The request for Review DPC proposal is under examination of UPSC and the MCD has been requested for certain clarifications. After receiving the clarifications, proposal would be taken further.
In other words, they have tried to justify their action by saying that they did point out the deficiency vide letter dated 4.7.2006 (page 166). However, DPC was convened as per the information provided by the MCD. The request for review DPC is under consideration, therefore, the Writ Petition may be dismissed.
20. Respondent No.3 whose promotion as DEO (Physical) has been challenged by the petitioners has taken preliminary objection to the maintainability of the Writ Petition on the ground that (a) MCD, vide its Resolution/Decision dated 31.1.1997 had created 15 posts of DEO in the ratio of 70:15:10:5 for AEO (General), AEO (Physical), AEO (Science) and AEO (Nursery) on the basis of seniority in each cadre of Assistant Education Officer. Thus, out of 15 posts of Dy. Education Officers, 10 posts were to be filled from the cadre of AEO (General), 2 posts each form AEO (Physical) and AEO (Science) and one from the feeder post of AEO (Nursery) as per the seniority in each cadre. This was a material document having bearing on the promotion of R-3 and R-4. Since petitioners had concealed this document, Writ Petition is liable to be dismissed on this ground alone. (b) He has further stated that since he has been promoted pursuant to court orders, his promotion cannot be challenged. (c) Petitioners No.1 to 5 are holding the substantive post of School Inspector whereas petitioners No.6 and 7 are AEO, therefore, they could not have jointed together to file the present Writ Petition, therefore, Writ Petition is liable to be dismissed for mis-joinder of parties. (d) The petition is bad in law on account of non-joinder of cause of action inasmuch as petitioners No.1 to 5 are not even regular AEO (General). Since they do not come in the feeder category for DEO, they cannot challenge the promotion of R-3 as DEO (Physical). (e) Pursuant to the above Resolution, promotion orders were issued in different categories for the post of Dy. Education Officer as per their respective seniority. Having availed the benefit, it is not open to the petitioners to challenge the promotion of R-3 and R-4. The Writ Petition is liable to be dismissed on this ground also. (f) He has further stated that petitioner No.7 has concealed the material fact from this court that he had already filed a separate Writ Petition bearing No.1201/2008 seeking substantially the same relief as in the present petition but he has given a false declaration in the present Writ Petition that no other Writ Petition seeking similar relief has been filed in any other court, therefore, the Writ Petition is liable to be dismissed on this ground also. (g) Similarly Petitioner No.6 had also filed Writ Petition No.1144/2008. He has further stated that MCD is in league with the petitioners. The present petition has been filed to defeat the rights of the answering respondents.
21. On merits, R-3 has denied that petitioners are senior to Respondents No.3 and 4 on the post of DEO. He has stated all the petitioners were promoted on ad hoc basis as DEO while he has been given regular promotion. In any case, it is stated by him that R-3 and R-4 were having different feeder post prior to their promotion as DEO, therefore, R-3 and petitioners No.6 and 7 cannot be placed on the same footing because they are from different cadres. Since promotions to the post of DEO were to be made in different cadres as per Resolution dated 31.1.1997, therefore, petitioners cannot have any objection to the promotion of R-3 as DEO (Physical). He has thus prayed that the Writ Petition may be dismissed.
22. R-4 has chosen not to file any reply.
23. We have heard all the parties in detail and have perused the pleadings as well.
24. It was very easy for us to dispose of the matter in terms of the statement made by the MCD and particularly UPSC who have stated in para 6.2 that MCD has now submitted a proposal for reviewing the DPC held on 25.4.2007 requesting for a comprehensive Review DPC to consider all the 4 categories of AEO. They have further admitted that holding of DPC on 25.4.2007 to consider promotion in the grade of DEO (Physical) only was a mistake because as per the notified RRs and resolution of MCD, all categories of AEOs, i.e., AEO (General), AEO (Physical), AEO (Science) & AEO (Nursery) form the feeder grade to DEO. They have further submitted that many eligible officers were not considered by the original DPC. The request for Review DPC proposal is under examination of UPSC and the MCD has been requested for certain clarifications. On receipt of the clarifications, a decision on the proposal would be taken.
Since we had heard this matter earlier in a Division Bench. The matter was referred to the Full Bench in July, 2009 when the matter was also heard by the Full Bench for quite some time and now for over a week, the matter has been heard by a 5 Member Bench, we feel, it is our duty to decide the case on merits rather than resorting to short cut methods specially when cross cases have been filed by different officers for seeking regularization, promotion from back date or seniority etc. It is pertinent to mention here that the petitioners have challenged regular promotion of R-3 and R-4 as DEO (Physical) whereas R-3 has filed OA No.1477/2009 seeking further promotion as Additional Director on the basis of this very impugned order by stating he alone is eligible. He has also sought reversion of R-6 who had been promoted as Additional Director on ad hoc basis on the ground that she was not promoted as DEO on regular basis.
In view of above, the issue raised which is a pure question of law is required to be decided on merits so that further litigation comes to an end.
25. Before going into the merits of the case, we would have to deal with the preliminary objections taken by R-3.
The first objection taken by learned counsel for R-3 was that the petitioners have concealed Resolution dated 31.1.1997 which is a material document wherein 15 posts of DEOs were created and were required to be filled in the ratio of 70:15:10:5 from amongst the 4 streams of AEO (General ), AEO (Physical), AEO (Science) and AEO (Nursery), therefore, the petitioners cannot have any grievance. The Writ Petition is liable to be dismissed on this ground. In any case, petitioners have not challenged Resolution dated 31.1.1997, therefore, they cannot be granted the relief, as prayed for. In support of his contention he has placed reliance on following judgments:-
(i) Prestige Lights Ltd. Vs. CBI reported in 2207 (8) SCC 449 (para 20, 29, 33 to 36) to state that if there is suppression of material facts or the applicant has twisted the facts, then the Court may not even entertain the case and dismiss it without entering in the merits of the case.
(ii) Bhaurao Dagdu Paralkar Vs. State of Maharashtra reported in 2005 (7) SCC 605 to substantiate his contention that if material document is suppressed it would amount to fraud on the court and in paragraph 11 it has been held that fraud vitiated every Act.
(iii) Anil Kumar Khurana Vs. UOI reported in Volume 62 1996 DLT 313 (DB).
We have perused the entire Resolution dated 31.1.1997 (page 195) which shows it was a proposal for re-organisation/restructuring of zonal setup by upgrading/creating certain posts to match the added responsibilities, keeping in view the fast changing concept of primary education likely to become a fundamental right. Only 2 paragraphs are relevant for this case viz. para 3 and C(i) which for ready reference are quoted below:-
3. Change in the Organisation structure for strengthening the zonal set up
(i) 12 posts AEO (Physical) are existing. Therefore, with the proposal of posting one AEO (Physical) in each zone, no AEO (Physical) will be left for HQ. It is, therefore, proposed to upgrade one post of School Inspector (Physical) (2000-3500) to the post of AEO (Physical) in the scale of Rs.3000-4500.
(ii) The pay scale of Senior School Inspectors and Assistant Education Officers are identical. The nature of duties are more or less the same. Hence, it is proposed to designate SSIs as AEOs. There would be the following strength of AEOs in General, Physical, Science and Nursery Wings after this amalgamation or the posts of SSIS with AEOs:-
Sl.
No. Category No. of AEOs No.of SSIs No. of posts created Total No.of AEOs after creation/amalgamation
1. General 16 4 _ 16
2. Science 1 6 _ 7
3. Physical 12 _ 1 13
4. Nursery _ _ 1 1
Total 37
(iii) All the above categories of AEO will form the feeder grade to the post of DEO. Henceforth, the inter-se seniority in respect of AEO (General), AEO (Physical), AEO (Science) and AEO (Nursery) shall be determined by the CED in the ratio of 70:15:10:5 respectively on the basis of their joining the post of SSI/AEO either on current duty, ad hoc or regular basis for the purpose of their promotion to the post of DEO.
C.i In the new set up 8 posts of DEOs in the pay scale of Rs.3000-5000 would be created and 4 posts of AEO (General) shall be upgraded to the post of DEO. Remaining 12 posts of AEO (General) and 4 SSI (General) shall be amalgamated to be 16 AEOs (General).
It is relevant to note that in the entire proposal, there is neither any mention of creating 15 posts of DEO or that they were to be filled in the ratio of 70:15:10:5 as alleged by the counsel for R-3. On the contrary only 8 posts of DEO (without any suffix) were created in the pay scale of Rs.3000-5000 and 4 posts of AEO (General) were to be upgraded to the post of DEO in para C(i) meaning thereby, the only posts that were created were of DEO (without any suffix). Though in para 3(iii) it was proposed that all the 4 streams would form the feeder cadre but posts were not apportioned in this Resolution at all as suggested by the counsel for R-3. On the contrary, it was suggested that inter-se seniority should be prepared of all the steams in the ratio of 70:15:10:5 respectively on the basis of their joining the post of SSI/AEO either on current duty, ad hoc or regular basis for the purpose of their promotion to the post of DEO, therefore, the Resolution dated 31.1.1997 does not give any special right to R-3. Moreover, the Resolution dated 31.1.1997 is not even disadvantageous to the petitioners. On the contrary this document is advantageous to the petitioners No. 1 to 5 inasmuch as in para 3 (iii) it was proposed that inter-se seniority shall be determined on the basis of joining the post of SSI/AEO either on current duty, ad hoc or regular basis for the purpose of their promotion to the post of DEO, therefore, even if this document was not produced by the petitioners, it would not make any difference because neither R-3 would have gained from this Resolution nor is there anything against the petitioners.
In view of the above, it cannot be stated that petitioners had concealed any material document. Even otherwise, the petitioners have given full details of their status in para 2.1 to 2.7 as to how they were appointed initially and were given further promotions on current duty/ad hoc basis etc. They have annexed Office Order dated 29.9.1995 (page 22) to show that petitioner No.1 was entrusted with current duty charge of Senior School Inspector initially but consequent upon the reorganization of the Education Department under new Zonal Set-up of the MCD, Office Order dated 11.8.1997 (page 24) was issued whereby all the posts of Senior School Inspector (General) and (Science) were re-designated as Assistant Education Officer (General) and (Science) respectively. In this order Resolution dated 31.1.1997 is clearly referred to. It is thus not correct to say that petitioners had suppressed the Resolution/Decision dated 31.1.1997. They may not have annexed this document with the petition but that would not mean that they had concealed the document with a view to gaining something against R-3. In fact, reference of same was made by them by annexing Office Order dated 11.8.1997. In view of above, it can neither be stated that Resolution dated 31.1.1997 was material document nor can it be stated that for not filing such a document, the Writ Petition is liable to be dismissed. In above facts, the judgments relied upon by the counsel for R-3 would not be applicable. This objection is, therefore, overruled.
26. Counsel for R-3 next contended that the Writ Petition is bad for mis-joinder of parties and mis-joinder of cause of action because petitioner No.1 to 5 are only SIs which is not even the feeder category for the post of DEO while petitioners No.6 and 7 were AEO, they could not have joined together to challenge the promotion of R-3 who was admittedly appointed as AEO (Physical) on regular basis in 1998.
This objection is also without any merit because R-3 has himself annexed Resolution dated 31.1.1997 wherein certain posts were upgraded or re-designated. Petitioners have annexed the orders to show that they were promoted as AEO on ad hoc basis after the posts were re-designated or otherwise. In any case in the above Resolution, it was made clear that all the streams would be eligible for promotion and their inter-se seniority would be counted on the basis of their joining the post of SSI/AEO on current duty/ad hoc or regular basis. Since they were all promoted as AEO on ad hoc basis, therefore, naturally petitioners were aggrieved because they were not even considered while R-3 and R-4 were given regular promotion as DEO (Physical) on 26.4.2007. Petitioners No.6 and 7 are aggrieved because they were regularly appointed in 1992 as AEO, yet they are still not given regular promotion as DEO even though they were in the feeder category of DEO as per the notified RRs of DEO but R-3 and R-4 who were appointed as AEO (Physical) in 1998 and 1999 have been given regular promotion as DEO (Physical) in 2007 de-hors the rules.
Though R-3 is trying to gain benefit from Decision/Resolution dated 31.1.1997 to state that he was entitled to be promoted in his own stream, he has forgotten that in the same Resolution/Decision, it was proposed to designate SSIs as AEOs pursuant to which an order was also passed by the respondents on 11.8.1997 (page 24) whereby all the posts of Senior School Inspectors were designated as Assistant Education Officer (General) and (Science) respectively, therefore, on the basis of above said Resolution they had also become eligible for promotion to the post of DEO. It is a different matter that they could not have claimed regularization/promotion on the basis of this Resolution, unless the RRs for the post of DEO were amended to include them in the feeder category, which would also apply to the AEO (Physical) as well because they were also not in the feeder category as per the notified existing RRs of DEO, AEO (Physical) was also proposed to be included in the feeder category for the post of DEO for the first time by the same Resolution/Decision dated 31.1.1997, therefore, R-3 and R-4 were also in the same boat. In any case, they have sought the 2nd relief to hold year-wise DPC for considering them on the respective post as per the rules, which relief can neither be questioned nor has been questioned by R-3. Moreover, MCD has also stated in their reply that they are in the process of conducting year-wise DPC, therefore, the petition cannot be dismissed on the ground of mis-joinder of parties or mis-joinder of cause of action. This contention is also overruled.
27. The next contention raised by the counsel for R-3 was that petitioners No.6 and 7 had already filed Writ Petitions bearing No.1144/2008 and 1201/2008 for the same relief and they had given a wrong declaration in the present Writ Petition that no other Writ Petition has been filed seeking the same relief. As far as petitioner No.7 is concerned, learned counsel submitted, he had full knowledge of regular promotion of R-3 and R-4, yet he had not challenged the same, therefore, this Writ Petition is barred by the principles of constructive res judicata.
It is correct that in Writ Petition bearing No. 1201/2008 filed petitioner No.7, promotion order dated 26.4.2007 as DEO (Physical) in respect of R-3 and R-4 (page 608) was annexed and he could have challenged the same, if he was aggrieved by their promotion, yet the only relief sought by him was to direct the respondents to regularize the promotion of petitioner as DEO w.e.f. 10.9.1997 when he was promoted as such on ad hoc basis and direct the respondents to accord him seniority as DEO with effect from the same date, i.e., 10.9.1997 with all other consequential benefits (page 543).)
Technically speaking counsel for R-3 may be right that a relief which was available to Petitioner No.7 but not availed of in the earlier petition, would not be available to him in the subsequent Writ Petition but perusal of Writ Petition No. 1201/2008 renumbered as TA No.158 of 2009 shows that he had sought regularization of his promotion as DEO with effect from 10.9.1997 with seniority on the ground that he would have lost out on next promotion because R-3 and R-4 were given regular promotion as DEO (Physical) even though they were appointed as AEO (Physical) in 1998 whereas petitioner No.7 was appointed as AEO in 1992, was still not given regular promotion as DEO. He had specifically stated that for the next post of Additional Director, the feeder cadre is DEO with 4 years regular service in the grade of DEO failing which DEO with 5 years combined regular service in the grade of DEO and AEO, therefore, his promotion may be regularized. It seems subsequently he realized that unless promotion of R-3 and R-4 is challenged, they would overtake him for next promotion, therefore, he challenged the promotion of R-3 and R-4 in present Writ Petition. The relief may be overlapping to some extent and we agree with the counsel for R-3 that the least that was expected of R-7 was to mention about his earlier Writ Petition. None the less we find, the relief sought in both the Writ Petitions are different. Earlier he had sought regularization as DEO w.e.f. 10.9.1997 with all consequential benefits but later he became wiser and challenged the promotion order of R-3 and R-4 in the present Writ Petition on the ground that their promotion is bad in law being de hors the rules by further seeking a direction to the respondents to convene year-wise DPCs for promotion of the petitioners on their respective posts as per their eligibility in accordance with law and grant them promotion with all consequential benefits, therefore, it cannot be dismissed on this ground. In any case, we have been informed by the MCD that there are as many as 12 other cases filed by different officers, who are seeking regularization, promotion or seniority etc. due to ad hoc promotions etc. etc. It is pertinent to mention here that R-3 has also filed OA No. 1477/2009 claiming the following relief:-
(a) pass suitable directions to the respondents to forthwith hold DPC and make appointment to the post of Additional Director (Primary Education) in terms of relevant Recruitment Regulations, i.e., Annexure P-I from amongst the eligible Deputy Education Officers along with consequential relief of seniority etc.
(b) pass a declaration that promotion to the post of Additional Director shall be from the date when the post of Regular Additional Director feel vacant.
) pass a direction that the present ineligible holders of the post of Additional Director (Primary Education) be reverted to their substantive post of Assistant Education Officer.
(d) pass a declaration that the applicant is the most eligible candidate to hold the post of Additional Director (Primary Education).
(e) to hold and declare that the Applicant is entitled to promotion to the post of Deputy Education Officer for the vacancy year of 2001-2002, as per law and consequent thereto the necessary correction be carried in the applicants promotional order dated 26.4.2007, i.e., Annexure P-4 hereto.
(f) such other and further order as this Honble Tribunal may deems fit and proper in the facts and circumstances of this case may also be passed.
meaning thereby that if the issue raised in the present case is not decided on merit, it will only create further litigation and chaos in the department. It is also relevant to note that almost the entire education department is running on ad hoc basis barring a few officers which is neither in the interest of department nor officers, nor it can be allowed to continue when it has been brought to the notice of judicial forum. Moreover, we are informed that even those cases viz. TA No.115/2009 with TA No.116/2009 and TA No.158/2009 which have been decided by the Tribunal, have not yet been implemented because MCD and UPSC both are awaiting the outcome of this case.
It is also to be kept in mind that this matter was earlier heard by a Division Bench, then by the Full Bench and finally by a 5 Member Bench for over a week, therefore, we are of the considered opinion that it will be criminal waste of judicial time, if the petition was to be thrown out on technical grounds, rather the case should be decided on merits as it involves a pure question of law. We, therefore, overrule this preliminary objection in the larger interest of justice and in order to streamline the working in the MCD. .
28. Coming to the merits, the case of petitioners No.6 and 7 is very simple. It is stated by them that they were appointed as AEO on regular basis after being selected through UPSC in the year 1992. Even though there were 4 streams in the Education Department of the MCD, namely, AEO (without any suffix) Physical, Science and Nursery. It was only AEO (without any suffix) who was eligible for promotion for the post of DEO as per the existing notified RRs of the post of Deputy Education Officer. AEO (Physical) did not have any further promotional avenues, as neither there was any post of DEO (Physical) nor there were any RRs for the post of DEO (Physical) nor they were in the feeder category in the RRs for the post of DEO. Their grievance is that AEO alone were in the feeder cadre for the post of DEO as per the notified statutory rules, the vacancy was also available yet they were promoted as DEO (General) on ad hoc basis in the year 1997, when R-3 and R-4, who were not even born in the cadre because R-3 and R-4 were appointed as AEO Physical for the Ist time in 1998 and 1999, i.e., much after petitioners No.6 and 7 were promoted and are not even in the feeder category of DEO as per the notified RRs, yet they have been given regular promotion as DEO (Physical) in the year 2007 without even considering the petitioners. In the process their further promotions would be affected. Counsel for the petitioners specifically stated that he is not challenging the validity of the Resolution/Decision dated 31.1.1997. All that he pointed out was that since the existing RRs for the post of DEO were not yet amended to include AEO (Physical) in the feeder category and no post of DEO (Physical) has been created, therefore, R-3 and R-4 could not have been promoted as DEO (P) on regular basis while denying even consideration to the AEOs who were indeed eligible as per the feeder category in the existing notified RRs. He further submitted that for creating more posts RRs were not required to be amended but for giving regular promotion, RRs of DEO were required to be amended. Till the RRs were amended, R-3 and R-4 could not have been considered for promotion as DEO (Physical). In any case, policy decision could not have been given effect to for giving regular promotion, without the decision being converted into draft RRs and the said RRs being approved by the Central Government and notified in the Gazette under Section 480(2) of the MCD Act.
29. Counsel for R-3 on the other hand tried to justify R-3s promotion on the basis of Resolution dated 31.1.1997 and the judgment of Honble High Court of Delhi. He further submitted that since the decision on 31.1.1997 was approved by the Special Officer under Section 490(2)(b) of the MCD Act when the Corporation was dissolved, the decision could have been acted upon, without requirement of notification under Section 480(2) of the MCD Act specially when it was a policy decision and was not a Regulation.
30. Let us examine contentions of both the counsel. We have already noted above that in the Resolution dated 31.1.1997, the only posts created were of DEO which were governed by the statutory rules framed under Section 98 and duly approved and notified under Section 480 (2) of the DMC Act. In these RRs it was only AEOs (without any suffix) who were eligible to be considered for promotion. No other stream was eligible for promotion as DEO. It is correct that on 31.1.1997 a Resolution was approved by the Special Officer under Section 490(2)(b) of the MCD Act to include all the streams in the feeder category for the post of DEO but that would at best be an administrative decision which was contrary to the notified statutory rules. The legal question which thus arises is, whether an administrative decision can override the statutory rules or amount to amending the rules without actually amending the RRs. The answer would be no because Section 490(2)(b) of MCD Act reads as under:-
Section 490 (2)(b)
during the period of dissolution of the Corporation, all powers and duties conferred and imposed upon the Corporation by or under this Act or any other law, shall be exercised and performed by such officer or authority as the Central Government may appoint in that behalf.
Under this section, the Special Officer can exercise at best those powers which are vested in the Corporation. Section 98 gives power to the Corporation to make rules laying down conditions of service of officers and other employees as follows:-
(c ) The qualifications of candidates for appointment to posts specified in sub-Section (1) of Section 89 and to posts dealt with in the First Schedule of posts referred to in sub-section (2) of Section 90 and the manner of selection for appointments to pots dealt with in the Second Schedule of posts referred to in that sub-section.
(e) any other matter which is incidental to, or necessary for, the purpose of regulating the appointment and conditions of service of persons appointed to services and posts under the Corporation and any other matter for which in the opinion of the Corporation provisions should be made by regulations.
Section 480 of MCD Act is also relevant here, which for ready reference, is quoted below:-
480. Supplemental provisions respecting regulations
(1) Any regulation which may be made by the Corporation under this Act, may be made by the Central Government within one year of the establishment of the Corporation; and any regulation so made may be altered or rescinded by the Corporation in the exercise of its powers under this Act.
(2) No regulation made by the Corporation under this Act shall have effect until it has been approved by the Central Government and published in the Official Gazette.
Perusal of above provisions shows that Section 98 of the MCD Act, gives power to the Corporation to make rules/regulations but that is subject to Section 480(2) which makes it clear that no such Regulation shall have effect unless it has been approved by the Central Government and published in the official Gazette. Section 480 also gives power to the Corporation to alter or rescind the Regulation but that is also subject to Section 480(2). When the main Regulation itself cannot be given effect to without it being approved by the Central Government or Notification in the Gazette, naturally the same would apply to the amendment or alteration also. We find no merit in the contention of counsel for R-3 that Resolution could have been acted upon, without following the due procedure as laid down in the Act. It is trite law that when a procedure is mentioned in the Act, it has to be followed and acted upon in the same spirit. Section 21 of the General Clauses Act would be relevant here which for ready reference reads as under:-
21. 2[ Power to issue, to include power to add to, amend, vary or rescind, notifications, orders, rules or bye- laws.- Where, by any 3[ Central Act] or Regulation, a power to 4[ issue notifications,] orders, rules, or bye- laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any 5[ notifications,] orders, rules or bye- laws so 6[ issued].
In A. Manoharan and Others Vs. U.O.I. & Others reported in 2008 (3) SCC 641 it was held as under:-
The legal principle that an administrative act must yield to a statute is no longer res integra. Once a regulation has been framed, in terms of the provisions of the General Clauses Act, the same must be amended in accordance with the procedures laid down under the principal enactment. Even assuming that the Central Government had the jurisdiction to direct the authority to amend the regulations, it was required to be carried out in accordance with law, and, thus all requisite procedures laid down therefor were required to be fulfilled.
From above, it is clear that even for amendment, the same procedure has to be followed.
Even otherwise, the administrative decision dated 31.1.1997 with regard to enlarging the feeder cadre was only the first step in the process of framing regulations. The modalities as to how the 4 streams would be considered, what would be the qualifications, what would be basic requirement for the feeder category, whether it would require regular service/ad hoc/current duty charge for making them eligible were yet to be finalized. Since the decision taken was to increase the feeder category by including other streams which were not already included, naturally it was contrary to the existing notified RRs. Moreover in the RRs, the feeder category was AEO who should have 3 years of regular service, whereas it was decided to consider even those AEOs in the Resolution/Decision dated 31.1.1997 who were posted either on ad hoc/current duty charge or regular, therefore, naturally it required amendment in the existing RRs. Simply because an administrative decision was taken it does not mean the rules stood amended.
At this stage it would be relevant to refer to the judgment of Honble Supreme Court in the case of K. Kuppusamy Vs. State of Tamil Nadu reported in 1998 (8) SCC 469 wherein it was held by Honble Supreme Court as follows:-
The short point on which these appeals must succeed is that the tribunal fell into an error in taking the view that since the government had indicated its intention to amend the relevant rules, its action in proceeding on the assumption of such amendment could not be said to be irrational or arbitrary and, therefore, the consequential orders passed have to be upheld. We are afraid this line of approach cannot be countenanced. The relevant rules, it is admitted, were framed under the proviso to Article 309 of the Constitution. They are statutory rules. Statutory rules cannot be overridden by executive orders or executive practice. Merely because the government had taken a decision to amend the rules does not mean that the rule stood obliterated. Till the rule is amended, the rule applies. Even today the amendment has not been effected. As and when it is effected ordinarily it would be prospective in nature unless expressly or by necessary implication found to be retrospective. The tribunal was, therefore, wrong in ignoring the rule.
According to us the present case would be fully covered by above judgment because here also the RRs for DEO were issued under Section 98 duly approved and notified in the Gazette as required under Section 480(2) of the MCD Act, they were, therefore, statutory regulations. Regulation has been defined under Section 2 (48) to mean a regulation made (by the Corporation) under this Act by Notification in the official Gazette, therefore, simply because an administrative decision was taken to increase the feeder category, it could not have been given effect to without amending the RRs. Even otherwise it is settled law that administrative instructions cannot alter or supersede the statutory rules. In K. BALASUBRAMANIAN Vs. State of Tamil Nadu reported in 1991 (2) SCC 708 it was held by Honble Supreme Court that administrative instructions cannot alter or supersede the statutory rules.
In A.K. Bhatnagar and Others Vs. U.O.I & Others reported in 1991 (1) SCC page 544 it was held that once Government had made provision it must strictly follow the same. It was specifically held as follows:-
The Supreme Court at several occasions had indicated to the Union and the State Governments that once they frame rules, their action in respect of matters covered by rules should be regulated by the rules. The rules framed in exercise of powers conferred under the proviso to Article 309 of the Constitution are solemn rules having binding effect. Acting in a manner contrary to the rules does create problem and dislocation. Very often government themselves get trapped on account of their own mistakes or actions in excess of what is provided in the rules. Serious view of these lapses and hope and trust that the government both at the Centre and in the States would take note of this position and refrain from acting in a manner not contemplated by their own rules.
In State of Orissa and Others Vs. Prasanna Kumar Sahoo reported in 2007 (15) SCC 129 it was held as follows:-
The State is bound by the constitutional scheme to treat all persons equally in the matter of grant of public employment as envisaged under Articles 14 and 16 of the Constitution. Policy decision taken by the State in exercise of its jurisdiction under Article 162 of the Constitution of India would be subservient to the recruitment rules framed by the State either in terms of a legislative Act or the proviso appended to Article 309. A purported policy decision issued by way of an executive instruction cannot override the statute or statutory rules far less the constitutional provisions.
In P.D. Aggarwal and Others Vs. State of U.P. & Others reported in 1987 (3) 622 it was held by Honble Supreme Court that an administrative order or instruction cannot supersede or amend statutory rules of service.
In Punjab Water Supply & Sewerage Board Vs. Ranjodh Singh and Others reported 2007 (2) SCC 491 it was held as follows:-
B. Constitution of India Arts. 162 & 73 and 309 Scope of power under Article 162 Primacy of statutory rules or Article 309 proviso rules Held, a scheme issued under Art. 162 cannot prevail over statutory rules or Art. 309 proviso rules If terms and conditions of service are governed either by statutory rules or Art. 309 proviso rules, any policy decision adopted by State Government under Art. 162 would be illegal and without jurisdiction Administrative Law Administrative action Administrative orders/decisions/Executive instructions.
High Court could not have proceeded to issue directions only on basis of a purported policy decision of State Government, which purported policy decision was in contravention of statutory rules and constitutional provisions.
At this juncture it would also be relevant to refer to the following judgments viz:
(i) H.R. Ramachandraiah and Another Vs. State of Karnataka and Others reported in 1997 (3) SCC. The facts of the case were Recruitment Rules provided for promotion of Head Gardeners as Field Assistants. Petitioners who were Laboratory Attenders claimed that they were equivalent to Head Gardeners and may, therefore, be considered for promotion as Field Assistants. Rejecting their contention. It was held one category cannot be transposed by interpretation of rules, and fitted into altogether a different category of service, merely because channel of promotion in that service is not provided. Unless the petitioners get into the channel of promotion under statutory rules, they cannot, by interpretation, be fitted into a category to which they did not belong and cannot claim promotion on that basis.
(ii) Similarly in Mangi Lal Vs. State of Rajasthan reported in 2007 (9) SCC 189 it was held as follows:-
10. 'Eligibility' and 'Experience' stand on different footings. For filling up the post by way of promotion, there must exist a channel. In absence of any channel, promotion cannot be effected.
11. The Rule must be read in its entirety. So read, there cannot be any doubt whatsoever that for the purpose of promotion to the post of Assistant Mining Engineer, the candidate must be a holder of a post of Mines Foreman Grade-I or Head Draftsman or Senior Surveyor. As the appellant did not hold any of the said posts, the question of promoting him to the post of Assistant Mining Engineer, did not arise.
From above judgments, it is clear that administrative decision cannot supersede the statutory rules. In above backdrop, if we test the facts of the present case, we find the existing notified RRs for the post of Deputy Education Officer were also approved by the Special Officer under 490 (2)(b) DMC Act, 1957 yet thereafter they were approved by the Lt. Governor and published in the Delhi Gazette under Section (2) of Section 480 of the DMC Act which itself would belie the contention of R-3 that Resolution under Section 490(2)(b) could have been acted upon without getting it approved or formally publishing it in the Gazette. It would be relevant to refer to the Notification for DEO which for ready reference reads as under:-
Notification
No.F.9/28/76-LSG: The following recruitment regulations made by the Municipal Corporation of Delhi u/s 98 of the Delhi Municipal Corporation Act, 1957 (66 of 1957) vide Commissioners decision No.1637/GW/Corp. dated 28.5.1976 in exercise of the powers of the Corporation under Section 490(2)(b) of the DMC Act, 1957 in connection with the recruitment for the post of Deputy Education Officer, Municipal Corporation of Delhi having been approved by the Lt. Governor, Delhi in pursuance of the provisions of Sub-Section (2) of Section 480 of the said Act, read with Govt. of India, Ministry of Home Affairs, Notification No.3/6/66-Delhi dated the 19.10.1976 are hereby published in Schedule below. This Administration Notification NO.F.2/152/68-LSG issued on 16.12.68 and published in Delhi Gazette dated 16.12.1968 is hereby cancelled.
At the cost of repetition, it is reiterated that the posts which were created by the Resolution dated 31.1.1997 were DEO (without any suffix) and not DEO (Physical). It is clear from the above notified RRs that the post of DEO (without any suffix) was governed by the statutory rules wherein the feeder category was only AEO (without any suffix) with 3 years regular service in the grade rendered after appointment on regular basis. However, the decision taken was not only to include all the 4 streams in the feeder category but also to count their seniority from the date of promotion as SSI/AEO on current duty/ad hoc or regular basis which was contrary to the notified RRs, therefore, naturally it required amendment in the RRs. Admittedly RRs of DEO have not been amended till date, therefore, R-3 and R-4 could not have been promoted on the basis of administrative decision alone, if any. We find force in the contention of counsel for petitioners that R-3 and R-4 could not have been given regular promotion as DEO (Physical) without amending the RRs on the basis of administrative decision only, which too did not give any special right to them.
The contention of the counsel for R-3 that Resolution was not required to be transformed into Regulation or notified under Section 480(2) of the MCD Act is, therefore, rejected being contrary to the Scheme of the Act.
Counsel for R-3 next contended that since the Resolution has not been challenged, the Tribunal cannot look into the correctness of Resolution. The Resolution has neither been challenged by the petitioner nor is required to be challenged because it neither gives any right to R-3 for claiming promotion as DEO Physical nor is it against the petitioner. Since Resolution dated 31.1.1997 has been produced by R-3 as his defence to justify his promotion as DEO (Physical), the court has to examine whether it is a valid defence or not. It is in this context that we had to examine the effect of Resolution and whether it could have been given effect to, without amending the RRs when it was contrary to the statutory rules. In view of discussion in preceding paras, we hold that there was no need to challenge the Resolution/Decision dated 31.1.1997, this answers question No.1 framed by the Full Bench viz.
(1) As to whether the present TA is competent without calling in question Resolution No.5686 dated 31.01.1997 passed by Special Officer, who is vested with powers under Section 490 of the Municipal Corporation Act at a time when Municipal Corporation was dissolved.
31. Counsel for the R-3 next contended that RRs cannot be said to be absolute and it is open to the employer to act contrary to the statutory rules also, if required or if the rules become unworkable. In order to substantiate his contention, he placed reliance on State of Sikkim Vs. Dorjee Tshering Bhutia and Others reported in AIR 1991 SC 1933.
The facts of the case were, in State of Sikkim recruitment to the service as per the RRs prescribed two methods viz. competitive examination and by selection from amongst persons serving in connection with the affairs of the State of Sikkim. In respect of both these methods, it was the Sikkim Public Service Commission (hereinafter referred to as SPSC) which was the authority under the rules to make recruitment to the service. The competitive examination was to be held by the Commission. The Selection Committee for recruitment under R. 4(1)(b) was also to be presided over by the Chairman of the Public Service Commission and finally the merit list had also to be approved by the Public Service Commission. In other words the Rules could only operate through the Sikkim Public Service Commission. Without the existence of a Public Service Commission in the State of Sikkim, the Rules could not have become functional. However, on July 1, 1977 when the Rules came into force there was no Public Service Commission in the State.
The officers were insisting for induction into Sikkim State Civil Service. In above circumstances, Notification dated 16.9.1981 was issued in terms of sub-rule (3) of Rule 4 of the Sikkim State Civil Service Rules 1977 whereby special recruitment procedure was adopted constituting a Selection Committee. It was for the first time that one Shri K. R. K. Menon was appointed as Chairman of the Commission by notification dated November 20, 1981 and he took over as such on January 1, 1982. It is, thus, the admitted position that from July 1, 1977 till January 11, 1982 the Public Service Commission in the State of Sikkim had not been constituted and as such was not functioning. Subsequently when Chairman, Sikkim Public Service Commission was appointed, another notification dated 24.4.1982 was issued and the Chairman, SPSC was made to preside over the interview board. The merit list prepared as a result of selection was sent to the Sikkim Public Service Commission for approval and thereafter 29 officers were appointed to the service by a notification dated December 13, 1982.
Dorjee, the respondent before the Honble Supreme Court, who was working as Under Secretary to the Government of Sikkim, had also competed in the selection but failed. He then challenged the notification dated 16.9.1981 on the ground that the procedure adopted, being contrary to the statutory rules, was bad in law. He also challenged Rule 4 (3) of the Rules. His Writ Petition was allowed by the Single Bench on the ground that the Notification was contrary to the rules. The matter was carried to the Honble Supreme Court.
Looking at the peculiar facts of the case viz. that in the absence of SPSC, rules could not have been operated, the officers were giving representation to be inducted in service, the work was suffering, the rules itself gave power to the State Government under Rule 4 (3) to adopt such method of recruitment to the service other than those specified in earlier part in the exigency of service so required, the exigency having been recorded in the cabinet note, it was held by Honble Supreme Court that in the peculiar facts there was no bar for the State to act in exercise of its executive power because the source of power was given in the rules itself. Moreover, after SPSC was constituted, the Chairman was made to preside over the viva voce test and merit list was also approved by the Commission which was an independent authority, therefore, the action of appellant was not found fault with.
It is relevant to note that even in this case the legal position was reiterated as follows:-
The executive power of the State cannot be exercised in the field which is already occupied by the laws made by the legislature. It is settled law that any order, instruction, direction or notification issued in exercise of the executive power of the State which is contrary to any statutory provisions, is without jurisdiction and is a nullity. ..The executive power of the State being divided amongst various functionaries under Art. 166(3) of the Constitution of India there is possibility of lack of co-ordination amongst various limbs of the Government working within their respective spheres of allocation. The object of regulating the recruitment and conditions of service by statutory provisions is to rule out arbitrariness, provide consistency and crystallise the rights of employees concerned. The statutory provisions which are unworkable and inoperative cannot achieve these objectives. Such provisions are non est till made operational. It is the operative statutory provisions which have the effect of ousting executive power of the State from the same field. When in a peculiar situation, as in the present case, the statutory provisions could not be operated there was no bar for the State, Government to act in exercise of its executive power. The impugned notification to hold special selection was issued almost four years after the enforcement of the Rules. 'It was done to remove stagnation and to afford an,. opportunity to the eligible persons to enter the service. In our view the State Government was justified in issuing the impugned notification in exercise of its executive power and the High Court fell into error in quashing the same.
From above it is clear that the settled position in law was reiterated even in this judgment. The case was decided in peculiar facts of the case. Even otherwise, if we examine the facts of our case in above backdrop we find the decision taken on 31.1.1997 was for all the streams. No special treatment was to be given to AEO (Physical) alone even as per decision dated 31.1.1997. Even if it be taken that RRs of DEO had become in-operational, it was same for all the streams, therefore, it gives no special right to AEO (Physical). Neither there was any such exigency in the instant case which required only one stream of AEO (Physical) to be considered for promotion as DEO (Physical) in 2007 nor there was any such rule, as in above case, which gave power to the MCD to act contrary to the statutory rules. On the contrary MCD has specifically stated even in their reply filed in July, 2008 that the AEOs could not be considered for regular promotion in the absence of amendment in the RRs, therefore, the intention was clear that RRs were required to be amended. This judgment cannot advance the case of R-3. Reliance on this judgment is misplaced.
32. Counsel for R-3 then tried to justify his promotion on the basis of judgment given by Honble High Court. Even that does not justify the regular promotion of R-3 and R-4 because perusal of judgment dated 16.12.2005 in W.P. No. 23600/2005 filed by R-3 shows R-3 had sought a direction to the MCD to hold DPC for the post of DEO as per the recruitment regulations from amongst AEO Physical. It is relevant to note here that R-3 had himself not referred to the resolution/decision dated 31.1.1997 in said Writ Petition. He had stated, he is eligible to be considered for the post of DEO as per the regulations.
The Honble High Court did not examine the correctness of his statement because we are informed by the counsel for MCD that the case was decided on the Ist date. It is relevant to note that Honble High Court disposed of the matter by observing as follows:-
The recruitment regulations are statutory in
character, having been formulated under Section 98 of the Delhi Municipal Corporation Act, 1957. Hence, the MCD is bound to its mandate. In the present case, the Petitioner was recruited on regular basis in the year 1998; he completed his eligibility in the year 2001, as per the averments in the petition. Having regard to the allegation that no DPC has been constituted for recruitment to the post of DEO for some time, I am of the view that the MCD should take up the issue and initiate steps, in that regard with proper
coordination with the UPSC. Accordingly, the MCD is directed to initiate steps for recruitment process for the purpose of filling up the regular vacancies in the post of DEO. While doing so, the MCD shall ensure that the concerned eligible persons as per the requirements of the Regulations and also having regard to the circulars governing the zone of consideration and other the other issues are kept in mind in respect of each vacancy year. The entire process shall be completed within a period of six months from today.
8. The writ petition and other proceedings are disposed off in the light of above observations and directions. However, all rights and contentions of the parties are kept open.
From above it is clear that the Honble High Court had also directed the MCD to initiate steps for filling up the post of DEO by considering the concerned eligible persons as per the statutory rules (2) no reference was made to the resolution dated 31.1.1997 in this judgment nor any direction was given to consider the respondent No.3 alone. It is also relevant to note that no definite finding on respondent no.3s eligibility was given by the court. It was only noted that respondent No.3 herein had completed eligibility in the year 2001 as per the averments in the petition. It is thus clear that respondents were directed to consider all eligible persons as per the regulations for the post of DEO which were statutory in nature whereas respondents committed gross mistake inasmuch as they considered only respondent no.3 and 4 herein for regular promotion as DEO (Physical) even though they were not even in the feeder cadre of Regulations of DEO as they were admittedly AEO (physical), which did not form the feeder cadre. R-3 had himself sought promotion as DEO and not as DEO (Physical), therefore, even this judgment does not justify the regular promotion of R-3 and R-4 as DEO Physical. In fact it would not be wrong to record a finding that the action of MCD in promoting R-3 and R-4 as DEO (Physical) on regular basis was contrary to the directions of Honble High Court, therefore, they are bad in law on account of this reasoning also.
It is further relevant to note here that after R-3 was promoted as DEO (Physical) he had himself filed an affidavit in Contempt Petition No. 1728/2006 and stated therein as follows:-
There is no post of Deputy Education Officer (Physical). The promotional post is of Deputy Education Officer. The petitioner neither sought the relief for promotion to the Deputy Education Officer (Physical) nor there is any Recruitment Regulation for the post of DEO (Physical) nor the Honble Court has even passed the directions for the post of Deputy Education Officer (Physical). Such conduct of the respondents by promoting the petitioner as DEO (Physical) is deliberate, mischievous and therefore contemptuous.
By the present promotion order to the non existing post of DEO (Physical), the Petitioners career prospect has been put to serious jeopardy, in as much as, for the further promotion the feeder post is DEO and not DEO (Physical). It is therefore submitted that the DPC was not conducted in accordance with the provisions of law and directions of the Honble Court.
The CP was dismissed on 12.12.2008 by observed as follows:-
If the petitioner is aggrieved by the order promoting him from a particular date and claims that his promotion had to be from retrospective effect despite the rules being contrary, the petitioner is at liberty to seek substantive relief by way of separate Writ Petition.
It is thus clear that R-3 is also aware that there is neither any post of DEO (Physical) nor he can get further promotion as DEO (Physical). He is trying to setup a new case in the present proceedings which is totally contrary to his earlier claim, therefore, the regular promotion of R-3/R-4 cannot be justified even on the basis of directions given by Honble High Court of Delhi. In fact, High Court had kept the rights and contentions open.
33. Counsel for R-3 next contended that since a policy decision was taken by the Special Officer to include all the streams in the feeder category, it could have been acted upon without amending the RRs. Even if for the sake argument, though not admitted, it is accepted that policy decision dated 31.1.1997 could have been acted upon, then also petitioners No.6 and 7 have a better case because they should have been promoted on regular basis as DEO or DEO (General) in 1997 when R-3 and R-4 were not even born in the cadre of AEO (Physical) because they were promoted as DEO (General) in 1997 on ad hoc basis. Admittedly R-3 and R-4 were appointed as AEO (Physical) only in 1998 and 1999, therefore, this advantage should have been given to petitioners No.6 and 7 at the Ist instance, who were appointed as AEO in 1992. Having promoted petitioners No. 6 and 7 as DEO in 1997 on ad hoc basis on the ground that RRs were not yet amended, the question, is could R-3 and R-4 been considered for regular promotion as DEO (Physical) in 2007 on regular basis on the basis of decision dated 31.01.1997. The answer that immediately comes to the mind is No. There is absolutely no justification whatsoever in promoting only one stream in 2007 on regular basis because that is even contrary to the decision dated 31.01.1997 itself. Therefore, seen from any angle the regular promotion of R-3 and R-4 cannot be sustained in law.
Counsel for R-3 placed reliance on Shankar Lal Sharma and Others Vs. MCD of Delhi through its Commissioner reported in 18 (1980) DLT 465 to state that once a decision was taken by the Corporation, it was binding on the MCD and if the rules were not finalized, work of Corporation cannot remain at stand still. In such circumstances, the executive instructions must be carried on. Counsel for R-3 submitted that in this case it was held by the High Court that framing of the statutory Recruitment Regulations is not a condition precedent to the making of appointments to the vacant post such as that of Vaids/Hakims/Homeopathic doctors. Perusal of this judgment shows that there were no Recruitment Regulations for the post of Vaids/Hakims/Homeopathic doctors. The rules were framed and approved by the Commissioner of the Corporation under Section 490(2)(b) of the DMC Act, 1957 when Corporation stood superseded wherein the method of recruitment prescribed was 25% by departmental examination and 75% by direct recruitment. Promotion was to be made from amongst the compounders with 5 years regular service in the grade. The said Regulation was subsequently modified wherein column 10 was modified to make the method of recruitment 50% by direct recruitment and 50% by departmental examination, yet the Commissioner of MCD had issued a circular dated 21.8.1979 inviting applications for the post of Vaids/Hakims/Homeopathic doctors for dispensaries running under the department of Indigenous of System of Medicines in the scale of Rs.650-1200 plus usual allowances by way of direct recruitment. In these circumstances, the petitioner had challenged the above notification on the ground that it was contrary to the decision taken by the Corporation. It was held by the Honble High Court that in the absence of statutory Recruitment Regulations it is open to the Corporation to issue administrative instructions regarding the method of recruitment or the principles to be followed for making promotions or for making direct appointment to the posts like that of Vaids/Hakims/Homeopathic doctors. From above it is clear that in the above case, there were no statutory rules for the post of Vaids/Hakims/Homeopathic doctors whereas in the present case before us in hand, the post of DEO which were in existence and were created by decision dated 31.1.1997 were governed by the statutory rules under Section 98 of the MCD Act. Moreover, it was held that since a decision was taken by the Corporation under Section 490(2)(b) of the MCD Act to fill the post 50% through direct recruitment and 50% by departmental examination, the Commissioner could not have issued this Circular contrary to the decision taken by the Corporation. It was in these circumstances held that even though the decision taken by the Corporation had not achieved the status of statutory Recruitment Regulations, it has to prevail over the decision of the Commissioner. Nobody can dispute this preposition because it is trite law that if there is a contradiction in the act and the rules, act would prevail, if there is contradiction in the rules and the administrative decision, rules would prevail and if there is contradiction in the policy decision taken by the Corporation and the Commissioner, who is only executor, naturally policy decision would prevail. But these are not the facts in the present case because in the instant case the post of DEO is governed by statutory rules issued under Section 98 of the MCD Act, therefore, even this judgment would not advance the case of the respondent No.3
34. Counsel for R-3 next contended that since petitioners had taken benefit of decision dated 31.01.1997 for accepting further promotions, it is not open to them to challenge the promotion of R-3 and R-4. He had placed reliance on following judgments. He had also submitted no injury is caused to the petitioners by his promotion as DEO (Physical) because he was promoted in separate cadre.
This contention is also without any merit because after the decision was taken to include all the streams in the feeder category and to upgrade certain posts or redesignate them as AEO in different streams, the benefit was availed by all the streams, which is evident from the orders annexed by petitioners e.g. order dated 11.08.1997 (page 24) was issued whereby the posts of SSI (G&W) both were re-designated as AEO (General) and AEO (Science). Similarly when order dated 10.09.1997 (page 52) was issued after taking the decision dated 31.01.1997, not only AEO were promoted as DEO (General) but even AEO (Physical) and AEO (Science) were also promoted as DEO (Physical) and DEO (Science), therefore, it is not as if the benefit was taken by the applicants alone. That time, nobody was aggrieved because all were promoted on ad hoc basis which did not give any right to anyone. The grievance has arisen now in 2007 because AEO (Physical) have been given regular promotion as DEO (Physical) while petitioners No.6 and 7 have not even been considered for regular promotion. It goes without saying that regular promotion of R-3 and R-4 would affect them in further promotions because R-3 and R-4 would steal a march over them. In fact R-3 has already filed an O.A. as explained above, seeking reversion of petitioner No.6 as Additional Director on the ground that she was not a regular DEO and has sought promotion to the next post of Additional Director on the basis of impugned order in this case by stating he alone is regular DEO, therefore, the grievance of petitioner is valid and the injury is also writ large. In these circumstances, the theory of approbate and reprobate wouldnt be attracted as alleged by the counsel for R-3.
35. Counsel for R-3 placed reliance on Karam Kaphi and Others Vs. Lal Chand Public Charitable Trust and Another reported in 168 (2010) SLT 501 (SC). However, perusal of this judgment shows the general principle of approbate and reprobate has been discussed. How this judgment would be relevant for the present case could not be explained by the counsel for R-3. In fact it has been held that inconsistent pleas had been taken by the club, which is not permissible. According to us, this would apply to the R-3 as well because in the Writ Petition filed by him earlier, he had taken a different plea whereas now he has taken absolutely different plea. In any case, in view of the facts as discussed by us in detail, this judgment would not help R-3.
36. Counsel for R-3 next placed reliance on P.U. Joshi and Others Vs. Accountant General, Ahmedabad and Others reported in 2003 (2) SCC 632. Perusal of this judgment shows that in this case, it was held by the Honble Supreme Court that the State by appropriate rules (emphasis laid) is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing existing cadres/posts and creating new cadres/ posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service. Nobody can dispute this preposition that the State has the power to create, amalgamate, bifurcate and constitute different categories of posts or cadres of posts by amending the rules. In P.U. Joshis case statutory rules had been made after bifurcation. Since there was no cadre of Supervisors and Audit Officer, for the post of Assistant Accounts Officer, which required that one should have passed the Section Officers Grade Examination (hereinafter referred to as SOGE) and possess three years experience in that grade, it was held that once RRS are amended it is the prerogative of the State to amend the rules and it could not have been questioned by the Supervisors who had not even passed the SOGE as they could not claim to be equivalent with SOGE who had qualified the examinations to be promoted as AAOs as the feeder category was only Section Officer and not Supervisors whereas in the instant case RRs have till date not been amended. In fact in this case also, Honble Supreme Court observed that the Tribunal was not right in directing that promotion should be granted to the Supervisors in derogation of the statutory rules under which they were ineligible for such promotion, therefore, even this judgment would not advance the case of R-3 as he was not included in the feeder category for the post of DEO by amending the RRs of DEO.
37. Counsel for R-3 had next placed reliance on the judgment given by Honble Supreme Court in Ramesh Prasad Singh Vs. State of Bihar and Others reported in AIR 1978 SC 327. Perusal of this judgment shows the facts are absolutely different in this case also. The appellant therein was appointed by the Bihar State Electricity Board (hereinafter referred to as BSEB) as Assistant Engineer (Tele-Communication) in September, 1963. He was sent for 6 months specialized training in power line carrier, telemetering and tele-control equipment in the modern power system to Switzerland. After his return from Switzerland, the appellant was deputed to look after the entire tele-communication system of the BSEB. However, in June, 1968, the BSEB felt the necessity of maintenance of efficient communication service between the vital centres of generation, utilization and administration for ensuring reliability and continuity in power supply which would facilitate quick supervision and checking of the then existing arrangements at the generating station, receiving sub-stations and distributing areas as also the necessity of proper supervision and handling by trained and qualified personnel of a large number of wave-change-over communication equipments on 33 KW Transmission line which had been installed in the Tele-Communication Sub-Division of the BSEB at Patna and were maintained and aligned with the help of special electronic instruments. It was in above circumstances that the BSEB accorded permission for creation of a temporary Tele-Communication Division with headquarters at Patna and also creation of a temporary post of Executive Engineer (Tele-Communication) with effect from June 22, 1968 to February 28, 1969.
On the basis of recommendation of its expert selection committee, the appellant was found fit to be promoted to the rank of the Executive Engineer (Tele-Communication) and the appellant was promoted to the post of Executive Engineer (Tele-communication).
His promotion was challenged by the Assistant Electrical Engineers on the ground that the promotion of appellant was mala fide, they were senior to the appellant and possessed the requisite qualification and two of them had studied Tele-communication as one of their subjects in the final examination of B. Sc. in Electrical Engineering, yet they have not even been considered by the BSEB for appointment to the post of Executive Engineer thus violating Articles 14 and 16 of the Constitution.
The High Court quashed promotion of the appellant on the ground that neither the separate cadre of Executive Engineer (Tele-communication) had been constituted nor had any special qualification been laid down by the BSEB for the post in question. Moreover, since respondents 3 to 28 were senior to him and had better experience and academic career than the appellant, they had been unjustifiably ignored by the BSEB while considering the appellant for the post of Assistant Engineer (Tele-communication). The matter was carried to the Honble Supreme Court. It was held by the Honble Supreme Court that the process of rule-making is a protracted and complicated one involving consultation with various authorities and compliance with manifold formalities. It cannot also be disputed that exigencies of administration at times require immediate creation of service or posts and any procrastination in that behalf cannot but prove detrimental to the proper and efficient functioning of public departments. In such like situations, the authorities concerned would have the power to appoint or terminate administrative personnel under the general power of administration vested in them meaning thereby that emphasis was laid by the Honble Supreme Court in particular situation whether it was immediately required to appoint a person, the rules had not yet been framed, therefore, appointment could be made even in the absence of rules. In above backdrop if the facts of the present case are seen we find there was no such urgency or exigency required for promotion of R-3 and R-4 alone on regular basis as DEO (Physical). The decision taken on 31.1.1997 only suggested that henceforth all the 4 streams, namely, AEO (General), (Physical), (Science) and (Nursery) should be placed in the feeder category for further promotion to the post of DEO meaning thereby that even as per that decision all the 4 streams had to be taken into consideration. The High Court had not given any direction to consider R-3 and R-4 alone. On the contrary, direction given was to consider all eligible persons as per the statutory rules, that too for the post of DEO. Admittedly, the Regulation for DEO have not been amended till date to include AEO (Physical) in the feeder category, therefore, neither they could have been considered for promotion as DEO (Physical) nor this judgment would advance the case of R-3 because the situation, as mentioned in the said case, does not exist in the present case.
It is relevant to point out here that for raising the no. of posts, it is not necessary to amend the rules. Amendment in rules becomes necessary only when the administrative decision taken is contrary to the statutory rules. MCD has explained there were already 3 posts of DEO prior to 1997. Only 8 posts of DEO were created in Resolution 31.1.1997 while 4 pots of AEO (General) were upgraded as DEO. Moreover, we have already explained above that the resolution dated 31.01.1997 didnt give any right to R-3 for being promoted as DEO (Physical).
This would answer Q-2 framed by the Full Bench Viz.:-
As to whether the applicants are entitled to any relief in the context of their having taken advantage of the Resolution dated 31.01.1997 as regards increase in the strength of DEO from one to ten, and pleading non-entitlement of the private respondents for promotion on the post of DEO (Physical) allowed through the same very Resolution.
38. Counsel for R-3 next argued that since R-3 was promoted in his own cadre of Physical as per resolution dated 31.01.1997, the petitioners couldnt have claimed promotion as DEO (Physical) because they were AEO (General) in a different category, therefore, they cannot have any grievance. At the cost of repetition, it is observed here that there was no cadre of Physical at the stage of DEO because under resolution dated 31.01.1997, the only post created was of DEO. No post of DEO (Physical) was created. It is, therefore, wrong to suggest that there was separate cadre of DEO (Physical).
This answers Q-3 framed by the Full Bench viz.:-
Whether the applicants can claim promotion against the posts created vide resolution dated 31.01.1997 of DEO (Physical), and if not, whether the order issued by this Tribunal when may not accord any benefit to the applicants, there would be any use of issuing any writ, order or direction.
39. Counsel for R-3 in the alternative contended that since there were no rules of DEO (Physical) and posts were apportioned in the next resolution dated 14.09.1998, therefore, the policy decision could have been acted upon for giving promotion to R-3 as DEO (Physical).
To support this contention counsel for R-3 had produced resolution dated 14.09.1998 in court for the 1st time before 5 Members Bench. Neither it was part of pleadings nor we know the official status of this resolution. None the less since it was stated by the counsel for R-3 that he had received it under RTI Act, let us examine whether this Resolution gives any right to R-3 to justify regular promotion as DEO (Physical) in the absence of amendment to the rules of DEO.
The copy given to us is not very clear but is reproduced to the extent it is visible:
Perusal of the above would show, the item itself self was amendment in regulation for the post of DEO. In this proposal, it was further stated that in decision dated 31.01.1997, mode of recruitment had been approved in the ration of 70%:15%:10%:5% from AEO General, Physical, Science and Nursery. On what basis this came to be recorded is not clear because resolution/decision dated 31.01.1997 didnt mention anything about it as explained by us in the beginning. Be that as it may, we need not comment on it because that is neither in question before us nor it is part of pleadings.
The important aspect to be noted is that even in this proposal it was clearly mentioned that due to upgradation/creation and change in mode of recruitment, it has necessitated amendment in the Recruitment Rules for the post DEO. The proposal thus was to amend the regulation of DEO. The next page shows resolution moved by Sh. Shanta Desai seconded by Mahesh Chandra was also to amend the recruitment regulations for the post of DEO as per column 4 of Annexure A.
The annexure is more important because even as per the amendment sought, the post still continued to be that of Dy. Education Officer. The nomenclature of DEO has not been changed even in the proposed amendment. It is only that the feeder category has been enlarged in column 11 by including AEO General, Physical, Science and Nursery with 3 years of service rendered after appointment thereto on regular basis.
In other words, the post still continues to be DEO in Column I. In the 2nd item against number of posts, it is mentioned as 15 which was to be bifurcated to be filled from the feeder category as per prescribed ration as Gen-10, Physical-2, Science-2, Nursery-1. Even this proposed amendment doesnt stipulate any post of DEO (Physical), therefore, the net position is that even as per the next resolution, the post in question still continued to be that of DEO and since department wanted to increase the feeder category, amendment was sought in the RRs. In view of the above, it cannt be stated that the field with regard of DEO (Physical) was not covered as such AEO (Physical) could have been promoted in their stream in the absence of amendment on the basis of administrative decision above. The contention is rejected because the field was very much occupied because the RRs of DEO were in existence which didnt include AEO (Physical) in the feeder category. Since decision was taken to include all the 4 streams in the feeder category, it was necessary to amend the RRs. The intention of department is clear from the subsequent resolution also and subsequent letters also.
40. Even otherwise, even if it is accepted for the sake of argument, (though not accepted) that the posts were apportioned in different streams as alleged, the next question to be decided by the department would be how those posts would be filled. Would the department not require to hold year-wise vacancy and consider only those persons who were eligible in law against the year-wise vacanices. If that be so, petitioners No. 6 and 7 were appointed as regular AEO in the year 1992. The vacancies were available in 1997 when both petitioners No.6 and 7 were promoted as DEO on ad hoc basis when R-3 and R-4 were not even born in their cadre because they were admittedly appointed as AEO (Physical) in 1998-99, therefore, against the vacancies of 1997, would petitioners No.6 and 7 not have a better claim than R-3 and R-4 because as they alone would be in the zone of consideration in 1997 or in subsequent years. MCD has also to decide how that apportionment has to be given effect to. In the Resolution dated 31.1.1997 they had decided to prepare inter-se seniority of all the streams in the ratio of 75:15:10:5. All these things are still not clear so unless the things are crystallized no regular promotion could have been given to the AEO Physical alone.
It goes without saying that the instructions of Govt. of India are very clear that even if DPC is not held for years, whenever it is convened, vacancies have to be worked out year-wise and only those persons are required to be considered against those vacancies on regular basis, who fall within the zone of consideration. In these circumstances, without considering petitioners No.6 and 7 for the post of DEO, R-3 and R-4 couldnt have been considered for further promotion as DEO (Physical) which post doesnt exist till date.
41. Seen from any angle, the regular promotion of R-3 and R-4 as DEO (Physical) cannot be sustained in law. The same is accordingly quashed and set aside. However MCD may treat the promotion of R-3 and R-4 as DEO (Physical) to be on ad hoc basis as was done with others. Ultimately we must uphold the rule of law as is the consistent view taken by the Honble Supreme Court in catena of cases including Secretary, State of Karnataka and Others Vs. Uma Devi and Ors. reported in 2006 (4) SCC 1
42. The next question is what relief should be granted in these circumstances. We have already held that as on date almost the entire department of education in MCD is working on adhocism. An endeavor must be made to make regular promotion by holding regular DPCs. As far as petitioners No.1 to 5 are concerned, they were admittedly promoted initially on current duty and subsequently as AEO on ad hoc basis. They have sought a direction to the respondents to convene year-wise DPC for promoting the petitioner on their respective posts as per their eligibility in accordance with law.
MCD had filed their reply in July, 2008 in which they had stated as follows:-
That under the aforesaid circumstances, the matter was referred to UPSC with the request to either review the DPC to the post of DEO (Physical), held, in the case of Shri N.K. Ghai and Smt. Pushpa Devi, (who joined MCD as regular AEO (Physical) on 1998-99), and promotion to the post of DEO (Physical) or for considering the case of other AEO/DEO (Gen.), who are working on ad hoc basis since 1997 and regular AEO (Gen.) since 1992 for their promotion as regular DEO (Gen.) on the basis of existing notified RRs of 1976, from the date of their holding the post of DEO (General) on ad hoc basis, on the same analogy in which Shri N.K. Ghai and Smt. Pushpa Devi were considered and promoted to the post of DEO (Physical) on regular basis, to avoid any further dispute/litigation in regard to their seniority. Accordingly, the matter has already been referred to the Union Public Service Commission for necessary action in this regard vide this office letter dated 17.3.2008 and 18.6.2008.
We are already in December, 2011. The status of CR is not known till date. The fact remains that even the DPC for AEOs has not been held which means unless positive directions are given by the Court, DPC would not he held for another 10 years on the specious ground that CRs are not available. After all CRs are to be written and maintained by the department. Why the CRs for last 10 years are not available has not been explained by the MCD. The instructions on this point are clear that if CRs are not available for some reasons, a certificate to that effect should be issued and candidate should be assessed on the basis of available CRs. The officers cannot be denied their right of consideration, if they are eligible, on the ground that CRs are not available. The controversy seems to be starting from the stage of AEO, therefore, (1) MCD is directed to convene in consultation with UPSC DPC for the post of AEOs by earmarking the vacancies year-wise and consider those who were within the zone of consideration.
(2) In case CRs are not available, certificate to that effect should be issued so that such candidates may be considered on the basis of available CRs.
(3) MCD should take a final decision in the matter as to how the posts of DEO are required to be filled and finalise the RRs as per their decision, get it approved and publish it in the official Gazette. This shall be done within 6 months from the date of receipt of a copy of this order.
(4) MCD shall then request UPSC to hold DPC for the post of DEO in accordance with the amended/New notified RRs as may be decided by the MCD by earmarking the vacancies year-wise and consider only such of the officers who were eligible against those vacancies and prepare year-wise panel so that final promotion orders may be issued in accordance with law.
(5) MCD is directed to complete all other formalities simultaneously viz. preparation of seniority list etc. so that no further time is wasted in these things.
Before we part with this case, we would like to reiterate that our endeavor has been to uphold the rule of law with a view to ensuring that no further litigation crops up in MCD at least on account of the questions raised in this case. We would also gracefully accept that the case of petitioner No.7 in TA No. 158/2009 should not have been disposed of on 1.4.2011. In any case the issues as raised in the present case were neither discussed nor decided at that time whereas now the controversy has been discussed threadbare and decided by a Larger Bench on merits, therefore, we direct that MCD should act in accordance with the directions given now. As far as TA No.154 of 2009 is concerned, the Full Bench had already observed in its order dated 18.10.2010 that there is no conflict in the judgment because in that case, these issues were neither raised nor discussed. It was suggested that liberty may be given to the parties to seek appropriate remedy, therefore, nothing more need be said on this account.
43. With the above order and directions, this TA stands disposed of. No costs.
( Shailendra Pandey ) ( M L Chauhan ) ( Smt. Meera Chhibber )
Member (A) Member (J) Member (J)
( Dr. Dharam Paul Sharma ) ( Dr. A.K. Mishra )
Member (J) Member (A)
Rakesh
Per Dr. Dharam Paul Sharma, Member (J) :
I have had the benefit of going through the order of Honble Mrs. Meera Chhibber, Member (J). With due deference and in all humility, I express my inability to agree with her order. Therefore, I am writing this separate order.
2. Since the facts of the case as well as the respective submissions of the parties have been stated in details in the aforesaid order, it may not be necessary for me to repeat the same afresh, except to the extent to which it may be necessary to do so in a given context. Furthermore, as the TA is being taken up for consideration and disposal on its own merits, the events that took place during the intervening stages before the Division and Full Benches need not necessarily be adverted to unless the context so warrants.
3. Seven applicants have joined in this Application praying for the following reliefs:-
a) issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus quashing order dated 26.4.2007 promoting respondents no.3&4 as DEO on regular basis; and
b) direct respondent-MCD to convene year-wise DPCs for promotion of the petitioners on their respective posts as per their respective eligibility in accordance with law and order their respective promotion with all consequential benefits such as seniority etc.
4. All the seven applicants on the one hand and two private respondents being respondent no.3 and 4 on the other belong to the Education Department of the respondents Corporation though coming from different streams. The applicants are already holding the post of Deputy Education Officer (General) (DEO (G) for short) on adhoc basis from the date as respectively mentioned against each of them as follows: Applicants No.1 and 2 from 15.6.2005; Applicant No.3 from 20.11.2006; Applicant No.4 from 2.5.2005; Applicant No.5 from 29.9.2005; Applicant No.6 from 30.5.1997 and Applicant No.7 from 10.9.1997. The Applicant No.6 has further been promoted to the post of Additional Director (PE) w.e.f. 26.5.2004.
5. As against these applicants, respondent no.3 was promoted as Deputy Education Officer (Physical) (in short DEO (P)) on 28.10.2005 on adhoc basis whereupon he filed a Writ Petition in the High Court seeking directions to the respondents to consider him for promotion to the said post on regular basis instead of adhoc baiss. In compliance with the directions issued by the High Court in the said Writ Petition, he along with respondent no.4 was promoted as DEO (P) on regular basis vide Office Order dated 26.4.2007.
6. The grievance of the applicants has been that they have been holding the post of DEO (G) long before respondents no.3 and 4 came on the scene yet they have been promoted on abhoc basis in spite of availability of vacancies against which they could have been regularly promoted. As against this, respondents no.3 and 4, who joined the Corporation much after the applicants have been given regular promotion in the post of DEO (P). The applicants claim that their cases stand on a better footing than that of respondents no.3 and 4. They, therefore, while praying for quashing of promotion order of respondents no.3 and 4 dated 26.4.2007, seek further directions through this Application to the respondent MCD for holding yearwise DPCs for their promotions on their respective posts as per their respective eligibility in accordance with law with consequential benefits.
7. The organizational structure of the Education Wing of the respondents Corporation consists of officers drawn from different streams, namely, Nursery, Science and Physical besides the General one being non-stream specific. The entry point in all these streams is generally at School Inspector level though there are provisions for direct recruitment at higher levels as well. There are separate Recruitment Rules for each discipline at the level of School Inspector and onwards. In 1997, the organizational structure of the Education Wing of the respondents Corporation was restructured and revised. Prior to this, there were no promotional avenues in the cadre of School Inspector pertaining to Science and Nursery. With regard to other two streams, there were further promotional avenues to the Senior School Inspector, then to the level of Assistant Education Officer (in short AEO) and in case of officers belonging to Physical stream, AEO (P) respectively. The promotional avenues for Physical stream got exhausted at that level. No further promotional avenue was available to this cadre in the higher hierarchy i.e. Deputy Director of Education for which the feeder cadre was AEO simplicitor without any suffix. However, officers belonging to AEO cadre had further promotion to the post of Deputy Education Officer (DEO for short), then Additional Director, then Additional Deputy Commissioner and then to Education Officer cum Director at the helm of the Education Wing of the respondents Corporation. As stated earlier, there were separate recruitment rules for at each of these different levels. In 1997, organizational structure of the Education Wing was restructured so as to provide promotional avenues in all the four streams upto the level of DEO. Further promotion from this level onwards was integrated into unified one not being stream/discipline wise as has been the case at lower levels. Although the revised structure of the Education Wing of the Organization was formerly approved by the respondents Corporation yet the then existing respective recruitment rules were not upgraded to encompass in their ambit the structural changes brought about by the revision of Education Wing of the Organization. Quite often, the benefits of any revised structure are extended on adhoc basis as a stop gap arrangement pending framing or, as the case may be, amendment of recruitment rules, with the understanding that the necessary rules would be brought about in due course. By its very nature, any appointment under such an arrangement would necessarily be by way of a stop gap arrangement. For some reason or the other, such arrangement, however, did not remain a stop gap arrangement in the respondents Corporation as it had continued for more than one and a half decades since the organization structure of the Education Wing was revised and restructured in 1997. This in turn led to multiplicity of the litigations among the staff wing vying with one another for greater benefits even by taking different contradictory stands at times depending upon their suitability in a given context.
8. The two reliefs prayed for by the applicants as referred to above are mutually exclusive and independent of each other. They do not flow from one another. There is nothing to indicate that these two are based on the same cause of action. If the cause of action is the regular promotion of the private respondents for the reason that the recruitment rules have not been duly amended or notified then the applicants may be denied the relief in clause (b) of the Prayer Clause of the Application for the same very reason. As a matter of fact, in the order of Honble Mrs. Meera Chhibber, the applicants have been denied the relief as at serial no.(b) of the Prayer Clause of the Application on this very count while granting them relief at Serial no.(a) by setting aside the regular promotion of the private respondents though directions have been issued to the respondents to initiate necessary action for amending the rules whereupon further action with regard to promotion of all concerned would be taken accordingly. And, if the applicants claim for their regular promotion is in their own right for they being duly eligible for it and there being availability of vacancies for the purpose, then, in that case, it would not be necessary to bring the promotion of private respondents under challenge as has been done. To put in other words, the applicants simultaneously cannot have both the reliefs as at serial nos. (a) and (b) of the Prayer Clause of the Application. They can have one out of the two reliefs at a time. It is not the case of the applicant that two private respondents have been promoted against the vacancies or, as the case may be, the posts to which they are entitled to be promoted. If their grievance flows from the fact that two private respondents have been promoted on a regular basis while they having been in position as DEO (G) earlier to them but have been promoted on adhoc basis, notwithstanding the fact that there have been vacancies against which they could have been promoted on regular basis as has been the case of the private respondents, it would then be a case of hostile discrimination which can appropriately be redressed by directing the respondents Corporation to accord parity to the applicants with the private respondents. To this extent, there has been an apparent mistake/error on the part of the respondents Corporation which it is willing to rectify on its own,as can be gathered from the counter reply, it has filed in this case. The regular promotions of respondents no.3 and 4 have been contrary to practice being followed by the respondents Corporation for making adhoc promotion since 1997 when the organizational structure of the Education Wing was revised. But this has been made in compliance with the High Courts order. Resultantly, this has led to filing of a large number of petitions by various officers of the Education Wing of the respondents Corporation seeking similar reliefs, details of which are furnished in para 12 of the Counter Reply filed by the respondents Corporation. Taking cognizance of these developments, the respondents Corporation on its own referred the matter to the Union Public Service Commission with a request to either review the DPC for the post of DEO (Physical) held in the case of the private respondents no.3 and 4 or for considering the cases of other AEO/DEO (General) for their promotion on regular basis on the same analogy on which respondents no.3 and 4 were considered and promoted as DEO (Physical) on a regular basis. With regard to the second prayer of the applicants for holding DPC, necessary action has thus already been initiated by the respondents Corporation and upon completion of the requisite formalities, the cases of the applicants herein along with other eligible candidates would be considered by the UPSC by holding the DPCs or, as the case may be, review DPCs. The UPSC which has been impleaded as respondent no.2 in these proceedings also affirms having received a review DPC proposal from the respondents Corporation vide their letter dated 18.6.2008 requesting for comprehensive review for making promotion for all the vacancies in the grade of DEO from among eligible candidates. In response thereto, the UPSC has sent a deficiency letter to the respondents Corporation on 11.7.2008 and further decision about holding the review DPC would be taken after all the deficiencies are made good by the respondents Corporation. In view of the aforesaid, the applicants were asked to state if they would be satisfied, if relief at serial No. (b) of the Prayer Clause be taken up for consideration without pressing the relief at serial No.(a) of the Prayer Clause, pertaining to promotion of the private respondents, in view of the fact that it had been conceded by the official respondents as referred to above. This has been the common practice which is followed in the cases of the Applications seeking plural remedies in contravention of the provisions of Rule 10 of the Central Administrative Tribunal (Procedure) Rules, 1987. The applicants in such cases are either asked to confine their reliefs on a single cause of action or else file separate Original Applications for each of the reliefs based on different cause of action. This practice has been evolved more from the case law on the subject rather than on account of any statutory mandate for the 1987 Rules do not provide for any consequences in cases of any contravention of the provisions of Rule 10 thereof. Even though the provisions of the said Rule may thus be viewed as directory in nature, nevertheless, they are invariably adhered to by the litigants in practice. Apprehension expressed by the applicants in this regard is that the private respondents having been promoted on a regular basis earlier to the promotion of the applicants which the applicants may have now, will be able to steal a march over them in the matter of seniority based on which further promotions to higher echelons in the hierarchy would be made. This apprehension is in fact misconceived for once the applicants are granted the relief in terms of their Prayer Clause (b), they would indeed be getting all the consequential benefits from due dates in which case the situation apprehended by them would not arise.
9. As a matter of fact, Honble Mrs. Meera Chhibber, Member (J), appears to be initially inclined to dispose of the matter in the light of the averments made by the respondent no.1 MCD and the respondent no.2 UPSC in their respective counter reply with regard to the proposal of a comprehensive review DPC to consider all the four categories of AEOs but ultimately preferred not to do so in view of the fact that matter having been heard in detail required to be decided on merits with a view to avoid further litigation in this regard. Upon such consideration, the applicants prayer at serial No.(a) of the Relief Clause has been allowed by quashing the order dated 26.4.2007 promoting respondents no.3 and 4 as Deputy Education Officer (Physical) on regular basis for the reason, inter alia, that recruitment rules of 1976 for the post of DEO continued to occupy the field of recruitment to the said post. The said rules do not include AEO (Physical) in the field of feeder cadre. It is necessary to amend the rules before officers from AEO (Physical) can be promoted to the post of DEO. Furthermore, the applicants no.6 and 7 having already been promoted as DEO on adhoc basis when the private respondents no.3 and 4 were not even borne in their cadre for having been appointed as AEO (Physical) in 1998-1999 and in these circumstances without considering the applicants no.6 and 7 for the post of DEO, respondents no.3 and 4 could not have been considered for further promotion as DEO (Physical) which post does not exist till date. However, while quashing order dated 26.4.2007 with regard to promotion of respondents no.3 and 4, it has been left to the respondents Corporation to treat the promotion of respondents no.3 and 4 as DEO (Physical) on adhoc basis as was done with others.
10. As regard the applicants prayer at serial No.(b) of the Relief Clause, the respondents Corporation has, inter alia, been directed to take final decision in the matter as to how the post of DEO is required to be filled and finalized the recruitment rules as per the decision got approved and publish it in the official gazette which should be done within six months from the date of receipt of a copy of this order whereupon they may take up the matter with the UPSC for holding the DPC for the post of DEO in accordance with amendment/new recruitment rules as may be decided by the respondents Corporation.
11. I may now proceed to deal with the two reliefs claimed by the applicants in this Application. Before doing that, I may, however, state that having bestowed my careful consideration to the additional questions raised earlier in the proceedings before Full Bench constituted upon reference made by the Division Bench in this case and also before the Honble Chairman of the Tribunal in Transfer Petition, I do not find it necessary to deal with them specifically for the purpose of disposal of this Application, in view of the discussion made hereinafter.
12. In the context of the impugned order of promotion of respondents no.3 and 4 dated 26.4.2007, it needs to be noted in the first instance that this has been passed by the respondents Corporation in compliance with the directions issued by the High Court vide its order dated 16.12.2005 in Writ Petition (Civil) No.23600/2005 filed by respondents no.3 and 4 and the same has been upheld by the High Court in CCP No.178/2006 vide order dated 12.12.2008 being in accordance with the rules and in compliance with the orders of that Court. Both the official respondents too have maintained that the order of promotion dated 26.4.2007 is in order, subject to rider that there has been error in not considering the applicants and other eligible candidates in their respective streams in the same manner as the cases of respondents no.3 and 4 have been processed which is now sought to be rectified by convening the necessary DPCs for them as well. Furthermore, the High Courts order dated 16.12.2005 and consequential order of promotion of respondents no.3 and 4 dated 26.4.2007 have been cited as a basis by a number of other petitioners/applicants seeking similar directions for considering their cases on the same lines on which the cases of respondents no.3 and 4 have been considered by the respondents Corporation. Besides, adhoc promotion of respondents no.3 has not been quashed in spite of the fact that the recruitment rules of 1976 for the post of DEO are held not to have AEO (Physical) as a feeder cadre thereunder for promotion to the post of DEO. What has been objected to is the regular promotion of the private respondents no.3 and 4. One really wonders if one cannot be promoted on a regular basis for the reason of not being in the feeder cadre then how can be promoted even on adhoc basis. That being so, implications of absence of Rule, or, as the case may be, amendment of the Rules, for promotion from the cadre of AEO (Physical) would, therefore, need necessary examination. This may also likely to have effect on the applicants prayer as Serial No.(b) of the Relief Clause. All these aspects need to be properly examined for correct adjudication of the respective rights of the parties herein.
13. Respondents no.3 and 4 joined as direct recruits at the level of AEO (Physical) in 1998-1999 by which time the revision of the organizational structure of the Education Wing of the respondents Corporation had already been taken as approved by the respondents Corporation. On the analogy of the Recruitment Rules of 1976 for DEO providing for promotion to the officers in the cadre of AEO with three years experience, respondent no.3 claimed eligibility for further promotion after completion of three years in the grade of AEO (Physical). Respondent no.3 thus claimed to have acquired eligibility on 31.1.2001 for promotion. As no steps were taken for promotion of the applicants to the post of DEO, he individually represented to the respondents Corporation on 21.4.2005 claiming that he ought to be promoted on account of his eligibility. The respondents Corporation promoted respondent no.3 to the post of DEO on adhoc basis on 28.10.2005. Feeling aggrieved, that he should and could have been promoted on regular basis, expecially when the vacancy for this purpose had been available, respondent no.3 moved in Writ Petition (Civil) No.23600/2005 seeking directions to the MCD to initiate and complete the process of holding the regular selection in accordance with the rules for the post of DEO. The said Writ Petition was disposed of vide order dated 16.12.2005 by issuing directions to the MCD to initiate steps for recruitment process for the purpose of filling up the regular vacancies in the post of DEO. While doing so, the MCD shall ensure that the concerned eligible persons as per the requirement of the Regulations and also having regard to the circulars governing the zone of consideration and the other issues are kept in mind in respect of each vacancy year. The entire process was directed to be completed within a period of six months from the date of passing of the said order. Furthermore, all rights and contentions of the parties were kept open.
14. In compliance with the aforesaid directions, the respondents duly processed the case of Respondent no.3, held DPC and thereafter issued the impugned order dated 26.4.2007 promoting respondent no.3 along with respondent no.4 as Deputy Education Officer (Physical) on regular basis. Feeling aggrieved with this order dated 26.4.2007, respondent no.3 moved CCP No.1728/2006 praying inter alia for directions to make appointment to the post of Deputy Education Officer and not Deputy Education Officer (Physical) with consequential reliefs from the date when the post of Deputy Education Officer (Physical) fell vacant. The respondent Corporation filed affidavit stating on oath that promotion of the petitioners had been done in accordance with rules and in compliance with the order of the Court. Having perused the affidavit and counter affidavit filed by the parites, the High Court found that respondent No.1 MCD had complied with the orders of the Court in substance and if the petitioner was not satisfied with the order promoting him from a particular date which according to the petitioner had to be from retrospective effect, the petitioner was at liberty to seek substantive relief by way of separate Writ Petition. The Court observed that while acting under contempt jurisdiction, the Court had no power to modify or vary the initial order passed by the Court or to give further and subsequent directions.
15. The moot question that now arises is whether it would be open to this Tribunal to go into the legality of the impugned order dated 26.4.2007 and quash it for not being in accordance with the rules in these proceedings when the said order has been passed in compliance with the order of the High Court and whose validity has been upheld as such being in accordance with law vide order dated 12.12.2008 in CCP No.1728/2006. Admittedly, the High Court exercises writ jurisdiction over the orders of this Tribunal. That being so, judicial propriety demands that this Tribunal should not venture into the correctness or legality of the said order which already stood vindicated by the High Courts orders earlier. If this is to be re-agitated afresh, the forum for it would be the High Court or the Apex Court and not this Tribunal. It has been argued on behalf of the applicants that the High Court vide its order dated 16.12.2005 in Writ Petition (Civil) NO.23600/2005 has clearly provided that all rights and contentions of the parties are kept open. But the rights and contentions referred to therein are of those who have been parties to the said petition and not of strangers, who have not been parties thereto. As a matter of fact both the respondents Corporation as well as UPSC have taken the stand that the impugned order is correct, legal and in accordance with the rules. Respondent no.3 has also taken the same stand. Notwithstanding that, the forum for agitating such rights and contentions in respect of an order which has been passed in compliance with the order of the High Court whose legality and correctness has been upheld under the rules by that Court would be the High Court or the next higher Court and not this Tribunal on whose orders the High Court exercises its writ jurisdiction power. This Tribunal cannot exercise any revisionary or appellate powers over the orders of the High Court irrespective of the fact as to whether the High Courts order is right or wrong Judicial propriety demands that this Tribunal should refrain itself from going into the validity of an order on the ground of being contrary to the rules when the same has been duly upheld by the High Court, especially having regard to the fact that High Court exercises writ jurisdiction power over this Tribunals orders. It is pertinent to note that reason for filing Writ Petition by respondent no.3 in the High Court was that he was promoted as DEO (P) on adhoc basis instead of regular basis. He has been given promotion on regular basis as a sequel to the High Court order that has also been upheld as correct by the High Court in contempt proceedings. Can he be deprived of it by us by holding that it was not correct? Is it open to us in law to say now that respondents no.3 and 4 would be treated as adhoc and not regular? Its effect would be to restore back the status quo ante Writ Petition (Civil) No.23600/2005 and the entire proceedings in that Writ Petition and CCP No.1728/2006 virtually stand wiped out. I am afraid such a course of action is not permissible in law and ought to be avoided. It is true that this application was initially filed in the High Court from where it got transferred to this Tribunal. This would, however, not make any material difference for the transfer has been made in the ordinary course upon extension of this Tribunals jurisdiction to the service matter of MCD employees without being seized of this aspect of the matter. Having taken note of it, it cannot be lightly ignored or brushed aside. If the applicants desire to agitate this matter, jurisdiction in respect thereto vests in the High Court or in the next higher forum and certainly not in this Tribunal. It is also noted in this regard that even the Division Bench of this Tribunal in the order dated 6th May, 2009 in TA Nos.115 & 116 of 2009 preferred to not to touch the cases of the 4th and 5th respondents therein, as they have been before the High Court in some Writ Petitions and left it to the Ist respondent, MCD, to decide their continuation as adhoc DEO (P). Even among the members of a comity of bodies having concurrent jurisdiction, orders of one are accorded due respect and courtesy by others as a matter of propriety and decency and mutual respect for each other. If at all, there is a case of any conflict, the same is generally referred to, as a last resort to a higher forum who would act as the ultimate arbiter in the matter and not settled among themselves.
16. Based on the impugned order of promotion of respondents no.3 and 4 dated 26.4.2007, the applicant no.7 herein, namely, Shri R.K.S. Gaur made a representation to the respondents Corporation on 24.5.2007 requesting for review of earlier office order dated 10.9.2007 and his regularization to the post of DEO on the same pattern as has been done in the case of newly promoted DEOs on 26.4.2007. The order dated 26.4.2007 is with regard to promotion of respondents no.3 and 4 which is impugned in these proceedings. In the said representation, the applicant no.7 inter alia submitted as follows:-
I being the senior most regular AEO of the year 1992 appointed through UPSC and promoted on 10/9/1997 to the post of Deputy Education Oficer against the regular/vacant post of DEO but the said promotion (ADHOC) has not been regularized till-date as happened in the case of twoo AEOs (Annexure P-3) recently promoted to the post of DEOs (Physical) w.e.f. 25-04-2007 on regular basis which obviously indicates about the anomaly in draft (Language) used in office orders dated 10/9/1996 (Annexure P-2) while being both the cases of analogous/similar in the nature and selection through UPSC in both the cases (vide Annexure-P-1 and P-3). Out of these many AEOs, two have been promoted directly to the post of DEOs on regular basis (Annexure-P-3) whereas 02 AEOs, at Sl. No.1 & 2 (appointed through UPSC/direct recruitment on regular basis) were promoted earlier to the post of DEO on the year 10-9-1997 are on ADHOC basis/stop gap arrangement by ignoring the seniority of AEOs appointed on 11-05-1992 through UPSC which is indeed against the Natural Justice. Thereupon he filed Writ Petition (Civil) No.1201/2008 through the counsel who is representing the applicants in these proceedings as well, seeking the directions in the nature of mandamus directing the respondents to regularize his promotion as DEO w.e.f. 10.9.1997 when he was promoted as such with all other consequential benefits. The Writ Petition was transferred to this Tribunal upon extension of its jurisdiction to MCD whereupon it was converted into TA No.158/2009. The respondents Corporation has taken the same stand in that Application in para 11 of their counter affidavit at page 632 of the paper book. The said TA was disposed of vide order dated 1.4.2011 by the Division Bench of which two of us have been the Members, viz., Honble Mrs. Meera Chhibber, Member (J) and Honble Shri Shailendra Pandey, Member (A) directing the UPSC to convene the DPC and review DPC after removal of deficiencies keeping in mind the rules and orders of the competent authority as referred to in para 11 of the counter affidavit within a period of three weeks thereafter. The learned counsel for respondent no.3 has placed strong emphasis on the fact that having obtained this order from this Tribunal on the basis of promotion order dated 26.4.2007 which is now being impugned in these proceedings without disclosing the earlier proceedings initiated by him would render him disentitled to any relief at the hands of this Tribunal for not having come with clean hands. Not only that this has not been disclosed, on the contrary, the applicants including applicant no.7 in para 4 of the Application expressly submitted that they have previously not filed any other petition against the respondents herein praying for the relief as has been prayed in the present Application. Though I found force in the contention of the counsel for the private respondent no.3 yet I am not inclined to dispose of this Application solely on this technical ground alone. I do not find any statutory mandate for denying one or more reliefs on the basis of such a conduct without having due regard to the facts and circumstances and merits of the case. Such a denial is discretionary and has to be exercised fairly and justly in the facts and circumstances of each case. Suffice to say that I do not appreciate such a conduct on the part of the applicants, particularly applicant no.7, for making such an incorrect statement on oath as to the previous legal proceedings in the matter and I deprecate such a conduct in stronger term that it deserves. However, in the totality of the facts and circumstances of the case, I am not inclined to take it as a basis for denying the applicants the relief admissible to the class to which they belong under the law in the interest of justice, especially when this does not prejudice the other party but rather further its claim. I would prefer to leave to the parties concerned to proceed against the applicants, in particular applicant no.7 in appropriate proceedings as per the law if they so desire. Interestingly, this order in TA No.158/2009 is now being sought to be recalled and reversed by the order of Honble Mrs. Meera Chhibber to which I would refer to appropriately a little later hereinafter.
17. It is noted that the promotion of respondent no.4 as DEO (Physical) has been the subject matter of challenge, along with promotion of certain other DEO (Physical), in TA Nos.115 and 116 of 2009 on the basis of having been made on incorrect seniority list of AEO (Physical). One of the reliefs sought for in TA 115/2009 has been, viz., to issue suitable writ or order or directions of setting aside the promotion granted to the private respondent no.3 to the post of DEO (P) by the Office Order dated 26.4.2007 by the respondent no.1 MCD. Respondent no.3 in TA No.115/2009 is respondent no.4 in the present proceedings and the order of promotion dated 26.4.2007 is common in both the Applications. The said TAs were disposed of by the Division Bench vide its order dated 6.5.2009. While quashing the final seniority list of AEO (Physical) dated 17.5.2006, the Tribunal directed to re-cast it in the light of the observations made therein and further to hold a review DPC and consider the applicants therein for promotion to the post of DEO (Physical) and if found fit for promotion, then the seniority would be fixed from the date of vacancy on notional basis without making them eligible for back wages. However, the Tribunal did not quash the appointment of any of the private respondents. As regards the private respondent no.4 herein (respondent no.3 in TA Nos.115 and 116 of 2009, the Tribunal stop short of quashing her appointment though holding her entitlement to retain her seniority according to the merit list but left it to be regulated in accordance with the revised seniority list. However, as regards other two private respondents who are not parties to these proceedings, the Tribunal has observed although the 4th and 5th respondents have not filed any reply in this TA yet in view of the fact that they are already before the Honble Delhi High Court in some Writ Petition, we would leave it to the first respondent to decide their continuation as adhoc DEO (Physical) without going into the aspect of as to whether there has been any conflict between these TAs and the present one. When confronted with this order in TA No.115/2009 and TA No.116/2009, the Division Bench initially hearing the present application made a reference to the Full Bench in view of the apparent conflict between the stand it has taken and that of this Tribunal in the aforesaid Two TAs. The said reference was returned back as incompetent for the Division Bench in the present TA had already taken a final stand by quashing the impugned order of promotion dated 26.4.2007. In view of the finality attached to the order of the Division Bench in this TA. Respondent no.3 filed a Review Application for recalling that this Tribunal in the aforesaid Two TAs. The said reference was returned back and incompetent for the Division Bench in the present TA had already taken a final stand by quashing the impugned order of promotion dated 26.4.2007. In view of the finality attached to the order of the Division Bench in this TA. Respondent No.3 filed a Review Application for recalling that order by which reference was made to the Full Bench, the said Review Application was disposed of as having become infructuous for the view expressed by the Division Bench in its order by which reference was made to the Full Bench was not final. If that being so, then, the Full Bench could not have referred back the reference as incompetent as referred to above. And, if that was not so, then the review petition could not have been disposed as having become infructuous. Such as anomalous situation does not augers well and should, and could, have been avoided. Yet the situation is further sought to be confounded by holding that there is no conflict between the order of the Division Bench of this Tribunal in TAs No.115 and 116 (supra) on the one hand and the order of Honble Mrs. Meera Chhibber in the present TA. I am unable to subscribe to this view. If there is neither any post of DEO (P) nor recruitment rules provide for promotion to that post, for which reasons the impugned order of promotion dated 26.4.2007 to the post of DEO (P) is being found to be bad in law, then was there any warrant for the Tribunal in TAs 115 & 116 of 2009 (supra) for issuing directions to the respondents Corporation to revise seniority list of AEO (P) and hold review DPC for appointment to the post of DEO (P) on the basis of such a revised seniority list. When the Tribunal has to form an opinion as to existence of any fact the statement of which is contained in any Government notification appearing in official gazette, then it would a relevant fact which is judicially noticeable under the provisions of Evidence Act. Furthermore, the order in TA 158/2009 (supra) filed by Applicant No.7 herein, wherein similar directions have been issued to the respondents Corporation for holding review DPC for promotion to the post of DEO (G) on the lines of the promotions order of respondents no.3 and 4 herein dated 26.4.2007, is being recalled and reversed for the reason that it should not have made in the first instance in view of the order now being made by Honble Mrs. Meera Chhibber in this TA. I do not think that this would be in order. That order in TA 158/2009 does not form part of the reference to this Full Bench. We do not sit over that order in appeal, review ore revision. It will be for the concerned Division Bench that passed that order to deal with it, if necessary, through due process of law. Notwithstanding that, since I have occasion to consider the orders passed in TA No.115 and 116 (supra) on the one hand and TA No.158 (supra) on the other hand, I am of the considered view that there is no infirmity in any of these orders and these orders have been rightly made in the facts and circumstances of those cases. This will be further substantiated and find further sustenance from the observations made hereinafter. Furthermore, it would be suffice to say that the post of DEO (Physical) and promotion thereto has been judicially taken cognizance of and directions have been issued in that regard accordingly.
18. I may now proceed to deal with the issue as to whether appointment to the post of DEO (Physical) is governed by any recruitment rules and, if not, whether appointment to the post has been rightly made in accordance with the executive instructions issued in this regard. The rule position in this regard is well settled and no longer res integra. If there are recruitment rules governing appointments to a post then appointments to that post must necessarily be made in accordance with such rules. No executive order can override such rules. However, if there are no recruitment rules or if recruitment rules do not provide for any particular aspect of the matter, in such cases, the executives can legitimately issue necessary administrative instructions in exercise of their executive powers to fill the gap. There is catena of case law on the subject wherefrom it is readily discernible that it is not sufficient for the time being. Reference in this regard may thus be made to Abraham Jacab and others vs. Union of India (AIR 1998 SC 1011), wherein it has been, inter alia, observed by the Honble Supreme Court in Para 4 of the judgment that From 1969 after formulation of a set of draft rules promotion was being given to the Junior Engineers to the post of Assistant Engineer in accordance with the provisions contained in the draft rules even before such draft rules were approved by the governmental authority and became a statutory rule, by virtue of an administrative decision of the Government. It is too well settled that the service conditions of employees in the absence of a statutory rule could be governed by administrative instructions.
19. Another case that may be referred to in this regard is Vimal Kumari vs. State of Haryana & other, (1994(4) SCC 114), wherein it has been, inter alia, observed by the Honble Supreme Court that It is, no doubt, open to the government to regulate the service conditions of the employees for whom the Rules are made by those Rules even in their "draft stage" provided there is clear intention on the part of the government to enforce those Rules in the near future.
20. Further reference may be made to the case of Nagpur Improvement Trust vs. Yadaorao Jagannath Kumbhare and others, (AIR 1999 SC 3084), wherein the Honble Supreme Court, inter alia, observed that The general principle of service jurisprudence that in the absence of any statutory rules governing the service conditions of the employees, the executive instructions and/or decisions taken administratively would operate in the field and appointments/promotions can be made in accordance with such executive instructions/administrative directions.
21. In Ramesh K. Sharma and another vs. Rajasthan Civil Services and others, (2001 (1) SCC 637), it has been observed that Merely because there were no relevant service rules for recruitment to the post, it cannot be assumed that such appointment has been made without any selection and as such the appointment is held to be substantive and not adhoc in nature.
22. The Honble Surpeme Court proceeded on the premise that it is well settled that the service condition including the mode of recruitment to a service could be determined by a set of administrative order in the absence of any statutory rule operative in the field.
23. The case of Shankar Lal Sharma and others vs. Municipal Corporation of Delhi, through its Commissioner (1980 Municipalities and Corporation cases 380 Delhi) deals with this issue in para 6 of this judgment, wherein the Honble Delhi High Court has made the following observations that :
Until the rules are finalized, work of the Corporation or Government cannot remain at a stand still and it must be carried on by executive instructions. The framing of the statutory Recruitment Regulations is not a condition precedent to the making of appointment to the vacant posts such as that of Vaid/Hakim/ Homeopathic Doctors. In the absence of statutory Recruitment/Regulations, it is open to the Corporation to issue administrative instructions regarding the method of recruitment or the principles to be followed for making promotions or for making direct appointment to the posts like that of Vaid/Hakim/Homeopathic doctors.
24. Another case to be referred to in this regard is Sant Ram Sharma vs. State of Rajasthan and others, (AIR 1967 SC 1910), wherein it has, inter alia, been held by the Honble Supreme Court that till statutory rules governing promotions to selection grade posts are made, government can issue administrative instructions regarding principles to be followed. It has further been held that even if there are recruitment rules but if the same 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. The Honble Supreme Court found no substance in the contention that if the executive Government is held to have power to make appointments and lay down conditions of service without invoking rules in that behalf under the proviso to Article 309, they will be arbitrary and capricious, in view of the fact that the respondents have considered the petitioner along with other eligible candidates before appointments.
25. The case of Dr. Amarjit Singh Ahluwalia vs. The State of Punjab and others, (1975 (3) SCC 503) is also of relevance in the present context. In para 8 of the judgment onwards the Honble Supreme Court observed that It is now well settled by several decisions of this Court that where no statutory rules are made regulating recruitment or conditions of service, the State Government always can in exercise of its executive power issue administrative instructions providing for recruitment and laying down conditions of service.
26. A new dimension was added to the law governing the issue under consideration in the present case by the Honble Supreme Court in the case of State of Sikkim vs. Dorje Tshring Bhutia, AIR 1991 SC 1933, by holding that Government can exercise its executive powers even in cases where statutory provisions have become unworkable and inoperative. The Honble Supreme Court in para 15 of its judgment observed as follows:-
15. The executive power of the State cannot be exercised in the field which is already occupied by the laws made by the legislature. It is settled law that any order, instruction, direction or notification issued in exercise of the executive power of the State which is contrary to any statutory provisions, is without jurisdiction and is a nullity. But in this case we are faced with a peculiar situation. The Rules, though enforced, remained unworkable for about five years. The Public Service Commission, which was the authority to implement the Rules, was not in existence during the said period. There is nothing on the record to show as to why the Public Service Commission was not constituted during all those five years. In the absence of any material to the contrary we assume that there were justifiable reasons for the delay in constituting the Commission. The executive power of the State being divided amongst various functionaries under Art. 166(3) of the Constitution of India there is possibility of lack of co-ordination amongst various limbs of the Government working within their respective spheres of allocation. The object of regulating the recruitment and conditions of service by statutory provisions is to rule out arbitrariness, provide consistency and crystallise the rights of employees concerned. The statutory provisions which are unworkable and inoperative cannot achieve these objectives. Such provisions are non est till made operational. It is the operative statutory provisions which have the effect of ousting executive power of the State from the same field. (emphasis supplied) When in a peculiar situation, as in the present case, the statutory provisions could not be operated there was no bar for the State, Government to act in exercise of its executive power. The impugned notification to hold special selection was issued almost four years after the enforcement of the Rules. 'It was done to remove stagnation and to afford an opportunity to the eligible persons to enter the service. In our view the State Government was justified in issuing the impugned notification in exercise of its executive power and the High Court fell into error in quashing the same.
27. From the aforesaid, it becomes clear that any order or instruction issued in exercise of executive power of the State which is contrary to any statutory provisions, is without jurisdiction and is a nullity. However, it is the operative statutory provision which has the effect of ousting the executive power of the State over the same field where a given field is not occupied by any statutory provision or even if there is statutory provision which is either silent on any particular aspect of the matter or have otherwise become unworkable or inoperative for any reason whatsoever, the State would not be deprived of its power to fill the gap by issuing executive order to make the system workable.
28. I may now proceed to deal with the relief claimed by the applicants at Serial No.(a) of the Relief Clause in the light of the principles as enunciated by Courts in different cases, as referred to above. With a view to appreciate the applicants claim in its proper perspective, it would be expedient to refer to the grounds taken by them in support of their claim at Serial No.(a) of the Prayer Clause. The principal grounds with regard to the applicants relief at Serial No.(a) are contained in Grounds (a) to (c) of Paragraph 3 of the Application. It has thus been submitted that
(a) From the AEO (Physical), no further promotion benefits have been provided for under the recruitment regulations and in the absence thereof, the private respondents no.3 and 4 who admittedly belong to AEO (Physical) can never be promoted as DEO being ineligible for the said post. Thus, the impugned order dated 26.4.2007 is clearly contrary to the recruitment rules for the post of DEO.
(b) Apart from AEO instead of AEO (Physical) being the feeder channel for promotion to the post of DEO, the private respondents no.3 and 4 do not even hold the requisite qualification for the post of DEO. The private respondents no.3 and 4 do not even fulfill the educational qualification for the post of DEO and hence, cannot be promoted as such.
(c) The recruitment regulations as also the respondent MCD have recognized and maintained the cadres of General, Science, Physical and Nursery as four separate and different cadres. No intermingling of the cadres or interchangeability of the officers is recognized under the regulations. Separate seniority lists for each of the cadre is drawn and, therefore, a person belonging to a particular cadre can achieve promotion if permissible, only in his own cadre and not outside it. Therefore respondent Nos.3 and 4 could seek promotion only in the cadre of DEO (Phy) if such cadre existed. However, in the absence of there being no such cadre, the promotion of respondents No.3 and 4 is illegal and hence liable to be set aside.
29. Having bestowed my careful consideration to these submissions, I find them devoid of substance being misconceived. For one thing, respondents no.3 and 4 have not been promoted as DEO but have been promoted as DEO (P). DEO (P) is not the same as DEO. It is in fact quite different from it. Furthermore, recruitment regulations of 1976 for DEO can not be applied on their own to promotion to the post of DEO (P). The applicants by their own admission have admitted that respondents no.3 and 4 could have been promoted to the post of DEO (P) if there was such a cadre but not as DEO for that would be contrary to recruitment regulations of 1976 for the post of DEOs.
30. On a careful consideration of the applicants submissions, as referred to above, it transpires that the recruitment regulations of 1976 for the post of DEO provide for promotion to the post of DEO from among the cadre of AEO being its feeder cadre. Until 1997, when reorganization and restructuring of the zonal set up was made, there was no further promotion in the cadre of AEO (Physical) and not as DEO. Thus, any further promotion from the post of AEO (Physical) could not have been within the contemplation of recruitment regulations of 1976 for the post of DEO. In other words, these regulations would not apply to promotion to the post of DEO (Physical). Admittedly, respondents no.3 and 4 have been promoted as DEO (Physical). That being so, any promotion to the post of DEO (Physical) cannot be assailed on the ground of it being not in conformity with the recruitment regulations of 1976 for the post of DEO, as these regulations do not hold good for recruitment to the post of DEO (Physical). Now if the recruitment regulations of 1976 are not applicable to the appointment made to the post of DEO (Physical) and there being no other separate recruitment regulations for the said post, it would obviously a case of no regulation. The absence of it can legitimately be filled up by exercise the executive power by issuing necessary instructions/directions. It is open to the authoritys concerned to either amend 1976 regulations so as to enlarge its scope by express inclusion of other categories of posts therein or by framing separate independent regulations for this newly created category of post and until it is so done, regulate the promotion to the said post by issuing necessary instructions in exercise of its executive powers. However, insofar as promotion to the post of DEO from among AEO which was hitherto governed by recruitment regulations of 1976, remained intact and unaffected by 1997 Resolution. It is relevant to note that prior to 1997, AEOs were regulated by revised recruitment regulations of 1982 for the post of AEO which superseded the earlier notification of 1978. The then existing cadre of AEO did not have any suffix, such as General which has come to be added as a sequel of reorganization and restructuring of the zonal set up in 1997. Notwithstanding this changed nomenclature of cadre of AEO into AEO (General), it remained the same and continue to be governed by the provisions of recruitment regulations of 1982 for recruitment to the post of AEO and their further promotion to the post of DEO in accordance with the provisions of regulations of 1976 for this post having regard to the principles as contained in Sections 17 and 18 of the General Clauses Act relating to substitution of functionaries and successors. That being so, there does not seem to be any justification for not making regular promotion from the cadre of AEO, now AEO (General), in accordance with the provisions of recruitment regulations of 1976 for the post of DEO. However, the question as to whether promotion to the post of DEO (Physical) or (Nursery) or (Science) must necessarily be made under these regulations of 1976 for DEO, the answer is obviously in the negative as these were not in existence at the time of making of the regulations of 1976 and, therefore, not being in their contemplation and hence not applicable to them. Admittedly, these regulations deal with promotion from the post of AEO alone and not from AEO (Physical)/(Nursery)/(Science). In view of this, it could logically be inferred that there are no recruitment regulations for the post of DEO (Physical)/DEO(Science)/DEO (Nursery). A question has further been raised that 1997 Resolution of the respondents Corporation provided for DEO alone to be filled up among all the categories of AEO being (General), (Physical), (Science) and (Nursery) on the basis of their inter se seniority in the prescribed ratio and thus could have been done only by amending the existing regulations of 1976. This would have been true in a way if promotions have been made after 1997 as DEO. However, the fact remains that ever since 1997, promotions have been made to the post of DEO (General)/DEO (Physical)/DEO (Science)/DEO (Nursery) and not as DEO simplicitor alone. The respondents Corporation has filed an additional affidavit in these proceedings on 24.11.2010 in compliance with the directions of this Tribunal as contained in its order dated 15.11.2010. Along with this affidavit, they have filed RA-I, showing separate year-wise vacancy position of DEO (General), DEO (Physical), DEO (Science) and DEO (Nursery) from 1997 onwards indicating appointments and retirements in the respective cadres year-wise over the period of time. This position has not been controverted by any of the parties. Thus, the posts of DEO (Physical) have been in existence ever since 1998 onwards. Appointments and retirements in the post of DEO (Physical) have been in existence through out ever since 1998. One cannot, therefore, say that there is no post of DEO (Physical) as this fact is not borne out by the records of the cases. The doctrine of factum valet quod fieri non debuit squarely applies to this. Thus, one can say where a fact is accomplished or where the act is done and completed, though in contravention of the directory provisions, the fact will stand and the act shall be deemed to be legal and binding. The use of the practice developed in respect of a matter is indicative of intent of the authoritys concerned, including the rule making authority. Uniform practice continuing for long period of a decade and half since 1997 coupled with inaction of the authority concerned to necessarily rectify it if so required, is an important factor to show that the practice so followed has been based on correct understanding of the rule position. When such a practice based on the decisions of the executive authority receive judicial approval, it gains additional weight and are to be more respected. It needs to be noted in this regard that executive proposals are ordinarily not couched with the same degree of precision with which legislative proposals are drafted. Therefore, executive proposals need not necessarily and strictly be subjected to the same canons as are applied in ante relation of status. The executive proposals may have to pass through various stages before they ultimately culminate into statutes. That being so, contemporary view expressed by the different authorities which might have dealt with the executive proposals may provide useful inputs in understanding and asserting the precise extent and true contents of such proposals.
31. From the records of the case I find references to different proposals with regard to DEO which post is classified into categories depending upon the streams to which it is allocated on the one hand and draft proposal whereby title of recruitment rules for Deputy Education Officer itself being substituted by Recruitment Rules for DEO (General)/(Physical)/(Science)/(Nursery). While holding review DPC in the case of respondent no.3, approval of the Mayor of the Corporation was obtained. A copy of the office note of this, as found in the records of the case, reads as follows:-
Subject :- Framing of Recruitment Rules for the post of Deputy Education Officer (Physical) in Education Department.
The case of framing of RRs for the post of DEO (Physical) in Education Department of MCD is under Submission before corporation for approval.
2. After obtaining the approval of Corporation, the case is to be submitted to Union Public Service Commission for concurrence. However, obtaining the approval of Corporation may take some time and the contempt case of Sh. N.K. Ghai V/S MCD is listed for hearing on 14th November, 2008.
3. As such, anticipatory approval of Honble Mayor may be obtained pending approval of the Corporation, so that Union Public Service Commission may be requested to concur the proposal of framing of RRs for the post of DEO (Physical) so that review DPC can be held in the court case of Shri N.K. Ghai.
Sd/- 23/x/08 Admn. Officer (CED-II) Dir.(P) Sd/- 23/x/08 Addl. Commr.(Engg. & Estt.) Sd/- 24/10/08 Commissioner Sd/-
Chairman (Approval Committee) Sd/-
Honble Mayor Sd/- 16/11/08 From the above, it is seen that separate recruitments for the post of DEO (P) are under process and have already been submitted to the Corporation for approval. The same has been approved by the Mayor as well pending approval of the Corporation. As a matter of fact, separate recruitment rules for the post of DEO (P) were mooted as far back as 1997. I have come across the records pertaining to minutes of meeting held by the Commissioner with other officers concerned of the respondents Corporation as far back as 7.7.1997 which are as under:-
As desired by Cm. to-day the 7th July, 1997, the matter was discussed threadbare with Addl.Cm.(Edu), at 3.30PM in his chamber when Director(P), Director(PP) ad ADC (Edu) were also present. After discussing the issue at length from all aspect, the consensus which emerged was that it may not be appropriate to distribute or earmark the posts of DEO on the basis of strength in the feeder cadre for promotion purposes though it was generally agreed by every one that DEO is the level where integration of all different categories has to take place in the Education Department. Accordingly, instead of distributing the number of posts of DEO amongst the various feeder channels on the basis of formula above, it would be appropriate if these posts (DEO) are categorised differently on the basis of functional requirement of the department, namely DEO (General)-10, DEO (Science)-2, DEO(Physical)-2 and DEO(Nursery)-1. We may bring out suitable amendment in the R.Rs for the post of DEO on the basis of above. However, the R.Rs for the post of DEO (Physical) would continue to be separate as it is a separate cadre all together even in the Directorate of Education. (emphasis supplied) Govt. of Delhi. Department was also pointing out that they are considering seriously to integrate the Nursery Branch of the Education Department with the General Branch of that department. In principle, we do not find any objection to this rather we would advise the department to bring out a suitable proposal in this regard at the earliest possible. Pending that, we may go ahead with filling up the posts of DEOs on the basis of formula indicated above. Cm. may please see and approve.
Sd/- 07/7 Addl. Cm.(R) as ppd Sd/- 08/7 COMMISSIONER
32. On a perusal of the records of the case, it become clear that the existing recruitment regulations of 1976 did not provide for the re-organisation and restructuring of zonal set up which was approved in 1997. Even Honble Mrs. Meera Chhibber refers to certain loose ends that need to be suitably provided in Para 40 of her Order. To this extent, this field remained unoccupied by any existing regulation. The same needed to be suitably provided for either by amending the existing regulations or by framing independent separate regulations for different functional post of DEO. Until it is so done, it is open to the authority concerned to fill up the gap by issuing necessary administrative instructions or by extending the existing regulations by reference mutatis mutandis, subject to the rider that no express statutory provision is flouted.
33. Furthermore, non-user or contrary practice for a considerably longer period by itself may bring about quasi repeal by desuetude. The necessary conditions for this are that rules have been in disuse for long and the contrary practice of some duration has been evolved and both the conditions are satisfied in the present case. Uniform and consistent departmental practice arising out of construction placed upon the rule position by the higher executive authority of its decision/resolution and continued for longer period of time over 15 years would be a permissible aid to provide understanding of the rule position which should not be disregarded except for cogent reason. In legal parlance, it is commonly known as executive construction and its application depend upon the various factors such as length of time for which it is valid and the nature of rights affected by it, the injustice resulting from its departure and approval that it has received either in judicial decision or in subsequent legislation.
34. Having given my careful consideration and for the reason stated above, I am of the considered view that there are no recruitment regulations for the post of DEO (Physical). The 1976 regulations for the post of DEO are not applicable to appointments to the post of DEO (Physical). Since no recruitment rules occupy the field of recruitment to the post of DEO (Physical), the executive authority in respect thereto would not ousted at all and it is open to the authority concerned, in exercise of their executive power, to legitimately provide for the manner for appointment to the post of DEO (Physical). Admittedly, appointment to the post of DEO (Physical) are being made ever since 1997 albeit on adhoc basis on the mistaken understanding that regular appointment could not be made in the absence of recruitment regulations. It has been seen earlier that framing of recruitment regulations is not a condition precedent for making regular appointment to a post. Even in the absence of any rules, regular appointment to a post can be made in compliance with the instructions issued by the executive authority. An appointment on regular basis is merely indicative of the manner of appointment and ought to be distinguished from the nature of appointment whether permanent or temporary. Where all the requirements required to be followed for making an appointment are duly complied with, the appointment would be regular. If not so, such an appointment would be viewed as irregular. Permanent appointment or temporary appointment are different matters and ought not to be confused with the manner of appointment. Where any of the necessary formalities for making a regular appointment is not duly complied with, such an appointment would be viewed as irregular, irrespective of the nature of appointment be it permanent or otherwise. Furthermore, if there is no post or appointments are not in confirmity with the recruitment rules in respect thereto, then appointment cannot be made even on adhoc basis. Reliance placed in this regard by Honble Mrs. Meera Chhibber in Par 41 of her order on the case of Secretary, State of Karnataka vs. Uma Devi (2000) 4 SCC 1 in support of her holding that promotion of respondent no.3 and 4 treated as adhoc is misplaced. The case of Uma Devi (supra) is not an authority on this aspect of the matter as it deal with regularization of casual workers. Furthermore, an adhoc appointment could not have been the basis of further adhoc promotion as has been the case with Applicant No.6. Applicant No.6 has promoted as DEO (G) on adhoc basis and then has further been promoted to the next higher post of Additional Director (PE) without being regularized in the post of DEO (G). This tend to indicate that such adhoc appointments have been so made for names sake but for all practical purposes they have been reckoned at par with regular appointment. But for this, Applicant No.6 could not have promoted to the post of Additional Director (PE). The root cause of this seems to be the misconception entertained by the respondent Corporation that pending finalization of recruitment regulations only ad hoc appointments can be made which is not factually correct as has been indicated earlier. In these premises, the impugned order of promotion of 26.4.207 is not open to objection on the grounds raised by the applicants herein, especially in view of the fact that the same has been made in compliance with the directions of the High Court whose legality has also been confirmed by the High Court in contempt proceedings and, therefore, the prayer at Serial No.(a) of the Prayer clause of the Application is disallowed.
35. As regards prayer (b) of the applicants in the relief clause of the Application, the official respondents have already conceded it. As a rule of evidence, facts admitted need not be proved as per Section 58 of the Evidence Act. In fact they have already initiated action for holding review DPCs for promoting the applicants and all other belonging to their cadre for their promotion to their respective post as per their respective eligibility. What is needed to be done in this regard is the direction to the official respondents to complete this process within a fixed time frame. I accordingly direct the respondents Corporation to complete this entire exercise within a period of six months from the date of receipt of a certified copy of this order in accordance with law and administrative instructions, particularly with regard to availability of ACRs, and accord such benefits as may be due and admissible to them under the applicable rules. Though private respondents are not before us as claimants, the official respondents would in all fairness extend the same benefits to them as well in the like manner to which they would be entitled under the rules for holding the review DPC.
36. For the reasons stated above, the applicants Prayer at Clause (a) of the Relief Clause of the Application is disallowed and the Prayer at Clause (b) of the Relief Clause of the Application is allowed. The Application is thus partly allowed in above terms. No order as to cost.
(Dr. Dharam Paul Sharma) Member (J) /ravi/