Central Administrative Tribunal - Delhi
Rajesh Bhagat S/O Seku Ram vs Commissioner on 26 August, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.2798/2009 This the 26th day of August, 2010 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) Rajesh Bhagat S/O Seku Ram, R/O 2/8 MCD Flats, Andrews Ganj, Delhi. Applicant ( By Shri Ajesh Luthra, Advocate) Versus 1. Commissioner, Municipal Corporation of Delhi, Town Hall, Delhi. 2. Government of NCT of Delhi through its Secretary, Department of Urban Development, Level 9, C Wing, Delhi Secretariat, New Delhi. 3. Mashaqqat Hussain S/O Shafaqqat Hussain 4. Ramesh Chand Baweja S/O Sadhu Ram 5. Hari Dutt Sharma 6. Smt. Raj Rani Sharma W/o R. P. Sharma 7. B. P. Singh S/O Bhual Singh 8. Smt. Krishna W/o Mahendra Singh Khatri 9. Hans Raj S/o Dharam Singh 10. Vinod Kumar Bansal S/o Shanti Kumar 11. S. P. Solanki S/o Aram Singh 12. Smt. Sarla Vats W/o Vinod Vats (All are working as School Inspector (Mid-day Meal) On deputation basis; service to be effected through MCD) Respondents ( By Shri Arun Bhardwaj, for respondents 1 & 2, and Shri Raman Duggal for respondents 3 to 12, Advocates ) O R D E R Justice V. K. Bali, Chairman:
Rajesh Bhagat, a Head Master in Municipal Corporation of Delhi (MCD), has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 calling in question Note-1 contained in the schedule to the Recruitment Regulations notified by the official respondents vide gazette notification dated 25.5.2009, vide which the recruitment rules for the post of School Inspector (Mid Day Meal) [hereinafter to be referred as SI (MDM)] have been notified. In consequence of setting aside the Note-1 to the rules as mentioned above, the applicant seeks a direction to be issued to the respondents to strictly adhere to the recruitment rules for purposes of appointment on the post in question, as contained in columns 11 and 12 of the recruitment rules.
2. The questions raised in support of the plea as regards invalidity of Note-1 may be limited and the answer for the same may be short, but inasmuch as, determination of the questions, to a large extent would depend upon the facts of the case, they need elaborate mention. The same as set out in the Application reveal that the applicant who belongs to ST category was initially appointed as Primary Teacher in the 1st respondent Corporation on 15.7.1994 and subsequently promoted as Head Master on 2.1.2004. He had put in five years of service on the post of Head Master at the time he filed the present Original application. Vide notification dated 25.5.2009, recruitment regulations known as Municipal Corporation of Delhi, Recruitment Regulations for the post of School Inspector (Mid-Day-Meal), 2009 came into being. It is the case of the applicant that as per column 11 of the said Regulations, the sole method of recruitment is by way of promotion, failing which by deputation, and that head Master/Head Mistress in the scale of `5500-9000 with three years regular service in the grade are eligible for promotion as provided in column 12. It is further his case that he came to know that the Government of NCT of Delhi, the 2nd respondent, vide letter dated 3.9.2009 called for service record of ten officials for filling up the post of SI (MDM). As per the said letter, the DPC was intended to be convened as regards regular appointment to the said posts on 8.9.2009 at 11 a.m., and Head Masters/Head Mistresses fulfilling the requisite qualification would be eligible for consideration. However, the department in defiance of the recruitment rules, it is the case of the applicant, is intending to fill up the said posts on regular basis by considering ten named officials only, who are holding the post on deputation basis. The said officials have been arrayed as respondents 3 to 12 in the present lis. Absorption, it is further the case of the applicant, is not permissible under the rules, and the sole method of appointment to the said post is by way of promotion, for which no one from the feeder cadre is being considered. The department, however, could not convene the DPC on 8.9.2009 due to protest from various concerned, as the feeder cadre employees were deliberately ignored. Thereafter, a letter dated 25.9.2009 has been issued from the office of Deputy Education Officer (Admn.) regarding promotion to the post of SI(MDM), whereby service particulars of Principals fulfilling the eligibility conditions in the recruitment rules have been directed to be submitted within a week. The MCD, it is stated, has itself issued a seniority list of Principals, i.e., Head Masters/Head Mistresses, which would show that even a seniority list of feeder cadre is in existence and available. The inter-departmental communication dated 25.9.2009 calling upon its own authorities to submit the particulars of eligible officers of feeder grade within one week, is stated to be arbitrary and a cover-up exercise, inasmuch as, while 26th and 27th September, 2009 were weekend holidays (Saturday & Sunday), 28th September was a gazetted holiday, and thereafter only 29th and 30th September and 1st October were working days, as 2nd October onwards again were holidays till 5th October, 2009. The letter aforesaid is stated to be an afterthought and eyewash, since no sufficient time was stipulated for submission of particulars. It is also the case of the applicant that even this inter-departmental communication has not been fairly acted upon and has not even received any publicity, depriving eligible officials to pursue, even to the minimal, as to whether their particulars have been submitted or not to the concerned administrative unit. Further, this letter, it is stated, was meant to be kept under the carpet and not intended to be acted upon, since no actual action upon the same has been taken, and that with great difficulty the applicant has managed to obtain a copy thereof. The applicant complains of denial of opportunity for consideration for promotion to the whole feeder cadre in order to bestow undue advantage and benefits to some chosen and favourite officers of the respondents. Ten persons, i.e., respondents 3 to 12, were initially appointed as Assistant/Primary Teachers in MCD. Somewhere in the year 1993, they came to be appointed as Area Organisers under a specific project under the Education for all scheme funded by UNICEF, with the specific stipulation that upon completion of the project, they would be reverted to their original posts. It is pleaded that there is no regular post of Area Organiser and it was only a project-based appointment, and that even after culmination of the project, the group of persons appointed as Area Organisers were not reverted to their substantive position and continued to be Area Organisers till 19.12.2003, when they were appointed to the non-existent posts of School Inspectors (Mid-Day Meal) in the pay scale of `6500-10500 on deputation basis. It is the case of the applicant that in the manner aforesaid, a group of Assistant/Primary Teachers were bestowed two higher ranks in an illegal manner, and that they did not have to face any competition, nor required any minimum educational qualification criteria, nor any seniority. It is further pleaded that the respondents are intending to promote the private respondents on the post of SI (MDM), which post they are already holding on deputation basis. For doing so, the department is relying upon Note-1 of the Recruitment Regulations dated 25.5.2009. The note provides for promotion to the said post of such incumbents who are holding the post on deputation basis and requirement of possessing minimum educational qualification is also done away with. The word teacher is also included in the said note since the private respondents are in fact only teachers as per their substantive appointments. In the facts as mentioned above, Note-1 to the Regulations is stated to be arbitrary, unreasonable, mala fide besides being unconceivable in service jurisprudence. The Bench seized of the matter when it came up for motion hearing on 7.10.2009, directed the respondents to withdraw the process of promotion, and that stay is continuing till date.
3. Pursuant to notice issued by this Tribunal, the respondents have put in appearance and two separate replies one on behalf of the 1st respondent and the other on behalf of respondents 3 to 12 have been filed. By way of preliminary submissions in the reply filed on behalf of the 1st respondent, it is pleaded that the corporation vide resolution dated 14.9.1992 had approved 12 posts of Area Organisers in the pay scale of `1640-2900 for implementation of the project Education for All in Municipal schools in collaboration with UNICEF, NCERT, and that the said project was for three years duration up to March, 1996. Accordingly, the Education Department of the 1st respondent Corporation issued circular dated 16.4.1993 inviting applications from eligible Head Masters/Assistant Teachers with 12 years of service for filling up 12 posts of Area Organisers in the pay scale of `1640-2900 on deputation basis for the specific project period. From the applications received, the Area Organisers were selected by a selection committee out of Head Masters/Assistant Teachers. Although, the appointment of officials to the post of Area Organiser was for the project period only and further subject to the condition that on completion of the project, they would return to their substantive posts, the Universal Primary Education being a continuous activity, the objective of the project Education for All were carried on even after the winding up of the project in the year 1996, and, therefore, the Head Masters/ Assistant Teachers continued to work on the post of Area Organisers. It is further pleaded that following positive results shown in some areas, UNICEF agreed to provide support for payment of salary to the Area Organisers w.e.f. 1.1.1996, provided the 1st respondent came with a fresh proposal for continuation. Since continuation of 12 posts of Area Organisers was very important and necessary for attainment of objects laid down under the project, a proposal was placed before the Corporation for approving upgradation of 12 posts of Head Masters/Assistant Teachers into 12 posts of Area Organisers in the pay scale of `1640-2900 + CA w.e.f. 1.4.1996 under the Non-plan Head of Budget, and the same was approved vide decision taken by the corporation on 15.4.1996. It is further pleaded that on completion of the project in the year 1996, the National Scheme for Nutrition for Primary School Children introduced by the Government of India, was entrusted to the respondent Corporation for implementation of the scheme named as MCD scheme, and for carrying out the said scheme effectively, a proposal dated 6.6.2003 was placed before the corporation for upgradation of 10 posts of Area Organisers to the post of SI (MDM) in the pay scale of `6500-10500, and the remaining two posts of Area Organisers were to be surrendered. Once the posts of Area Organisers were upgraded and renamed as SI (MDM), the Corporation vide resolution dated 25.8.2003 elevated the incumbents of the post of Area Organisers and appointed them to the upgraded and renamed post of SI (MDM) in the pay scale of `6500-10500 on deputation basis with immediate effect, vide order dated 9.12.2003 on the terms and conditions which have been mentioned in the reply. The said SIs (MDM) filed WP(C) No.6726-33/2005 in the Honble High Court of Delhi against the order dated 19.12.2003, where one of the prayers was to issue rectified appointment letters appointing them to the post of SI (MDM) on regular basis. With regard to the said relief, the Honble High Court directed the respondent Corporation to take steps to formulate and finalise its policy for filling up these posts. As regards other reliefs, the petitioners were allowed the pay scale of `6500-10500 w.e.f. 1.4.2004. Thereafter the petitioners filed LPA No.1020-1027/2006 in which, a direction came to be issued to the Corporation to frame recruitment rules for the post of SI (MDM) within a period of three months taking up the matter with UPSC and the Government of NCT of Delhi to modify the recruitment rules within a period of two months. During the process of finalization of the recruitment rules, the respondent vide letter dated 2.11.2007 communicated to UPSC the observations of the Honble High court dated 6.3.2006 in the writ petition aforesaid, relevant extract whereof reads as follows:
I am of the opinion that respondents who deputed the petitioners as Area Organisers cannot wipe or ignore their entire period as Area Organisers for the purposes for considering their case for the post of School Inspector (Mid-day-Meal). It was also observed that I am of the opinion that the MCD should take appropriate steps to finalise its policies in that regard at the earliest in any case within the period of four months from today. It is pleaded that with a view to accommodate the incumbents holding the post of SI (MDM) on deputation basis since long time, the respondents proposed for one time mode of recruitment to adjust the presently working ten officials as SI (MDM) for regularization against the said post with effect from the date of notification of the recruitment rules by the Government of NCT of Delhi. UPSC instead of agreeing to the proposal of the respondent, suggested that to safeguard the interest of the incumbents, following note in column 12 may be incorporated:
Note 1: The present incumbent holding the feeder cadre post of Teachers/Head Masters on regular basis on the date of notification of the recruitment rules would also be considered for promotion irrespective of the EQs prescribed for field of promotion/deputation. Accordingly, the note was inserted in the recruitment rules with approval of the competent authority, and UPSC concurred to the proposal, which was further sent to the Government of NCT of Delhi, which notified the rules vide notification dated 25.5.2009. It is pleaded that the recruitment rules in question have been framed/notified after following due process and consultation with UPSC, and that no recruitment rules for the post of SI (MDM) existed prior to these rules. The respondent Corporation joins issue with the applicant as regards illegality of the rules. It is further pleaded that as per Note-1 of column 12, respondents 3 to 12 are to be considered for promotion to the post of SI (MDM) irrespective of educational qualifications and with other relaxation as mentioned therein. It is also the case of the respondent that in addition to calling for reports with regard to ten SI (MDM) who were already working on deputation basis, reports were also called as regards eligible Head Masters/ Head Mistresses fulfilling the eligibility in consonance with provisions of the recruitment rules for considering their regular appointment to the post of SI (MDM). As regards the private respondents, it is pleaded that they were appointed as Area Organisers under the specific project Education for All during the year 1993, and were selected from amongst candidates by the selection committee after inviting applications from Head Masters/Teachers having 12 years service as per requirement at the relevant point of time, as per circular dated 16.4.1993.
4. In the counter reply filed on behalf of the private respondents 3 to 12, some preliminary objections have been raised, one of which would need pertinent mention. It is inter alia pleaded that the applicant is a Head Master, now re-designated as Principal (Primary School), and has right to be considered for promotion to the post of School Inspector as per notified recruitment regulations for the said post. In terms of the recruitment regulations for the post of School Inspector, 50% posts are to be filled by promotion from amongst Head Masters with five years regular service in the grade, on fulfilling the educational qualifications laid therein, and as per seniority. In the impugned recruitment regulations for SI (MDM) which are independent, separate and distinct, no change or amendment has been made in the recruitment regulations of School Inspector, wherein the right of the applicant for consideration for promotion remains unaffected. It is also stated that the applicant has withheld and not disclosed to this Tribunal that he does not possess the stipulated academic qualifications in the notified impugned recruitment regulations for the post of SI (MDM), as he is only holding the qualification of Bachelor in Education, which qualification is not requisite as per the recruitment regulations. By way of preliminary submissions, it is pleaded that in the year 1993 the respondent Corporation under the project Education for All invited applications from all eligible Head Masters/Head Mistresses and Assistant Teachers who had completed 12 years of service and on the terms and eligibility conditions stipulated in the circular issued therefor. The selection was by way of direct appointment on the basis of open competition for the specific project period ending in March, 1996. The answering respondents having satisfied the terms and conditions of eligibility etc. as stipulated in the said circular, applied therefor, and were selected on the post of Area Organiser in the pay scale of `1640-2900 (pre-revised). At that stage the post of Area Organiser was ex-cadre post and for the project period in the Plan Head of Budget, which ended in the year 1996 after expiry of the project. Inasmuch as, the Corporation required services of Area Organisers for various schemes launched by the Government of India for universalisation of primary education and mid-day meal etc., a policy decision was taken by the Corporation to create the post of Area Organiser and in this regard as per the said decision all those Area Organisers including the respondents, who were engaged in the year 1993 under the project Education for All i.e. Planned Budget, were upgraded as Area Organisers in the newly created posts under the Non-Plan Head, and all those incumbents including the respondents were upgraded as Area Organiser on regular basis. In the year 2003 the respondent Corporation took further decision vide resolution dated 25.8.2003 creating a separate and distinct cadre of School Inspectors (Mid Day Meal). In the Education Department of the Corporation there are independent and distinct cadres, namely, General, Physical, Science and Nursery, and each cadre has its separate and distinct recruitment regulations. The feeder post for promotion to School Inspector is from Head Master/Assistant Teacher as per their respective seniority etc, i.e., the Head Masters in General stream are eligible for promotion to the post of School Inspector (General) and Physical Education Teachers in Physical stream, and so on and so forth. Promotion for the next higher post, i.e., Assistant Education Officer (AEO) is from the feeder post of School Inspector in their respective cadres, i.e., General, Physical, Science and Nursery, as per their seniority and eligibility etc. given in the separate and distinct recruitment regulations for the post of AEO (General), (Physical), (Science) and (Nursery). It is in terms of the policy decision of the year 2003 that it was decided that ten posts of SI (MDM) would be filled up by upgrading ten posts of Area Organisers under the Non-Plan Head in the pay scale of `6500-10500 from the incumbents holding the posts of Area Organisers and discharging duties of School Inspector for the last nine years and looking after the work of mid day meal scheme for the last seven years. In terms of the said decision, vide resolution dated 21.9.2007 it was also decided that the upgraded posts of SI (MDM) would be filled up from the present incumbents of the posts of Area Organisers. The Corporation took the said decision inter alia on the basis that the Area Organisers since 1993 had been continuously discharging duties of School Inspector, and as such had wide experience in the field of mid day meals etc. The Corporation decided that initially the posts of SI (MDM) would be filled up from the Area Organisers including the answering respondents and thereafter, by way of promotion etc. as per eligibility conditions laid down in the proposed recruitment regulations. Copies of the resolution dated 25.8.2003 and resolution dated 21.9.2007 are annexed with the counter reply as Annexure R-3D (colly.). consequent upon the resolution of the year 2003, the Corporation issued office order dated 29.10.2003 for filling up the upgraded posts of SI (MDM) from the incumbents of Area Organisers, i.e., the answering respondents. Initial deputation of the answering respondents as Area Organisers in the year 1993 had come to an end with the decision of the Corporation taken on 1.4.1996 when all Area Organisers, including the answering respondents, were upgraded and posted in the newly upgraded cadre posts. The Corporation under Section 98 of the DMC Act is empowered to frame recruitment regulations in terms of its decision taken, and as per provisions of sub-section (2) of Section 98 framed the proposed regulations which were duly approved by UPSC, and thereafter, under Section 480(2) sent the same to the Urban Development Department of the Government of NCT of Delhi for approval and publication thereof in the official gazette. On 25.5.2009, the impugned recruitment regulations for the post of SI (MDM) were notified and became statutory regulations. The Corporation vide letter dated 3.9.2009 in order to fill up the posts of SI (MDM), invited names of Head Masters/Head Mistresses, along with the answering respondents, for consideration for appointment to the post of SI (MDM) on regular basis. Mention is then of the writ filed by the respondents with the result already indicated above while dealing with the reply filed on behalf of the respondent Corporation. The answering respondents, it is then averred, would have no lien on the post of Teacher/Head Master because their deputation ended in the post of Area Organisers under Non-Plan Head. Other teachers, including the applicant, working in the respondent Corporation, it is further averred, have also the opportunity to be appointed as TGT in Delhi Administration, and that had the answering respondents also had the same opportunity, large number of them would have already been promoted on the posts of Head Masters/Principals of Primary Schools. It is further pleaded that it is in compliance of the observations made in para 12 of the order of the High Court dated 6.3.2006 passed in the writ petition referred to above, that the respondent Corporation in consultation with UPSC framed the impugned recruitment regulations. There would be no need to refer to the reply on merits, as it appears to us that the respondents have covered their defence in the preliminary submissions.
5. The applicant has filed rejoinders to the two counter replies filed on behalf of the respondents, which are by and large, reiteration of the pleadings made in the OA, and would need no further elaboration.
6. The respondent Corporation has filed a misc. application seeking permission to place some additional documents on records, i.e., copy of hierarchy of posts by a chart, copy of order in the LPA dated 6.1.2009, copy of the LPA and the reply filed therein by the Corporation, copy of the writ petition, counter filed therein and copy of judgment dated 6.3.2006 in the writ petition.
7. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. The factual backdrop of the events culminating into the impugned recruitment regulations would need a necessary mention. Pleadings as made by the respondents in that regard have already been mentioned. The same would need elaboration in the context of the relevant documents. Available on records is circular dated 16.4.1993 vide which the respondent Corporation invited applications from Headmasters/Headmistresses or Assistant Teachers with 12 years of service, working under its Education Department for the posts of Area Organisers in the pay scale of `1640-2900 plus C.A., under the project Education for All. The selected candidates were to work on deputation for the specified project period. It is apparent that all who were eligible and were in the Education Department of the Corporation, and surely, the applicant who was eligible, were competent or eligible to apply. It is further apparent that only some like the private respondents, from amongst number of employees, who may be eligible, chose to apply for the deputation posts of Area Organisers. Surely, at that time, the private respondents would not know how the things would shape. In all probability, all they could imagine at that stage was that after the period of the specified project would be over, they would revert to their original posts, be it Head Masters/Head Mistresses or Assistant Teachers. At this stage itself, we may mention that Head Masters/Head Mistresses were eligible without there being any condition of experience of teaching they might have put in, whereas the Assistant Teachers were eligible only if they had 12 years service. Be it the Head Masters/Head Mistresses or Assistant Teachers with 12 years of service, they were all eligible to apply for the post of Area Organiser. Available on records is also copy of decision dated 1.4.1996, which is as regards continuation of 12 posts of Area Organisers under Education for All by upgrading 12 posts of Teachers w.e.f. 1.4.1996. We may reproduce the relevant part of the decision, which may show requirement of continuation of 12 posts of Area Organisers. The same are extracted below:
Since its inception, Municipal Corporation of Delhi, with meager means at its disposal has been trying to provide support in achievement of the national goal of Universalisation of Primary Education. Even then the problem continues to persist in Delhi. To yield better results, Municipal corporation of Delhi in collaboration with UNICEF, NCERT & GOI prepared a proposal of implementing Project Education for All in its selected schools in 12 Pockets. UNICEF agreed to provide financial support and NCERT agreed to give academic guidance. Duration of the project was five years ending 31.3.96. Due to various administrative reasons the approval of the proposal was delayed. It was approved on 10.9.92 Twelve posts of Area Organisers in the Pay Scale of Rs.1640-2900+CA were created under the project to look after its day to day implementation at various levels. The Area Organisers were selected by a selection committee out of Head Masters/Teachers working in MCD schools with 12 years of experience at their credit. The efforts made by the Area Organisers have shown positive results. To provide additional inputs and academic supports a team of 10 members under the leadership of Addl. Commissioner (Edu) had gone to Achalpur and Chikaldhara (Tribal Areas) of Amrawati, Maharashtra state to witness and have first hand information regarding various strategies being implemented under the Area Intensive Project (UNICEF aided). On the basis of these first hand experiences we want to strengthen the educational programme in M.C. schools. It is very clear from the above that the continuation of 12 posts of Area Organisers is very important and necessary for attainment of objectives laid down under the project specially the improvement of quality of Education. The persons who are working as area Organisers are basically Head Masters (2) or Teachers (10) with 14 years of service at their credit. They are already getting Rs.1640-2900 or more as their basic pay. If the 12 posts of Teachers out of non-plan are upgraded into the posts of 12 Area Organisers in the pay scale of Rs.1640-2900+CA there will be no financial implication. In view of the above it is proposed that in the larger interest of children 12 posts of Teachers from non-plan Budget Head III-B-I be upgraded into 12 posts of Area Organisers in the Pay Scale of Rs.1640-2900+CA w.e.f. 1.4.96. If the programme is extended to all the schools in a phased manner, then for effective implementation and monitoring we may require additional posts of Area Organisers. In that case, we will come again before the Competent Authority for necessary sanction/approval. The decision aforesaid, it appears, was approved by the Corporation vide agenda item No.5040 on 15.4.1996. The same reads as follows:
As proposed by the commissioner in his letter no.F.33/Edu/1970/C&C dated 11.4.96, upgradation of 12 posts of Assistant Teachers to that of 12 posts of Area Organisers in the pay scale of Rs.1640-2900 plus conveyance allowance w.e.f. 1.4.96, is accorded. Available on records is also copy of resolution No.297 dated 25.8.2003, passed by the respondent Corporation, with regard to upgradation of ten posts of Area Organisers to that of School Inspector (MDM) in pay scale of `6500-10500, and surrendering two posts of Area Organisers. Relevant parts of the Commissioners letter dated 6.6.2003, and various recommendations as approved by the Corporation are extracted below:
Universalisation of Primary Education and Nutritional Deficiency amongst the school going children are two major problems being faced by the country. To supplement the nutritional deficiencies amongst the school children during recess and to improve the enrolment, retention and to minimize dropouts rate, wastage/ stagnation, the Govt. of India has introduced a National Scheme for Nutrition for the Primary School Children. The Municipal Corporation of Delhi is entrusted to implement this scheme. Sixteen posts of School Inspector (MDM), eighteen posts of Mid-day-Meal Attendants and four posts of Junior Stenos. The proposal regarding creation of sixteen posts of School Inspectors (MDM) has been made in such a manner that there will be minimal liability i.e. by abolishing three existing vacant posts of Area Organisers and by upgrading nine existing posts of Area Organisers to the post of School Inspector (MDM). Out of sixteen posts of School Inspector (MDM) which are to be created, ten posts of School Inspector (MDM) will be filled by upgrading ten posts of Area Organisers under Non-Plan in the pa scale of Rs.6500-10500 from the incumbents presently holding the posts of Area Organisers and discharging the duties of School Inspector for the last nine years and looking after the work of Mid-day-Meal Scheme for the last seven years. The remaining two posts of Area Organisers are to be surrendered under non-plan. Since all the Area Organisers are getting more than Rs.6500/- as basic salary, there will be minimal financial liability on MCD. Resolution No.297 Resolved that as proposed by the Commissioner in his letter No.F.33/P.Edu/1017/C&C dated 6-6-2003 and recommended by the Standing Committee vide its Resolution No.290 dated 30-7-2003, upgradation of ten posts of Area Organisers to the post of School Inspector (M.D.M.) in the pay scale of Rs.6500-10500, be approved and two posts of Area Organisers, be surrendered, as proposed. Available on records is also resolution No.180 dated 21.9.2007 with regard to framing of recruitment rules for the post of SI (MDM) in the Education Department of the respondent Corporation, relevant part of which is extracted below:
4. In the light of these orders of Honble High court, the UPSC may be requested to entertain proposal to determine one time mode of recruitment to adjust the presently working 10 Area Organisers as School Inspector (Mid-day-Meal) whose services would be regularized against the post of School Inspector (Mid-day-Meal) with effect from the date of notification of RRs by Urban Development Department, Govt. of NCT of Delhi. Since they are performing this job for the last many years and have adequate educational qualification, we may not put any condition for the present incumbents to acquire any further education qualification in Nutrition/Home science etc. However all future incumbents shall be regulated by the proposed Recruitment Rules.
5. Accordingly, with the implementation of recommendation of 5th Central Pay Commission and also in the light of guidelines for framing/amendment of Recruitment Regulations issued by the Govt. of India vide OM No.AB-14017/12/87-Estt.(RR) dated 18-3-88 and dated 25-5-98, Recruitment Rules for the post of School Inspector (Mid-day-Meal) have been framed as proposed by the Education Department in the shape of annexure A attached. The proposal is to be placed before the Corporation under Section 98 of Delhi Municipal Corporation Act, 1957 for approval. After approval of the Corporation the Recruitment Rules are to be concurred by the UPSC. The Recruitment Rules finally approved by the Corporation in accordance with concurrence of UPSC, will be sent to Urban Development Department of Govt. of NCT of Delhi for approval and publication in Official Gazette under Section 480(2) of DMC Act, 1957.
6. The matter may be placed before the Corporation routing through the Appointments, Promotions, Disciplinary and Allied Matters Committee for approval as an item of Urgent Business. We may also make a brief mention of the writ petition filed by Mushaqqat Hussain and others, i.e., the private respondents herein and the result thereof. The petitioners, i.e., the private respondents herein, had sought direction to be issued with rectified appointment letter in the post of School Inspectors (MDM) by the respondent Corporation on regular basis. They also claimed monthly salary in the pay scale of `6500-10500 with effect from 19.12.2003. The petitioners, as per the case set out by them and as mentioned in the order of the Honble Single Judge dated 6.3.2006, were initially recruited as Assistant Teachers. Some of them were subsequently appointed as Head Masters by the respondent Corporation. Reference is then made to the Corporation implementing a scheme styled as Education for All in the year 1993 and engagement of the petitioners as Area Organisers to motivate children into joining schools and pursuing their studies. The scheme was part of a Central Government sponsored initiative, under the aegis of the National Scheme for Nutrition for working children, which included a mid-day-meal component. The petitioners were selected to work as Area Organisers on deputation basis. It was the case of the petitioners that they continued to work as Area Organisers for three years between 1993 and 1996. In 1996 the funding under the Plan had come to an end but the corporation continued with the project on a Non-Plan basis, and the petitioners were continued to work as Area Organisers. Reference is then to mooting a proposal in the year 2003 to upgrade ten posts of Area Organisers as SI (MDM), resulting into resolution dated 9.7.2003 of the Education Committee as also resolution dated 30.7.2003 of the Standing committee. Vide office order dated 19.12.2003, the Commissioner had approved appointment of ten Area Organisers to the post of SI (MDM) in the pay scale of `6500-10500 on deputation basis with immediate effect. The terms and conditions in the office order included the stipulation that the employees would not claim any benefit of the post of School Inspector (General) or any other equivalent post and that they would not claim promotion to higher level, and further that regular employment of the employees would be subject to finalization of recruitment rules. Pending regular appointments, the petitioners were to hold substantive post of Assistant Teachers/Head Masters, which they were holding prior to joining the corporation as Area Organiser. It was urged before the High Court on behalf of the petitioners that the Corporation had resiled from its office order, as the petitioners neither had been regularly appointed as School Inspectors, nor had they been actually paid the salaries as indicated in the pay scale of `6500-10500. It was also urged that the period of service put in by the petitioners from 1993 to 2003 could not be ignored or obliterated and they alone had exclusive right to be appointed as School Inspectors in the newly upgraded posts which were meant for them. While referring to the stand taken by the respondent Corporation opposing the stand taken by the petitioners, the Honble Single Judge observed as follows:
11. In my considered opinion, in terms of the Resolution of the Education Committee and the Standing Committee the petitioners cannot claim an overriding right to be regularly posted at the newly added post of School Inspectors (MDM). It is an admitted case of both the parties that the grade of School Inspectors have to be filled both by direct recruitment as well as by promotion. In the case of promotion it is from the feeder category of Head Masters. Therefore, the petitioners cannot claim any pre-eminent right on the basis of having worked as Area Organisers, when admittedly they were holding a lien to the post of Assistant Teacher/Head Masters.
12. Having said so, I am of the opinion that the respondents who deputed the petitioners as Area Organizers cannot wipe out or ignore their entire period as Area Organizer for the purposes for considering their case for the post of School Inspector (MDM), in the event, the respondent-MCD is of the opinion that the post of School Inspector (MDM) has to be filled according to the existing rules. The petitioners were admittedly chosen after they responded to Circular calling for application from eligible candidates; they worked for this length of time, and continued to retain substantive lien in their posts. Therefore, if the seniority of all the eligible candidates, has to be seen, the petitioners claim necessarily, therefore, has to be considered on the basis of their having discharged their duties on behalf of MCD, as substantive Assistant Teachers/Head Masters during this period. In other words, the period of service between 1993 and till the date of decision as to the manner of filling up of the post of School Inspectors, cannot be ignored. It has to be taken for the purposes of seniority and the petitioners seniority vis-`-vis other colleagues have to be appropriately determined. The petitioner cannot claim a mandatory order or a direction that they should be treated as substantive School Inspectors (MDM); in view of the decision that the newly created 10 posts will have to be filled in accordance with the policies to be formulated by the MCD in that regard. Since some time has already elapsed after the Resolution was made in the year 2003, I am of the opinion that the MCD should take appropriate steps to finalize its policies in that regard at the earliest in any case within the period of four months from today. A direction to that effect is accordingly issued.
13. As far as the second point is concerned, namely, vis-`-vis the pay scale of Rs.6500-10500 the stand of MCD is indefeasible. There is no denial that the Office Orders have not been modified till date, in terms of which the petitioners were assigned the duties of School Inspectors. The order categorically stipulates that the said pay scale would be admissible to them. Indeed there is no specific denial that the petitioners are entitled to the said pay as long as they work as School Inspectors.
14. In the light of the above findings, the respondent MCD is directed to release the salary of the petitioners in the scale of Rs.6500-10500 along with admissible allowances for the period 1.1.2004 onwards within six weeks from today The petitioners, it appears, were not fully satisfied with the directions as given in the order dated 6.3.2006. They thus filed LPA which was disposed of on 6.1.2009 by recording the following order:
On hearing learned counsel for the parties, it transpires that undisputedly the only aspect surviving in the present appeal is the issue of notification of the Recruitment Regulations for the post of School Inspector, Mid-day-Meals, in respect of which the last clarification has been sent to the UPSC on 12.11.2008.
We find that the matter has been pending for quite some time and there has been considerable delay in framing and issuing notification for the Recruitment Regulations.
In view of the aforesaid, we expect the UPSC to take necessary steps in the matter including any further clarifications required for finalization of the Recruitment Regulations within a maximum period of three months of this order being brought to their notice by either of the parties. On the UPSC clearing the Recruitment Regulations, the Govt. of NCT of Delhi is expected to notify the same within a maximum period of three months of this order being brought to their notice by either of the parties. On the UPSC clearing the Recruitment Regulations, the Govt. of NCT of Delhi is expected to notify the same within a maximum period of two months thereafter. In case of any difficulty, the parties will be at liberty to approach this Court.
The appeals stand disposed of.
8. Before we may comment upon and adjudicate the controversy in issue, it would be relevant to mention that appointment to the post of School Inspector is governed by Recruitment Regulations notified vide notification dated 1.9.1976. At the time when the regulations came to be framed, there were 38 posts of School Inspectors, which, we are told during the course of arguments, have by now increased to 66. The method of recruitment on the post aforesaid is to be 50% by way of promotion and 50% by direct recruitment, and the feeder post for promotion is Head Master/Head Mistress with five years service in the grade after appointment thereto on regular basis. The applicant as also the private respondents would have had right to become School Inspectors in their respective streams, like, General, Physical, Science and Nursery, of course, subject to the private respondents remaining in the main stream and first becoming Head Masters/Head Mistresses from the post of Assistant Teacher. Were they to remain in the main stream, they would have been promoted as Head Master/Head Mistress. It may be recalled that two of the private respondents were also Head Masters. It may also be mentioned that the terms and conditions of their appointments on deputation included the stipulation that they would not claim any benefit of the post of School Inspector (General) or any other equivalent post and that they would not claim promotion to higher level, and further that their regular employment would be subject to finalization of recruitment rules. The factual position being clear, it is time now to take into consideration the main Regulations, and in particular, Note-1 below column 12 of the Schedule thereto. The Regulations called MCD, Recruitment Regulations for the post of School Inspector (Mid-Day-Meal), 2009 came into being under Section 98 of the Act of 1957 vide resolution No.180 dated 21.9.2007 in consultation with UPSC, having been approved by Lt. Governor of the National Capital Territory of Delhi in pursuance of the provisions of sub-section (2) of Section 480 of the said Act read with the Government of India notification dated 19.10.1966. Number of posts, classification and scale of pay attached thereto, in view of Regulation 2, shall be as specified in entries (2) to (4) of the Scheduled annexed to the Regulations. The method of recruitment, age limit, qualification and other matters relating thereto, are to be as specified in entries (5) to (12) of the Schedule, as per Regulation 3. Regulation 5 vests power with the Corporation to relax any of the provisions of the Regulations with respect to any class or category of persons, were it be of the opinion that it is necessary or expedient so to do, by order and for reasons to be recorded in writing, and in consultation with UPSC. Name of the post as per column 1 of the Schedule is School Inspector (Mid-day-Meal), whereas there are to be 12 posts (subject to variation dependent on workload), as per column 2. The method of recruitment, as mentioned in column 11 is promotion failing which by deputation. The relevant column reads as follows:
Method of recruitment: Whether by direct recruitment or by promotion or by Deputation/Absorption and percentage of the vacancies to be filled by various methods (11) Promotion, failing which by deputation Promotion, as per column 12, is to be from amongst Head Masters/Head Mistress in the scale of `5500-9000 with three years regular service in the grade. Note-1 below column 12 reads as follows:
Note 1: The present incumbents holding the post of School Inspector (MDM) on deputation basis and those holding the feeder cadre post of Teacher/Head Master on regular basis on date of notification of the Recruitment Rules would also be considered for promotion irrespective of the educational qualification prescribed for promotion/deputation. Shri Luthra, learned counsel representing the applicant, contends that Note-1 below the Schedule making School Inspectors (MDM) working on deputation basis holding the feeder cadre post of Teacher/Head Master eligible, runs counter to the eligibility criteria for promotion to the post of School Inspector (MDM). The method of recruitment as provided in column 11, is promotion, failing which by deputation, and the feeder post for promotion, as mentioned in column 12 of the Schedule, are of Head Master/Head Mistress in the scale of `5500-9000 with three years regular service in the grade. The private respondents, it is urged, if at all, can only be selected as direct recruits inasmuch as, for their promotion, they have to hold the post of Head Master/Head Mistress, and as the private respondents are holding substantive posts of Assistant Teachers, they cannot possibly be considered for promotion to the post of SI (MDM). It is in the manner aforesaid, it is urged that Note-1 is contrary to the main regulation 3, by which only the schedule came into being. The next and the only other contention raised by the learned counsel is that Head Masters/Head Mistresses, as the applicant is, forming the feeder post for promotion, cannot be excluded from consideration for promotion to the post of School Inspector (MDM).
9. We have pondered over the issues raised by the learned counsel representing the applicant. In the context of the facts of the present case, we do not find any merit in either of the contentions raised by the learned counsel as mentioned above. Note-1 appended below the schedule to the Regulations of 2009 is part and parcel of the schedule. Note-1 is not marginal or footnote, as is being suggested by the counsel for the applicant. The method of recruitment, age limit and qualifications are to be as per entries (5) to (14) of the schedule. The schedule including the Notes thereunder has come into existence by virtue of provisions contained in regulation 3. The whole of the schedule alongwith the notes thereunder is thus part and parcel of the Regulations. The Note under challenge can, at the most, be read as an exception to the method of recruitment as mentioned in columns 11 and 12 of the schedule. It may be recalled that the respondents invited applications from Assistant Teachers with 12 years experience and Head Masters/Head Mistresses to be appointed on the post of Area Organisers on deputation basis. Insofar as, Head Masters/Head Mistresses were concerned, there was no requirement for them to have any requisite number of years of service in the said posts to their credit, whereas Assistant Teachers were required to have 12 years experience. Of the 12 persons who came to be appointed on deputation basis on the post of Area Organisers, whereas two are Head Master/Head Mistress, others are Teachers. As per recruitment regulations of 1976, feeder post for promotion on the post of Head Master/Head Mistress was Teacher and that for promotion on the post of School Inspector was Head Master/Head Mistress. It is the case of the private respondents that they were not considered for promotion on the post of Head Master/Head Mistress and thereafter for School Inspector for the reason that they had come on deputation to occupy the post of Area Organiser, and thereafter that of SI (MDM), and that had they remained in the main stream, they would have been promoted on the post of Head Master/Principal of Primary Schools. We have not examined the rules as regards eligibility for promotion on the post of Head Master/Head Mistress, as the aspect of the case that the respondents would have been entitled for promotion on the post of Head Masters/Head Mistresses is not in dispute. It may also be stated at this stage that the private respondents, as per service conditions when they were holding the posts of Area Organisers or SI (MDM), were not entitled to be promoted under the earlier regulations of 1976. We need not refer to as to why and in what circumstances the private respondents sought variety of reliefs when they filed writ petition before the High Court, as the same with the result of the litigation has since already been given in details. Suffice it may, however, to mention that it was in consideration of the facts of the case that directions as mentioned hereinabove came to be issued by the learned Single Judge and thereafter by the Division Bench of the High Court in LPA. The regulations of 2009, we have absolutely no manner of doubt, nor even there is dispute with regard to the same, came to be framed in compliance with the directions issued by the High Court. The impugned Note came to be added in consultation with UPSC. In the circumstances as mentioned above, while appending Note-1, which we may reiterate, is part and parcel of the regulations, an exception came to be made as regards those who had put in number of years of service, may be on deputation, from 1993 till such time the regulations came to be framed in 2009, no exception can be had. The private respondents could not lose on both ends. They were not to be promoted by virtue of the earlier regulations of 1976. They had thus lost their promotion on the posts of Head Master/Head Mistress or School Inspector as per regulations of 1976, and if, therefore, an exception by virtue of Note-1 came to be made in their case that they would be promoted, even though holding the substantive post of Assistant Teacher, which is certainly while considering the services rendered by them as Area Organisers and School Inspector (MDM), no exception can be had. In fact, we are of the considered view that justice has been imparted. Exception with regard to a class would be permissible, as whereas discrimination is not to be allowed, classification is permissible. There is nexus with the objective to be achieved in making a classification as regards the private respondents, who had to their credit 16 years of service in a specialized field, in which appointments are to be made. They have been Area Organisers and School Inspectors (MDM) engaged exclusively in the activities related thereto. They have vast experience on the post on which they may be appointed pursuant to the regulations of 2009, and, if, therefore, eligibility conditions in their case have been dispensed with, the same are more than adequately set off by the vast experience in the field at their credit. Promotion of Teachers dispensing with the eligibility qualifications, in the circumstances as mentioned above, is thus justified. It may be mentioned that but for the private respondents, nobody else was selected on the posts Area Organiser or SI (MDM). That being so, when the private respondents have been accommodated, if in considering their cases for promotion on the post of SI (MDM) they are found to be fit, that would be the end of the matter. On increase in the posts or their quitting by way of retirement or otherwise, Note-1 would outlive its tenure of applicability. Surely, at that stage all Head Masters/Head Mistresses, irrespective of the fact that they had chance of promotion on the post of School Inspector by virtue of the regulations of 1976, shall also have chance of promotion to the specified posts under regulations of 2009. Insofar as, the plea raised by Shri Luthra that all Head Masters/Head Mistresses have been excluded even from consideration is concerned, the same is factually incorrect. It is the positive case of the official as also the private respondents that they are eligible and were being considered as well, but the whole process had to be stopped because of the present OA, in which stay is operative. All Head Masters/Head Mistresses, it is the case of the respondents, would be eligible to be considered. In view of the stand taken by the respondents, the plea raised by Shri Luthra that the applicant and others equally situate are not being considered, has to be repelled. We are conscious that in the context of the facts as fully detailed above, the private respondents may be given precedence in the matter of appointment on the post of School Inspector (MDM), but surely, if some of them may not deserve to be promoted as per their service credentials, or for whatever reasons, then all Head Masters/Head Mistresses would be considered for promotion as School Inspector (MDM). Further, some of the Head Masters/Head Mistresses who may have excellent record, and in view of their exceptional abilities, may be even preferred over the private respondents. However, we do not wish to give any final opinion or further comment upon the issue, as once, the right of the applicant, subject of course to his and others answering the requisite qualifications, has been kept in tact, the matter ends there.
10. Finding no merit in this Original Application, we dismiss the same, leaving, however, the parties to bear their own costs.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/