Central Administrative Tribunal - Delhi
Sunil Kumar Mehra vs Municipal Corporation Of Delhi on 26 August, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 2839/2012 MA No. 804/2013 With OA No. 1222/2013 MA No.1266/2013 OA No.578/2013 AND OA No.3765/2012 MA No.3374/2012 New Delhi this the 26th day of August, 2013 Honble Mr. Sudhir Kumar, Member (A) Honble Mr. A.K.Bhardwaj, Member (J) OA No.2839/2012 Sunil Kumar Mehra, Sr. Town Planner, North Delhi Municipal Corporation 5035/3, Sant Nagar, Karol Bagh, New Delhi-110005 Applicant (Through Shri Raman Duggal, Advocate) VERSUS 1. Municipal Corporation of Delhi Through Commissioner North Delhi Municipal Corporation 4th Floor, Dr. S.P.M. Civic Centre, J.L. Nehru Marg, Minto Road, New Delhi-02. 2. Commissioner North Delhi Municipal Corporation 4th Floor, Dr. S.P.M. Civic Centre, J.L. Nehru Marg, Minto Road, New Delhi-02. 3. Shamsher Singh, Senior Town Planner, T.P. Deptt. South Delhi Municipal Corporation 21st Floor, Dr. S.P.M. Civic Centre, New Delhi-02 ... Respondents (Through Shri Piyush Sharma for Shri Arun Bhardwaj, for R-2 Shri Jagdish Chandra, for R-1 Shri R.K. Jain, for R-3) with OA No.1222/2012 Sunil Kumar Mehra, Sr. Town Planner, North Delhi Municipal Corporation 5035/3, Sant Nagar, Karol Bagh, New Delhi-110005 Applicant (Appeared in person) VERSUS 1. Director (Local Bodies), U.D. Department, 9th Floor, Delhi Sachivalaya, I.P. Estate, New Delhi-02. 2. North Delhi Municipal Corporation through its Commissioner, 4th Floor, Dr. S.P.M. Civic Centre, J.L. Nehru Marg, Minto Road, New Delhi-02. 3. Sh. Shamsher Singh, Town Planning Department, 21st Floor, Dr. S.P.M. Civic Centre, J.L. Nehru Marg, Minto Road, New Delhi-02. ... Respondents (Through Mrs. Harvinder Oberoi, for R-1 Shri K.M. Singh for Shri R.N. Singh, for R-2 None for R-3) OA No.578/2013 Sunil Kumar Mehra, S/o Shri Surendra Mohan Lal, Sr. Town Planner, North Delhi Municipal Corporation 5035/3, Sant Nagar, Karol Bagh, New Delhi-110005 Applicant (Appeared in person) VERSUS 1. East Delhi Municipal Corporation Through its Commissioner 1st Floor, 419 Udyog Sadan, Patparganj Ind. Area, Delhi-110092. 2. Addl. Deputy Commissioner (CED) East Delhi Municipal Corporation 1st Floor, 419 Udyog Sadan, Room No.107, A-2 Wing, Udyog Sadan, Patparganj Ind. Area, Delhi-110092. 3. North Delhi Municipal Corporation, Through its Commissioner, 4th Floor, Dr. SPM Civic Centre, Minto Road, New Delhi-110002. ... Respondents (Through Shri Sadeep Gupta for R-1 & 2 Shri R.N. Singh for R-3) OA No.3765/2012 Sunil Kumar Mehra, Sr. Town Planner, North Delhi Municipal Corporation 5035/3, Sant Nagar, Karol Bagh, New Delhi-110005 Applicant (Appeared in person) VERSUS 1. Shri K.S. Mehra, Ex. Commissioner, Erstwhile MCD through Shri P.K. Gupta, Commissioner North Delhi Municipal Corporation 4th Floor, Dr. SPM Civic Centre Minto Road, New Delhi-110002. 2. Shri S.K. Sharma, Asst. Commissioner (Estt), Erstwhile MCD and Present North Delhi Municipal Corporation 13th Floor, Dr. SPM Civic Centre Minto Road, New Delhi-110002. 3. Shri Shamsher Singh, Senior Town Planner, South Delhi Municipal Corporation 21st Floor, Dr. SPM Civic Centre Minto Road, New Delhi-110002. 4. Shri Janak Digal, Ex. Addl. Commr. (Estt), Erstwhile MCD, through Sh. P.K. Gupta, Commissioner, North Delhi Municipal Corporation 4th Floor, Dr. SPM Civic Centre Minto Road, New Delhi-110002. 5. Shri B.N. Singh, Ex. Director (Personnel), Erstwhile MCD, through Shri Manish Gupta, Commissioner, South Delhi Municipal Corporation 9th Floor, Dr. SPM Civic Centre Minto Road, New Delhi-110002. 6. Shri Manish Gupta, Ex. Addl. Commr. (Engg), Erstwhile MCD and present Commissioner, South Delhi Municipal Corporation 4th Floor, Dr. SPM Civic Centre Minto Road, New Delhi-110002. 7. Shri P.K. Gupta, Commissioner, North Delhi Municipal Corporation 4th Floor, Dr. SPM Civic Centre Minto Road, New Delhi-110002. 8. Shri S.S. Yadav, Commissioner, East Delhi Municipal Corporation 1st Floor, 419 Udyog Sadan, Patparganj Ind. Area, Delhi-110092. 9. Shri Pawan Kr. Sharma, Addl. Commissioner (Engg), North Delhi Municipal Corporation 5th Floor, Dr. SPM Civic Centre Minto Road, New Delhi-110002. 10. Shri Mayank Sharma, CA-cum-FA, North Delhi Municipal Corporation 5th Floor, Dr. SPM Civic Centre Minto Road, New Delhi-110002. ... Respondents (Through Shri R.N. Singh for R-2,4,7,9,10 & 11 Shri R.K Jain, for R-8 and 13) O R D E R
Mr. A.K. Bhardwaj, Member (J) The applicant was appointed in the Municipal Corporation of Delhi (MCD) as Deputy Town Planner w.e.f. 10.08.1992. He got promotion as ad hoc Senior Town Planner on 07.01.1998. Subsequently, on recommendations of the DPC convened for the purpose, the applicant was promoted as Senior Town Planner on regular basis w.e.f. 26.01.2008. During the pendency of the present OAs, the Honble Delhi High Court passed an order dated 08.05.2013 holding that the promotion of the petitioner to the post of Additional Town Planner from 07.01.1998 be treated as regular. Relevant extract of the judgment reads as under:
34. In view of above discussion, we allow the present petition and hold that the date of promotion of the petitioner to the post of Additional Town Planner be treated as January 07, 1998 i.e. the date when the petitioner was promoted to said post of ad-hoc basis; the seniority of the petitioner on the post of Additional Town Planner should be reckoned from the date of his ad-hoc appointment to said post and the ad-hoc service rendered by the petitioner on the post of Additional Town Planner shall be counted towards his regular service on the said post.
2. In the OA No.2839/2012 filed by him on 27.08.2012, the applicant has questioned the order dated 05.05.2011 whereby Shri Shamsher Singh, Senior Town Planner (Respondent No.3) is authorized to exercise the administrative control and discharge the day-to-day routine functions of the department in his own post and grade till further orders. It is admitted position that the said respondent was appointed as Senior Town Planner w.e.f. 16.03.1994 and is senior to the applicant. It is also the prayer made by the applicant in the said OA that Respondents no.1 and 2 may be directed to conduct a Departmental Screening to fill up the vacant posts of Chief Town Planner in MCD on ad hoc basis, which are lying vacant for more than one year on the date of filing the OA. For easy reference, the prayer made by the applicant in the said OA is extracted hereinbelow:
(i) That the Honble Tribunal may graciously be pleased to pass an order quashing the impugned order dated 05.05.2011 of respondent no.1 declaring it as inoperative with immediate effect with directions for fresh order, since it has already done enough damage and harmed the credibility and functioning of Delhi Municipal Corporation for the last more than 1-1/4 years.
(ii) That the Honble Tribunal may graciously be pleased to pass an order directing the respondent no. 1 and 2 to conduct departmental screening committee, placing sufficient names of Sr. Town Planners from the feeder cadre to immediately fill up the vacant posts of Chief Town Planner in MCD, on ad hoc, which are lying vacant for the last 1-1/4 years, rather than to continue with arbitrary and discriminatory practices.
(iii) To direct the respondents to stop further harassment and discrimination of the applicant, by virtue of their actions, orders and their unprincipled stand of harming the right of promotion of the applicant.
(iv) Any other relief which the Honble Tribunal deem fit and proper may also be granted to the applicant along with the costs of litigation.
3. In OA 3765/2012, the applicant made the following prayer (amended) :-
i) That the Honble Tribunal may graciously be pleased to quash the impugned Order dated 05.07.2012 issued by the respondent nos.1 and 2 & further direct the respondents to transfer the applicant back to his original office, i.e. Town Planning Department in Dr. S.P.M. Civic Centre, Minto Road.
ii) That the Honble Tribunal may graciously be pleased to pass any other or further appropriate orders against respondents no. 1 to no. 10 in respect of their breach of obligation towards applicant about safeguarding his service conditions, as per their speaking order, under the facts and circumstances as averred against each of the respondents, in the interest of the justice, and directing the respondents to decide upon 27 applications made by the applicant listed under para 5 (1) at page 23 & 24 of this OA.
4. In the said OA, the applicant primarily questioned the order dated 05.07.2012 whereby his representation against the order dated 10.05.2011 issued by the Assistant Commissioner (Estt.) assigning him the work of providing planning input into various projects i.e. redevelopment plan of Jhandewalan, was not accepted and disposed of with certain clarifications.
5. In OA 578/2013, the applicant questioned the Circular No.EDMC/CED/HC(A)-I/2012/966 dated 04.01.2013 seeking directions to protect his right to work as Chief Town Planner. In terms of the said circular, the East Delhi Municipal Corporation intended to fill up the post of Chief Town Planner on deputation basis. For easy reference, the relevant excerpt of the circular is extracted hereinbelow:-
3. Chief Town Planner: No. of vacancies 1 (One) Pay Band & Grade Pay: PB-4(Rs.37400-67000) + Grade Pay Rs.10000 Eligibility conditions for Deputation:
Officers under the Central/State Govts./UTs/ Autonomous Organizations:-
(a)(i) Holding analogous post on a regular basis in the parent cadre/department;
OR
(ii) With 2 years service in the grade rendered after appointment thereto on regular basis in scale of Pay of Rs.16400-2000 (pre-revised) or equivalent in the parent cadre/department;
OR With 3 years service in the grade rendered after appointment thereto on regular basis in the scale of Pay Rs.14300-18300 (pre-revised) or equivalent in the parent cadre/department;
OR With 8 years service in the grade rendered after appointment thereto on regular basis in the scale of Pay Rs.12000-16500 (pre-revised) or equivalent to the parent cadre/department; and
(ii) 15 years professional experience in Town Planning; or
(b) (i) Degree in Architecture/Civil Engineering or Masters Degree in Geography/Sociology/Economics from a recognized University or equivalent
(ii) Post-graduate Degree or Diploma in Town/City/Urban/Regional planning from a recognized University or equivalent
(iii) 15 years professional experience in Town Planning Desirable:
(i) Fellowship of the Institute of Town Planners Note 1:- Qualifications are relaxable at the discretion of the UPSC in case of candidates otherwise well qualified.
Note 2:- The qualification(s) regarding experience is/are relaxable at the discretion of the UPSC in the case of candidates belonging to Scheduled Castes and Scheduled Tribes, if at any state of selection, the UPSC is of the opinion that sufficient number of candidates from these communities possessing the requisite experience are not likely to be available to fill up the posts reserved for them.
6. He filed yet another Original Application i.e. OA No.1222/2013 questioning the appointment and designation of Respondent no.3 and seeking issuance of direction to respondents to decide his representation dated 03.09.2012.
7. On 29.07.2013, OA 578/2013 came up for hearing before the Tribunal and order was passed for listing the same on 05.08.2013 along with the other three OAs i.e. OA 1222/2013, OA 2839/2012 and OA 3765/2012 (ibid). For easy reference, the said order is extracted hereinbelow:-
Heard in part. It is ordered that this case may be listed for hearing on 05.08.2013 and his other cases i.e. OA 1222/2013, OA 2839/2012 and OA 3765/2012, which have been fixed for 06.08.2013, may also be listed on that date.
8. Thus, on the date fixed i.e. 05.08.2013, all the aforementioned OAs came up for hearing but at the request made on behalf of the counsel for respondents, were directed to be kept on Board. In OA 2839/2012, the applicant was represented by Shri Raman Duggal, Advocate and in rest of the cases, he appeared in person. In OA 2839/2012, arguments were concluded on 07.08.2013 while due to paucity of time, hearing in remaining three OAs could spill over to 08.08.2013. Since, all the four applications have been filed by the same applicant and the facts involved therein are overlapping, these are disposed of by a common order.
9. In OA 2839/2012, the learned counsel for the applicant argued extensively and submitted:
Once in terms of office order No.3/2/72/CED(A)/167 dated 14.12.1973 (Annexure A-2), it has been specifically provided that at the time of assessment of the officials/officers for appointment on current duty charge basis they should not have a single warning or adverse remarks in their CRs for the last three years, respondent no. 3 who was facing RDA should not have been made to exercise the administrative control and discharge day-to-day routine functions of the department in his own post and grade. Relying on the judgment of the Honble Delhi High Court in Municipal Corporation of Delhi Vs. Anil Prakash, 2008 II AD (DELHI) 99, he submitted that there is no difference between making somebody to exercise administrative control and discharge day-to-day routine functions of the department in his own post and giving somebody look after or current duty charge of the post. As is apparent from office orders dated 26.07.2012 and 10.07.2012 (Annexures A-8 and 9), an employee in MCD is not paid any extra remuneration on being assigned current duty charge of the higher post. Once a meeting of the Screening Committee for considering the applicant and respondent no.3 for their promotion to the grade of Chief Town Planner was scheduled to be held on 27.06.2012, there was no justification for postponing the consideration and similarly when the process for making regular promotion to the post of Chief Town Planner was initiated, the same is stalled without any reason and justification.
10. In the short affidavit filed on behalf of North Delhi Municipal Corporation, it is pleaded:
In terms of extant recruitment regulations for the post of Chief Town Planner in Pay Band 4 plus Grade Pay Rs.10000/-, the posts are to be filled by promotion, failing which by deputation (including short term contract) and failing both by direct recruitment and the Senior Town Planner in Pay Band 3 plus Grade Pay Rs.7600/- with eight years of regular service, who possess the educational qualifications prescribed for direct recruits in the Recruitment Regulations were eligible to be promoted;
Since two Senior Town Planners considered by the Screening Committee were not eligible for promotion to the post of Chief Town Planner, a decision was taken to fill up the post on deputation basis.
The post of Chief Town Planner is a technical post and should be manned by a duly qualified person. Thus, till the same could be filled up on regular basis, the senior most person in the feeder cadre was given the administrative control of the post without any change of designation.
(iv) The respondent no.3, being the senior most officer in the Town Planning Department was directed to exercise the administrative control and discharge the day-to-day functions of the Town Planning Department in his own post and grade till further orders vide order dated 5.05.2011.
(v) The respondent no.3 has neither been promoted nor assigned the current duty charge to the post of Chief Town Planner.
Though the respondents have also made a reference to an order passed by this Tribunal and pendency of the Writ Petition ) before the Honble High Court, but since by now the WP ) has been disposed in favour of the applicant, the situation has changed. Thus, there is no need to take note of the said plea taken by them.
11. In the counter reply filed on behalf of respondent no.3, it is pleaded that for the present he is discharging functions of the post of Chief Town Planner in terms of order dated 4.05.2012, which is not under challenge. He has nothing to say regarding validity of the order dated 5.05.2011 which has since been superseded.
12. In brief, two propositions arise to be determined by us in the present OA:
Whether the impugned order dated 5.05.2011 in terms of which the respondent no.3 is allowed to exercise the administrative control and discharge day-to-day functions of the department in his own post and grade is valid; and Whether it is incumbent upon the respondents to consider all eligible candidates for giving them current duty charge.
13. As far as the first issue is concerned, as has been stated in the counter reply filed on behalf of respondent no.1 i.e. Director (Local Bodies) in OA 1222/2013, the proposal of correction in designation of respondent no.3 and modification of order dated 4.05.2012 has been submitted for approval of the Lt. Governor of Delhi. According to the said respondent, the order dated 4.05.2012 is not a promotion order and is only a transfer/posting order. Besides, respondent no. 3 is senior to the applicant in the grade of Senior Town Planner and has not been given any promotion either or look after or current duty charge of the post. It was only a routine office order and asking the senior most incumbent of the post to exercise the administrative control and discharge day-to-day functions of the department would not give rise to cause of action to a junior incumbent merely because at the relevant point of time the senior incumbent of the post was facing RDA.
14. Nevertheless, such arrangement could have been made only for a short duration and once in terms of the circular dated 14.12.1973 (ibid), the MCD has issued a Scheme for giving current duty charge of a promotional post to the incumbents in the feeder category, in all fairness, it ought to fill up the short term vacancies in accordance with the Scheme. The respondents should have made efforts to fill up the post of Chief Town Planner following the provisions of the said Circular. In fact, the respondents initiated the process to do so but for no justified reasons, postponed the same. There is no justification for keeping such process in abeyance for a long period of two years. Having evolved their own devices and strategies to betray the practice and procedure of making regular promotion by introducing the terms current duty charge/ look after basis, the respondents have attempted to introduce the third device of giving authority to exercise the functions of promotional post without issuing any formal order of giving look after or current duty charge even. Such arrangement is acceptable for a short duration i.e. for few weeks or may be for few months but is not acceptable to continue for years together. When such arrangement is made for more than two years, we have no hesitation in arriving at the conclusion that the respondents have not acted fairly and have attempted to betray the provisions of circular dated 14.12.1973 even. When we do not accept the submission made on behalf of the applicant that the order of authorizing administrative control and discharge of day-to-day functions of a superior post being holding his own post and grade is nothing but giving current duty charge/look after charge, we hold that the said arrangement is nothing but a camouflage only. We find no justification or explanation for not filling up the post of Chief Town Planner in accordance with the circular dated 14.12.1973 even after initiation of the process to do so. We agree with the submissions made by Shri R. Duggal, learned counsel for the applicant that non- adherence to the procedure laid down by the respondents for giving current duty charge of a promotional post to the incumbent in feeder category, without there being sufficient reason, is nothing but malice in law. In Smt. S.R. Venkataraman Vs. Union of India and another, AIR 1979 SC 49, the Honble Supreme Court viewed that if discretionary power has been exercised for an unauthorized purpose, the same can be described as malice in law. For easy reference, para 5 to 9 of the judgment are extracted hereinbelow:
5. We have made a mention of the plea of malice which the appellant had taken in her writ petition. Although she made an allegation of malice against V. D. Vyas under whom she served for a very short period and got an adverse report, there is nothing on the record to show that Vyas was able to influence the Central Government in making the order of premature retirement dated March 26, 1976. It is not therefore the case of the appellant that there was actual malicious intention on the part of the Government in making the alleged wrongful order of her premature retirement so as to amount to malice in fact. Malice in law is, however, quite different. Viscount Haldane described it as follows in Shearer v. Shields, (1914) AC 808 at P. 813 :-
"A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far the state of his mind is concerned, he acts ignorantly, and in that sense innocently."
Thus malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause.
6. It is however not necessary to examine the question of malice in law in this case, for it is trite law that if a discretionary power has been exercised for an unauthorised purpose, it is generally immaterial whether its repository was acting in good faith or in bad faith. As was stated by Lord Goddard C. J., in Pilling v. Abergele Urban District Council, (1950) 1 KB 636 where a duty to determine a question is conferred on an authority which state their reasons for the decision, "and the reasons which they state show that they have taken into account matters which they ought not to have taken into account, or that they have failed to take matters into account which they ought to have taken into account, the court to which an appeal lies can and ought to adjudicate on the matter."
7. The principle which is applicable in such cases has thus been stated by Lord Esher M. R. in The Queen on the Prosecution of Richard Westbrook v. The Vestry of St. Pancras, (1890) 24 QBD 371 at p. 375 :-
"If people who have to exercise a public duty by exercising their discretion take into account matters which the Courts consider not to be proper for the guidance of their discretion, then in the eye of the law they have not exercised their discretion."
This view has been followed in Sedler v. Sheffield Corporation, (1924) 1 Ch 483.
8. We are in agreement with this view. It is equally true that there will be an error of fact when a public body is prompted by a mistaken belief in the existence of a non-existing fact or circumstance. This is so clearly unreasonable that what is done under such a mistaken belief might almost be said to have been done in bad faith; and in actual experience, and as things go, these may well be said to run into one another.
9. The influence of extraneous matters will be undoubted where the authority making the order has admitted their influence. It will therefore be a gross abuse of legal power to punish a person or destroy her service career in a manner not warranted by law by putting a rule which makes a useful provision for the premature retirement of Government servants only in the 'public interest', to a purpose wholly unwarranted by it, and to arrive at quite a contradictory result. An administrative order which is based on reasons of fact which do not exist must, therefore, be held to be infected with an abuse of power.
15. As has been noticed by the Honble Delhi High Court in Municipal Corporation of Delhi Vs. Anil Prakash, 2008 II AD (DELHI) 99, according to MCD itself, the look after charge or current duty charge or charge on ad hoc basis can be revoked at any time. Such proposition was not accepted by the Honble High Court and it could be viewed that in all such cases where look after arrangement is terminated, reasons must be placed on the file. It could be further viewed that the stop gap arrangement/ current duty charge are methods devised by the respondents to make their own arrangements and to find out way and means to not adhere to the procedure introduced by themselves. For easy reference, para 21 to 23 of the judgment of the Honble Delhi High Court are extracted hereinbelow:
21. Here, we may also usefully refer to the judgment of the Supreme Court in the case of O.P. Singla and Another Vs. Union of India and Othes, (1984) 4 SCC 450. Though that case related to the seniority of the Judicial officers of Delhi Higher Judicial Service, the question which fell for consideration was as to whether for the purpose of reckoning the seniority `promotions given to such officers on ad hoc basis or stop-gap arrangement would count for seniority or not. The Court was of the opinion that such a service has to be counted for the purpose of seniority and the seniority should be fixed on the basis of continuous length of service as quota-rota system had broken down. For us, it is important to note the basis for arriving at the decision that service on ad hoc basis/as stop-gap arrangement is to be counted. This was explained in the following manner:-
27. Thus, persons belonging to the Delhi Judicial Service who are appointed to temporary posts of Additional District and Sessions Judges on an ad hoc basis or for fortuitous reasons or by way of a stop-gap arrangement, constitute a class which is separate and distinct from those who are appointed to posts in the Service in strict conformity with the rules of recruitment. In view of this, the former class of promotees cannot be included in the list of seniority of officers belonging to the Service.
28. It is however difficult to appreciate how, in the matter of seniority, any distinction can be made between direct recruits who are appointed to substantive vacancies in the Service on the recommendation of the High Court under Rule 5 (2) and the promotees who are appointed in consultation with the High Court to posts in the Service under Rules 16 and 17. Rule 16 provides for the appointment of promotees to temporary posts in the Service, while Rule 17 provides for appointment of promotees to substantive vacancies in the Service on a temporary basis. Promotees who are appointed to the Service under either of these two rules must be considered as belonging to the same class as direct recruits appointed under Rule 5 (2). They perform similar functions, discharge identical duties and bear the same responsibilities as direct recruits. They are appointed an a regular basis to posts in the Service in the same manner as direct recruits are appointed, the only distinction being that whereas the latter are appointed on the recommendation of the High Court, promotees are appointed in consultation with the High Court. Therefore, no distinction can be made between direct recruits on one hand and promotees appointed to the Service on the other, in the matter of their placement in the seniority list. Exclusion from the seniority list of those promotees who are appointed to posts in the Service whether such appointment is to temporary posts or to substantive vacancies in a temporary capacity, will amount to a violation of the equality rule since, thereby, persons who are situated similarly shall have been treated dissimilarly in a matter which constitutes an important facet of their career.
22. Mukharji, J, who rendered dissenting opinion concurred on this aspect with the majority view in his following observations:
85. It may be appropriate here to note on the question whether the petitioners were appointed regularly that all the promotees were appointed to temporary posts in accordance with the qualifications laid down under Rule 7 (a), namely, by selection and after completion of a minimum of ten years Judicial service. The selections were made by the Full Court of the High Court and appointments were made on merit-cum-seniority basis so much so that persons found not fit for promotions were ignored as in the case of Shri C. D. Vashist and Shri S. P. Singh Chowdhary.
23. As already noted above, in the present case proper Selection Committee considered the case of appointment of the petitioner to the post of Director-in-Chief (Sanitation) after following the rules and the respondent being the senior most person was commended for the appointment. Merely because the appellant had adopted the practice of giving appointment on `look after charge basis, would not mean that the appellant is permitted to exploit such situation, which is its own creation by first denying the legitimate due to the officials, denying them promotion on substantive basis and continue to follow the practice of `look after charge and then coming up with the plea that such a person has no right to the said post. This cannot be countenanced and has to be deprecated.
16. In Naveen Verma Vs. the MCD, OA 392/2012, decided by this Tribunal on 15.05.2012, it could be viewed that once the guidelines were issued for giving current duty charge, the same should have been followed. Relevant extract of the judgment is quoted hereinbelow:
13. Respondents have tried to state that respondent no.4 has been looking after the work of the post of SE on current duty basis since 2004 and, therefore, has the necessary experience. They have also taken the stand that in earlier precedents, persons not having required length of service have been given current duty charge by the MCD. However, we are not convinced by this argument. In clause 5 of the circular of MCD dated 14.12.1973, the words should be considered have been used. The fact that this provision has not been adhered to by MCD earlier would not justify the present position, which is certainly not in accordance with rules. They could have gone by the seniority, if there were no guidelines but once guidelines were issued, they ought to have been followed. This fact has been adequately highlighted by the Screening Committee in its meeting held on 23.01.2012, which has been quoted earlier. In fact, the suitability of respondent no. 4 has not even been assessed by the Committee as he was not eligible. When the circulars and instructions regarding assigning current duty charge are in existence in MCD, there is no reason why they should not be adhered to. We have also noted that respondent no.4, who was holding current duty charge of SE since 2004, was not found suitable for ad hoc promotion as SE in 2006. It is only when punishment had been imposed upon him in 2009 that he could get ad hoc promotion in 2009. Thus the question is when a person was not found suitable for grant of even ad hoc promotion can the same period be taken into consideration for holding next rank even if on current duty charge. Moreover if current duty charge could be given only on the basis of seniority, there was no need to constitute Screening Committee. The purpose of constituting Screening Committee is to assess the suitability of persons for next post and for this purpose sufficient names should be placed before the Selection Committee.
17. We are in respectful agreement with the view taken by the Tribunal in the aforementioned case. In the circumstances, OA 2839/2012 is disposed of with a direction to the respondents to finalize the process of screening of the Senior Town Planners for their promotion as Chief Town Planner on Current Duty Charge Basis against 3 posts in trifurcated Corporation in accordance with the Circular No.3/2/72/CED(A)/167 dated 14.12.1973 within a period of three months from the date of receipt of a copy of this order. No order as to costs.
OA No.3765/201218. The applicant who appeared in person, submitted that his grievance in the OA no longer subsists. He sought permission to withdraw the same. The OA is dismissed as withdrawn.
OA No.578/201319. Admittedly, in terms of the RRs for the post of Chief Town Planner placed on record as Annexure R-4 to the short reply filed in OA 2839/2012, the method of recruitment prescribed for the said post is by way of promotion failing which by deputation (including short term contract) failing both by direct recruitment. For easy reference, the relevant extract of the Schedule to Recruitment Regulations is quoted hereinbelow:
11. Method of recruitment : Promotion failing whether by direct which by deputation recruitment or by (including short term promotion or by depu- contract) failing both tation/absorption and by direct recruitment.
percentage of the posts to be filled by various method
20. In Mangej Singh & others Vs Union of India & others (JT 1998 (8) SC 176), it has been held by the Honble Supreme Court that the user Department alone are the judges of their requirements relating to employees who can be considered for promotions. For easy reference, relevant excerpt of the said judgment is extracted hereinbelow:-
5.. The tribunal has quoted the letter of the Railway Board dated 29/11/1962 to the effect that the posts (sic tests) to which Class IV staff to be promoted to Class III posts should be subjected, should be correlated to the standard of proficiency that can reasonably be expected from employees who are generally non-matriculates. The aim of the examiners should be to assess the general suitability of the Class IV employees offering themselves for promotion to Class III posts from the point of view of knowledge of English and their general standards of intelligence. There is a subsequent letter of the Railway Board of 27/2/1980 stating that ordinarily it is not necessary to test the working knowledge of English for such promotions for employees in Hindi-speaking areas. There is also an earlier circular dated 24/12/1979 which is issued by the Northern Railways to the same effect. The present circular which is a subsequent circular of the Bikaner Division of the Northern Railways dated 22/7/1982 clearly requires ability to write and read English as a qualification for promotion from Class IV to Class III posts. The policy, therefore, in relation to the tests to be administered for promotion from Class IV to Class III has varied from time to time, presumably depending upon the Railways' perception of their requirements. It is for the Railways to decide qualifications relating to promotion from Class IV to Class III. They alone are the judges of their requirements relating to employees who can be considered for such promotions. If the circular of 22/7/1982 requires working knowledge of English for promotion, the tribunal cannot fault this requirement. Also the tribunal was wrong in deciding that because an essay and a translation were required in the written examination, the test was too difficult. This again is the tribunal's assessment of the kind of examination which should have been conducted. The tribunal's assessment cannot be substituted for the assessment of the Railways. Clearly, a large number of applicants belonging to the Class IV category passed this examination and did qualify. If they had a better knowledge of English and better general proficiency than Respondents 5 to 8 who failed, the selection of better qualified candidates cannot be faulted. The appellants relied upon two judgments of this court; one in the case of 0m Prakash Shukla v. Akhilesh Kumar Shukla (para 24 and the other in Madan Lal v. State of J&K (para 9. They contended that since the respondents had appeared in the examination without protest, they cannot challenge the examination only because they have failed. We need not examine this question because in any view of the matter we do not see any reason for faulting the examination. Respondents 5 to 8 had failed in the examination and were, therefore, not qualified for the selection. (emphasis supplied)
21. It is settled position of law that the selection process or method of recruitment is prescribed in the Recruitment Rules and cannot be evolved by the recruiting agency. In Dr. Krushan Chandra Sahu & others Vs State of Orissa & others (JT 1995 (7) SC 137), it has been held thus:
33. Now, power to make rules regulating the conditions of service of persons appointed on Govt. posts is available to the Governor of the State under the Proviso to Art. 309 and it was in exercise of this power that the present Rules were made. If the statutory Rules, in a given case, have not been made, either by the Parliament or the State Legislative, or, for that matter by the Governor of the State, it would be open to the appropriate Government (the Central Government under Art. 73 and the State Government under Art. 73 and the State Government under Art. 162) to issue executive instructions. However, if the Rules have been made but they are silent on any subject or point in issue, the omission can be supplied and the rules can be supplemented by executive instructions. [See Sant Ram v. State of Rajasthan, (AIR 1967 SC 1910)].
34. In the instant case, the Government did neither issue any administrative instruction nor did it supply the omission with regard to the criteria on the basis of which suitability of the candidates was to be determined. The members of the Selection Board, of their own, decided to adopt the confidential character rolls of the candidates who were already employed as Homeopathic Medical Officers, as the basis of determining their suitability.
35. The members of the Selection Board or for that matter, any other Selection Committee, do not have the jurisdiction to lay down the criteria for selection unless they are authorised specifically in that regard by the Rules made under Art. 309. It is basically the function of the rule making authority to provide the basis for selection. This Court in State of Andhra Pradesh v. V. Sadanandam, AIR 1989 SC 2060 observed as under (para 16, at pp. 2065-66 of AIR):-
"We are now only left with the reasoning of the Tribunal that there is no justification for the continuance of the old Rule and for personnel belonging to either zones being transferred on promotion to offices in other zones. In drawing such conclusion, the Tribunal has travelled beyond the limits of its jurisdiction. We need only point out that the mode of recruitment and the category from which the recruitment to a service should be made are all matters which are exclusively within the domain of the executive. It is not for judicial bodies to sit in judgment over the wisdom of the executive in choosing the mode of recruitment or the categories from which the recruitment should be made as they are matters of policy decision falling exclusively within the purview of the executive". (Emphasis supplied)
36. The Selection Committee does not even have the inherent jurisdiction to lay down the norms for selection nor can such power be assumed by necessary implication. In Ramachandra Iyer v. Union of India, (1984) 2 SCR 200 : (AIR 1984 SC 541), it was observed (para 44, at p.562 of AIR):-
"By necessary inference, there was no such power in the ASRB to add to the required qualifications. If, such power is claimed, it has to be explicit and cannot be read by necessary implication for the obvious reasons that such deviation from the rules is likely to cause irreparable and irreversible harm".
37. Similarly, in Umesh Chandra Shukla v. Union of India, 1985 Suppl (2) SCR 367 : (AIR 1985 SC 1351), it was observed that the Selection Committee does not possess any inherent power to lay down its own standards in addition to what is prescribed under the Rules. Both these decisions were followed in Sh. Durgacharan Misra v. State of Orissa, (1987) 2 UJ (SC) 657 : (AIR 1987 SC 2267) and the limitations of the Selection Committee were pointed out that it had no jurisdiction to prescribe the minimum marks which a candidate had to secure at the viva voce test.
38. It may be pointed out that rule making function under Art. 309 is legislative and not executive as was laid down by this Court in B.S. Yadav v. State of Haryana, AIR 1981 SC 561. For this reason also, the Selection Committee or the Selection Board cannot be held to have jurisdiction to lay down any standard or basis for selection as it would amount to legislating a rule of selection.
39. If it were a mere matter of transition from one service to another service of similar nature as, for example, from Provincial Forest Service to All India Forest Administrative Service, the confidential character rolls could have constituted a valid basis for selection either on merit or suitability as was laid down by this Court in Pervez Qadir v. Union of India, 1975(2) SCR 432 : AIR 1975 SC 446 : (1975) 4 SCC 318 which has since been followed in R.S. Dass v. Union of India, AIR 1987 SC 593. But in the instant case, appointments are being made on posts in an entirely new service, though the educational qualifications required to be possessed by the candidates are the same as were required to be possessed in their earlier service.
40. A candidate in order to be suitable for appointment on a teaching post must have at least three qualities; he should have thorough knowledge of the subject concerned; he should be organised in his thoughts and he should possess the art of presentation of his thoughts to the students. These qualities cannot possibly be indicated or reflected in the confidential character rolls relating to another service, namely, the service in the Health Department as Homoeopathic Medical Officers where the character rolls would only reflect their integrity, their punctuality, their industry and their evaluation by the Reporting or the Accepting Officer recorded in the annual entries. True it is that the candidates being already serving officers, their character rolls have to be looked into before inducting them in the new service but this can be done only for the limited purpose of assessing their integrity etc. These character rolls, however, cannot form the SOLE basis for determination of their suitability for the posts of junior teachers in the Medical Colleges. Then, what formula or method should be adopted to assess these qualities is the question which next arises. This Court in Liladhar v. State of Rajasthan (1981) 4 SCC 159 : AIR 1981 SC 1777 pointed out (at p.
1778 of AIR) :-
"The object of any process of selection for entry into a public service is to secure the best and the most suitable person for the job, avoiding patronage and favouritism. Selection based on merit, tested impartially and objectively, is the essential foundation of any useful and efficient public service. So, open competitive examination has come to be accepted almost universally as the gateway to public services".
(emphasis supplied)
22. In view of the aforementioned, respondents are directed to give due regard to the recruitment regulations for the three posts of Chief Town Planners while making regular promotion to the same in trifurcated Corporation. OA stands disposed of. No costs.
OA No. 1222/201323. In view of the averment made in the counter reply filed on behalf of respondent no.1, the applicant does not wish to press the OA. He sought permission to withdraw the same. The OA is accordingly dismissed as withdrawn.
(A.K. Bhardwaj) (Sudhir Kumar)
Member (J) Member (A)
/dkm/