Delhi High Court
Govt. Of Nct Of Delhi And Ors. vs I.S. Sharma And Ors. on 26 May, 2006
Author: P.K. Bhasin
Bench: Mukul Mudgal, P.K. Bhasin
JUDGMENT P.K. Bhasin, J.
1. This writ petition challenges three orders dated 25-9-2002, 31-12-2002 and 8-10-2004 passed in assed in OA No. 562/2001 by the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as the 'Tribunal') whereby the petitioners were directed to hold Review DPC for filling up of promotional posts of Asstt. Divisional Officer(Fire) in the Delhi Fire Service by taking into consideration yearwise vacancies instead of clubbing all the vacancies of different years and treating them as the vacancies of the year 1998-99 and promoting all the selected employees, including the respondents, w.e.f. 1/04/2002 and also for considering the eligible employees for the next promotional post of Divisional Officer.
2. The relevant facts giving rise to this Writ Petition are that the respondents, out of whom respondent No. 1 I.S.Sharma is now dead and is being represented by his legal heirs, had joined the Delhi Fire Service when it was under the administrative control of the Municipal Corporation of Delhi (MCD). All of them had joined as Sub-Officers and next promotional posts for them were that of Station Officer, Asstt. Divisional Officer (Fire) and Divisional Officer (Fire). It is the admitted case of the parties that all these four employees had become eligible for promotion to the post of Asstt. Divisional Officer (Fire) after having worked as Station Officers for five years in the Delhi Fire Service as per the Recruitment Rules which had been framed by the MCD in 1990 and also that even though there were vacancies also for them but instead of considering them for regular promotion they were only given current duty charge of the post of Asstt. Divisional Officer(Fire) and that arrangement continued for years together without payment of salary etc. attached to that higher post.
3. On 10-11-94 the Central Government issued a notification under Section 511A of the Municipal Corporation Act, 1957 to the effect that w.e.f. 10/11/94 all the provisions of the said Act of 1957 existing prior to Delhi Municipal Corporation Act,1957 relating to prevention and extinguishing of fire and matters connected therewith or incidental thereto, shall cease to operate. As a consequence thereof the employees working in the Fire Services Department of MCD, including the respondents, came under the administrative control of the Government of NCT of Delhi. Till August, 1998 neither any fresh Recruit Rules were framed by the Government of NCT of Delhi for the employees of the Delhi Fire Service taken over by it nor any DPCs were held for effecting promotions to different posts which were lying vacant for many years. In September, 1998 the Lt. Governor, Delhi framed fresh Recruitment Rules for the employees of Delhi Fire Service. Thereafter also no promotions were done and the deceased respondent No. 1 and respondent No. 2, both of whom were still holding the current duty charge of the post of Asstt. Divisional Officer (Fire), were given additional charge of the next promotional post of Divisional Officer(Fire) on current charge basis w.e.f. 21-4-99 while other two respondents continued to hold current duty charge of the post of Asstt. Divisional Officer and none of them was considered for regular promotion even though there were vacancies in existence, which in fact were existing from much prior to the Government taking over the control of the Delhi Fire Service.
4. On 17-1-2001 the petitioners sought to fill up four vacancies for the posts of Divisional Officer in the Delhi Fire Service on transfer on deputation basis without taking into consideration the claim of departmental candidates, including the respondents. Feeling aggrieved by their non-consideration for regular promotion for the posts of which they were holding current duty charge for years the respondents filed a petition under Section 19 of the Administrative Tribunals Act, 1985 before the Tribunal. The respondents in their petition had claimed that the action of the petitioners herein in giving current duty charge only of the promotional posts to them without paying salary etc. of that higher post when there were clear cut vacancies available and they were eligible also for being considered for regular promotion was unjustified and arbitrary.
5. The petitioners filed their reply to the OA of the respondents in which it was pleaded, inter alia, that even though there were 14 vacancies at the time of taking over of the Fire Services Department of MCD by the Govt. of NCT of Delhi but no DPCs were held thereafter for the posts of Asstt. Divisional Officers because amendments in the recruitment rules were under process and so the respondents were given current duty charge and also that the claim of the applicants for regular promotion as Asstt. Divisional Officers had in any case become infructuous since the Department of Finance, Government of NCT of Delhi had abolished all the 17 posts(out of which 14 were existing before 1994) of Assistant Divisional Officers vide its order dated 28-6-2001. Regarding the claim of the applicants before the Tribunal (respondents herein) for their promotion as Divisional Officers (Fire) it was pleaded that since none of them was eligible for that post as per the new rules the impugned circular dated 17.1.2001 had been issued for filling up of the vacancies for that post on deputation basis only.
6. It appears that before the filing of the petition in the Tribunal by the present respondents the government had asked UPSC to hold DPC for filling up of 17 posts of Asstt. Divisional Officer (Fire) but before the process could be completed the government decided to abolish all those posts which were lying vacant for the last three years including the 17 posts of Assistant Divisional Officers vide order dated 28.6.2001. Since that decision was taken during the pendency of the petition filed by the respondents they filed a separate petition challenging the validity or the order dated 28/06/01 as being mala fide passed in order to defeat their claim for regular promotion against the vacancies which were in existence much before the taking over of the Delhi Fire Service by the Government. Thereafter, the government vide order dated 19.10.2001 revoked its earlier decision dated 28.6.2001 abolishing 17 posts of Asstt. Divisional Officer and those posts were revived and then UPSC held DPC in February, 2002 for the posts of Asstt. Divisional Officer and treated all the 17 posts as of the year 1998-99 and consequent upon its recommendations all the four respondents were promoted as Asstt. Divisional Officers w.e.f. 1.4.2002 on officiating basis.
7. Since the respondents were claiming promotion from the dates when they were given current duty charge of the promotional posts, which period was from 1990-93, they continued with their petition before the Tribunal which was finally disposed of vide impugned order dated 25.9.2002 with following direction to the petitioners herein:-
Therefore, OA 562/2001 succeeds and is accordingly allowed in part. Respondents are directed to hold review DPCs of the concerned eligible officers for promotion to the post of ADOs (Fire) in continuation of the aforesaid order issued by them dt.1.4.2002 for vacancies arising yearwise, in accordance with relevant rules and instructions. This shall be done within four months from the date of receipt of a copy of this order with intimation to the applicants accordingly, in the facts and circumstances of the case, all the eligible officers who are found fit for promotion to the post of ADOs by the review DPC shall be entitled to all consequential benefits, including differences of pay and allowances in the higher post from the due dates, in accordance with law.
8. It appears that the respondents herein later on noticed some discrepancy in the order dated 25.9.2002 which was dictated in open court and the final order typed by the stenographer of the Tribunal regarding their claim for promotion as Divisional Officers they moved a review application before the Tribunal(being RA 290/2002). Vide order dated 31.12.2002 the Tribunal allowed the review application as a result of which the following lines also came to be added in the above quoted concluding para No. 5 of the order dated 25.9.2002:-
Accordingly, the respondents shall also reconsider the claims of the eligible applicant(s) in accordance with law with regard to the promotion to the post of Divisional Officers (Fire)- (DOs)-(Fire) having regard to the aforesaid observations and passed appropriate orders.
9. Before receipt of said order dated 31-12-2002 on the review application the present petitioners had already filed a writ petition in this Court (being CWP No. 208/2003) challenging the main order dated 25-09-2002 in OA No. 562/2001. However, that writ petition was withdrawn on 8.1.2003 with liberty to approach the Tribunal for clarification of certain doubts which according to the petitioners had crept in the impugned order. However, before clarification application could be filed the petitioners received the order dated 31-12-2002 and thereafter they filed a review application before the Tribunal (being RA 69/2003). In that review application it was alleged that the Tribunal in the order dated 25-9-2002 had referred to its earlier order dated 29-3-2001 passed in another O.A. No. 491/2000 which was filed by some other employees of Delhi Fire Services employed as Sub-Officers seeking promotion as Station Officers against the vacancies which existed before the framing of new rules in 1998 by the Government of NCT of Delhi and in that order dated 29-3-01 the Tribunal had rejected the plea that vacancies existing before 1998 had to be filled up as per old rules but still in the OA No. 562/01 the Government had been asked to hold Review DPCs for filling up of the vacancies arising yearwise which could not have been done. Regarding the order dated 31-12-2002 on the review application of the respondents herein it was alleged that that order also needed to be reviewed as it was passed by circulation without notice to them(present petitioners). The Tribunal dismissed that review application vide its order dated 8.10.2004 as being time barred.
10. Feeling aggrieved by the orders dated 25.9.2002, 31.12.2002 and 8.10.2004 the present writ petition was filed in which almost same pleas were raised by the petitioners as were raised by them before the Tribunal.
11. Ms. Avnish Ahlawat, learned Counsel for the petitioners contended that the impugned orders of the Tribunal are liable to be set aside as they are manifestly contrary to the well settled law regarding the right of a new employer to frame fresh Recruitment Rules as also the status of Government servants who are given only current duty charge of a higher post. She also argued that the Tribunal itself having held already in another case decided by it on 29.3.2001 (being OA No.491/2001 Rajender Singh Tomar and Ors. v. Govt. of NCT of Delhi and Anr. that once there is a change of employer and the new employer decides to restructure different cadres and to frame fresh recruitment rules and those rules are framed then even if some vacancies which had occurred before framing of new rules remain to be filled up the same have to be filled up in accordance with the new recruitment rules and not the old ones no direction to the contrary like the one given in the present case could be given by the Tribunal in another case. The learned Counsel contended that in view of the decision taken by the Tribunal in OA No.491/01 the Tribunal could not have in the present case directed the petitioners to hold review DPCs for the posts of Asstt. Divisional Officers (Fire) and Divisional Officers (Fire) for the vacancies arising year-wise before the framing of new Rules in 1998. Regarding the directions given for the posts of Asstt. Divisional Officers the learned Counsel further submitted that directions could not have been given also for the reason that the 14 vacancies existing before 1998 had ceased to exist with the coming into existence of the rules of 1998 and became fresh vacancies and stood merged with three more posts of Asstt. Divisional Officers created on 14.9.1998.
12. The learned Counsel for the petitioners also argued that the judgment of Hon'ble Supreme Court in Y.V. Rangaiah and Ors. v. J. Sreenivasa Rao and Ors. (1983) 3 SCC 284 relied upon by the respondents herein before the Tribunal had also been noticed by the Tribunal in its order passed in OA No.491/01 and while rejecting that petition it had been observed that the said judgment of the Honble Supreme Court was not applicable because in that case there was no change in employer while in the case under consideration the earlier rules had been framed by the Municipal Corporation of Delhi and after taking over of the fire services department of Municipal Corporation of Delhi by the government of NCT of Delhi new employer had come into existence which was within its right to either to adopt the old rules or to frame new ones and since the government decided to frame fresh recruitment rules for Delhi Fire Service it cannot be asked to apply repealed rules of MCD to the unfilled vacancies which became new vacancies after notification of the new rules which in fact had brought about different eligibility criteria for different posts. Ms. Ahlawat also contended that none of the respondents fulfillled the eligibility criteria for being promoted as Divisional Officers even under the old Rules since none of them had been given regular promotion as Asstt. Divisional Officers and without having held that post on regular basis for five years they could not be considered for promotion as Divisional Officers and as far as the vacancies for the posts of Asstt. Divisional Officers are concerned the same were rightly considered to be of the year 1998-99 and were accordingly filled up on the basis of recommendation of UPSC w.e.f. 1.4.2002 as the DPC's decision for promoting different station officers including the respondents was taken on 25.2.2002. The learned Counsel also contended that the respondents cannot be given promotion retrospectively from the dates they were given current duty charge of the posts of Asstt. Divisional Officers as claimed by them because it is well settled legal position that current duty charge of a higher post does not create any right whatsoever in favor of the employee who is given that charge. The leaned counsel also submitted that in the letters given to the respondents while giving them current duty charge of the posts of Asstt. Divisional Officers it was clearly mentioned that that was being done merely as a stop gap arrangement and their appointment would continue in their own pay scale and they would not get any right for claiming adhoc or regular appointment to the promotional post or any other service benefit because of their having been given current duty charge of the promotional post. It was also contended that impugned direction if allowed to be implemented would mean giving retrospective promotion to the respondents which is not permissible under the instructions issued by the Department of Personnel and Training (DOPT).
13. The learned Counsel for the petitioners has placed reliance on the judgments of the Hon'ble Supreme Court Rajasthan Public Service Commission v. Chanan Ram and Anr. Dr. K.Ramulu and Anr. v. Dr. S.Suryaprakash Rao and Ors. and Dr. P.K. Jaiswal v. Ms. Debi Mukherjee and Ors..
14. On the other hand, Shri G.D. Gupta, learned Senior Counsel for the respondents contended with vehemence that there is no merit in this challenge to the impugned orders dated 25.9.2002, 31.12.2002 and 8.10.2004 of the Tribunal which is based on correct legal principles dealing with filling up of the vacancies occurring before some change in Recruitment Rules is brought about either by old employer or the new employer. Mr. Gupta further submitted that this case is squarely covered by the decision of the Hon'ble Supreme Court in Y.V. Rangaiah's case (supra) and that the submission of the counsel for the petitioners that this judgment is not applicable here because in this case there was a change of employer while in Rangaiah's case there was no change of employer has no substance because in fact it cannot be said that there was a change of employer stricto sensu inasmuch as before 10th November, 1994 Fire Services Department was a part of Municipal Corporation of Delhi which is a statutory body and after that Government of NCT of Delhi only took over that Department to deal with fire problems. Mr. Gupta contended that since no private person had taken over the fire related services it cannot be said that in fact there was a change of employer. Learned Counsel further contended that in any case even if it is accepted for the sake of argument that there was a change of employer still that circumstance would not bring in any difference in legal position laid down by the Hon'ble Supreme Court in Y.V. Rangaiah's case(supra). It was also argued that in none of the judgments cited by the learned Counsel for the petitioners it was held by Hon'ble Supreme Court that if there is a change in employer and new employer frames new Recruitment Rules then the vacancies existing prior to the framing of new Rules and remaining unfilled would be governed by fresh Rules and not those Rules which existed at the time when the vacancies arose. Mr. Gupta further contended that in another case pertaining to Delhi Fire Service(being OA No. 1510/99) decided on 14.2.2000 also the Tribunal had held that the officials of Delhi Fire Service seeking promotion as Station Officers against the vacancies arising before 26.10.1998 when new Recruitment Rules came into existence had to be considered in accordance with the old Rules and that decision of the Tribunal had in fact been implemented also by the petitioners by promoting the applicants of that case in accordance with old Rules of MCD. Mr. Gupta's submission was that the petitioners' action in applying old Rules for some and new Rules for others in respect of pre-1998 vacancies is discriminatory and violative of Art. 14 of the Constitution of India.
15. From the foregoing narration of the undisputed facts, the pleadings before the Tribunal as well as in this Court and the submissions advanced from both sides the first point which arises for our consideration and which in our view is the main point of controversy between the parties is whether taking over of the administrative control of the Delhi Fire Service by the Govt. of NCT of Delhi from MCD w.e.f. 10.11.1994 had made any effect on the right of the employees of the Delhi Fire Service including the respondents to be considered for promotion in respect of the vacancies for the posts of Asstt. Divisional Officers and Divisional Officers which had occurred before 10.11.1994. The stand of the petitioners in this regard is that after 10.11.1994 when the Government of NCT of Delhi took over the administrative control of the Delhi Fire Service it was not under any obligation to effect promotions in respect of the vacancies which had occurred before 10.11.1994 by resorting to the recruitment rules which had been framed by the MCD. We, however, do not find any substance in this stand of the petitioners. Since the vacancies for the posts of Assistant Divisional Officers (Fire) and Divisional Officers (Fire) against which the respondents have been seeking promotion had occurred before the taking over of the administrative control of the Delhi Fire Service by the Government of NCT of Delhi and the respondents had undisputedly become eligible to be considered for promotion to the posts of Asstt. Divisional Officers much before 10.11.1994 that right would have extinguished only if it had been made known to them by the Government while absorbing them that they would no longer be governed by the Rules framed by MCD nor would the promotional posts for them be treated as existing anymore. The petitioners should have brought on record necessary material to show that the employees of the Delhi Fire Service had been made aware that they would cease to be governed by the rules framed by MCD and also that the vacancies for the posts of Assistant Divisional Officers and Divisional Officers existing before 10.11.1994 would cease to exist and that they would be considered for promotion in case new promotional posts are created while framing new Recruitment Rules. That has not been done. In these circumstances, this Court can safely infer that the Government of NCT of Delhi had intended to recognise the rights, if any, accrued already in favor of the employees of MCD who were being absorbed by it for consideration for their promotions against the existing vacancies in accordance with the existing rules framed by MCD.
16. That intention is also clear from the fact that even though the Delhi Fire Service was taken over by the Government of NCT of Delhi on 10.11.1994 new Recruitment Rules were framed after about four years. Just because the administrative control of the Delhi Fire Service was taken over by Government of NCT of Delhi w.e.f. 10.11.1994, the right of the employees of MCD for being considered for promotion against the vacancies which existed up to 9.11.1994 cannot be said to have vanished w.e.f. 10.11.1994 and it cannot be accepted that after 10.11.1994 the petitioners were not under any obligation to get the DPCs convened for filling up of these vacancies.
17. The case of the petitioners is that w.e.f. 10-11-94 the functions relating to prevention and extinguishing of fire and matters connected therewith stood transferred to the Government of NCT of Delhi. As noticed already, the Central Government in exercise of the powers conferred under Section 511A of the Delhi Municipal Corporation Act, 1957, which provision came to be inserted in the said Act by the Delhi Municipal Corporation(Amendment) Act, 1993, notified the date of 10th November, 1994 to be the date from which the provisions of the Delhi Municipal Corporation Act relating to prevention and extinguishing of fire would cease to operate. Thereafter, no fresh recruitment rules were framed till 1998 nor the existing Rules were invoked for effecting promotions of eligible persons, including the respondents. Section 511B(2)(c) of the said Act of 1957, which was also added pursuant to the said Amendment Act of 1993, provides, inter-alia, that all Rules issued by the Corporation before commencement of the Amendment Act of 1993 in connection with the transferred functions shall continue in force unless and until they are superceded by any Rule made by the authority to which the functions of the Corporation are transferred. From this provision of law it is manifest that irrespective of the fact that w.e.f. 10-11-94 the administrative control of the Delhi Fire Service stood transferred to the Government of NCT of Delhi, the Rules framed by the MCD before 10-11-94 continued to be in force till the framing of the new Rules by the Government of NCT of Delhi. Consequently the stand taken by the petitioners that after 10-11-94 regular promotions were not made because framing of fresh Recruitment Rules was under process does not justify its action in continuing the current duty charge given to the respondents for the promotional posts. That was a lame excuse for continuing current duty charge arrangement for the respondents to deprive them and other similarly placed employees of the legitimate dues of salary etc. attached to the higher posts of which they were given current duty charge.
18. In fact, the refusal of the petitioners to fill up the pre-1998 vacancies and to consider the respondents' claim for promotion against those vacancies on the ground that till the framing of fresh recruitment rules they had no right to be considered for promotion is highly arbitrary and in gross violation of Article 14 and 16 of the Constitution of India also because some other employees of the Delhi Fire Service had been given promotions even after 10-11-94 by invoking the old Rules which were applicable to them. The respondents have claimed in their counter to this writ petition that in 1997 and 1999 some employees of the Delhi Fire Service who were not being considered for promotion as per the Rules which had been framed for them by the MCD in 1990 had filed separate petitions (being OA No. 1760/97 M.S.Tyagi etc. v. Govt. of NCT of Delhi etc. and OA No.1510/1999, B.K. Pathak and Ors. v. Govt. of NCT of Delhi) for directing the Government to consider their case as per the old Rules and those petitions were allowed. The respondents have also placed on record copies of the orders dated 25-3-98 and 14-2-2000 passed by the Tribunal in those two cases and they have also pleaded that the Government had accepted those orders and also implemented them and the employees involved in those cases were given promotion by applying old Rules since the vacancies in question were of the pre-1998 period. The petitioners have not disputed this averment in their rejoinder. Their stand is that those orders of the Tribunal were not in accordance with law. There is hardly any merit in this plea. Since the petitioners do not claim to have challenged those orders of the Tribunal and have also not denied that the same have been implemented also they cannot now contend that those orders were not in accordance with law. We are, therefore, in agreement with the contention of the respondents that the action of the petitioners in not considering them for regular promotions for over a decade after their becoming eligible as per the old Rules on the ground that amendments in the Rules were in process while under similar circumstances promoting other employees after 1994 by invoking the old Rules is discriminatory and arbitrary.
19. The learned Counsel for the petitioners had also forcefully argued that the Tribunal itself having rejected the claim of some other employees of the Delhi Fire Services in another petition(being OA No. 491/2001), reference of which has also been made in the impugned order dated 25-9-02, for their promotions in accordance with the old Rules in respect of the vacancies which were existing before the new Rules came into force a contrary view could not have been taken by the Tribunal in the present case by directing the filling up of vacancies arising yearwise which consequently has to be done by applying the old Recruitment Rules which have ceased to exist. In our view, nothing turns on this plea raised by the learned Counsel for the petitioners. As noticed already, in the other two cases in which directions had been issued by the Tribunal to the petitioners for applying old Rules to the old vacancies, the petitioners have implemented that direction of the Tribunal and so just because in OA No. 491/2000 the Tribunal has held that old Rules would apply to the old vacancies only in case there is no change in employer the petitioners cannot act arbitrarily and in a discriminatory manner by not implementing the direction given in the present case.
20. Now, the next point which arises for our consideration is whether the respondents No. 2 to 4 and the deceased I.S. Sharma had acquired any right of consideration for being promoted before 10.11.1994 against the vacancies which were available up to that time. Admittedly there were vacancies in the posts of Assistant Divisional Officers (Fire) from 1990 onwards and all the respondents could have been promoted on being found fit. They were undisputedly eligible under the Rules existing before 1998 according to which a Station Officer employed in the Fire Service Department of MCD for five years having Advance Diploma of National Fire Service College, Nagpur or its equivalent was eligible for promotion. It is also the admitted case of the parties that in January, 1992 DPC was convened for filling up of only three posts of Assistant Divisional Officers (Fire) even though there were more vacancies. Respondents No. 1 and 2 were also considered at that time and placed at serial Nos. 4 and 5 of the Select Panel. The grievance of the respondents has been that since there were vacancies for all of them when DPC was held in 1992 for the posts of Assistant Divisional Officers (Fire) all the vacancies should have been filled up. The petitioners' stand is that no employee can ask the employer to fill up all the vacancies as it is for the employer to decide how many vacancies need to be filled up either by initial appointment or by way of promotion and also that promotion is not a right.
21. There is no doubt that Government is not obliged to fill up all the vacancies available either for promotional posts or those which are to be filled up by recruitment after advertisement etc. and also that a Government servant has only a right to be considered for promotion and promotion is not a fundamental right. This was held to be so by the Hon'ble Supreme Court in ,Director, Lift Irrigation Corporation Ltd. and Ors. v. Pravat Kiran Mohanty and Ors. and 3 Supreme Court Cases 47,Shankarsan Dash v. Union of India (1991). However, it has also been held by the Hon'ble Supreme Court that it does not mean that the State has the license to act in an arbitrary manner and the decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. In the present case the petitioners have not given any reason whatsoever for not filling up the available vacancies in the posts of Assistant Divisional Officers (Fire). As noticed already, all the respondents, including the deceased I.S. Sharma, were given current duty charge of the posts of Assistant Divisional Officer(Fire) but were paid in the pay scale of Station Officer. Their current duty charge letters though specified that that was only a stop-gap arrangement but continuation of that arrangement for more than a decade at least shows the necessity of the posts of Assistant Divisional Officers (Fire). There is no explanation whatsoever for giving current duty charge of that post to the respondents when there were clear vacancies as well as work for them as Assistant Divisional Officers (Fire). The respondents were indisputably fully eligible and qualified in 1990 itself to be promoted to the post of Asstt. Divisional Officer. We are in agreement with the submission of the learned Counsel for the petitioners that holding of current duty charge of higher post does not create any enforceable right in favor of the incumbent for regular promotion to that higher post. However, if there is no rational explanation for giving current duty charge of a higher post to some employee and paying him pay of lower post and continuing that arrangement for years, then it cannot be said that that employee is not entitled to be considered for promotion from the date when he was given current duty charge or for payment of salary etc. attached to that higher post. In taking this view we are fortified by two decisions of Hon'ble Supreme Court , State of Haryana v. R.K. Aggarwal and , P. Grover v. State of Haryana. In the present case there is no rational explanation forth coming from the side of the petitioners. In fact, the facts on record clearly demonstrate the mala fides on their part. Even though there were 17 vacancies of Additional Divisional Officers(Fire) and employees were working against those posts, though on current duty charge basis, but still it was represented to UPSC that those posts were lying vacant for more than three years and then vide order dated 28-6-01 the Government abolished those 17 posts. That decision was challenged before the Tribunal by some employees of the Delhi Fire Service including the respondents herein alleging in their petition(being OA No. 1726/2001) that the abolition of the posts against which they were given current duty charge was mala fide and was done to defeat their claim for regular promotion for which they had already filed a petition(OA No. 562/01) in which the Government had after seeking time to file the reply issued the abolition order dated 28.06.2001 and then filed its reply on 28.9.2001 alleging that the petition had become infructuous. That stand of the Government does not appear to have found favor with the Tribunal. So, the Government, as noticed already, revoked the order of abolition of 17 posts of Assistant Divisional Officers(Fire) on 19.10.2001. There is no explanation for first abolishing those posts and later on reviving them after taking a plea before the Tribunal in this case that the OA had become infructuous. All this does smacks of mala fides on the part of the Government and so the Tribunal was justified in directing the Government of NCT of Delhi to convene review DPC for making promotions for the yearwise vacancies as against its earlier decision to make all the promotions from 1.4.2002 by clubbing the vacancies of different years and treating them of the year 1998-99.
22. We have carefully gone through all the judgments relied upon by the learned Counsel for the petitioners and have found that none of them really helps the petitioners. The sum and substance of all those judgments is that an employer can take a decision to either amend the existing rules or even frame fresh ones and it can also take a conscious decision not to fill up existing vacancies till the rules are amended or framed afresh and if such a conscious decision is taken then no Government employee can have any grievance against that decision of the Government not to fill up the vacancies unless, of course, that decision is shown to be mala fide. In the present case, it has never been the case of the petitioners either before the Tribunal or even before this Court that they had decided not to fill up the vacancies which had accumulated before 10.11.1994 when the Fire Services Department of MCD had been taken over by the Government of NCT of Delhi. The very fact that current duty charge was continued till 2002 when the respondents were regularly promoted shows that there was no decision of the new employer not to fill up the posts. On the contrary the promotions in 2002 clearly demonstrated the need for the filling up of the promotional posts of Asstt. Divisional and Divisional Officers.
23. We are, therefore, of the view that the Tribunal was fully justified in directing the petitioners to hold review DPCs of the concerned eligible officers for promotion to the posts of Assistant Divisional Officers (Fire) against the vacancies arising yearwise and not by treating all the vacancies to be the vacancies of the year 1998-99 as had been done by the petitioners.
24. Another submission of Ms. Ahlawat was that if the impugned direction of the Tribunal is implemented that would tantamount to giving of retrospective promotion which is not permissible. In this regard a reference can be made to petitioners' own stand in the writ petition(at page No. 11 of the paper-book) that there cannot be a promotion retrospective except in cases where a review DPC is held. Thus, in the present case it cannot be said that if any employee would get promotion pursuant to the direction of the Tribunal from an anterior date that would tantamount to giving him retrospective promotion because the Tribunal has found that the clubbing of all the vacancies of different years and treating them as the vacancies of one year was not correct and accordingly a direction was issued to the petitioners to hold review DPC and if pursuant to that direction any of the respondents would get promotion from a date prior to 1-4-2002, from which the petitioners themselves have given the promotion to them, it will not be a case of giving retrospective promotion.
25. Lastly, it was urged by the learned Counsel for the petitioners that as far as the direction regarding consideration of the eligible persons for promotion to the post of Divisional Officer which came to be added in the original order dated 25-9-2002 pursuant to the order dated 31-12-2002 on the review application of the respondents is concerned, the same cannot be sustained because the order on the review application was passed without notice to the petitioners herein. There is no dispute that the order dated 31-12-2002 was passed by circulation by the members of the Tribunal without notice to the petitioners herein but in our view no fault can be found with the Tribunal's decision for this reason. In the order dated 31-12-02 it has been observed by the Tribunal that there was a mistake of the stenographer while typing the order dated 25-9-02 due to which the direction regarding the claim of the respondents for promotion to the post of Divisional Officer was not typed. There is no dispute about the fact that order dated 25-9-02 was dictated in the open court in the presence of counsel for the parties. It is not the case of the petitioners that the impugned direction given by the Tribunal while deciding the review application of the respondent was, in fact, not passed by the Tribunal when it had dictated the order on 25-9-02 in open court. So, we find no merit in the petitioners' challenge to the order dated 31-12-02 also.
26. No other point was urged on behalf of the petitioners.
27. We are, therefore, of the view that there is no error in the impugned directions of the Tribunal justifying interference by this Court in this writ petition which is found to be totally devoid of any merit and is accordingly dismissed. Parties are left to bear their own costs.