Central Administrative Tribunal - Delhi
Ashwini Khullar vs Delhi Development Authority on 17 February, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
T.A. No. 108/2007
( C.W. No. 8001/2005 )
With
T.A No. 09/2008
( C.W. No. 7286/2006 )
T.A. No. 113/2007
( C.W. No. 12399-400/2005 )
New Delhi this the 17th day of February, 2009
Honble Mr. Justice M. Ramachandran, Vice Chairman (J)
Honble Dr. Ramesh Chandra Panda, Member (A)
TA. No 108/2007
Ashwini Khullar,
Planning Assistant,
U.C. Cell, D.D.A. Vikas Minar,
New Delhi. . Applicant
( By Advocate Shri Atul Kumar )
VERSUS
1. Delhi Development Authority,
through Vice Chairman,
Vikas Sadan, I.N.A., New Delhi.
The Commissioner Planning,
D.D.A. Vikas Minar, New Delhi- 110016
Union of India through Secretary,
Ministry of Urban Development,
Nirman Bhavan, New Delhi. . Respondents
( By Advocate Shri Arun Birbal )
TA 09/2008
Mrs. Ambuj Sood,
W/o Shri Rajeev Sood,
R/o 443, Sector- 30, Faridabad,
Haryana. . Applicant
( By Advocate Shri V.S. R. Krishna )
VERSUS
1. Delhi Development Authority,
Through Vice Chairman,
Vikas Sadan, I.N.A. New Delhi-23
The Chief Architect,
D.D.A. Vikas Minar, New Delhi.
3. Union of India through Secretary,
Ministry of Urban Development,
Nirman Bhavan, New Delhi. . . Respondents
( By Advocate Shri Arun Birbal )
TA 113/2007
1. K.M. Saxena,
Assistant Director ( Planning),
Monitoring,
Delhi Development Authority,
4th Floor, Vikas Minar, New Delhi.
2. Trilochan Singh,
Assistant Director ( Planning),
Dwarka Project, Manglapuri,
New Delhi.
3. K.K. Marwah,
Assistant Director ( Planning),
Trans Yamuna Area Unit,
4th Floor Vikas Minar, New Delhi. . Applicants
( By Advocate Shri Atul Kumar )
VERSUS
1. Union of India,
Through :
The Secretary,
Ministry of Urban Development,
Nirman Bhawan, New Delhi.
2. The Delhi Development Authority (DDA),
Through :
The Vice Chairman,
Delhi Development Authority,
Vikas Sadan, I.N.A, New Delhi-23 . Respondents
( By Advocate Shri Arun Birbal )
O R D E R
( Honble Mr. Justice M. Ramachandran, Vice Chairman (J) :
As agreed by the parties, the three TAs were heard together and are being disposed of by a common order. Representing the applicants Mr. Atul Kumar and Mr. V. S. R. Krishna had made submissions. Mr. Arun Birbal had appeared for the respondents DDA. The issue that has been highlighted is simple and straightforward, namely, as to whether an amendment brought to the Recruitment Regulations, by the DDA would have adversely interfered with the normal chance of promotion of the applicants. Recruitment Rules had been amended for the post of Assistant Director (Planning), Deputy Director (Architecture) and Assistant Director ( Architecture) by Notification dated 11.12.2003. Consequent to the amendment as above, circulars have been issued by the DDA showing eligibility list, which were to be brought into operation while granting promotions. The gist of the submission was that in spite of the seniority position enjoyed by the concerned applicants, in the matter of promotion to the appropriate higher cadre by operation of the substituted eligibility list their rightful claims were thwarted and this was against the basic ethics of service law. It unnecessarily made inroads to the settled right of the applicants, and, therefore, deserved to be ignored.
2. Apart from referring to the claims, it may not be necessary to go into further details, since the facts as highlighted by the applicants, and the possible impact arising from the amendment have been conceded by the respondents. Opportunity for promotion going solely by the position in the seniority list in force has been withdrawn because of the amendment. Mr. Arun Birbal, learned counsel for respondents submits that the amendment had been introduced taking notice of the administrative exigencies. Further there is no vested right on any Govt. servants to presume that the conditions of service would remain unaltered for all times, and will continue to bind the parties, without recourse for the authorities to opt for changes that might be required by passage of time. In other words, his submission is that when amendment had been incorporated in the statute for bringing better governance, it will not be possible for the applicants to contend that their rights for promotion stands adversely affected and for that reason the steps requires to be retraced by DDA. In any case, such claims are not justiciable. The counsel also pointed out that the apprehension of the applicants that they will remain stagnated for ever is also found to be not true, as all the qualified applicants have already obtained promotion. Therefore, the OA is misconceived.
3. We may examine the rival contentions on the above background. The applicants had straightaway led us to the observations made by the Honble Supreme Court in R.B. Desai & Another Vs. S.K. Khanolkar and Others ( 1007) 7 SCC 54). There, according to them, an identical provision had been examined by the Court and contentions similar in all respects as raised here had been upheld. Therefore, claims for a declaration that they continued to be entitled to claim promotion going by seniority alone was justifiable found, as sustainable and, therefore, required to be upheld.
4. Before going into the substance of the contentions raised by the parties, we may refer two technical objections which had been raised by the DDA, which according to them sufficiently entrained their right to claim relief as presented. First objection is that in case prayers are allowed, it definitely affect the right of third persons, who have now been given a statutory right for promotion on a priority basis as a direct result of the amendment. Since none of them had been impleaded as respondents, applications are liable to be rejected for non-joinder of necessary parties. Second and most important submission on the maintainability of the application is that so long as the amendment is in the statute book it may not be possible to uphold any claims of the applicants on the basis of seniority even if they have any merit. We may deal with the above two objections before going to the other aspects highlighted by the parties.
5. Normally, it is settled principle that persons who might possibly be affected because of a judgment are to be brought on the array of the parties so that it may be possible for them to present submissions which also could be taken notice of before final pronouncement on the issue. Judgment generally binds the parties alone, and if affected parties are not on record, the advantage that may be gained by the person cam be ephemeral. Further it is only fair that a person is put to notice about possibility of adverse orders, and if it is overlooked the situation will be at the risk of getting the benefits nullified. Decisions of the Supreme Court and High Courts, show that, in service matters, including seniority at least one person who might be affected should be impleaded as a respondent so as to give constructive notice to all. But notwithstanding these, in the peculiar facts, applicable to the present facts, we do not think it may be required of us to reject the application for the technical reason that affected private individuals have not been brought on record.
6. These are a set of transferred Writ Petitions and we find that specific orders had been passed by the High Court, which are sufficient to warn other officers about the possibility of adverse orders. DDA had proposed to confer promotion on the basis of the eligibility list and when they were required to be kept in suspense, at the instance of the parties, the High Court had ordered that the beneficiaries should be advised that such promotion were being conferred on a provisional basis and subject to further orders that might be passed by the High Court in the pending Writ Petitions. Thus persons who were immediately to be affected had been constructively made to know of the pendency of the proceedings. If they so chose, they could have submitted application for impleading themselves to the proceedings. Because of this situation we do not think that the defects of non-joinder requires to be taken very seriously.
7. Second submission appears to be that so long as the amendment in the statute book had not been subjected to challenge, the applicants will not be entitled to claim relief as a matter of right. There is also no specific prayer for reading down the rules, it is pointed out. In fact we note that the principal relief in the WPs were or issue a writ certiorari, whereby the amendment brought by incorporating a note required set aside. Amendment of 11.12.2003 brought the Note added to the Regulation, which authorized preparation of an eligibility list. Since there was challenge about its very constitutionality, we note that a learned Judge had placed the matter for consideration before a Division Bench. The High Court had taken notice of the nature of the relief as had been prayed for. Division Bench in Writ Petition (C) No. 7289/2006 ( TA No. 09/2008) had examined the issue as arising out of the reference made by the Single Judge. The Bench had observed that since the petitioners case was entirely founded on the law laid down by the Honble Supreme Court in R.B. Desais case ( supra), the relevance of the constitutional challenge was not apparent. Time was sought for by the petitioner to take instructions and on 17.5.2006 the submission of the counsel for applicant had been recorded that his client did not press the constitutional challenge highlighted in the WPs. The matters were thereafter being prosecuted as a batch case. The present factual position is, therefore, that there is no challenge to the amendment, which, therefore, leads to a situation that the Regulation stands amended for all what it is worth. If that be so, the eligibility list prepared is to be deemed as in consonance with the statute. We also find that excepting to note that the decision in R.B. Desais case ( Supra) might be relevant, the court had not pronounced upon the right of the parties. Therefore, the contention appears to be that there is no challenge remaining about the constitutional validity. And none was urged before us also. We find that the submission as above cannot be brushed aside, because for reasons best known to the applicants, they had chosen not to pursue the challenge about the amendments.
8. Since the situation as above may unfavorably affect the applicants, we also thought it necessary to examine the issue from an angle, viz, whether the challenge, if it were there, would have prompted the Tribunal to declare the provision as unconstitutional.
9. Mr. Birbal submits that in Desais case ( supra), the Supreme Court had occasion to make observations specifically taking notice of the factual scenario that was presented there. He points out that there were two notes attached to the rules, which complemented one another. State of Bombay understood the principle over a number of years in a particular fashion and this is a most relevant situation, he submits. This had been upset by the High Court. The appellants before the Supreme Court had challenged the judgment of the High Court. Petitioner there, inter alia, had contended that by virtue of the rank assigned in the eligibility list of Range Forest Officers, he was entitled to be promoted to the next promotional post. Accepting the argument High Court had over ruled the States contention that the eligibility list had no relevance for the purpose of seniority in the cadre of RFOs. Supreme Court but held that acquisition of an earlier eligibility could not have given advantage to a person, unless the rule specifically gave an advantage to a candidate with earlier eligibility. In other cases seniority would prevail over the date of eligibility. Court found that on the date of consideration seniors also had attained eligibility and, therefore there was no case for over looking their claims.
10. Mr. Birbal submits that observations in later judgments of the Supreme Court indicated that seniority was not sacrosanct. If eligibility was assessed as authorized by the rules it could have given incumbents a march over the seniors, as occasion demanded. He submits that in line with the instructions given by the DOP&T, DDA had decided that the Recruitment Regulations were to be amended with specific a purpose. Our attention were invited to the decision of the Supreme Court in Roop Chand Adlakha and Ors. Vs. DDA and Ors (1989 ( Supp.1) SCC 116), and the later decision reported as Shailendra Dania and Ors Vs. S.B. Dubey and Ors ( 2007(2) SCC (L&S) 202). The principles had also been specifically adverted to in R. Prabha Devi Vs. Govt. of India and Ors ( AIR 1988 ( Vol. 75) SC 902.
11. According to Mr. Birbal it is well recognised principle that in respect of persons who are having better educational qualifications and attainments impetus needs to be given for them to opt for public service. The Supreme Court had occasion to uphold the principle that educationally better qualified personnel could be given advantage when a specific situation so may require. He reiterated that the Statute has been amended with the above objectives and by a process of interpretation such decision could not be defeated for personal advantage of the applicants concerned. Seniority of course has its own advantage but fresh inputs in service jurisprudence have emerged in accepting a principle that in matter of promotion seniority alone cannot be the criteria. It will be a capital mistake to theorize, before one has the essential data.
12. In this interesting scenario, we may examine the impact of the note added on to the Regulations which got itself introduced in the year 2003. As an instance, for the post of Assistant Director (Architecture.) method of appointment is shown as promotion. An Architectural Assistant with at least 3 years service in the grade and a degree in Architecture or Equivalent can aspire for promotion. The alternative qualification for promotion in the case of Architectural Assistant is at least 8 years service in the grade. Therefore, a person with degree in Architecture need have only lower incumbency period for becoming eligible for promotion as Assistant Director. That is the case with Deputy Directors post. The situation available before the amendment in the rules was that in the matter of promotion seniority alone was to be the criteria. The position available was that in spite of higher attainment of educational qualification, a graduate was constrained to languish as he could not have over taken a senior non-graduate. If a vacancy was in existence, it required to be kept unfilled, for want of a qualified hand, as the qualified person was a junior. A note was added on to the Regulation, therefore, to the following effect:-
Eligibility list of promotion shall be prepared with reference to the date of completion by the officers of the prescribed qualifying service in the respective grade/post.
A note becomes part of the Recruitment Regulations after it is notified. Such a `Note is not to be confused with marginal notes as found in some Statute. Note brought in the regulation thus requires full obedience. It will be safe to assume that the recruitment rules thereby have both in scope and purport, been amended, to reflect a position that seniority is not the sole criterion but eligibility as well requires to be taken notice of. This automatically leads to a situation where respondents are obliged to operate two lists viz seniority list and an eligibility list. Persons included in the eligibility list could aspire for promotion by their own right so recognised, as seniority becomes irrelevant.
13. This naturally leads to a situation that when a vacancy arises, only a person who is eligible as per the rule on that date could be promoted against the post. This situation cannot be watered down by providing that the significance of the eligibility list should be ignored for a reason that no posts arose in the interregnum. It may be equated to a daily life situation. For a considerable period, the infrastructure may be permitting only a single lane traffic. On the advent of new generation vehicles, roads are widenned, so that such fast moving automobiles can over take the older colleagues. It may be frustrating to suggest that notwithstanding the wide road, overtaking is perpetually prohibited.
14. The vehicles, which are permitted to overtake, reach the destination faster, and are entitled to occupy parking lots earlier. But to suggest that they are to idle, when slots open and the colleagues who reach later, should get prior accommodation there might be arbitrary. Thus a person who becomes eligible earlier should get the first slot, irrespective of whether or not by the time his bye passed senior also had attained eligibility. When the stipulation by the note was designed on logic, and fell within the realms of policy making, so long as it is not arbitrary, Courts are not expected to interfere. When the presence of eligibility list, is conceded, we have to assume that it is to serve a purpose. The purpose cannot be defeated by extraneous circumstance, that it can operate only in a situation that during the period he was eligible, he should have been promoted as well and if there was no vacancy available during the time, he had to lose all his gains. Therefore, we are not in a position to read down the provision.
15. The presumption in the matter of constructing a statutory provision is that it intents what it plainly states. In spite of the presence of the note, to suggest that its purport should be ignored, might be against proper understanding of the situation. The definite step taken is not to be construed as one carried out for no purpose. The words and provisions in a statute are presumed to be placed with precision and to attain the desired end. When existing rights are taken away by an amendment, the examination would be to understand a situation where there was specific intention to come up with such change. Legislative power is exercised with full knowledge of existing conditions/situations and when expressly a new provision is incorporated, the purport of the intention is not permitted to be defeated by interpreting it as insufficient or illogical, unless it was plainly absurd, or conveyed no decipherable meaning.
16. In R.B. Desais case ( supra) Supreme Court had observed (See para 9) that unless and until the rules specifically exclude the weightage of seniority, the benefit could not have been possible to be ignored. Because of the incorporation of the offending note, and as coming out of the submissions, precisely the exercise carried on was with the intention that seniority was no more the sole criterion. Rights arising out of seniority had been restricted and it cannot be overlooked.
17. The observations of the Supreme Court in State of J.K. Vs. Triloki Nath Khosa and Others (AIR 74 SC 1) also are relevant. A classification founded on variant educational qualifications, for purpose of promotion to the post of an Executive Engineer, was held to be not unjust on the face of it. Prabha Devi (Supra) had explained the principle of seniority vis-`-vis eligibility, and the proposition presented by the respondents cannot be understood as startling. We, therefore, hold that no case for interference has been made out. Resultantly the OAs are dismissed.
18. Copy of this order be placed in TA No. 09/2008 and TA No. 113/2007.
( Dr. Ramesh Chandra Panda ) ( M. Ramachandran)
Member (A) Vice Chairman (J)
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