Delhi High Court
Ashok Johri And Anr. vs N.D.M.C. And Ors. on 1 March, 2005
Author: Manju Goel
Bench: Manju Goel
JUDGMENT B.A. Khan, J.
1. This appeal challenges judgment dated 16.9.2003 allowing writ petition (CWP No.4555/2001) filed by private respondents and directing respondent/NDMC to fill up the existing vacancies of the Executive Engineer (Civil) in accordance with the old rules in force as the new rules had not come into force.
2. Appellants were not a party to the writ petition. They have, however, filed writ petition (WPC 5943/2003) along with CM 10473/03 requiring the official respondents in that writ petition to notify the revised recruitment rules for recruitment to the post of Executive Engineer (Civil) and for requiring the respondent/NDMC to make regular promotion to that post as per the revised recruitment rules. They have also prayed for quashing of adhoc appointments of diploma holders made on the post and also the deputation made to this post and had a writ of prohibition restraining the official respondents from filling up this post by any adhoc promotion or deputation or on current duty charge on temporary basis.
3. In this petition filed by appellants, writ court noted that it had already held that the new amended rules would not apply to vacancies that had occurred prior to the coming into force of these rules vide order dated 16.9.2003, in private respondents' writ petition (WPC 4555/2001). The court accordingly foreclosed this relief and issued notice for other reliefs in the appellants' writ petition giving rise to this appeal.
4. Appellants are, therefore, challenging order dated 16.9.2003 passed in private respondents writ petition No.4555/2001 which according to them had rejected the main relief of their writ petition (CWP 5943/2003) by holding that the vacancy of the Executive Engineer was sought to be filled up under the new amended rules in that writ petition.
5. The controversy centres round the post of Executive Engineer (Civil) in the NDMC. It seems that adhoc appointment was made to this post from time to time which prompted private respondents 1 to 5 (diploma holders) to file CWP No.4555/2001 for direction to official respondents to fill up the vacancies of the Executive Engineer (Civil) (financial year wise) in accordance with law and for according consideration to them for promotion to the post from the date of availability of these vacancies/date of eligibility.
6. It was claimed by these private respondents in this petition that even though they were eligible for promotion to this post under the rules in force (NDMC Resolution 29 dated 6.5.1992), but still no regular promotion was being made to the post which was being filled up by making adhoc appointment. It was also prayed by them in the writ petition that 17 vacancies of Executive Engineer (Civil) were available from 1995 to 2002 and that they were only holding the post on adhoc basis and were entitled for regular appointment. It was also stated by them that the Government of India instructions contained in OM dated 17.11.1986 and also the Supreme Court judgments provided for filling up of these vacancies under the rules in force. It also appears that respondent/NDMC explained that it had sought the holding of the DPC for the post but UPSC had declined it on the ground that new amended recruitment rules were in the process of being notified.
7. The writ court, on consideration of the matter and by placing reliance on the Supreme Court judgments in State of Andhra Pradesh v. J. Sreenivasa Rao , P. Mahendran v. State of Karnataka and P. Murugesan v. State of Tamil Nadu held:-
There is no justification not to consider the petitioners for promotion in terms of old rules. Therefore, the direction is issued to the respondents to fill up the existing vacancies in accordance with the old rules as new rules had not yet been notified.
This judgment is being questioned by appellants (degree-holders) on the ground that the posts were to be filled up first under proposed amended Rules and now that these Rules had come into force under these Rules. It is submitted by their senior counsel Mr. Sethi that filling up of those vacancies which had occurred prior to coming into force of these rules would amount to reading into the new rules which was not there. A mere existence of a particular rule does not confer right of appointment on a candidate who has no vested right to be appointed until such appointment is made. Therefore, even if a vacancy arose during the process of the rules being amended, old Rules did not confer any right in the private respondents or any candidate for being appointed under these.
Support for this is drawn from the Supreme Court judgment in P. Ganeshwar Rao v. State of Andhra Pradesh 1988 (Supp) Supreme Court Cases 740, Dr. K. Ramulu v. Dr. S. Suryaprakash Rao , S. Prakash v. K.M. Kurian , Union of India v. Yogendra Singh 1994 Supp (2) Supreme Court Cases 226 and Delhi Judicial Services Association v. Delhi High Court .
Learned counsel for respondent/NDMC Ms. Neelima Tripathi has distinguished all these judgments and has pointed out that these were of no help to appellants. According to her, it was fairly well established on the contrary that recruitment to the vacancies had to be made as per the recruitment rules in force at the time when the vacancy arose.
It must be pointed out at the very outset that when the impugned judgment was passed by the writ court on 16.9.2003, the new amended rules had not come into force and at that stage, therefore, there was no question of the vacancies occurring up to that point of time being filled up under the proposed amended rules which had not come into force. The impugned judgment, therefore, could not be faulted in any case to that extent, more so when it was based on the Supreme Court judgments in J. Sreenivasa Rao's P. Mahendran's and P. Murugesan's cases.
At the cost of repetition, it may be appropriate to draw from these judgments to re-state the otherwise well established position that the vacancies that had arisen during the currency of the rules in force were to be filled up under those rules and not under the proposed amended rules which had not come into force.
In the case of J. Sreenivasa Rao (supra), the Supreme Court held as under:-
Having heard the counsel for the parties, we find no force in either of the two contentions. Under the old rules a panel had to be prepared every year in September. Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion to the post of Sub-Registrar Grade II should have been made out of that panel. In that event the petitioners in the two representation petitions who ranked higher than respondents 3 to 15 would not have been deprived of their right of being considered for promotion. The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub-Registrar Grade II will be according to the new rules on the zonal basis and not on the State-wide basis and, therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules.
In P. Murugesan's case (supra), the Apex Court observed:-
Accordingly, t must be held that the learned counsel for respondents 3 to 8 is right in his submission that the vacancies occurring prior to three months before the date of commencement of the impugned amendment ought to have been filled up in accordance with the rules then obtaining.
Similarly, in P. Mahendran's case (supra), the Supreme Court had this to say:-
The amending Rules of 1987 do not contain any express provision giving the amendment retrospective effect nor there is anything therein showing the necessary intendment for enforcing the rule with retrospective effect. Since the amending Rules were not retrospective, it could not adversely affect the right of those candidates who were qualified for selection and appointment on the date they applied for the post, moreover as the process of selection had already commenced when the amending Rules came into force, the amended Rules could not affect the existing rights of those candidates who were being considered for selection as they possessed the requisite qualifications prescribed by the Rules before its amendment moreover construction of amending Rules should be made in a reasonable manner to avoid unnecessary hardship to those who have no control over the subject matter.
The problem that arises is that it was during the pendency of this appeal that the new recruitment rules were published on 10.9.2004 in the Delhi Gazette bringing them into force. Has this changed the complexion of the case and does it in any way impinge on the view taken by the writ court in the impugned judgment is the question. In other words, what remains to be seen is whether the vacancies that existed on the date when these rules came into force were required to be filled up under these rules or under the old rules as these had occurred prior to the coming into force of these rules.
Learned senior counsel Mr. Sandeep Sethi made a valiant effort to persuade us to the view that whatever vacancies were available on the date of coming into force of the new amended rules were to be filed up under those rules. He particularly referred to the Supreme Court judgment in Dr. K. Ramulu's case (supra) to suggest that it was permissible to fill up the vacancies even though they had arisen prior to the enforcement of new rules if a conscious decision was taken in this regard by the employer. He also claimed that since NDMC had taken a conscious decision to shelve the filling up of the posts for all these years and had at the same time undertaken an exercise to amend the rules which was indicative enough of its conscious decision to make recruitment to the post under the new rules. He also claimed that the amended rules were being treated to be final and NDMC had all the powers to make amendment in the rules and at best these rules should have been brought in force immediately after the UPSC has approved these and that the delay in granting approval by the Central Government was of no consequence. Under the old rules of 1992, the post of Executive Engineer (Civil) was to be filled up - 80% by promotion amongst Assistant Engineers (Civil) having at least 8 years service and 20% by deputation. It was on 7.4.2000 that respondent/NDMC resolved to amend these rules and to prescribe the new mode of recruitment whereby 50% quota was to be reserved for promotion amongst degree-holders and the remaining 50% from diploma holders. UPSC granted approval to these rules on 20.6.2001. The NDMC thereafter sought approval of these new rules from the Government of India by series of communications from 6.7.2001 to 6.2.2004 Meanwhile, attempts were made by to hold the DPC for filling up of the post of Executive Engineer (Civil) which was declined by UPSC several times constraining the NDMC to make adhoc promotions to the post.
In this conspectus, both pleas of appellants deserve to be rejected. Firstly, it can't be said that respondent/NDMC had taken any conscious policy decision to follow the proposed amended rules when it passed its resolution on 7.4.2000 because it was all along making attempts to fill up the post under the old rules by asking the UPSC to hold the DPC. Similarly, it is not possible to hold that respondent/NDMC was the final authority to amend the rules and to bring these in force because Section 387(2) of the NDMC Act made any amendment to the rules subject to the approval of the Central Government. Therefore, any amendment to the rules could not be affected without the approval of the Central Government and these rules could not come into force unless published in the Delhi Gazette. These rules would assume statutory character only after these were promulgated by publication in the official gazette and it being the settled position that the rules would apply only after coming into force unless given any retrospective effect, it could not be said that writ court had fallen in any error in directing respondent/ NDMC to fill up the post of Executive Engineer (Civil) in accordance with the old rules at a time when the new rules had yet to come into force.
We have examined the judgments cited by Mr. Sethi but we found none of these relevant to the point in issue. In Dr. K. Ramulu, the Supreme Court found that Government had taken a conscious decision not to make any appointment to the post till the amendment of rules which decision was found right in the facts and circumstances of the case. This, however, did not lay down any legal proposition that any draft or proposed amended rules should be applied to fill up the vacancies which had arisen under the old rules.
In the case of S. Prakash (supra) also, it was held by the Supreme Court that when the process of recruitment had not been finalised and culminated in the select list, the recruitment process can be stopped by the Government at any time before a candidate was appointed and that the candidate had no vested right and that the Government would be required to justify its action on the text-tone of Article 14. This, in our view, is of no help to the appellants. Because the issue in the present case was not hat whether private respondents had any vested interest for promotion to the post of Executive Engineer (Civil) but whether the vacancies that had arisen of the Executive Engineer were liable to be filled up under the rules in force or under the proposed amended rules which had admittedly not come into force.
In the other case of Vimal Kumari v. State of Haryana , the Apex Court again observed that the State Government alone could take a policy decision on justifiable and reasonable grounds to follow the direct rules and the reafter justify its action in terms of Article 14. Even this does not lay down any proposition to be already established one that the vacancies which arise in a particular year were to be filled in accordance with the rules in force in that year.
Having surveyed the whole scene, we feel convinced that the vacancies of the Executive Engineer (Civil) in NDMC which had arisen prior to the coming into force of the new rules of 2004 were to be filled up under the old rules of 1992 and the vacancies that had accrued thereafter were obviously to be filled under the new rules.
This appeal accordingly fails and is hereby dismissed.