Delhi High Court
Ram Dhan And Ors. vs Delhi Development Authority on 1 March, 2002
Author: S.B. Sinha
Bench: S.B. Sinha, A.K. Sikri
JUDGMENT S.B. Sinha, C.J.
1. Vires of Recruitment Rules for the post of Chief Legal Advisor and Deputy Chief Legal Advisor in the Delhi Development Authority (in short, 'DDA') in terms whereof 33 1/3 percentage of posts are to be filled up by transfer on deputation failing which by direct recruitment, is in question in this writ petition.
2. The petitioners were appointed as 'Legal Assistants' in DDA. They were promoted as 'Junior Law Officers' in the year 1987 and as 'Senior Law Officers' in the year 1992.
3. The impugned rules for filling up the post of Chief Legal Advisor and Deputy Chief Legal Advisor, which were made in terms of Section 57 of the Delhi Development Act, 1957 and the relevant provisions of the Delhi Development (Miscellaneous) Rules, 1959 are in the following term:-
FOR THE POST OF CHIEF LEGAL ADVISOR Method of recruitment whether by By transfer on deputation direct recruitment or by promotion or transfer or by deputation and percentage of the vacancies to be filled by various methods In case of recruitment by promotion Transfer on deputation:-
/transfer / deputation, grades from which promotion/transfer deputation DEPUTATION : Officers dealing with legal is to be made. affairs under the Central / State Govt. / Public Undertaking / Semi Govt.
Autonomous or Statutory organizations.
(a) (i) Holding analogous posts: or
(ii) With 5 years' service in post in the scale of Rs. 3700 - 5000/- (pre-revised) or equivalent; and
(b) Possessing Degree in Law from a recognized University or equivalent and preferably having experience of dealing with land, revenue, service matters, etc. OR Officer of the Higher Judicial Services FOR THE POST OF DEPUTY CHIEF LEGAL ADVISOR Method of recruitment whether by a) 66 2/3% by promotion failing which direct recruitment or by promotion by deputation or transfer or by deputation and percentage of the vacancies to be b) 33 1/3% by transfer on deputation filled by various methods failing which by direct recruitment In case of recruitment by promotion PROMOTION : From Sr. Law Officer with /transfer / deputation, grades from 5 years regular service in the grade.
which promotion/transfer deputation is to be made. DEPUTATION : Officers dealing with legal affairs under the Central / State Govt. / Public Undertaking / Semi Govt.
Autonomous or Statutory organization.
(a) (i) Holding analogous posts: or
(ii) With 5 years service in post in the scale of Rs. 3000 - 4500/- or equivalent; and
(b) Possessing Degree in Law from a recognized University or equivalent and preference will be given for having experience in dealing with land, revenue, service matters, etc.
4. It is not in dispute that there are three sanctioned posts of 'Chief Legal Advisor' and Deputy Chief Legal Advisor, out of which two are to be filled up by promotion and the third by way of deputation.
5. It is also not in dispute that the petitioner No. 2, Shri H.K.L. Sehgal, had already reached his age of superannuation.
6. It has also not been disputed that the Departmental Promotion Committee (in short, 'DPC') held its proceedings on 04-10-2001 wherein the cases of both the petitioners, i.e., petitioner Nos. 1 and 3, were considered for appointment to the existing one promotional post. The first petitioner was not found fit. However, the name of the third petitioner was recommended and he had been promoted to the post of 'Deputy Chief Legal Advisor'. The post of 'Deputy Chief Legal Advisor', presently held by one Shri K.P. Sharma, is also now going to be vacant, as he is to retire on 31.08.2002.
7. In the counter affidavit, it has been contended that for filling up the post by way of deputation, an advertisement inviting applications on All India basis was published. Although several applications have been received, upon scrutiny, no candidate was found fit for appointment. A fresh advertisement had also been issued in November, 2001 in relation whereto interview is to be held this month.
8. The only contention of Mr. K. Venkataraman, the learned counsel appearing on behalf of the petitioners, is that the impugned regulation should be declared ultra vires in view of the fact that the deputationists would not have a legal right and furthercome all the posts of a statutory authority should be filled up on a permanent basis.
9. In support of the said contention, reliance has been placed on A.N. Pathak and Ors. v. Secretary to the Government, Ministry of defense and Anr. ; The Direct Recruit Class II Engineering Officer's Association and Ors. v. State of Maharashtra and Ors. reported in 1990 (2) SLR 769; and Gujarat Housing Board Engineers Association and Anr. v. State of Gujarat and Ors. .
10. Ms. Geeta Mittal, the learned counsel appearing on behalf of the respondent, on the other hand, would submit that the post of 'Deputy Chief Legal Advisor' is a very important post and the aforementioned policy of the recruitment was adopted by the respondent with a view to ensure that the services of an experienced person becomes available.
11. The learned counsel pointed out that one post of 'Chief Legal Advisor' is now held by an Officer of Delhi Higher Judicial Service and in absence of any such regulation, it would not be possible for the respondent to fill up such type of posts by suitable Officers on deputation basis.
12. The aforementioned recruitment regulations were made by Resolution dated 12.12.1988.
13. The petitioners herein have an avenue of promotion to the extent of 2/3rd of the vacant posts. The said resolution, therefore, provides for adequate representation from amongst the promotees.
14. There cannot be any doubt whatsoever that the respondents are entitled to fix a quota for filing up the selection posts both by way of promotion as also by direct recruitment. The petitioners herein could not have been appointed against the quota available for the direct recruits.
15. In absence of any challenge to the effect that all the posts should be filled up by way of promotion only, in our opinion, the petitioners cannot be said to have any locus standi to question the said resolution.
16. The petitioners herein have not could not have contended that the respondents were bound to fill up all the posts by way of promotion. The employer is entitled to lay down norms for filling up the vacant posts. It can adopt the policy decision as to how and in what manner the vacant posts would be filled up.
17. Unless the policy is found to be wholly arbitrary so as to attract the wrath of Articles 14 and 16 of the Constitution (in short, 'the Constitution'), the High Court in exercise of its jurisdiction under Article 226 of the Constitution cannot interfere therewith.
18. The submission of the learned counsel appearing on behalf of the petitioner to the effect that a post on permanent basis should be filled up on permanent basis and not on deputation basis is misconceived. The same cannot itself be a ground for declaring the said provisions as unconstitutional and that too at the instance of the petitioner, who even in the event of acceptance of the said contention, would not be entitled to offer his candidature in relation thereto. If the respondents herein intend to fill up at least 1/3rd of the posts by the Officers, who have sufficient experience in the field, no fault therewith can be found.
19. We agree with the contention of Ms. Mittal that the authorities of the respondent were entitled to evolve a policy decision so that the post of 'Chief Legal Advisor' can be filled up even by way of deputation.
20. We may now consider the decisions of the Apex Court, whereupon, reliance has been placed by the learned counsel for the petitioner.
21. In A.N. Pathak (Supra), the Apex Court was concerned with a promotion matter. It was held that delay in making appointments by direct recruitment should not visit the promotees with adverse consequences, denying them the benefit of their service.
22. Such a question does not arise in the instant case, in as much as has been found hereinbefore, the petitioners had already been considered for promotion and out of three petitioners, one has already been promoted and another has retired, whereas the first petitioner has not been found fit therefore.
23. In The Direct Recruit Class II Engineering Officer's Association (Supra), the Apex Court was concerned with inter se seniority. In the said decision, the Apex Court inter alia was considering a situation where quota rota system has completely broken down.
24. In the present case, only because appointment could not be made in one of the three posts for a year or two, the same would not mean as was sought to be contended by the learned counsel for the petitioner that the quota system has broken down and the remaining posts of 'Deputy Chief Legal Advisor' also be filled up by the eligible promotes.
25. In Gujarat Housing Board Engineers Association (Supra), the Apex Court was concerned with an absolutely different fact situation. In that case, interpretation of Rule 3(3) of Gujarat Housing Board Services Classifications of and Recruitment Regulations, 1981 was in question which was in the following terms:-
'.... If a suitable candidate is not available for appointment by promotion from the Executive Engineers of the Board, a panel of names of Executive Engineers having at least 4 years standing experience from the State Building and Communication Department may be called for'.
26. The State Government instead of considering claims of Executive Engineers of the Board selected an Executive Engineer on deputation from the State Building and Communication Department.
27. The validity of the said action came up for consideration. The Apex Court having regard to the relevant rule held that the said post could not have been filled up without considering the cases of the eligible candidates by way of promotion. The said decision also, therefore, cannot be said to have any application in the instant case.
28. Furthermore, the petitioners herein were considered for promotion. They also submitted themselves to the jurisdiction of the DPC without any demur whatsoever.
29. For the reasons aforementioned, we do not find any merit in this writ petition, which is dismissed accordingly with costs.