JUDGMENT S. Ravindra Bhat, J.
1. The petitioner in these proceedings has impugned a public notice/advertisement issued by the respondent (hereafter called 'the MCD' dated 21st June, 1984. By that the MCD invited applications for appointment to the post of 'Vaid' in the pay-scale of Rs.650-1200 (pre-revised). The essential qualification required was a recognised medical qualification included in Part-1 of the Second Schedule, Part-1 of the III Schedule or in the Fourth Schedule to the Indian Medicine Central Council Act1970; the prescribed experience was in Ayurveda preferably in recognised Hospital or Dispensary.
2. The petitioner was working as a Compounder with the MCD since the year 1968. For the first time, in the year 1975, certain regulations were formulated, for the post of Vaid and other classes of personnel working in the alternative medicine system, namly, Hakim and Homeopathic Doctors. Initially a quota of 75% for direct recruitment had been prescribed.
3. In the year 1979, by virtue of a resolution, which was approved on 9.2.1979, the quota for promotion to the post, inter alia of Vaid was increased to 50%. The relevant criteria in the form of Draft Recruitment Rules made applicable at that stage reads follows:
"8. Whether age and qualifications Age: No prescribed for the direct recruitment will apply in case of promotions Qualifications:Yes
9. Period of probation, if any 2 years
10. Method of recruitment By direct recruitment: 50% whether by direct recruitment or by promotion or by deputation/ By Departmental transfer and the percentage of promotion: 50% vacancies to be filled by various methods
11. In case recruitment by By promotion from promotion/deputation/transfer Compounders with at least grades from which promotion/ 5 years regular service deputation/transfer to be made in the grade
12. If a Departmental The Selection Board Promotion Committee exists, will be constituted by what is its composition. the Commissioner.
4. It is averred that certain vacancies had occurred for the post of Vaid and the petitioner was eligible for consideration in the promotion quota as per the 1979 Regulations.
5. On 22.12.1981, the Commissioner of the MCD proposed certain changes to the existing draft regulations/executive instructions. The relevant part of his letter reads as follows:
"It has been the past experience that sufficient number of departmental candidates with the required qualifications and professional proficiency are not available to be considered for promotion in the posts with the result that posts remain vacant for sufficient interval. Moreover, the pay scales of Vaids etc. have been brought at par with that of the analogous posts in CGHS and since we are following the CGHS pattern in the matter of pay scales etc., it will be expedient to follow the recruitment regulations for these posts, as obtaining in the CGHS. The matter was also considered by the Establishment Board in its meeting held on 2.11.1981 and it was decided that the recruitment regulations prevalent in CGHS be adopted in the MCD. Accordingly,it is proposed that the recruitment regulations for the posts of Vaids, Hakims and Homeopathic Doctors, framed on the pattern of CGHS and enclosed as Annexure 'A', 'B' and 'C' may be followed in the Municipal Corporation of Delhi.
6. The changes proposed inter alia were that as far as qualification and experience etc. were concerned, the old pattern was to continue. However, the post was to be filled exclusively by direct recruitment.
7. On 31st March, 1984, these Draft Regulations of 1979, as amended in 1981 (amendment having been approved on 22.12.1981), were put in the form of the regulations and published on 12th April, 1984. Regulation 1 prescribed that the Regulations were to come into force on the date they were published in the gazette. These regulations completely changed the pre-existing situation, in that the quota applicable for promotion stood extinguished and all the posts of Vaid were to be filled by direct recruitment.
The respondent MCD issued the impugned notification/advertisement after the publication of the Regulations on 21.6.1984.
8. Learned counsel, Mr. Gupta submits that the petitioner had a right to be considered against the existing vacancies as of 1984 and that in the absence of any material to show otherwise the Regulations w.e.f. 12th April, 1984, could not be applied retrospectively. He further submitted that the petitioner was eligible and entitled to be considered against the posts which were available prior to the formulation and publication of the notification in 1984 and that if the Policy of 1981 were to be given effect to, they would amount to retrospectively enforcing Regulation which is impermissible in terms of the Act as also under Article 14 of the Constitution.
9. Learned counsel further submitted that prior to the publication of the Regulations, 1984, the MCD had carried out a selection in the year 1983 but the panel was later scrapped as infructuous. This, it is contended, was arbitrary and the MCD ought to have published that panel which included the petitioner.
10. Learned counsel for the MCD, on the other hand, relied upon the proposal of the Commissioner dated 22.12.1981 which was approved. He stated that the character of the 1979 norms were same as the 1981 guidelines or proposal, namely, that they were executive instructions. He relied upon the expression 'draft regulations' occurring in relation to 1979 Regulations to say that under the pre-existing pattern, the entitlement, if any, was only on account of executive instructions. The MCD as an executive authority, has full power to amend its policy which it did in December 1981. With the amendment of such instructions, the MCD was bound to follow the 1981 norms which ruled out recruitment by promotion. It was submitted that no employee has vested right to promotion. He has only a right to be considered for promotion in accordance with the existing norms, rules and regulations. He has contended that even if a person is included in the select list, for good and valid reasons, the recruiting agency or authority can exclude the person's name or even scrap the entire panel. In these circumstances, it was submitted that there is no question of giving retrospective effect to the regulations; in fact the advertisement in question was issued after the new regulations were notified in April 1984.
11. It is trite law that every employee is entitled to fair consideration in accordance with the existing norms that binds the public employer. The question here is, whether the petitioner's complaint of having been unfairly treated are justified. Undoubtedly, till the year 1981 a quota existed for promotion to the post of Vaids.50% was earmarked for those working with the MCD as Compounders and possessing a requisite degree qualification or its equivalent where as the balance was to be filled by direct recruitment. The petitioner was thus eligible for consideration till 1981. With the formulation of the policy which amended earlier norms in the year 1981, the situation changed radically. The MCD as well as its employees, in the absence of a successful challenge to the amended norm, were bound by the 1981 Regulations albeit in the form of executive instructions which mandated that the post of Vaid ought to be filled exclusively by direct recruitment. The fact that these norms were not notified as statutory rules makes little difference because in the year 1984 when they were finally given statutory shape and published in the Official Gazette, the MCD merely followed its regulations and notified the vacancies through the advertisement. The MCD even prior to the statutory regulations, of 1984 could not have filled the posts through promotion. I am, therefore, of the opinion that there is no substance in the grievance that the 1984 Statutory Regulations were given effect to retrospectively by the MCD.
12. As regards the grievance that the MCD acted arbitrarily by not promoting the petitioner earlier and in scrapping an earlier selection, I am of the opinion that the material on record do not support these submissions. As per the case of the parties before the Court, the policy stood changed in the year 1981. After the change in policy, the MCD was bound to follow it. In stead, it appears to have proceeded to process certain vacancies for promotion and drawn up a select list. The select list was not given effect to and eventually was scrapped/withdrawn. The withdrawal was on the footing that the norms were changed in the year 1981, and the statutory regulations were about to be published. This, in my opinion, cannot be termed as arbitrary. In the year 1981 itself the regulations had been amended although as stated earlier in the form of executive instructions. Those ruled out promotion. Further more, on 31st March, 1984, the rules were formally given shape. The rules were published in the Gazette on 12th April, 1984. In view of these, the complaint of arbitrariness on the ground of scrapping the select list cannot be countenanced.
13. As far as the petitioner's grievance that the advertisement diverted his right to be considered for onward progress within the organisation is concerned, I am of the opinion that in the absence of the challenge to the rules, the consequences which arise on account of its due operation cannot be called into question. Therefore, in the absence of a challenge to the regulation the logical consequences flouring out of its application cannot be termed as illegal. The impugned advertisement itself threw open the post to all qualified and eligible candidates including in-house MCD employees such as the petitioner and indeed enable age relaxation for five years. Therefore, the petitioner cannot complain of prejudice or unfairness. He could have competed for the post; he chose not to.
14. In view of the above conclusions, I am of the view that the petitioner cannot be granted any relief in these proceedings. The writ petition is accordingly dismissed. Rule discharged. No costs.