Anand Kumari Sharma (Dr.) vs Commissioner, Municipal ...
1998 Latest Caselaw 457 Del

ORDER

Dr. M.K. Sharma, J.

1. The present writ petition is preferred by the petitioner seeking for a direction to the respondents to consider the case of the petitioners for promotion to the post of Resident Superintendent (ISM) and Officer-in Charge, Pharmacy Stores (ISM).

2. The petitioners are Ayurvedic doctors in the Ayurvedic Hospital under the Municipal Corporation of Delhi. A Recruitment and Promotion Regulations was made by the Municipal Corporation of Delhi under Section 98 of the Delhi Municipal Corporation Act called the Recruitment and Promotion Regulations for filling up the posts of Deputy Health Officers (ISM), Officer in-Charge, Pharmacy Stores (ISM) and Resident Superintendent (ISM), both through direct recruitment as also through promotion. The said set of Regulations was dated 20th November, 1986 and was also published in the Official Gazette. The said Regulation provides the method of recruitment to the aforesaid posts which are selection posts. Qualifications prescribed for the promotees is post-graduate degree/diploma in Ayurvedic from a recognised University Statutory Board/Council/Faculty in Indian Medicine or equivalent with eight years professional experience in a responsible position, including five years working experience in an Ayurvedic Hospital after the acquisition of post-graduate qualification. It was also specifically provided that qualification of having a post-graduate degree would not be applicable for a period of five years, from the date of commencement of the said Regulations. The said Regulations also contains a provision giving power of relaxation when it provides that where the Municipal Corporation of Delhi is of the opinion that relaxation of any of the provisions of the Regulations with respect to any class or category of persons is necessary, the same should be done after consultation with Union Public Service Commission.

3. All the three petitioners possess the required educational qualification as required under the aforesaid recruitment regulations and have post-graduate degree which entitles them to be considered for promotion to one of the aforesaid posts in terms of the Recruitment and Promotion Regulations. Since the aforesaid Regulations were promulgated in 1986, relaxation given for five years in respect of post-graduate qualification expired on 19.11.1991 and, therefore, with effect from 19.11.1991, post-graduate qualification has become an essential qualification required for the purpose of promotion to one of the aforesaid posts.

4. On 30.9.11991, the petitioners filed the present writ petition seeking for the aforesaid relief and this Court by order dated 28.10.1991 ordered that any appointment made will be subject to the result of the writ petition. However, on 20.11.1991, the respondent No.1 promoted two doctors to the post of Resident Superintendent (I.S.M.)/Officer-in-Charge, Pharmacy Stores (I.S.M.). on 29.4.1994, the respondent No.1 again passed orders posting two other doctors on current duty charge as against the post of Resident Superintendent (I.S.M.) and Officer-in-Charge, Pharmacy Stores (I.S.M.), although they did not have any post-graduate qualification which is an essential qualification for getting promotion to one of such posts. In pursuance of the aforesaid orders passed by the respondent No.1, Shri Hari Nath Gupta, Shri Jai Raj Singh Sagar and Shri Hari Singh Rajora are discharging their duties as against the aforesaid posts on current duty charge being so appointed after filing of the present writ petition. The aforesaid order placing the said persons on current duty charge in view of the order passed by this Court by way of interim order would be subject to the result of the writ petition. The said three doctors also filed an application in this Court being C.M. 2606/1998 praying for impleading them as respondents to the writ petition. The said doctors have been posted as against one of the aforesaid posts on current duty charge and the aforesaid order posting them as such were issued subsequent to the order dated 28.10.1991 passed by this Court and, therefore, in my considered opinion, they are not necessary parties to the writ petition and, therefore, are not required to be imp leaded in the present writ petition.

5. Still, however, since the said doctors are represented by Mr. G.D. Gupta, senior counsel, I have also heard him on the merit of the petition while hearing the arguments of the learned counsel appearing for the petitioners as also the counsel appearing for the respondents.

6. The grievance of the petitioners as raised in this writ petition is that although there are regular vacancies in the post of Resident Superintendent (I.S.M.) and Officer-in-Charge, Pharmacy Stores (I.S.M.) yet no steps are being taken by the respondent No.1 to fill up the said posts on regular basis in accordance with the provisions of the Recruitment and Promotion Regulations of the respondent No.1. The grievance of the petitioner is also that the said posts are being manned by putting persons on current duty charge although they are not eligible under the Recruitment and Promotion Regulations for such appointment/promotion.

7. Ms Madhu Tewatia, counsel appearing for the respondent No.1, however, submitted that subsequent to the notification of the Recruitment and Promotion Regulations on 20.11.1986, a package deal of 1987 extended by the Government of India to Medical Officers read with the terms of settlement signed by the Government of India with the Joint Action Council of Service Doctors Organisation on 21.8.1989 and the recommendations of the Tikku Committee were adopted by the Corporation vide Resolution No. 617 dated 10.10.1988, 6.3.1991 and 27.4.1992 respectively. She also submitted that the said provisions of the Tikku Committee recommendations provided that in the Specialist cadre, Specialist Grade-II officers with 6 years regular service in the scale of Rs.3700-5000 or 8 years total service in the scale of Rs.3000-5000 and Rs.3700-5000 or total combined regular service of 9 years as Junior Specialist and Specialist Grade-II are to be placed in the scale of Rs.4500-5700 according to the existing guidelines which, inter alia provide for overall 'Good' assessment and at least two 'Very Good' assessment during the preceding five years. In terms of the aforesaid recommendations which was adopted by the Corporation, the Corporation decided that the posts which the petitioners were holding in the pay scale of Rs.2200-4000 be upgraded to Rs.3000-4500.

8. Counsel for the respondent No.1 has also drawn my attention to the Office Order dated 10.10.1994 which is annexed as 'Annexure R/2' to the affidavit filed by the respondent No.1 which indicates promotion on ad hoc basis of Vaid/Homeopethic Doctors. In the said Office order, the name of the petitioner No.1 is shown at Serial No.4 and her date of promotion in the pay scale of Rs.3000-4500 is shown to be 5.12.1991 whereas, the name of the three incumbents who are discharging current duty charge in the higher post find place at Serial No.1,2 and 3 respectively and their date of promotion in the same pay scale is also shown to be 5.12.1991. The name of the petitioner No.2 is shown at Serial No.9 and the proposed date of promotion in the scale of Rs.3000-4500 is also 5.12.1991 an and the name of the petitioner No.3 appears at Serial No.43 showing the proposed date also as 5.12.1991. Counsel submits that with the aforesaid promotion given to the petitioners, the writ petition has become in fructuous as they have already got promotion to higher post, as sought for in the writ petition.

9. Mr. G.D. Gupta also submitted that there is no further cause of action after the aforesaid orders have been passed. Both Ms Madhu Tewatia and Mr. G.D. Gupta submitted that in view of the aforesaid recommendations of the Tikku Committee having been accepted, a regular appointment against the aforesaid post would now have to be made as per the provisions of those benefits which are accepted by the respondent No.1 and, therefore, to that extent the old Recruitment Regulations stand superseded as the said Regulations have become unworkable and is in a disused stage. Counsel submitted that since the Regulations have become obsolete by necessity and subsequent development, the prayer in the writ petition has become in fructuous.

10. The respondent No.1 along with its affidavit has also placed on record a copy of the letter written by the respondent No.1 to the Union Public Service Commission forwarding therewith the amendment/provisions in the Recruitment Regulations for the post of Resident Superintendent (I.S.M.) and Officer-in-Charge, Pharmacy Stores (I.S.M) for their concurrence.

11. Mr. S.S. Vats, counsel appearing for the petitioner, however, submitted that to the aforesaid reference made by the Municipal Corporation of Delhi, no concurrence has been given by the Union Public Service Commission which is mandatory as indicated in the Promotion and Recruitment Regulations notified in 1986. He also drew my attention to the provisions of Section 480 of the Delhi Municipal Corporation Act. He submitted that in view of the aforesaid provisions, for any amendment of the Regulation of the Corporation to be valid, there must be prior approval of the Central Government and shall have to be notified in the Official Gazette. He submitted that since the respondent No.1 has neither taken any steps for obtaining approval of the Central Government nor has received concurrence from the Union Public Service Commission, there is no amendment to the original Recruitment Regulations which still holds field and, therefore, promotions are required to be made in accordance with the aforesaid provisions giving up the practice of making promotion either on ad hoc basis or placing an officer on current duty charge.

12. In the light of the aforesaid submissions, the issue that arises for my consideration primarily is as to whether any amendment has been brought in by the respondent No.1 to the existing Recruitment Regulations and promotions notified in 1986. Under the aforesaid Regulations one of the essential qualifications to be promoted to one of the post of Resident Superintendent (I.S.M.) and Officer-in-Charge, Pharmacy Stores (I.S.M.), is post-graduate qualification which stood relaxed for a period of five years from the date of commencement of the Act and, therefore, with effect from 19.11.1991 post-graduate qualification has become an essential qualification for getting promotion to such posts. The respondent No.1 under the new Recruitment Regulations has sought to do away with the provision of postgraduate qualification as an essential qualification for such promotion. Admittedly the said amendment which have been sent for concurrence of the Union Public Service Commission which is mandatorily required to be obtained has not been obtained so far. The admitted position by the respondent No.1, therefore is that, as of date, there is no effective amendment to the Recruitment and Promotion Regulations of 1986.

13. In view of the aforesaid position, it is not necessary for me, in the facts and circumstances of the present case, to decide whether a Regulation of the Corporation which seeks to amend or alter the existing Regulation would also need to have approval of the Central Government and would also require publication in the Official Gazette. On reading of the provisions of Section 480 of the Delhi Municipal Corporation Act which states that no Regulation made by the Corporation would be effective until it has been approved by the Central Government and published in the Official Gazette, I am of the opinion that amendments to the Regulation would also require approval of the Central Government since any Regulation to be made by Corporation would require such approval of the Central Government. The aforesaid tentative view that I have taken has, however, no relevance and bearing in the present case as even according to the respondent No.1 concurrence of Union Public Service Commission which is necessary before the said amendment could replace the relevant provisions of the Recruitment and Promotion Regulations of 1986 has not been obtained so far although reference was made by the Corporation for such concurrence in the year 1994.

14. Counsel for the respondent No.1 also drew my attention to the ratio of the decision in V. Balasubramaniam Vs. Tamil Nadu Housing Board & Others, wherein it was held by the Supreme Court that provision of Regulation could be given effect to if the same is adopted and approved by the competent authority although the same might not have been notified in the Official Gazette. In my considered opinion, the said decision has no relevance to the facts of the present case as in that case the Supreme Court has dealt with a matter wherein the approval of the State Government was received although Regulations were not notified.

15. Here in the present case, I am concerned with a matter where admittedly concurrence of the Union Public Service Commission has not been received and, therefore, the amendment to the Recruitment Regulations have not come into existence and are not incorporated in the Recruitment and Promotion Regulations. The submission of the learned counsel appearing for the respondent No.1 and Mr. G.D. Gupta, that the writ petition has become in fructuous is also misplaced as with the up gradation of the post to a post carrying the pay scale of Rs.3000-4500, the grievance of the petitioners is not mitigated. The petitioners have sought for promotion to the post of Resident Superintendent (I.S.M.) and Officer-in-Charge, Pharmacy Stores (I.S.M.) which now carries a pay scale of Rs.3700-5000 after the new pay scale is effected to the said post. The respondent No.1 has not taken any steps for making regular promotion to the said post and has continued to fill up the said post either by giving ad hoc promotion or placing persons on current duty charge. The said state of affairs is being continued from 1991. Therefore, for the last seven years, there has been no appointment on the regular basis to the aforesaid post. The Supreme Court in Ratan Lal Vs. State of Haryana, the tendency on the part of the State agencies to continue ad hocism and filling up post on ad hoc basis for a continuously long period. In the said case, the Supreme Court has held that such policy of ad hocism followed by the State Government for a long period resulted in breach of Articles 14 and 16 of the Constitution of India. In A.K. Jain Vs. Union of India, reported in 1987 Suppl. S.C.C. 497, the Supreme Court has directed to give up the tendency to fill up post on ad hoc basis and continue with the policy of ad hocism and directed for holding regular selection and to fill up the post on regular basis by promoting eligible candidates.

16. In my considered opinion, the principles laid down in the said decisions are equally applicable to the facts of the present case. The stand taken by the respondent No.1 is that the existing provisions of the Recruitment Regulations has become obsolete in view of the reference made by the Corporation for obtaining concurrence of the Union Public Service Commission to the amendment/revision of the existing Recruitment Regulations for promotion to the post of Resident Superintendent (I.S.M.) and Officer-in-Charge, Pharmacy Stores (I.S.M.). The records indicate that the said reference was made on 29.7.1994 and till date no concurrence has been received. It cannot be said that the existing Regulations have become obsolete and/or unworkable and only change is that the feeder post for the promotion to the post of Resident Superintendent (I.S.M.) and Officer-in-Charge, Pharmacy Stores (I.S.M.) has now an upgraded scale. Although there is a proposal to do away with post-graduate qualification as an essential qualification for promotion to the aforesaid post the said proposal is yet to become part of the Recruitment Regulations. It is not proper to continue ad hocism for a long period of time and it is always desirable that regular vacant post should be filled up through the process of selection from amongst the eligible candidates on regular basis.

17. The writ petition, therefore, stands allowed to the extent that a direction is issued to the respondent No.1 to initiate actions for holding regular selection and fill up the regular vacancies in the post of Resident Superintendent (I.S.M.) and Officer-in-Charge, Pharmacy Stores (I.S.M.) on regular basis in accordance with the provisions of existing Recruitment and Promotion Regulations. The process should be started immediately and selection shall be done and completed and promotion orders shall be issued within a period of six months from the date of receipt of a copy of this order. No other reliefs as sought for by the petitioners could be granted to them. There shall be no order as to cost.