Rajinder Pal Singh Lamba And ... vs The Administrator Of Delhi & Ors.
1998 Latest Caselaw 1011 Del

ORDER

K. Ramamoorthy, J.

1. These two writ petitions involve a common question. Therefore, they are disposed of by this common judgment.

2. The petitioner in CWP. 1939/88 was appointed as Lower Division Clerk on the 1st of October, 1972 in the Office of the District & Sessions Judge, Delhi, respondent No. 3. In 1975 he obtained his graduation degree from the Delhi University.

3. The petitioner in CWP. 1152/88 was appointed as Lower Division Clerk on the 24th of November, 1969 in the Office of the District & Sessions Judge, Delhi, respondent No. 3. In 1974, he obtained his graduation degree from the Delhi University. It is not disputed that there were number of vacancies in the post of UDC. Whenever a Lower Division Clerk obtains his graduation degree, he is entitled to be considered for promotion in accordance with Rule VI, Chapter 18-A, High Court Rules & Orders, Vol. I framed under Section 35(3) of the Punjab Courts Act for subordinate Services attached to Civil Courts other than the High Court. Rule VI reads as under :-

"Promotion-(1) Appointments to the higher grades of the ministerial establishment should ordinarily be made by seniority from lower grades, provided that the official who would thus receive promotion possesses the prescribed educational qualifications and is otherwise fit to perform the duties to which he will be promoted; for which purpose tests may be imposed. This rule does not apply to such posts as that of stenographer; for which special qualifications are needed; but preference should be given to Officers with such qualifications who are already working in the lower grades:

Provided that permanent vacancies in the 75-5-125 grade shall be filled by the District and Sessions Judges in the following rotation:_

(i) By selection on merit out of graduates who have at least two years' experience in the work of the office, if there is no suitable graduate who fulfills this condition an 'outsider' graduate may be appointed, but he must be one who normally resides within the jurisdiction of the District and Sessions Judge.

(ii) & (iii) By normal promotion in the office, i.e., the appointment of the next senior man whether graduate or non-graduate subject to his fitness:

Provided further that the rotation may be modified in very exceptional cases when the direct appointment of a graduate would mean the ousting of a man, who had been officiating quasi-permanently in the post concerned for an appreciable period. What is an appreciable period will depend on the circumstances of each case. After such a modification, the rotation should be restored as soon as possible.

(2) In making promotions, preference may invariably be shown to officials who are known to be strictly honest. No promotion should be given and no recommendation for promotion made in the case of an official who does not possess and maintain a reputation for strict integrity. Efficiency without honesty is not to be regarded as constituting a claim to promotion."

4. It is stated in paragraph 8 of the appeal preferred to the Hon'ble the Chief Justice, Delhi High Court:

"According to my information Shri Bulaqi Ram Soni, Shri K.C. Jain, Shri M.K. Bhatnagar, Shri Shamlal Takiyar and Shri Prikshat Raj had been promoted from IDC to UDC under the rule of rotation contained in the proviso below Rule VI ibid."

5. This Court, dealing with matter on 'Administrative Side', allowed the appeals preferred by the two petitioners and another LDC, Mr. S.K. Gupta. The appeals were allowed on the 2nd of March, 1988. The learned Judge who disposed of the appeals held that the petitioners were entitled to be considered for promotion as per Rule VI, referred to above, but the learned Judge held that:

"The promotion of the appellants, if any, will, therefore, be prospective only."

6. The learned Judge was also of the view that the allowing of the appeals would not result in some persons being reverted.

7. Inter alia, the view taken by the learned Judge is also challenged in the writ petition. The petitioner in CWP. 1939/88 was promoted as UDC by Order dated 30.1.1992 with effect from that date. The petitioner in CWP. 1152/88 was promoted as UDC by order dated 25.4.88 with effect from 1.4.88.

8. Mr. N.L. Bareja, the learned counsel for the petitioners, submitted that the rule is statutory in character and it cannot be disputed by the respondents, and, therefore, the respondents out to have acted in accordance with statutory rules. In law, there was no obligation on the part of the petitioners to apply to the authority concerned that they should be promoted.

9. The learned counsel for the petitioner, Mr. N.L. Bareja, relied upon the judgment in "M. Viswanathan Vs. Government of Tamil Nadu & Others", 1989 LAB I.C. 1567. The High Court of Madras observed:-

"Promotion or a legitimate right to which an employee is entitled ought to have been given to the employee even without asking. The qualification and other particulars of an employee are entered in his Service Register. Whenever vacancies arise, it is the duty of the authorities to consider the persons who are qualified for those posts and who are eligible for promotion. Merely because relevant entries regarding the petitioner's qualification have been made on 26.1.1977, it does not mean that the petitioner has lost his rights of promotion. The Service Register is maintained in the School itself and the School is inspected by the authorities concerned. Therefore, it cannot be said that the entries in the Services Register had escaped the notice of the authorities. Therefore, when the petitioner's statement that the authorities were fully aware of the petitioner to be promoted, cannot be brushed aside as unreasonable or take steps for considering the qualified persons for the suitable post as and when vacancies arise. It is not for employee to apply for the same. So the contention raised on behalf of the respondents that the petitioner had kept silent for nearly 11 years is not acceptable and the same is not a ground to reject the justifiable request to promote to the post for which he had been qualified when it had fallen vacant."

10. It is well settled that no authority could act in violation of statutory rules. Therefore, according to the learned counsel for the petitioner Mr. N.L. Bareja, the petitioners ought to have been considered for promotion when vacancies were available in 1976. The fact that the petitioners have vast experience cannot be a matter of any dispute.

11. The learned counsel for the respondents 2 & 3, Mr. Arun Arora, submitted that the respondents 2 & 3 had acted in accordance with orders passed by this Court on the 'Administrative Side' and the petitioners were given promotions, as mentioned above, after consideration of their claims, and the petitioners cannot have any grievance. The learned counsel for respondents 2 & 3, Mr. Arun Arora, vehemently submitted that the petitioners are guilty of latches.

12. I am not able to accept the submissions made on behalf of respondents 2 & 3. Once there is a statutory rule, the respondents 2 & 3 are obliged to follow the same when there were number of vacancies in the posts of UDC. In 1975-76, the claims of the petitioners must have been considered in accordance with statutory rules. When the petitioner claimed promotion, the answer is that they had not approached the Court in 1976 or 1977. Such an argument cannot at all be countenanced. The fact that the petitioner deserved promotion cannot be a matter of any dispute because they have been promoted and they are working as UDCs. The service condition of civil servants cannot be affected by the way in which it has been done it comes within the mischief of Articles 14 & 16 of the Constitution of India. Accordingly I am of the view that the petitioners ought to have been promoted w.e.f. 1.1.1976 as UDCs. However, the petitioners are not entitled to any monetary benefits.

13. It is hereby declared that the petitioners are deemed to have been promoted as UDCs w.e.f. 1.1.1976 and that shall be the basis on which their claims for future promotions in the ladder of service would be considered by respondents 2 & 3. To the extent indicated above, the writ petition is allowed.

14. The respondents 2 & 3 shall give the benefit of this judgment to the other similarly situated persons like the petitioners who had become graduates before 1.1.1976.

15. There shall be no order as to costs.