R.L. Chawla vs University Of Delhi
1999 Latest Caselaw 21 Del

ORDER

K. Ramamoorthy, J.

1. The writ petitioner is now claiming his right to be considered for the upgradation as Technical Officer in the Zoology Department. The third respondent which belongs to schedule caste claims that the post must be given to a schedule caste candidate and being a schedule caste candidate his case should be considered and the petitioner's case cannot be considered for the said post. The petitioner became Senior Technical Assistant on 13.5.1977. The third respondent became the Senior Technical Assistant in October 1991. Upon considering his appointment as Senior Technical Assistant the Executive Council in its resolution dated 5.10.1991 had noticed :

"The resolution be rewritten to read as follows :

60/ Resolved that :

1 to 2

x x x x x

the following recommendations of the Committee constituted by the ViceChancellor in pursuance of the decision of the Executive Council (vide E.C. Resolution No. 62 dated 8.6.91) for examining the case of S/Sh. Laxmi Chand and Bishalmani Thapliyal for promo tion to Senior Technical Assistant and Technical Assistant respectively in the Department of Zoology by relaxing the require ment of minimum academic qualification (viz. Hr. Sec. or equiva lent examination with Science) and the case of Shri S.N. Sidhwa ni, Projectionist of the Department of Social Work for his place ment in the pay scale of Rs.20003500 (personal to him), be accepted :

Keeping in view the : facts and after going through the qualifi cation and length of service of S/Shri Laxmi Chand and Bishalmani Thapliyal the Committee recommended that in their cases also the academic qualifications be relaxed as recommended by the Depart mental Selection Committee. The Committee did not, however, feel very happy about the large scale of relaxation of educational qualifications for these Technical posts. The committee considered all aspects and decided to recommend the following guide lines for future."

2. On 2.7.1990 the University of Delhi wrote to the Head of the Department of Zoology in the following terms :

"I am to inform you that the Executive Council vide its Resolu tion No. 15 dated 25.5.1990, on the recommendation of the Commit tee, constituted by the Council, at its meeting held on 28.1.1990 resolved as under :

i) that the following posts of Senior Laboratory Attendants be upgraded to those of Junior Laboratory Assistants in the follow ing Departments:

Name of the Department No. of posts.

Kindly note that no new additional posts will be created at any level as a result of upgradation of above posts. The Department should evolve suitable work norms, to ensure that the existing workload was distributed and carried on amongst the existing staff. It has also been decided that the upgraded posts of Junior Laboratory Assistants would be filled up, by following the exist ing procedures prescribed for filling up such posts of Junior Laboratory Assistants.

ii) that all the Senior Technical Assistants or equivalent cadres in the Science Departments and in the Departments other than Science, whether in the core scale or in the selection grade be placed in the pay scale of Rs.7001600 (prerevised) revised to Rs.22004000 under One Time Upward Movement Scheme w.e.f. 1.1.1986, after completion of 8 years of continuous regular satisfactory service till 1.4.1989, if otherwise eligible.

The pay of the concerned employees will be fixed at the same stage in the higher scale, as in the lower scale, provided the two stages are identical. In case of those, who are drawing pay in the lower scale, at the stage, which is not a stage in the higher scale, the pay will be fixed in the stage, immediately next above in the higher scale.

The employee (s) concerned will have the option to opt for the next higher scale under One Time Upward Movement from the date of their eligibility or on the date of earning their next increment in the existing scale, within a month from the date of issue of this letter.

All concerned, may kindly be informed accordingly.

iii) that the two posts of Technical Officer in each of the Science Departments, which have Centres of Advance Studies (i.e. Physics, Chemistry, Botany & Zoology) and one post of Technical Officer in the remaining Science departments (i.e. Anthropology and Geology) be created by upgrading the post of Senior Technical Assistants. For purpose of upgradation of the posts of Senior Technical Assistants, other posts in the Science Department having the same grade would also be included. Further more, the seniority list for the said purpose of promotion to the upgraded post would comprise of all the Senior Technical Assistants and other cadres having equivalent scale of pay prepared on the basis of their entry in the said scale of pay (the seniority list would be prepared for each Department separately). The upgraded posts of Technical Officers shall be filled up by following the usual screening procedure. No additional post of Senior Technical Assistant or equivalent cadres will be created at any level, as a result of the upgradation of the post of Senior Technical Assist ant or equivalent cadres to that of Technical Officer."

3. From this it is clear that two posts of Technical Officers were to be upgraded and that upgradation was to be done following usual screening procedure. The post fell vacant on 1.7.1993 but no promotion was given to the petitioner. Subsequently, the case of the petitioner was also recommended for promotion by the authorities concerned. Ultimately, on 29.10.1996 the Selection Committee of the Department of Zoology met and while considering other matters considered the case of the petitioner and had said: "The Committee unanimously endorsed the decision of the Head of the Department for recommending the case of Shri R.L. Chawla for promotion as Technical Officer with retrospective effect of July 1, 1993."

4. On 27.12.1996 the Deputy Registrar (Estab.) University of Delhi wrote the Head of the Department of Zoology in the following terms :

"Sub: Promotion of Shri Laxmi Chand, Senior Technical Assistant as Technical Officer.

Please refer to your letter No. Z/Estab.(NT)/PF4/3 dated 10.12.1996, on the subject above.

The matter has been considered and I am directed to inform you as under :

1. Shri K.R. Sharma was promoted as Technical Officer w.e.f. 15.10.1993. He was granted antedation as Technical Officer (under Resolution No. 65 dated 23.4.1994 of the Executive Council) on completion of his 20 years' service as Senior Technical Assist ant. On his retirement on 31.10.1996, the substantive post of Technical Officer held by him has fallen vacant in your depart ment.

2. Shri R.P. Joshi completed 20 years of his service as Senior Technical Assistant on 20.5.1989 and therefore he was given promotion as personal to him under Executive council Reso. No. 65 dated 23.4.1994 w.e.f. 1.1.1993 as Technical Officer. The post of Senior Technical Assistant has fallen vacant on his retirement on 31.11.1995 against which Mrs. Arun Bala has been promoted.

3. The Executive Council has laid down:

a). Under Resolution No. 178(2) dated 9.11.1991 circulated vide this office letter dated 11.12.1991 that for promotion to the post of Technical Officer an employee must have 8 years experience as Senior Technical Assistant and b). under Resolution No. 200 dated 24.3.1983 as under :

The Committee considered the question of reservation @ 15% for Scheduled Castes and 7.1/2% for Scheduled Tribes both at the level of initial recruitment and promotion to the nonteaching posts. After considering the matter from all its aspects, the Committee recommended that instructions of the Govt. of India with regard to posts which are filled by promotion could be accepted with the stipulation that an employee with at least five years' service in a cadre will be considered fro promotion pro vided he has good confidential reports for the last three years as laid own by the Estab. Committee of the University. The Committee further recommended that the instructions of the Govern ment of India be followed in respect of all nonteaching position which are filled by open selection".

As the post of Technical Officer as per the roster is reserved for Scheduled Caste category, Shri Laxmi Chand, Senior Technical Assistant who belongs to Scheduled Caste category has therefore become eligible for consideration for promotion.

 4. As regards the roster position in respect of the persons who were promoted as Technical Officer in the past, it is stated as under:      40 Point Roster:
     Point     Category            Name of the         Date of
     in the                        Official
     Roster                        Promoted     
      
     1.        Scheduled caste     C/F
     2.        Un-reserved         Sh. Prem Chand      26.11.1990
     3.        Ex-serviceman       Sh. O.P. Vishnoi    26.11.1990
     4.        Scheduled Tribe     C/F
     5.        Un-reserved         Sh. R.P. Arora      4.1.1991
     6.        Un-reserved         Sh. K.R. Sharma     15.10.1993

 

I shall, therefore, be grateful if you kindly arrange to send your specific recommendations in respect of Shri Laxmi Chand, Senior Technical Assistant regarding his promotion to the post of Technical Officer for consideration of the Screening/ Evaluation Committee at its next meeting."

The petitioner has presented the petition on 22.1.1997 apprehend ing that the third respondent might be appointed and, therefore, prayed for the following reliefs :

"i) a writ of prohibition or any other appropriate writ, order or direction may kindly be issued in favour of the petitioner and against the respondents directing the respondents no. 1 and 2 not to promote respondent no. 3 to the upgraded post of Technical Officer by superseding or bypassing the claim of the petitioner to the present available upgraded post of Technical Officer in the department of Zoology, University of Delhi and further opera tion of letter dated 27/31.12.1996 No. Estab.III/Zool/TD/96/50421 may kindly be stayed;

ii) a writ of mandamus or any other order or direction or writ may kindly be issued in favour of the petitioner and against the respondents directing respondents no. 1 and 2 to promote the petitioner to the upgraded post of Technical Officer w.e.f. 1.7.1993.

OR IN THE ALTERNATIVE

may direct the respondents no. 1 and 2 to give promotion to the petitioner w.e.f. 1.7.1993 by following the procedure of refer ring the case of the petitioner to the Screening/Evaluation Committee and then to the Executive Council, with consequential benefit including arrears of pay so arrived at accordingly, w.e.f. 1.7.1993;

iii) a writ of Certiorari may kindly be issued in favour of the petitioner and against the respondents quashing 40 point roster insofar as,if the same is, applicable to the upgraded post of Technical Officer, being violative, discriminatory, arbitrary and whimsical of articles 14 & 16 of the Constitution of India."

5. The question that should be established by the University of Delhi i.e. the Appointing Authority having control over the affairs is whether the post should be given to a scheduled caste candidate. Except stating that it is to be filled up by the scheduled caste candidate in the counter affidavit nothing has been mentioned. Though in the letter dated 27.12.1996 reference is made to 40 point roster, the University had not considered whether that could apply to a case of upgradation. The University must be aware of the difference between the promotion and upgradation. Promotion involves a candidate being appointed from the lower cadre to a higher cadre and by that process vacancy is created in the lower cadre but in the case of upgradation no vacancy is created. The person serving in the lower cadre is given benefits of the upgradation and that is what has been done by the University in this case. To such a situation, there is no question of applying of 40 point roster. That is the mistake committed by the Deputy Registrar (Estab.) while writing a letter dated 27.12.1996. The third respondent asserts that the Deputy Registrar had taken the correct view and since the upgradation of the post in 1990 no scheduled caste candidate can be appointed as Senior Technical Officer and the claim of the scheduled caste candidate has been ignored and now the chance of the third respondent sought to be defeated by the claim of the petitioner. According to the learned counsel for the third respondent in law the claim of the third respondent alone shall be considered. The learned counsel for the third respondent referred to the judgments of the Supreme Court in T. Devadasan Vs. Union of India and another, and S.S. Sharma and others Vs. Union of India and others, . Having regard to the circumstances in which the two posts have been upgraded by the University in 1990 and the qualification of the third respondent the claim of the third respondent cannot at all be accepted. The Supreme Court in Post Graduate Institute of Medical Education and Research, Chandigarh Vs. Faculty Association and Ors., had considered the scope of the 40 point roster. However, when we are concerned with the case of upgradation the ratio decidendi in the judgments of the Supreme Court would not at all apply and, therefore, I am of the view that it is not necessary to dilate of the facts and circumstances under which those cases had arisen. The petitioner alone is entitled to be considered for the post of Technical Officer.

6. The learned counsel for the third respondent brought to my notice an office memorandum No. 36012/18/95Estt. (Reg.) Pt. II dated 13.8.1997 from Government of India, Ministry of personnel, Public Grievances & Pensions Department of Personnel & Training, which reads as under :

"Sub: Reservation for the SCs/STs in promotion.

The undersigned is directed to invite attention to this Department's O.M. No. 36012/37/93Estt.(SCT) dated 19.8.1993 clarifying that the Supreme Court had, in the Indira Sawhney case, permitted the reservation, for the Scheduled castes and the Scheduled Tribes, in promotion, to continue for a period of five year from 16.11.1992.

2. Consequent to the judgment in Indira Sawhney's case, the constitution was amended by the constitution (SeventySeventh Amendment) Act, 1995 and Article 16(4A) was incorporated in the Constitution. This Article enables the State to provide for reservation, in matters of promotion in favour of the Scheduled castes and the Scheduled Tribes, which in the opinion of the state are not adequately represented in the Services under the State.

3. In pursuance of Articles 16(4A) , it has been decided to continue the reservation in promotion, as at present, for the scheduled castes and the scheduled tribes in the services/posts under the Central Government beyond 16.11.1997 till such time as the representation of each of the above two categories in each cadre reaches the prescribed percentage of reservation whereaf ter, the reservation in promotion shall continue to maintain the representation to the extent of the prescribed percentages for the respective categories.

4. All Ministries/Departments re requested to urgently bring these instructions to the notice of all their attached/subordinate offices as also the Public Sector Undertakings and Statutory Bodies etc."

7. The learned counsel also referred to Article 16(4) of the Constitution of India. There can be no exception to the view taken by the Government of India and the object enshrined in the Article 16(4) of the Constitution of India has to be enforced. And that would depend upon the number of posts, the nature of appointment and other considerations. Therefore, the office memorandum dated 13.8.1997 is not relevant for the present discussion.

8. Accordingly, I am of the view that the Department Promotion Committee should consider the case of the petitioner for upgradation w.e.f. 1.7.1993 having regard to his qualification and having regard to the recommendations already made on 29.10.1996. The University shall consider and pass appropriate orders on or before 30.4.1999.

9. The writ petition stands allowed to the above extent. There shall be no order as to costs.