R.K. Nehra vs Municipal Corporation Of Delhi ...
1999 Latest Caselaw 188 Del

JUDGMENT

Dr. M.K. Sharma, J.

1. By this order, I propose to dispose of the review application filed by the petitioner seeking for review of the order dated 3.4.1998 passed by this Court in C.W.P. No. 1549/1998.

2. The petitioner filed a writ petition in this Court under Article 226 of the Constitution of India seeking regularisation/confirmation of his appointment in the post of Section Officer (Horticulture). The petitioner was appointed as a Section Officer (Horticulture) as against direct quota for three months by order dated 5.11.1983. The said appointment of the petitioner was extended from time to time and the petitioner has been serving in the said post since then on ad hoc basis. This Court upon hearing the Counsel appearing for the parties held that the petitioner did not satisfy the eligibility criteria as laid down in the Recruitment Regulations and accordingly it was held that no direction could be issued to the respondents to either regularise or confirm the petitioner in the post of Section Officer (Horticulture) inasmuch, as the petitioner does not satisfy the eligibility criteria in accordance with the Recruitment Regulations.

3. According to the Recruitment Regulations for the post of Section Officer (Horticulture), the said post is a selection post and for direct recruitment to the said post, age limit is prescribed to be between 18 to 25 years which is relaxable for Government servants and employees of Municipal Corporation of Delhi upto 35 years in accordance with the instructions issued by the Central Government. The said Recruitment Regulations also contain a provision for relaxation under Regulation 13 which provides the circumstances under which relaxation could be granted, but, specifically lays down that the same shall be done after consultation with the Union Public Service Commission. Thus a consultation with the Union Public Service Commission is mandatorily necessary while amending/relaxing any of the provisions of the Regulations.

4. Counsel appearing for the petitioners submitted before me that four similarly situated persons with that of the petitioner who are also over-aged as that of the petitioner have been confirmed by the respondents and thus, there is discrimination writ large on the face of the records, so far the petitioner is concerned. He further submitted that the petitioner was appointed to the post of Section Officer (Horticulture) on ad hoc basis on 28.2.1983 whereas, the Recruitment Rules were notified somewhere on 4.12.1985 when it came into force and as such, the provisions of the Recruitment Rules laying down the eligibility criteria are not applicable to the facts and circumstances of the present case. He also submitted that the respondents could have relaxed the provisions of the eligibility criteria considering the hardship caused to the petitioner by the aforesaid action, and therefore, when all the aforesaid factors are taken into consideration, the judgment passed by this Court calls for review.

5. Learned Counsel appearing for the respondents, however, refuted all the statements and contended that all the four persons referred to by the petitioner have not been regularised as Section Officer (Horticulture). Counsel drew my attention to the reply filed by the respondents to the aforesaid review application wherein it is specifically stated that, since neither the petitioner nor Shri Dinesh Chand Sharma are eligible as being over-aged in terms of the Recruitment Regulations, they have not been regularised in the post of Section Officer. An affidavit has also been filed by the Assistant Director (Horticulture) wherein it is specifically contended that Shri Dinesh Chand Sharma, Shri Sunil Kumar, Shri Dev Chand Singh and Shri Ranbir Singh have not been regularised in the post of Section Officer (Horticulture) and their names were inadvertently shown as regular Section Officer (Horticulture). It is also contended that the said seniority list was subsequently amended/modified by deleting the said names appearing at Serial Nos. 23 to 26 of the said list and a copy of the said modified seniority list dated 30.7.1998 is annexed as 'Annexure R-MCD'.

6. The plea of discrimination in relation to the aforesaid four persons was not specifically raised in the writ petition. The said plea was for the first time taken in the review application wherein, it was stated that although Shri Dinesh Chand Sharma is similarly situated as that of the petitioner and is not eligible under the Recruitment Rules, he has been so regularised and his name is also included in the seniority list. The stand taken by the respondents as against the aforesaid plea in the reply and the affidavit makes it crystal clear that mistake was committed by the respondents in showing their names in the Seniority List and the said mistake when detected was rectified by the respondents by modifying the seniority list. The respondents have also categorically asserted that the said four persons were never regularised as Section Officer (Horticulture) and were appointed only on temporary basis.

7. In this connection, reference may be made to the decision of Chandigrah Administration & Anr. Vs. Jagjit Singh & Anr. Etc., wherein it was held by the Supreme Court that if the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order. The Supreme Court further held that an illegal order cannot constitute the basis for a legitimate complaint of discrimination and giving effect to such pleas would be prejudicial to the interests of law and would do incalculable mischief to public interest. The Supreme Court goes on to say that the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order of action is contrary to law or otherwise.

8. In view of the aforesaid contention of the respondents supported by affidavit and in the light of the decision of the Supreme Court, the grievance of the petitioner that he has been discriminated has no merit at all.

9. The petitioner when initially appointed was appointed against a direct quota on ad hoc basis on 28.2.1983. Recruitment Rules came into force with effect from 4.12.1985. Confirmation and/or regularisation in the post of Section Officer (Horticulture) is to be made under the provisions of the Recruitment Regulations which is in force as of date. The petitioner does not satisfy the eligibility criteria in terms of the aforesaid Recruitment Rules. The respondents also referred the matter to the Union Public Service Commission in terms of Regulation 13 of the Recruitment Regulations, but, the Union Public Service Commission expressed its inability to give concurrence to such relaxation. In my considered opinion, since the eligibility criteria has been laid down in the Recruitment Regulations, no direction could be issued to the respondents to either regularise or confirm the petitioner in the post of Section Officer (Horticulture) which could only be done in strict compliance of the provisions of the relaxation as provided in the Regulation for which the Union Public Service Commission is required to be consulted and on such consultation the Union Public Service Commission has refused to give their consent for regularisation of the Rules in the present case. Thus, no case for review is made out of this score also.

10. In my considered opinion, under such circumstances, it can neither be held that the said Recruitment Rules are not applicable to the facts and circumstances of the case, nor it could be said that the petitioner is entitled to a relief in the present case by relaxation of the provisions of the Recruitment Rules. No other issue arises or is pressed for my consideration. The review application stands accordingly dismissed.