K.S. Mathew And Others vs Govt. Of Nct, Delhi And Others
2001 Latest Caselaw 1164 Del

JUDGMENT

Dalveer Bhandari, J.

1. We propose to decide the aforesaid petitions by a common judgment since the questions of law involved in the afore said petitions are identical. Therefore, We deem it appropriate to recapitulate the basis facts of only CWP No.7276/99.

2. The petitioners are working as Technical Assistants and are post ed in various medical institutions/hospitals in Delhi under Delhi Administration. The petitioners are governed by the recruitment rules of the medical institutions under Delhi Administration, Delhi. The last notification was issued on 12th April, 1984 and was published in the Delhi Gazette. Eleven petitioners was promoted to the post of Technical Assistant (Grade IV) by the order dated 27.11.1998.

3. The validity of the appointment was challenged by the Delhi Diagnostics Scientists Association by filing O.A. No. 2487/98 before the Central Administrative Tribunal. This association is an association of qualified technical staff working in various government hospitals under the Government of NCT of Delhi. In the said O.A. it was alleged that the petitioners have been promoted by the Government of NCT of Delhi ignoring the relevant recruitment rules as, according to them, the candidates who have been promoted by the order dated 27.11.1998 do not fulfill the basis qualifications laid down in the rules whereas available qualified candidates have been left out arbitrarily. Admittedly, the petitioners who have been promoted do not fulfill the basis qualifications according to the rules. During the course of hearing the qualifications of each petitioner was carefully examined and this fact is not disputed that the petitioners who have been promoted do not possess the qualifications as prescribed under the recruitment rules. These promotions have been made by relaxing the recruitment rules and eligibility conditions. The petitioners who were working as Laboratory Technician in the pay-scale of Rs. 1320-2040 have been promoted to the post of Technical Assistant in the pay-scale of Rs.1400-2300 (pre revised). The petitioners who do not fulfill the eligibility conditions have been promoted by relaxing rules while ignoring other available qualified candidates.

4. The Central Administrative Tribunal (Principal Bench) after hearing counsel for the parties arrived at a definite conclusions that the power of relaxation included in the recruitment rules is not meant to be exercised in such a manner so as to throw over board the substantive provisions in the rules prescribing the essential technical and educational qualifications for the promotion post. The Tribunal came to the conclusion that the action of the respondents in the present case to resort to the power of relaxation appears to be unreasonable. The Tribunal also arrived at the conclusion that no relaxation should be given when highly qualified persons are available. The Tribunal further held that if the respondent Government wanted, then it could have changed the qualifications by amending the rules. The basis qualification for promotion, however, remained unchanged.

5. The Tribunal arrived at the conclusion that the respondents have the powers to relax the rules in a given situation. It has, however, not been stated by them that the Laboratory Technicians who have the necessary and prescribed qualifications in the rules for promotion are not available, thereby necessitating report to relaxation of the rules. The power of relaxation, has neither been exercised for the purpose of mitigating the hardship or to meet public interest as the other qualified candidates were available. The Tribunal allowed the O.A. and quashed the impugned order dated 27.11.1998. The respondents have been directed by the Tribunal to hold a review DPC for the resultant vacancies in the post of of Technical Assistants for such of those who otherwise fulfill the qualifications prescribed in the rules. The respondent have been given three months time for this purpose. The petitioners aggrieved by the order of the Tribunal have preferred this writ petition before this Court and reiterated the same submissions before this Court.

6. It is contended by the learned counsel appearing for the petitioners that the Administrator is well within his power to pass an order of relaxation of rules. Learned counsel for the petitioners submitted that the promotion orders were in fact passed in accordance with the recruitment rules applicable at the time of promotion. In the instant case the relaxation given was in accordance with the recruitment rules.

7. It is also submitted by the learned counsel for the petitioners that relaxation was granted after it was found that it was necessary and expedient for the reasons that all the petitioners were appointed prior to 1984, at the time when recruitment rules did not contain the condition regarding the educational qualifications for the direct recruits were also applicable to the promoters. It was also contended that added educational qualification, namely, diploma in Medical Laboratory Technology was not available in Delhi, except in Women Polytechnic. The respondents were planning to start these courses for men but it could not be materialised. Therefore, all the promotions after 1984 were granted to the departmental candidates by applying the rules of relaxation.

8. Mr. J.P. Verghese, the learned counsel for the petitioners strenuously submitted that the Central Administrative Tribunal has erroneously quashed the promotion order dated 27.11.1998 on the ground that the competent, authority ought not to have exercised the power of relaxation in the facts and circumstances of this case. Mr. Verghese, learned counsel appearing for the petitioners and Mrs. Meera Chhiber, learned counsel appearing for the Govt of NCT of Delhi submitted that the recruitment rules contained a provision for relaxation and the DPC has made a recommendation for promotion subject to relaxation in technical and educational qualifications by the competent authority. They submitted that there was no irregularity in the actions of the respondent Government and the Central Administrative Tribunal was clearly in error in quashing the appointments which were made after relaxing the rules.

9. Mr. Verghese and Mrs. Chhibber also submitted that the candidates who have been promoted vide order dated 27.11.1998 had acquired sufficient experience in the lower grade and hence relaxation has been granted to them in public interest. They submitted that the power of relaxation has been exercised while taking into account, inter alia, the petitioners' long experience. Learned counsel placed reliance on the judgment of the Supreme Court in J.C. Yadav and Ors. v. State of Haryana & Ors in which their Lordships have laid down that the power of relaxation must be liberally construed.

10. Mr. P.P. Khurana, learned Senior counsel for the respondent No.2, submitted that the power of relaxation is not meant to throw over board the essential conditions for appointment/promotion. The qualifications mentioned in the appropriate column pertains to direct recruit as well as promotion and it was not open to any authority howsoever high he may be to ignore the mandate of the recruitment rules framed by the executive in exercise of its legislative powers.

11. Mr. Khurana submitted that the petitioners are all unqualified candidates and do not possess the qualifications laid down in the notified recruitment rules. Mr. Khurana also submitted that the action of Govt. of NCT of Delhi is against the public interest. He submitted that the test carried out in the laboratories require extreme care, caution and expertise and unless the person conducting such tests, such as blood test, urine test, and stool test possesses the basic requisite qualification he/she is prone to make mistakes resulting in the furnishing of wrong reports not worthy of any reliance or credence. He submitted that the action of Govt. of NCT of Delhi is hit by irrationality and arbitrariness and is in violation of Articles 14 & 16 of the Constitution of India.

12. Mr. Khurana, learned counsel for the respondent in support of his submissions placed reliance on the judgment of the Supreme Court in M.Venkateswarlu and Ors vs. Govt. of A.P. and Ors in which it has been laid down that "It is settled law that the Government cannot relax the basis qualifications but in individual case they can relax, in an appropriate case, the conditions of service." He has also placed reliance on State of Orissa and Ors vs. Sukanti Mohapatra and Ors wherein Supreme Court observed that in the name of relaxation the Government is not empowered to throw the rules over board, otherwise it would violate Article 14 of the Constitution. Mr. Khurana, learned counsel for the respondent also placed reliance on Dr.M.A. Haque and Ors vs. Union of India and Ors wherein their Lordships of the Supreme Court have observed that "The recruitment rules made under Article 309 of the Constitution have to be followed strictly and not in breach. If a disregard of the rules and the bypassing of the Public Service Commissions are permitted, it will open a back-door for illegal recruitment without limit."

13. Mr. Khurana also placed reliance on Bashir Ahmed and Ors vs. State of Punjab and Ors . In this case their Lordships of the Supreme Court have observed that want of basic qualification cannot be compensated by experience. He also placed reliance on Syed Khalid Rizvi and Ors. vs. Union of India and Ors wherein their Lordships of the Supreme Court observed that no employee has a right to promotion but he has only the right to be considered for promotion, if he fulfills the eligibility condition in accordance with the recruitment rules for being eligible for consideration for promotion are not relaxable. Reliance has also been placed on R.Prabha Devi and Ors vs. Government of India and Ors wherein their Lordships of the Supreme Court observed that " A person must be eligible for promotion having regard to the qualifications prescribed for the post before he can be considered for promotion. Seniority will be relevant only amongst persons eligible. Seniority cannot be substituted for eligibility not it can override it in the matter of promotion to the next higher post. The rule in question which prescribes an uniform period of qualified service cannot be said to be arbitrary or unjust and violative of Article 14 or 16 of the Constitution".

14. Mr. Khurana has also placed reliance on State of M.P. and Ors vs. Shyama Pardhi and Ors in which it has been laid down that it the selectees did not possess the requisite qualification, they can be removed from service even after appointment and training.

15. Mr. Khurana also submitted that the order of relaxation cannot validly be passed without giving notice to all affected parties since this would be in violation of principles of natural justice. In support of his submission, he placed reliance on N.K. Durga Devi vs. Commissioner of Commercial Taxes, Hyderabad and Ors .

16. Mr. Khurana also cited Ahmedabad Municipal Corporation vs. Virendra Kumar Jayanthibhai Patel wherein their Lordships of the Supreme Court have laid down that there is no room for sympathy or equity where the recruitment in service is governed by statutory rules. The statutory rules cannot be allowed to become nugatory or otiose in order to allow the Department to favor any one leading to nepotism and arbitrariness.

17. Mr. Khurana also placed reliance on State of J & K vs. Shiv Ram Sharma and Ors wherein it has been held that there is no indefeasible right to promotion and even existing employees may be rendered ineligible for further promotion by way of change in qualifications.

18. We have heard learned counsel for the parties at length and carefully examined the judgments cited at the bar. We are of the considered view that there is no doubt that the respondent Government possessed the power of relaxation. There is also no quarrel with the proposition that the power of relaxation could be exercised in appropriate cases. According to our conclusion in the facts and circumstances of the present case, the respondent Government of N.C.T. of Delhi was not justified in relaxing the basic qualifications laid down in the recruitment rules, particularly, when qualified candidates were admittedly available. The power of relaxation in the rules cannot be construed to mean that the respondent Government can ignore the legitimate claims of the qualified candidates and relax the conditions in case of unqualified persons. In case, the respondent Government is permitted to relax the power in such manner, then it would be contrary to the settled principles of law crystallized by their Lordships of the Supreme Court in a large number of cases which have been mentioned in the preceding paragraphs.

19. In our considered opinion, the Tribunal was justified in arriving at the conclusion that the power of relaxation has neither been exercised for the purpose of mitigating hardship nor to meet the public interest as other candidates, who were qualified, were available for consideration for promotion. No interference is required with the well reasoned judgment of the Central Administrative Tribunal.

20. Therefore, C.W.P. Nos. 7276/99, 417/00 and 2099/00 are dismissed. Accordingly, C.M.Nos. 13733/99, 760/00, 965/00, and 3317/00 are also disposed of. However, the parties are left to bear their own costs.