K.M. Agrahari vs Govt. Of N.C.T. Of Delhi And Ors.
2002 Latest Caselaw 1511 Del

JUDGMENT

A.K. Sikri, J.

1. CWP.2883/99 was disposed of by this Court vide judgment and order dated 30.5.2002. This writ petition was filed by the petitioner impugning the judgment dated 21.12.98 passed by the learned Central Administrative Tribunal, Principal Bench, New Delhi. The judgment of the Tribunal was upheld by the aforesaid judgment dated 30.5.2002.

2. It may be stated that the petitioner was appointed to the post of Assistant Employment Officer (Technical) ('AEO' for short) on 3.9.1969. The question was whether he was entitled to be promoted to the post of Sub-regional Employment officer (Technical) ('SREO' for short). In our judgment dated 30.5.2002 we have noted that Notification dated 6.5.1965 was issued prescribing the mode of recruitment for the post of SREO, AEO etc. in exercise of powers conferred by the proviso to Article 309. It was further pointed out that these Recruitment Rules stood cancelled vide Notification dated 27.3.1968 where after by another Notification dated 25.11.1968 Rules for appointment to the post of SREO(T) and AEO(T) in the Directorate of Employment, Training and Technical Education, Delhi Administration were framed. It was held that since the petitioner was appointed under these Rules of 25.11.1968 as his appointment was made on 3.9.1969 he was governed by these Rules and not the Rules of 1965. Under the Rules promulgated by Notification dated 25.11.1968, since the post of SREO was to be filled by directed recruitment, therefore, the petitioner could not be considered for promotion to this post at all.

3. The petitioner by way of present review application alleges that an error apparent on the face of record has crept and this error led to the dismissal of his writ petition. According to the petitioner Rules of 1965 issued by Notification dated 6.5.1965 were not repealed in totality vide Notification dated 27.3.1968 inasmuch as the Notification of 27.3.1968 clearly stipulated that the Rules of 1965 were cancelled only in respect of post mentioned in the Schedule annexed therewith and the said Schedule did not include the post of SREO. In order to give further credence to this argument he pointed out that these Rules of 1965 in respect of SREO remained in force up to 22.3.1983 as was clear from Notification dated 23.2.1983 which amended Rules 1965 for the post of SREO.

4. The submission of learned counsel for the petitioner pointing the aforesaid error appears to be correct. The observations in the judgment dated 30.5.2002 at Page-26 thereof to this effect would not be correct. However, even when this factual error is corrected it would not vary the ultimate outcome. Fact remains that insofar as the petitioner is concerned he was appointed in 1969 to the post of AEO(T) under Rules which were promulgated by Notification dated 25.11.1968. Therefore, he was governed by these Rules and his further promotion would take place in accordance with these Rules. This is what we have held in our judgment. As pointed out in the judgment insofar as post of SREO under these Rules is concerned the same could be filled up by way of direct recruitment and not by way of promotions.

5. It is not disputed that the Recruitment Rules of 1965 provide for promotion to the post of SREO. The said rules also prescribed mode of recruitment to the post AEO. According to the Rules of 1965 promotion to the two categories of SREO is to be made from amongst the eligible AEO. The essential qualification for promotion is a degree preferably in Economics or Commerce. The petitioner do not satisfy the conditions of eligibility. The petitioner was appointed to the post of AEO(T) and he holds B.E. degree. The post of AEO is different from the post of AEO(T) with different qualifications. The former is eligible for promotion to the post of SREO whereas the latter is not. The petitioner was appointed in 1969 as AEO(T) under the Rules made in 1968. It may be seen there from that a degree in Electrical or Mechanical/Engineering is an essential qualification for AEO(T) and the post of SREO(T) is to be filled by direct recruitment only.

6. In the reply to review application it is also clarified that the petitioner had tried to get himself selected by UPSC for the post of SREO(T) but could not succeed and, therefore, it follows that merely because the post of SREO continued to exist even after 1968 does not mean that the petitioner could be promoted to the said post.

7. It is also stated that the Rules of 1965 were cancelled in 1983 and fresh Recruitment Rules for the post of SREO were issued vide notification dated 23.2.1983. The feeder posts for promotion to SREO are Occupational Information Officer and Assistant Career Counsellor. Therefore with effect from 23.2.1983 the post of AEO ceased to be a feeder post of promotion to the post of SREO.

8. During arguments when the petitioner was confronted with the aforesaid legal position the learned counsel for the petitioner tried to argue that since the petitioner was promoted to the post of SREO in 1994 w.e.f. 1974 after taking into consideration all the facts, such promotion could not have been revoked.

This aspect has been dealt with in the judgment dated 30.5.2002 at length and the contention of the petitioner on this account was rejected after scanning through and discussing the entire material and finding that the petitioner was considered for promotion to this post by mistake. The petitioner cannot be permitted to re-argue this aspect of the matter in review petition as the jurisdiction of this court in review is limited. We, therefore, do not find any merit in the review petition. It is accordingly dismissed.

9. However, at this stage, we may point out that while disposing of the writ petition vide judgment dated 30.5.2002 we had expressed our feeling that the petitioner had suffered immensely due to the lapses on the part of official respondent. We had directed that the petitioner be considered for promotion in his own cadre as per the Rules. We had also noted the assurance given by Mr. Shali, learned counsel for respondent No. 1 to the effect that the petitioner's case for promotion as per Rules applicable shall be duly considered. While disposing of the writ petition we had, inter alia issued the following directions :

I. The case of the petitioner for further promotions to various posts as per the Recruitment Rules applicable to him, to the considered forthwith and in any case, before the retirement of the petitioner.

II. It is hoped that while considering the case of the petitioner, the official respondents shall keep in view the aforesaid peculiar facts which made the petitioner struggling for his legitimate rights in his entire career and also keeping in view the fact that the petitioner was afterall found suitable for promotion to the post of SREO, and therefore, he would not be deprived of his legitimate promotions now in his own cadre and his case would be considered objectively, dispassionately and without any bias.

III. The petitioner shall be entitled to cost of Rs. 10,000/- even when we are dismissing the writ petition of the petitioner. We only hope that the official respondents shall not be wanting in their solemn duty which they have to discharge and the petitioner would find a smile on his face at least at the end of his career and would go home as a happy person.

10. We had expected that the petitioner would be given all promotions due to him in his own cadre and he would be be given his due at least before his retirement i.e. 30.6.2002. However, to our dismay, at the time of arguments of this petition we were informed that the petitioner was considered for promotion to the higher post by review DPC but his case for promotion was rejected. We, therefore, find that the relief given to the petitioner has in fact been rendered illusory. Result is that the petitioner does not get even a single promotion. In these circumstances, we had summoned the record of the Review DPC which was held on 24.6.2002. A perusal thereof shows that the petitioner has not been given promotions only because certain FIRs. are pending against him and certain charge-sheets are served. However, these FIRs. and Charge-sheets are of the year 2002. Review DPC was to consider the case of the petitioner for promotion to the higher post as on 1974. However, we do not want to express our final view in the matter as by doing so we would be exceeding our brief as that is not the issue before us. If the petitioner is aggrieved, it would be for him to challenge the action of the respondent by taking out appropriate proceedings before appropriate forum. However, this will not come in the way of respondents considering the case of the petitioner afresh, if the respondents so desire.

9. No orders as to costs.