University Of Delhi vs K.N. Pandey And Anr.
2002 Latest Caselaw 1733 Del

JUDGMENT

S.B. Sinha, C.J.

1. These two Letters Patent Appeals arise out of a judgment and order dated 28.05.2002 passed by a learned Single Judge of this Court in C.W.P. No. 2357 of 1993 whereby and whereunder the writ petition filed by the respondent herein was allowed.

The common questions of law and fact are involved in these appeals, the same are being disposed of by this common judgment.

2. The basic fact of the matter is not in dispute.

The respondent herein joined G.D. Salwan College (hereinafter for the sake of brevity referred to as, 'the said College') as a Library Attendant on 18.08.1971. He was appointed as a Library Clerk Cum Typist (in short, 'LCCT') on 18.04.1974. Indisputably, he was confirmed as Lower Division Clerk (in short, 'LDC') on 26.04.1975. The Management of the said College, however, was taken over by Delhi College of Arts & Commerce (hereinafter for the sake of brevity referred to as, 'DCAC') on 30.5.1991, where after he was promoted as Assistant/Upper Division Clerk (in short, 'UDC') pursuant to or in furtherance of the recommendations made by the Departmental Promotion Committee (in short, 'DPC') dated 16.02.1991. He was confirmed in the said post on 27.08.1992. As per the prevalent practice, the approval of the appellant/University in relation to promotion of the appointment of the respondent herein was sought for from the University, which having been refused, the said writ petition was filed.

3. The contention raised in the counter affidavit filed on behalf of the appellant/University to the said writ petition was that the respondent herein having been appointed in the Library Cadre, he could not have been brought back to the General Cadre for the purpose of grant of promotion Furthermore, according to the appellants, promotion to the respondent herein in the Library Cadre was also not permissible in view of the fact that he did not possess the requisite qualification.

4. A learned Single Judge of this Court having regard to the submissions made by the learned counsel appearing for the parties allowed the said writ petition holding:-

"the letter dated 7.5.1987 issued by the Deputy Registrar of the college to the principal of the then G.D. Salwan college mentioning the name of the petitioner with the designation of Junior Assistant cum Typist and the University accorded its approval to the fixation of pay as per the details given in the said letter. The relevant rules have been placed on record by the petitioner in respect of the non-teaching staff of the University and under the library staff the post of typist is designated. Against the said post it is stated that the JACT is appointed from the central pool. IT is in this context that the plea advanced by respondents 1 and 2 to the effect that the petitioner was promoted as a library clerk cum typist by a virtue of his working in he library cadre is negated by the petitioner.

It is also useful to refer the University circular dated 3.2.1989 providing for one time upward movement in respect of non-teaching staff. This would show that all non-teaching staff availed of this benefit and the upward movement of the petitioner was not special to the petitioner alone as would disentitle him to any further promotion.

The petitioner in fact continued to work in the post of UDC till the office order dated 10.7.2000 was issued transferring the petitioner to the original post.

In view of the aforesaid, I am of the considered view that the petitioner could not have been denied the benefit of his promotion as a UDC which was in fact granted by respondent No. 3 after due selection and the approval should have been granted by respondents 1 and 2. This is specifically so in view of the letter dated 7.5.1987 of the University of Delhi designating the petitioner as JACT. It is also to be noted that the petitioner was considered by the duly constituted DPC and was so promoted. This is under the scheme of ensuring that there is no stagnation of employees in a particular cadre. In fact that petitioner has continued to work in the said post till 2000 over a long period of time."

5. Mr. Luthra, the learned counsel appearing on behalf of the appellant/University, would submit that the learned Single Judge committed a manifest error in arriving at the aforementioned conclusion insofar as he failed to take into consideration that the respondent herein was appointed in a Library Cadre and as such he could not have been promoted to a post which belonged to a different Cadre. The learned counsel would contend that from the very beginning the appointment of the respondent herein was in The Library Cadre as he was appointed as Library Attendant, where after he was promoted as LCCT and Library Assistant respectively. In this connection, our attention has been drawn to letters dated 11.04.1974 and 17.04.1974, wherein the offers of appointment were sent by the said College to the respondent.

The said letters read thus :-

"G.D. SALWAN COLLEGE, RAJINDER NAGAR, NEW DELHI-110060.

SALWAN SCHOOL MARG,

RAJINDER NAGAR, NEW DELHI-110060.

Ref. A-5(II)/74-25/39

Dated 11th April, 74.

Dear Shri. K.N. Pandey,

Reference your application for the post of Library-clerk-cum-Typist in this college. You are requested to present yourself for written test, typing test and interview on Wednesday 17th April, 1974 at 4.00 p.m. in the college office. Please bring your own pen and original certificate.

Sd/-

(N.K. JAIN) PRINCIPAL

Shri. K.N. Pandey,

G.D. Salwan College Library,

New Delhi-110060.'

"GYAN DEVI SALWAN COLLEGE

(FOR BOYS & GIRLS)

UNIVERSITY OF DELHI

Salwan School Marg,

Rajinder Nagar,

New Delhi-60

Dated 17th April, 1974.

Dear Shri, Pandey,

I am glad to inform you that the Selection Committee has recommended your promotion to the post of Library-Clerk-cum-Typist on Rs. 110/- p.m. in the grade of Rs. 110-3-180 plus usual allowances permissible under the University Rules w.e.f. 18.4.1974 or the date on which you take charge of the post in question on one year probation subject to approval of the Governing Body and University Authorities.

Yours sincerely,

Sd/- N.K. JAIN

PRINCIPAL

Shri. K.N. Pandey,

G.D. Salwan College Library,

New Delhi-110060."

On the basis of the said letters, it was urged that the respondent herein had all along been working in the Library of the said College.

However, whence attention of the learned counsel was drawn to the letter dated 26.04.1975 wherein the respondent herein was described as LDC, it was contended that the same was done by way of a mistake.

It was further submitted that the Memorandum dated 16.02.1991 whereby and whereunder it was communicated to the respondent herein that he was promoted as Assistant/UDC was issued without jurisdiction.

Mr. Luthra would submit that the respondent herein could not have been brought back to the General Cadre from the Library Cadre and in that view of the matter the appellant/University rightly declined to grant the said approval.

The learned counsel wold further draw our attention to the fact that even in the letter dated 10.07.1992 seeking approval from the University for fixation of pay of the respondent herein in the scale of Rs. 1,200/- Rs. 2,040/-, the designation of the respondent herein was described as JACT. However, according to the learned counsel, the same was done by way of a mistake inasmuch as prior thereto he was in the Library Cadre and the subsequent letter would also show that he was in the said Cadre only.

In this connection, our attention has been drawn to para 3 of the writ petition as also some other documents.

6. Mr. Nilambar Pande, the learned counsel appearing on behalf of the respondent, on the other hand, would submit that all confusion arose because the respondent herein was posted as LCCT, which post did not exit.

The learned counsel would submit that the plea of the appellant/University that earlier approval had been granted by mistake is belied by the fact that the appellant/University in para 3 of the counter affidavit filed to the writ petition took the following stand :-

"the Service Book when originally sent to the answering Respondent for confrontation, mentioned his designation as Library Assistant. The same was subsequently changed to "JACT", when the Service Book was re-submitted by the College after his initial rejection by the answering Respondent.'

According to the learned counsel, the aforementioned stand taken on behalf of the appellant therein would clearly show that the plea of bona fide mistake as raised by the appellant herein is by way of after thought.

The learned counsel would further contend that in terms of the Rules, service of the respondent herein was required to be approved only by the appointing authority, i.e., the governing body and not by the University.

Drawing our attention to the purported Cadre Rules contained in L.P.A. No. 590 of 2002, it was submitted that the same is not correct re-production of the appropriate Rules.

7. It appears that the University Authorities are also ignorant of the Rules in this behalf.

8. Mr. Luthra, the learned counsel appearing on behalf of the appellant, despite our repeated querry, has failed to show any Rule, which would require approval of a ministerial staff appointed by the said College.

9. The learned counsel appearing on behalf of the respondent appears to be correct in his submission that in the matter of grant of approval by the University, there does not exit any statutory rule. If there does not exist any statutory rule, the question of declining the promotion made in the favor of the respondent herein now could not arise, particularly when the competent authority of the said College had taken into consideration all the relevant facts.

10. The learned Single Judge, as noticed hereinbefore, proceeded on the basis of the stand taken by the University in the aforementioned letter dated 07.05.1987. Furthermore, it appears that the case of the respondent was not considered by the appellant/University for grant of approval on a wrong premise.

11. Chapter 3 of the University of Delhi, Basic Information on Law and Procedure Relating to Governance of Colleges (Part I) provides for norms for appointment of Non-Teaching Staff.

Para 3.1 thereof provides for Ministerial Staff.

Para 3.21 thereof shows that the following would comprise of the Library staff in Normal Classes (Day classes) :-

"3.21 LIBRARY STAFF:

Librarian

- 1 Rs.700-1600

Prof. Asst +

- 1 Rs. 550-900 (+ UGC F. 1-35/67-CU dt. 18.2. 68) .

(SPA)-Library Asst.

- 1 Rs. 380-560-640

Library Asst.

- 1 Rs. 260-400 (In DULS, this post is known as Library Clerk)

Typist

- 1 Rs.260-400 (In DULS, JACT is appointed from Central Pool)

Attendants

Rs.21.0-270 (50% of the post are to be in the Sel. Gr. of Rs. 260-350)

Norms for the post of Attendants:

   Normal working hours        For library working for 12 hr. a day
 
  
  Attendants
  2... ...4
  up to 15,000 bookds

 
  "
  3... ...6
  More than 15,000 but less  
than 30000 books

 
  "
  4... ...6
  30000 bokd and above.


 

 Extended colleges:
 

Additional Staff for a library working 12 hours a day"
    No. of Books             Library Attdt.


(ii)  More than 15,000
      but less than 30,000    2
(iii) 30,000 and above        2  
 

In addition to the above staff one additional Library Attendant may be appointed in the college as for library working for less than 12 hours a day and having more than 30,000 books.

12. The respondent herein was appointed in class IV post. However, he was selected and promoted as LCCT. There is no post of LCCT as per the aforementioned Rules. So far as the post of Typist is concerned, the same in terms of the aforementioned para 3.21 is filled up from Central Pool. The respondent was, thus, posted in the Library, although he was in the General Cadre. Once he is appointed from the Central Pool, he retains his lien in the same Cadre, although he may be posted in the Library.

13. As noticed hereinbefore, even while confirming the respondent on the said post by letter dated 26.04.1975 issued by the Principal of the said College, his designation was shown as LDC, i.d., Lower Division Clerk. It is not in dispute that at the relevant time there were two modes of recruitment for JACT, i.e. 50% by way of direct recruitment from outside and 50% from class IV of the said College on the basis of written test, typing test and interview. The method of recruitment for direct recruitment as also the internal candidate was the same. As the respondent was selected for promotion in the year 1974 from class IV to LCCt, he was placed in the Central Pool.

14. Furthermore, Statute 33-A of the appellant/University reads thus :-

"the service conditions of the Administrative and other non-academic staff of every such College shall be in accordance with those laid down by the University for similar posts in the University."

15. It is not in dispute that in terms of the Rules of the appellant/University, the rule is that even JACT is appointed from the Central Pool as a Typist in the Delhi University Library System. It is not in dispute that there does not exit any post as LCCT. Posts of Library Clerk and Typist are two different posts. Furthermore,t he post of Library Clerk/Assistant is higher that the post of Typist. The said fact would appear from Annexure P-14 (p. 98) appended to the counter affidavit filed on behalf of the respondent wherein in relation to Evening College, it is stated :-

"Evening College :-

 Librarian     1     Rs. 700-1600
Library Asst. 1     Rs. 380-640
Typist        1     Rs. 260-400
Attendants*   2     Rs. 210-270 Up to 15000 books
              3     More than 1500 books
                    but less than 30000
              4     30000 books and above
 

* 50% of the posts of attendants are to be in the Sel. Gr. (UGC letter No. F. 47-33/67 (CU) dated 15.2.68)"

It is also not in dispute that once the respondent is found to have been appointed in the Ministerial Cadre, he had rightly been promoted by the DPC in terms of the scheme introduced by the appellant/University. It also appears that pursuant to or in furtherance of the same, only University granted fixation of pay under one upward movement to the respondent herein on 07.05.1987 in response to the letters written by the said College. Therein also the designation of the respondent was described as JACT by the appellant/University.

16. It is also pertinent to mention that even in a similar case, the DCAC in a Memorandum dated 16.02.1991 made recommendations in respect of one Shri Balwan Singh Dagar, who was promoted to the post of JACT from the post of Senior Library Attendant and the appellant/University has approved the same.

17. For the reasons stated above, the impugned judgment must be upheld.

We may notice that the appellant in LPA 590 of 2002 was appointed in the year 1994 subject to the result of the writ petition and in view of the fact that the writ petition stands allowed, necessary consequences would follow.

These appeals are accordingly dismissed. However in the facts and circumstances of the cases, there shall be no order as to costs.