The Secretary, Government Of ... vs R.S. Sisodia And Anr.
2002 Latest Caselaw 1788 Del

JUDGMENT

S.B. Sinha, C.J.

1. This writ petition is directed against a judgment and order dated 18.01.2000 passed by Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter for the sake of brevity referred to as, 'the Tribunal') in O.A. No. 123 of 1998, whereby and whereunder the Original Application filed by the respondent No. 1 herein questioning the legality of an order dated 04.12.1995 in terms whereof the respondent Nos. 2 and 3 have been promoted from the post of Assistant Commissioner (Fisheries) to the post of Deputy Commissioner (Fisheries) on purely temporary and ad hoc basis w.e.f. 08.11.1995 and 17.11.1995 respectively, was allowed.

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

The respondent No. 1 herein was appointed as Assistant Commissioner (Refrigeration) as a direct recruit through the Union Public Service Commission (in short, 'UPSC') in the Department of Agriculture and Cooperation (in short, 'the said Department') on 26.12.1979. Consequent upon formation of the Ministry of Food Processing Industries (in short, 'the said Ministry') in the year 1988, 10 posts were transferred from Fisheries Division of the Department of Agriculture & Cooperation to the said Ministry along with the work and the incumbents of the posts including the respondent No. 1 herein.

According to the petitioner, the 3 posts of Deputy Commissioner, namely, Deputy Commissioner (Fisheries Planning), Deputy Commissioner (Inland Fisheries and Deputy Commissioner (Education & Trade) in the said Department had one common Recruitment Rules. However, out of the said three posts, one post of Deputy Commissioner (Education & Trade) was transferred to the said Ministry whereas the other two posts thereof remained with the said Department. The said two posts in the said Department were later on re-designated as Deputy Commissioner (Fisheries).

According to the petitioner, the said Department requested the said Ministry to frame the Recruitment Rules in respect of the said transferred post. However, the said Ministry did not amend the Recruitment Rules being the time consuming process and insisted that the Officers holding the transferred posts may also be considered as and when the posts in the said Department fell vacant.

Two post of Deputy Commissioner (Fisheries) indisputable fell vacant in the said Department on or about 16.05.1994 and 01.03.1995 respectively.

Admittedly the said Department sought for advice of the Department of Personnel & Training ( in short, 'DoPT' ) as to whether Shri J.P.S. Mehrotra, the then Assistant Commissioner in the said Ministry could be considered for the vacancy, which fell vacant on 01.03.1995 in the said Department. However, the said DoPT advised that pending amendment of the Recruitment Rules, the posts in the said Department as well as the said Ministry may continue to be filled in accordance with the existing Recruitment Rules without excluding the transferred Officers of the said Ministry.

Accordingly, a meeting of the Departmental Promotion Committee (in short, 'DPC') for promotion to the post of Deputy Commissioner (Fisheries) was held on or about 06.10.1995. On or abut 04.12.1995, an order was issued promoting two Assistant Commissioners (Fisheries), namely, Shri Mehrotra and Shri G.D. Chanderpal in the said Department. However, questioning the said order dated 04.12.1995, the respondent No. 1 herein filed an Original Application before the Tribunal on 29.01.1996.

3. The learned Tribunal in its impugned judgment has inter alia held:-

1) The Recruitment Rules, which were notified in the year 1988 for the posts in the said Department, no order or notification continuing the application of the said Recruitment Rules to the post in the said Department, had been notified;

2) In a similar Original Application being O.A. No. 56 of 1997 decided on 19.05.1997, it was observed that the Recruitment Rules for filing up the posts had not been finalised wherein it was held that the eligibility of the respondent to hold the highest post could not be tested in the absence of recruitment rules; and

3) The ratio of the order of the Tribunal in O.A. No. 56 of 1997 would apply equally to the post of Deputy Commissioner (Fisheries).

4. Mr. Gangwani, the learned counsel appearing on behalf of the petitioner, would submit that the leaned Tribunal proceeded entirely on a wrong premise insofar as it failed to take into consideration that although no Recruitment Rules were framed in relation to the said Department, the Recruitment Rules, which were applicable to the said Ministry, continued. The learned counsel would contend that the respondent herein does not fulfilll the requisite qualification for holding the post of Deputy Commissioner (Fisheries) and as such question of his being promoted to the said post would not arise. However, he would submit the case of the respondent should be considered for promotion for the post of Deputy Commissioner (FVC and Engineering). The learned counsel further states that the concession of the counsel to the effect that the Recruitment Rules of the said Ministry ceased to have any application in the earlier Original Application, was mistakenly made.

5. Mr. Gurnani, the learned counsel appearing on behalf of the respondents, on the other hand, would contend that as soon as the said post was transferred from the said Department to the said Ministry, the Recruitment Rules ceased to have any application and, thus, it was incumbent upon the concerned authorities to frame new Recruitment Rules. In absence of such recruitment rules; the learned counsel would contend, neither any qualifications therefore could be prescribed nor any terms and conditions could be laid down therefore.

6. The case at hand clearly depicts sordid state of affairs. Unfortunately in this case the petitioner had been taking different stands. It is not in dispute that the respondent filed the aforesaid O.A. No. 56 of 1997. He prayed for an interim order in the said application. By an order dated 19.02.1997, the learned Tribunal observed:-

"... The learned counsel for the respondents submitted that the recruitment rule being followed is that of dated 9.4.88 and admittedly it is not a recruitment rue for the purpose of this post, which are now advertised but an advice from DOPT, such recruitment rules are being applied by an appropriate amendment to the said recruitment rules under Article 309. His submission is that the said amendment is under way but it is yet to be issued."

7. From the order dated 19.5.1997, it appears that the learned Tribunal observed:-

"4. The learned counsel for the respondents stated that the vacancy now being decided to be filled up, is that of Deputy Commissioner (Fisheries) and the eligibility of the petitioner is to the post of Deputy Commissioner (Refrigeration). It was vehemently opposed by the learned counsel for t he respondents that the petitioner is not eligible for the post which are being proposed to be filled up. We are unable to accept the submission for the reason that eligibility can never be tested against the post which the rules are is yet to be created. In any event,we find on record that it has been proposed that the post is to be filled is neither in the "fisheries" side, nor in "refrigeration". It will have to be given a new and appropriate nomenclature in the Ministry of Food Processing Industries and the appropriate name could only be the nomenclature in the nature of "Deputy Commissioner - Food Processing". We are not imposing any new idea on the respondent's right to baptize the post with an appropriate nomenclature and it will be lawfully left to the respondents to consider the appropriate nomenclature. At the same time, it shall not have an effect of excluding the petitioner's claim altogether.

5. Our only anxiety is till then, that is to say, the till the finalisation of the recruitment rules, the post can be filled up temporarily and consider the petitioner as well against post, which they may describe by any name.

6. We also find from the record that the Ministry of Personnel, Dept. of Personnel and Training, has suggested to constitute a common cadre both in the Ministry of Agriculture and Ministry of Food Processing Industries, when the recruitment rules are finalised. We are now concerned with the devious exclusion of the petitioner by bringing an outside through 'transfer on deputation' under a obsolete rule which is according to the petitioner is not applicable to the present case. With these observations this OA is disposed of. There is no order as to costs."

8. The petitioner herein did not take any steps for the last 14 years to make new recruitment rules. It is beyond any doubt that despite absence of the Recruitment Rules, others posted in the said Department were being promoted, whereas the case of the petitioner had not been considered therefore.

9. It is evident that only because of the aforementioned submission made on behalf of the Union of India, the leaned Tribunal in the impugned judgment did not go into the merit of the matter and issued the following directions:-

"9. In the result, we dispose of this O.A. with a direction that the respondents will hold a review DPC to consider the case of the applicant for promotion against one of the post of Deputy Commissioners. If the applicant is found fit for such promotion, he will be promoted from the same date as respondents 2 and 3, i.e., 19.2.1996 and will be treated as senior to them. The applicant will also be entitled to all consequential benefits. There shall be no order as to costs."

10. The question, which arises for consideration, is as to whether the respondent herein fulfillls the requisite criteria for being promoted to the post of Deputy Commissioner. (Fisheries). Despite the fact that concessions have been made, we feel, in the event it is held that the Recruitment Rules still survive and had not become obsolete wherein qualifications are prescribed, the case of the petitioner could not have been considered.

11. The learned counsel appearing on behalf of the respondent placed before us certain documents to show that the respondent had been described as Assistant Commissioner (Fisheries) but despite such documents, we are of the opinion that in the event it be held that the Recruitment Rules are still operative, the same would not change the legal position. For the purpose of recruitment to a particular post, the minimum educational qualification prescribed therefore must be fulfillled. Such minimum educational qualification is prescribed having regard to nature of the job required to be performed by the concerned employee. A candidate may otherwise be highly qualified or he may have sufficient experience, but once the minimum educational qualification is laid down by reason of a statutory rule, the same cannot be given a go-bye.

12. Although we have heard the learned counsel appearing for the parties at great length, having regard to the fact that as very vital questions raised in this matter had not been addressed by the learned Tribunal, we are of the opinion that the matter should be considered afresh by it.

The petitioner herein, however, in the meantime should consider the matter relating to publication of Rules as expeditiously as possible and preferably within a period of 2 months from the date of receipt of copy of this order.

13. We may observe that we have deliberately not adverted to the questions raised in this writ petition in great details so that it may not be mistaken that we have expressed our opinion in the matter one way or the other. However, having regard to the fact that the respondent herein has been deprived of promotion for the last 14 years and although his juniors, who otherwise may be qualified had been promoted, we request the learned Tribunal to hear out and dispose of the matter as expeditiously as possible and preferably within a period of two months from the date of communication of this order.

14. This writ petition is accordingly disposed of with the aforesaid observations and directions. However, in the facts and circumstances of the case, there shall be no order as to costs.