N.C. Jain And Ors. vs New Delhi Municipal Council And ...
2003 Latest Caselaw 1022 Del

JUDGMENT

Vijender Jain, J.

1. Rule.

2. The writ petition has been filed by the petitioners who are employed with the respondents as Assistant Engineers (Civil) and are working on the said post for more than 24 years. Petitioners no. 3,4 & 5 are presently working as Executive Engineers (civil) on ad hoc basis. The petitioners are working on the said post for more than twenty four years against the prescribed qualifying service period of eight years for promotion to the post of Executive Engineer (Civil). It is the case of the petitioner that they are within the zone of consideration for promotion to the post of the Executive Engineer (Civil) as per seniority list 30.11.96 circulated on 16.1.97. Their grievance is that the respondents have not held regular DPC meetings since September, 1995 and the vacancies to the post of Executive Engineers (Civil) have been filled up time and again by promoting Assistant Engineers (Civil ) on ad hoc basis. As on date, 17 posts of Executive Engineers (Civil) are to be filled up through DPC on regular basis against the total sanctioned strength of 26 Executive Engineers.

3. Mr. Kaushik counsel for the petitioner contends that the petitioners are fully entitled to be considered for promotion to the post of Executive Engineer (Civil) against the regular vacancies if a regular DPC meeting is held by the respondent.

4. In the counter affidavit filed by respondent/NDMC, plea taken by the respondent is that the DPC which was held under the old recruitment rules was not approved by the UPSC and as such the promotion of Group A employees could not take place and therefore, as a stop-gap arrangement the NDMC has made ad hoc promotions of petitioners 1 & 2 to the post of Executive Engineer which is a Group A post, although there are five petitioners. The stand taken by respondent/NDMC is that the new recruitment rules framed by the NDMC have been approved by the UPSC and the rules are yet to be notified and published in the official gazette and promotion to all Group A post shall be made after the notification of the new recruitment rules. Therefore, the respondent/NDMC is unable to consider the petitioners for promotion pursuant to the old rules.

5. Counsel for the respondent no.3/UPSC has contended that consequent to the notification of the New Delhi Municipal Council Act 1994, it had become incumbent on NDMC to associate UPSC with the DPC for promotion to the Group A posts and as the NDMC has promoted certain officers on ad hoc basis without consultation of the UPSC, the UPSC could not accord its approval. Therefore, the NDMC was directed to finalize the recruitment rules for Group A in consultation with the UPSC. It is further contended by respondent no.3 that now new rules have been framed, the old recruitment rules have become inoperative and appointment can only be made pursuant to the new recruitment rules.

6. I have given my careful considerations to the arguments advanced by the counsel for the parties. In view of the fact that petitioners became eligible for promotion pursuant to the old rules and the new rules have not come into play, same are not notified. The stand of respondent no.3 is not justified that new rules have been framed, therefore, petitioners are not entitled to be considered for promotion in terms of the old rules. In State of Andhra Pradesh & Ors. Vs. Sreenivasa Rao & Ors. 1993 (3) SCC 285, Supreme Court held as under:

"Having heard the counsel for the parties, we find no force in either of the two contentions. Under the old rules a panel had to be prepared every year in September, Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion to the post of Sub-Registrar Grade II should have been made out of that panel. In that event the petitioners in the two representation petitions who ranked higher than respondents 3 to 15 would not have been deprived of their right of being considered for promotion. The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub-Registrar Grade II will be according to the new rules on the zonal basis and not on the State-wide basis and, therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules."

7. Similar view was taken by Supreme Court in P. Mahendran & Ors. Vs. State of Karnataka & Ors. and P. Murugesan & Ors. Vs. State of Tamil Nadu & Ors. . Even otherwise when the petitioners have been performing the job in the regular cadre of Assistant Engineer for last 24 years they cannot be denied consideration for promotion to the post of Executive Engineer when they became eligible in terms of the old recruitment rules of the respondent and new rules have not come into operation. There is no justification not to consider the petitioners for promotion in terms of the old rules. Therefore, direction is issued to the respondents to fill up the existing vacancies in accordance with the old rules as new rules have not yet been notified.

8. Writ petition is allowed.

9. Rule is made absolute.