S.R. Rana vs Delhi Sc/St/Obc M/H. Finan. And ...
2006 Latest Caselaw 689 Del

JUDGMENT

S. Ravindra Bhat, J.

CM No. 4550/2006

Learned counsel appearing for respondent has no objection to the application being allowed and the Writ Petition being heard today. The application is accordingly allowed.

WPC No. 17167/2005

1. Issue Rule. Mr. Atul Kumar Advocate appearing on behalf of respondent waives notice of the Rule. With consent of counsel for parties, the matter was heard finally.

2. The petitioner seeks directions to the respondent, Delhi SC/ST/OBC, Minority/Handicapped Financial and Development Corporation Limited (hereinafter referred to as 'the Corporation'), to promote him to the post of Manager (General) and also to prohibit it from filling up that post except strictly in accordance with Recruitment Rules as existing on date.

3. The admitted facts are that the petitioner had joined services of the Corporation; he was promoted to the post of Deputy Manager(General) on 19.3.1996. Pay revisions took place in respect of various posts as also in the organization itself. The petitioner has produced a copy of the letter/order dated 1.12.2004 reflecting the correct position as also his substantive right to the post with effect from 19.3.1996.

4. The promotional cadre to the post of Deputy Manager (General) is Manager (General). The relevant portion of the Recruitment Rules which prescribes the method of recruitment and also eligibility, is extracted below:-

11. 100% by promotion failing which 25% by transfer on deputation basis failing which by direct recruitment.

12. Promotion from the cadre of Dy. Manager of all disciplines except Finance and Accounts Cadre in the scale of Rs. 2000-3500 having 8 yrs. regular services in the grade and P.S. To M.D./Chairman having 10 years of regular service in the grade of 2000-3200.

5. It is contended by Mr. Aneja that the petitioner became eligible for the post on 19.3.2004 after having completed 8 years of regular service in the grade, and therefore, had to be considered for promotion. The petitioner is admittedly a Scheduled Caste (SC) candidate. However, even before his candidature (as indeed the other eligible candidates' cases) could be considered, the case of one Sh. S.P. Jaiswal, who is both younger in age as well as junior to the petitioner, having joined as Deputy Manager on 26.9.98 - was considered and he was granted ad hoc promotion to the post of Manager (General) with effect from 21.1.2003.

6. The counsel has relied upon a background note circulated to the Departmental Promotion Committee which was scheduled to be held on 10.8.2005. That note highlighted that Mr. Jaiswal had been promoted on ad hoc basis, though the petitioner and other candidates were senior to him and that the petitioner as well as the other candidate namely Ms. Sunita Khatolia were members of Scheduled Caste. The note had recommended petitioner's case for favorable consideration.

7. It is submitted on behalf of the petitioner that even though the Recruitment Rules clearly mandate that the post of Manager (General) should be filled 100% through promotion by selection from amongst suitable candidates and recourse can be had by way of deputation in the ratio of 25% only failing the channel of promotion, nevertheless, the Corporation in its 98th Board meeting dated 25.6.2004 decided to absorb one Mr. Khinchi who was working as Manager on deputation. That decision apparently was directed to be implemented, subsequently, in 104th meeting of the Corporation.

8. Learned counsel submitted that the decision of the Corporation to by pass Rules, cannot be countenanced and it is arbitrary. It was also submitted that there are two vacancies in the post of Manager (General); that even without impleading Mr. Khinchi, the respondents are bound to consider the candidature of the petitioner and promote him because that would be in due compliance with the Regulations, which bind the Corporation. It was also pointed out that the 104th meeting had directed the Corporation to implement its decision to absorb Mr. Khinchi which implied that he had in fact not been appointed or absorbed through a formal letter as Manager (General). Learned counsel also submitted that the proposal to absorb Mr. Khinchi was disapproved by the Govt. of NCT of Delhi by a letter dated 22.1.2004

9. Learned counsel for respondent submitted that reliefs claimed by the petitioner cannot be granted. He relied upon the proposition that the Court cannot direct a public body to promote or issue appointment letter to a candidate. This, it was submitted, would be a sequel to due consideration by the concerned body empowered to decide suitability of all the candidates. In this case, the post is a promotional one and has to be filled through selection. Therefore, the petitioner cannot have any pre-eminent right to promotion on the basis of his seniority alone.

10. Learned counsel reiterated the contentions raised in the counter affidavit and also submitted that the allegations about wrongful absorption of Mr. Khinchi should not be gone into since he has not been imp leaded in these proceedings and that in his absence any observation about the decision to promote him as Manager or indeed about the legality of the respondent's action would lead to adverse consequences without granting a hearing.

11. In this case there is no dispute about the stipulation contained in the Rules. The post of Manager (General) in the Corporation has to be filled by promotion on the basis of selection, in the first instance by 100% from amongst those who have eight years of regular qualifying service in the category of Deputy Manager. It is also not denied that the petitioner is eligible, having completed eight years of qualifying service as far back as in March 2004 The Corporation in fact had scheduled DPC on 10.8.2005. The materials on record disclose that the respondent Corporation did not dispute the petitioner's eligibility for consideration.

12. In this background, the question whether the proposals to absorb Mr. Khinchi is in accordance with Regulations or otherwise would, in my opinion, not arise at this stage. This is because admittedly there are two vacancies in the cadre of Manager (General). The petitioner undeniably falls within the zone of consideration. He is also the senior most eligible candidate that the requisite qualifying experience. Therefore, it would be not appropriate in my opinion to examine the question whether Mr. Khinchi's absorption or proposed absorption is in accordance with Rules or Conditions of service existing in the Corporation or whether the same was adversely commented by the Government of NCT. Ends of justice would be served if proper directions are issued in these proceedings to the respondent to hold a DPC and select the candidate as per regulations, within reasonable time. Learned counsel for the respondent assures the Court that the vacancy existing in the post of Manager (General) would not be filled till DPC is held and it makes its recommendation in accordance with Regulations.

13. In view of the above findings and observations, a direction is issued to the respondent to hold DPC within a reasonable time and in any case not later than four months from today. In such an event candidature of all the eligible persons including the petitioner (whose eligibility has not been denied by the respondent) shall be duly considered in accordance with Regulations of the Corporation. The post of Manager (General) shall be filled only as per the recommendations of the DPC in accordance with Recruitment Rules.

14. The writ petition is allowed to the extent indicated above. No costs.