Devinder Kumar And Anr. vs Delhi Development Authority
2007 Latest Caselaw 2307 Del

JUDGMENT

Mukundakam Sharma, C.J.

1. While issuing notice in the present appeal the Division Bench of this Court passed an order on 5th September, 2006 to the following effect:

Issue notice confining to Ground (D) raised in the present Letters Patent Appeal, to the respondent, returnable on 27th November, 2006.

2. We are, therefore, required to consider this appeal restricting to the ground urged in the Ground (D) of the memorandum of appeal which reads as follows:

Because the Hon'ble Single Judge has failed to appreciate that the information gathered by the Appellants under the Right to Information Act had been placed before the Hon'ble Single Judge and from the perusal of the said information it is clear that in fact, the Annexures B & C, which were with the Resolution No. 135/1996 did not contain a stipulation as regards the introduction of a written test. The authority has acted in a totally malafide manner in placing reliance upon the letter issued by the Secretary, DDA to say that the said Annexures B & C had been replaced at the time of the meeting of the authority. The submission of the appellants is if the Hon'ble Single Judge had considered the documents furnished as made available to the appellants under the Right to Information Act, the Hon'ble Judge would have come to the conclusion that in fact, the said annexures had not been replaced.

3. The writ petition was filed by the appellants herein to seek a direction that there was no amendment in the eligibility conditions in the recruitment rules, for appointments to Assistants, in the Respondent-DDA requiring employees in the feeder cadre, i.e., Upper Division Clerks to qualify in a written test. There was an additional prayer in the writ petition to the effect that a declaration be also issued that the amendment introduced through the resolution No. 135/1996 is contrary to provisions of the Delhi Development Authority Act, 1957.

4. The appellants herein were appointed in the DDA as Lower Division Clerks in 1976. They were promoted as Upper Division Clerks in 1981. When the appellants sought but were denied promotion to the post of Assistants they approached the Court in 2000. They were promoted to the said post only in 2003. Admittedly, there were no recruitment rules of the DDA laying down the rules for making recruitment to the post of Assistants.

5. Non-statutory Regulations for appointment to the post of Assistants were formulated in the year 1992 and approved by resolution No. 102/92. These were styled as "Proposed Recruitment Rules". The said regulation provided for the eligibility criteria for promotion to the post of Assistant which was required to be filled up in the following manner:

PROMOTION

1. 50% of the post shall be filled from such of the UDCs, who are graduates and have put in five years of service in the grade.

2. 50% of the posts shall be filled up from such of the UDCs, who have put in 8 years of regular service in the grade.

TRANSFER ON DEPUTATION

Officials holding analogous posts under the Government of India/Delhi Administration.

6. The DDA has stated that the aforesaid regulation providing for the criteria for promotion to the post of Assistant was revised and amended under resolution No. 135/96 to the following effect:

  X      X      X
 

Assistants (Rs. 1640-2900)
 

i) 50% by way of promotion from UDCs having 5 years service.
 

(ii) 50% by way of departmental examination from UDCs with 5 years service.
 

7. The case of the appellants in the writ petition was that resolution No. 135/1996 was not legal and properly adopted and was not approved by the competent authority and, therefore, the same cannot amend the criteria for promotion to the post of Assistant by introducing a quota for limited departmental examination. It was contended that the effect of the approval of the recommendations of the "Tikoo Committee" by the Central Government vis-a-vis the resolution No. 135/1996 was only in respect of the pay scales and not the eligibility criteria and requirement to clear departmental examination for promotion to the post of Assistant.

8. In order to appreciate the aforesaid contention we had called for the original records which were placed for our consideration. We have heard the arguments of the learned Counsel appearing for the parties and also perused the records including the original records placed before us by the counsel for the DDA.

9. The Tikoo Committee was constituted to recommend on Cadre Review in the DDA. The report of the Tikoo Committee was submitted on 22.8.1997 which was sent to the Central Government on 16.11.1998. The recommendations of the Tikoo Committee was approved by the Central Government which was communicated to the DDA vide letter dated 23.2.1999. In the said report it was recommended that the strength of the cadre of the Assistants should be increased and raised. Although the aforesaid report was submitted and was approved sometime in 1999, yet a decision was taken by the DDA even prior to it to increase the cadre strength from 251 to 417. The stand of the DDA before us is that the aforesaid decision was taken for increase in the strength to 417 in order to give more opportunities to the employees awaiting promotion to the post of Assistants. At the same time the Government also felt that the post of Assistant being a promotion post, competent officials who have worked as UDCS for 5 years should be given a chance to be promoted to the said post. Consequent upon the same a decision was taken to introduce departmental examination in respect of 50% of posts from UDCs with five years service. According to the DDA the pay scales of the Assistants was raised to Rs. 1640-2900 and the criteria for promotion was laid down to the effect that 50% of the said post was to be filled up by way of promotion from UDCs having five years service whereas the remaining 50% posts would be filled up by way of departmental examination from UDCs with five years service. The said subsequent clause of giving promotion to 50% posts by holding departmental examination was in the nature of an incentive given to the serving UDCs by giving them an accelerated promotion. In this manner DDA contemplated that good and competent officers will get accelerated promotion to the post of Assistants.

10. The aforesaid amendment introduced in 1996 was challenged by filing the writ petition contending, inter alia, that the aforesaid amendment was illegal and unjustified and was not brought in by following due process of law and that the same was not approved by the Central Government. The appeal, therefore, hinges on the aforesaid ground taken before us and vehemently argued during the course of hearing. The material portion of the agenda papers prepared by the DDA for placing it before the concerned committee and the contents of the resolution were extracted by the learned Single Judge in paragraph 14. The relevant portion of the Central Government's letter referred to in the Agenda is also extracted in paragraph 15 of the judgment. The Central Government's letter referred to in the agenda dated 31st July, 1990 and the letter dated 19th March, 1986 and extracted along with the circular of the DDA issued on 14.5.1997, are extracted in paragraph 16 to 18 of the impugned judgment and order and, therefore, we are not extracting the same in our judgment.

11. A bare perusal of the aforesaid records would indicate that the Delhi Development Authority had passed resolution No. 135/96 to change the recruitment pattern. The said decision was an administrative policy decision of the respondent and the only change was in respect of 50% of the post of Assistants being reserved to be filled up by promotion through a departmental examination from the cadre of UDCs having five years service. The said amendment was not to a statutory rule but an amendment in the administrative instructions issued by the DDA. Earlier, agenda papers for adopting the said resolution were prepared and placed before the appropriate committee which were accepted and a resolution was passed legally and validly in accordance with law. Therefore, to say that the aforesaid amendment was not brought in accordance with the procedure is a wrong representation of the facts and records of the case. The original records produced before us clearly establish that the said resolution was adopted by DDA in the light of the prescribed procedure and in accordance with law and that there was no illegality committed in bringing about the aforesaid amendment in the process of laying down the criteria for promotion to the post of Assistant. It is always permissible to change and amend the criteria for promotion to the post of Assistants which, however, has to be done legally and validly. The amendment which is brought is in an administrative instruction issued by the respondent by moving and adopting an appropriate resolution in accordance with law. It could not be disputed by the counsel appearing for the appellant that the criteria for promotion to the post of Assistants which came to be amended by resolution No. 135/96 was itself an administrative instruction as that was part of the norms and policies of the DDA. The said conditions of service laying down the norms of promotion to the post of Assistants could be changed by the DDA by issuing a fresh administrative instruction which was issued in the present case after passing of the resolution No. 135/96.

12. The learned Single Judge held that in the absence of statutory rules, or regulations framed in accordance with provisions of law, or proviso to Article 309 of the Constitution, non-statutory administrative instructions can be validly made, and would bind the authority concerned and its employee. While coming to the aforesaid conclusion the learned Single Judge has also referred to several decisions of the Supreme Court which support the aforesaid view taken by the learned Single Judge. The regulations which laid down the earlier criteria for promotion to the post of Assistants and the regulation 1992 were also in the nature of guidelines and non-statutory and, therefore, no exception could be legitimately taken for changing the said norms under notification issued in 1997 pursuant to the resolution No. 135/1996. The aforesaid resolution No. 135/1996 was also validly adopted and the same was also the conclusion arrived at by the learned Single Judge on appreciation of the record. The agenda item in question which is No. 4 talks of the proposal of the recruitment regulation for the post of Sectional Officer (Horticulture) in Delhi Development Authority. When the said Annexure-C read in the context of the two Central Government letters and proposed change to the amendment rules under Annexure-C are harmoniously read, the same would definitely depict the picture of change in the norms and criteria for promotion to the post of Assistants where the provision is also made for filling up 50% of the posts of Assistants by holding a departmental examination amongst UDCs having five years of service.

13. It was vehemently argued that what was approved by DDA in its meeting held on 6th September, 1996, mentioned in the resolution sent to the Central Government and approved by the Central Government, was revision of pay scales and not amendment in the recruitment process envisaging 50% appointment by way of departmental examination from UDCs with five years service. Learned senior advocate had drawn our attention to the reply furnished by DDA under the Right to Information Act and the precis of the resolution passed on 6th September, 1996 and some other documents.

14. To verify the allegations we had called upon the DDA to produce before us the original register of the minutes of the meeting held on 6th September, 1996. The same was produced before us and has been perused. The precis has to be read along Appendix 'B' and 'C'. The said minutes form part of a bound register containing minutes of several meetings held in 1996. As per this register the proposal approved on 6th September, 1996 included not only revision of pay scales of Assistants but also modification in the process of recruitment. As per the resolution approved, 50% of the posts of Assistant were to be filled up by way of promotion from UDCs having five years service and the balance 50% were to be filled up by way of departmental examination from UDCs having five years service. Under the then existing earlier policy, posts of Assistant were to be filled up from Graduate UDCs having five years service and non-Graduate UDCs having eight years service with a provision for appointment on deputation. Amendment and changes in the recruitment for the post of Assistants in Government of India was therefore mooted and approved with the earlier policy being done away with. It may be noted that as per Government of India Recruitment Rules, 50% of the post of Assistants are to be filled up by Direct Recruitment and the balance 50% by promotion from UDCs. It may also be noted that earlier Assistants were entitled to pay scale of 1400-2300 which was revised to 1640-2900, at par with the pay scale of Assistants working in the Government of India. There is no reason or ground to doubt that any change or alteration has been made in the minutes which have been produced before us. It may also be observed that circular dated 14th May, 1997 was issued after the proposals as per resolution dated 6th September, 1996 was approved by the Central Government and in the said circular it is clearly specified that 50% of post of Assistant shall be filled up from UDCs with five years service and have cleared departmental examination. The earlier policy which permitted appointment to the post of Assistant by transfer on deputation was done away with. No one protested or challenged the circular dated 14th May, 1997. Even in the original writ petition there was no such challenge. We, therefore, cannot accept the contention of the appellants that what was cleared and accepted by the DDA in the resolution dated 6th September, 1996 and thereafter by the Central Government did not contain stipulation that 50% of the posts of Assistant shall be filled up from UDCs who have cleared departmental examination and have five years service.

15. In view of the above discussion, we are of the considered opinion that the findings arrived at by the learned Single Judge do not call for any interference. The appeal has no merit and the same is dismissed.