Khem Chand And Ors. vs Mcd And Anr.
2008 Latest Caselaw 1919 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                 Reserved on     :17.10.2008
                                  Date of decision:31.10.2008


+      LPA 302/1998


       KHEM CHAND & ORS.                          ..........Appellants


                                    Versus

       M.C.D & ANR.                               .........Respondents


+      LPA 318/1998

       KHEM CHAND                                 ..........Appellants

                                    Versus

       M.C.D & ANR.                               .........Respondents


       Present:        Mr. Servesh Bisaria, adv. for the appellants
                       Ms. Avnish Ahlawat, adv. for the respondents


     CORAM:
     HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
     HON'BLE MR. JUSTICE MOOL CHAND GARG

1.     Whether the Reporters of local papers            yes
       may be allowed to see the judgment?

2.     To be referred to Reporter or not?               yes

3.     Whether the judgment should be                   yes
       reported in the Digest?

MOOL CHAND GARG, J.

1. This common judgment shall dispose of the aforesaid two LPAs

which arise out of two separate judgments dated 15.05.1998 passed

by Dr. M.K. Sharma, J (as his lordship then was) dismissing Writ Petition

(Civil) 1789/1991 filed by Khem Chand and others and Writ Petition

(Civil) 4824/1993 filed by Khem Chand alone.

2. Appellants in LPA No. 302/1998 had filed Writ Petition (Civil)

1789/1991 seeking directions for their promotion as Senior Pharmacist

in respect of reserved vacancies for SC/ST candidates from the post of

Junior Pharmacist in accordance with 40 point roster system, which writ

petition was, however, dismissed by the learned Single Judge by way of

the impugned judgment dated 15.05.1998 on the ground that the first

three appellants were promoted to the post of Senior Pharmacist

during the pendency of the writ petition as and when they became

eligible for those posts while expressing hope that the other two

appellants would also be selected when their turn will come.

3. In LPA No. 318/1998 the appellant, Khem Chand, who was

promoted as Senior Pharmacist, had filed Writ Petition (Civil) NO.

4824/1993 seeking direction for his further promotion to the post of

Head Pharmacist from Senior Pharmacist but the same was dismissed

because the appellant had already been promoted to the post of Head

Pharmacist on the basis of draft recruitment rules once he became

qualified for such appointment.

4. The grievance of the appellants before us is that the promotion

made by the respondents to the post of Senior Pharmacist was not in

accordance with the roster point system and that the criterion for

selection by insisting on five years regular service in the grade was

fallacious. In support of this plea, it was submitted that an agreement

was entered into between them and DESU Scheduled

Castes/Scheduled Tribes Workers Association whereby it had been

agreed that the backlog of vacancies of SC/ST would be worked out in

all categories of posts, including the promotional post by relaxing the

eligibility criteria. In this regard, it was also agreed that the

respondents would prepare a separate list of SC/ST candidates which

agreement had not been adhered to by the respondents and therefore,

the appellants claim ante dated promotion.

5. We have heard the learned counsel for the parties. We have also

gone through the agreement relied upon by the respondents. One of

the clauses of the aforesaid agreement is that if an eligible candidate

was not likely to be promoted within a period of one year or more, then

efforts would be made to relax the qualification of general as well as

SC candidates from 5 years to 3 years or from 3 years to 2 years, as

the case may be. It was submitted by the appellants that on account

of the aforesaid agreement the criteria of 5 years of service in the

grade for further promotion was reduced to 3 years and 2 years

respectively. It was also the case of the appellants before the learned

Single Judge that out of 20 persons who were appointed as Senior

Pharmacist none belonged to SC/ST category at the time of filing of the

writ petition although according to 40 point roster system, the post at

points No. 1,8,14,22 and 28 were reserved for SC candidates and

vacancies at points No. 4 and 17 were reserved for ST candidates. It

was submitted that even though the vacancies did arise from time to

time but they were not filled up under the 40 point roster system.

6. The respondents while refuting the allegations of the appellants

relied upon the Recruitment Rules and contended that the post of

Senior Pharmacist is a selection post to be filled up only from amongst

the eligible candidates who would have spent at least 5 years service

in the grade on regular basis. The promotion was to take place only by

a duly constituted departmental promotional committee on the basis of

service record of the eligible candidates who were within the zone of

consideration. Relying upon various circulars issued by the Central

Government which were placed on record, it was submitted that

promotion to a selection post is made from amongst the candidates

who were within the zone of consideration which could at the most be

five times of the vacancy/vacancies even on extended basis and if a

Scheduled Caste/Scheduled Tribe candidate was not available within

the zone of consideration, the vacancy although reserved cannot be

filled up and such reserved post has to be de-reserved. In this regard

it was also submitted that since the selection was from Group „C‟ to

Group „B‟, within Group „B‟ and from Group „B‟ to the lowest rung of

Group „A‟, the post cannot be carried forward as envisaged and

therefore there could not have been any carry forward of reservations

in the post of Senior Pharmacist.

7. It is a matter of record that during the pendency of the writ

petition, petitioners No. 1, 2 and 3 were promoted to the post of Senior

Pharmacist w.e.f. 17.06.1994, 29.08.1994 and 29.08.1995

respectively. The learned Single Judge after going through the record

as produced before him came to the conclusion that if eligible SC

candidates were not available within the zone of consideration which

earlier used to be 3 times of number of vacancies and which could be

extended up to 5 times only and not beyond, the petitioners who as

Junior Pharmacists were at serial No. 57, 58, 59, 63 & 72 were not

eligible for promotion. It is only when 14 new vacancies arose after

upgradation of the post of Junior Pharmacist on 07.01.1982 as per the

roster, 2 of them had to go to SC and 2 to the ST. Taking into

consideration the eligible candidates, out of the 14 vacancies, 13 were

filled up by General Category i.e. 10 on regular basis and 3 on ad hoc

basis and one by SC against a SC vacancy. The appellants, at the

relevant time, did not fulfill the eligibility criteria as they did not

complete 5 years of service in the post of Junior Pharmacist. Out of the

selected candidates, on 29.4.1982 four candidates refused promotion

and another person who was promoted to the post of Senior

Pharmacist retired and, therefore, six vacancies again became

available for promotion. Steps were taken to fill up those six posts and

a Departmental Promotion Committee was constituted for that purpose

and 18 candidates in terms of the Recruitment Rules were found

eligible and called for selection. The petitioners, at that stage, could

not even come within the extended zone of consideration for the said

six posts inasmuch as the zone of consideration could have been

extended only to candidates upto Serial No. 48 in terms of the seniority

list while the petitioner were placed at Serial No. 58 onwards in the

said seniority list.

8. The learned Single Judge had taken note of various circulars

regarding the scheme of reservation for candidates belonging to SC &

ST categories for promotion which are reproduced hereunder for the

sake of reference:

"13. The scheme of reservation for candidates belonging to Scheduled Castes and Scheduled Tribes in promotion by selection have been laid down in the circular issued by the Department of Personnel and Administrative Reforms dated 20th July, 1974. In the said circular certain instructions have been laid down which were made applicable to the filling up of vacancies reserved for Scheduled Castes and Scheduled Tribes would be made only from among those Scheduled Castes/Scheduled Tribes candidates who are within the normal zone of consideration. It was also provided that for determining the number of vacancies to be reserved for Scheduled Castes and Scheduled Tribes in a Select List, a separate roster on the lines of the roster providing points 1,8,14,22,28 and 36 reserved for Scheduled Caste and points 4, 17, and 31 for Scheduled Tribes should be followed. It was also laid down that if owing to non-availability of suitable candidates belonging to Scheduled Castes or Scheduled Tribes, as the case may be, it would be necessary to de-reserve a reserved vacancy and a reference for de-reservation should be made to the Department where claims for Scheduled Caste/Scheduled Tribe candidates eligible for promotion in reserve vacancies have been considered in the manner indicated in the office Memorandum. The instruction further lays down that there would, however, be no carry forward of reservations from year to year in the event of an adequate number of Scheduled Caste/Scheduled Tribe candidates not being available in any particular year."

9. Taking into consideration the factual matrix of this case and the

seniority of the appellants who were placed at serial no.58 onwards, it

was observed that once the appellants were not within the normal

zone of consideration when the matter for filling up the posts of Senior

Pharmacists arose, there was no error committed by the respondents

in not promoting the appellants earlier to 1994 when they were

promoted. Since appellants No. 4 and 5 were placed much below in

the seniority list, there was no occasion for their promotion who, it was

hoped, would be considered in accordance with the prevailing policy

and law applicable in view of the decision in R.K. Sabharwal and Ors.

Vs. State of Punjab and Ors., 1995 (2) SCC 745. Accordingly, the writ

was dismissed.

10. In the connected LPA (No. 318/1998) the grievance of the

appellant was that having been promoted to the post of Senior

Pharmacist, he should have also been promoted for the next post i.e.

the post of Head Pharmacist. In this regard learned Single Judge while

dismissing the matter has made the following observations:

"3. By my judgment and ordered delivered today, I have dismissed the writ petition filed by the present petitioner seeking his promotion to the post of Senior Pharmacist with retrospective date registered as C.W.P. No. 1784/1991.

4. As of today, the respondents have not notified the final Recruitment Rules governing policy of promotion to the post of Head Pharmacist. However, pending finalization of the Recruitment Rules, the respondents decided to fill up the posts of Head Pharmacist on ad hoc basis as four posts of Senior Pharmacist were upgraded to Head Pharmacist on 04.08.1993.

5. As per the draft Recruitment Rules, the post of Head Pharmacist is to be filled up through the mode of selection of 100% by promotion from Senior Pharmacist with three years service in the grade. The petitioner satisfied the criteria only in the year 1997 as he was promoted to the post of Senior Pharmacist in the year 1994. He was, therefore, considered and promoted to the said post on 01.04.1998.

6. The respondents have also clarified that

according to the new roster for promotion issued by the Government of India and applicable from July, 1997, roster point vacancy for the Scheduled Caste candidate would be only at the 7th Post. However, the case of the petitioner for promotion was considered and he was promoted as the Board decided to extend the benefit to the petitioner as his case was under consideration.

7. Thus, there could be no further grievance of the petitioner in respect of his promotion to the post of Head Pharmacist and the writ petition stands dismissed as such, but, without cost."

11. The learned counsel appearing for the appellants have assailed

the judgments delivered by the learned Single Judge, inter alia, on the

following grounds:

i) That SC/ST candidates ought to have been considered by the

authorities in accordance with the agreement entered into by Delhi

Vidyut Board & DESU Scheduled Castes/Scheduled Tribes Workers

Associations by which the eligibility for the next promotion was

reduced to 3 years instead of 5 years.

ii) As per the Government instructions the zone of consideration for

the eligibility of the SC/ST candidates had to be up to 5 times of the

normal zone of consideration and therefore the normal zone of

consideration was not applicable in this case.

iii) A separate list of the eligible candidates ought to have been

made by the respondents who should have been considered separately

instead of being clubbed with the General category candidates. It has

been submitted that had these principles been followed then the

petitioners would have been promoted much earlier and, therefore,

their claim for ante dated seniority was justified.

12. Insofar as the extension of the zone of consideration for SC/ST

candidates is concerned, the respondents have not disputed that the

zone can be extended in their case even up to 5 times and in this

regard there can be no dispute that the zone of consideration in the

case of SC/ST would be as under:

"III. Filling up posts by promotion

A.(i) Through limited departmental competitive examination in Groups 'B', 'C' and 'D'.

(ii) By selection in Groups 'C' and 'D'.

(1) Selection against vacancies reserved for SCs and STs will be made only from among the SC/ST officials who are within the normal zone of consideration.

(2) Where adequate number of SC/ST candidates are not available within the normal field of choice, it may be extended to five times the number of vacancies and the SC/ST candidates (and not any other) coming within the extended filed of choice should also be considered against the vacancies reserved for them.

The normal zone and the extended zone will be as follows:-

____________________________________________________________________ No. of Vacancies Normal Zone Extended Zone

5 and above twice number of five times the no.

vacancies plus 4 of vacancies ______________________________________________________________________

(3) SC and ST officers who are within the normal zone of consideration should be considered for promotion along with others and adjudged on the same basis as others."

13. Learned counsel for the appellants also relied upon a judgment

delivered by the Hon‟ble Supreme Court in Civil Appeal No. 4926/1988

titled as U.P. Rajya Vidyut Parishad SC/ST Karamchari Kalyan Sangh Vs.

U.P. State Electricity Board and Ors. It has been submitted that the

aforesaid is a judgment delivered by the Apex Court whereas a perusal

of the aforesaid judgment goes to show that no principle of law has

been laid down. However, in another judgment delivered in the case of

C.D. Bhatia & Ors. Vs. Union of India and Ors. delivered in Civil Appeal

No. 14568-69/1995 decided on 20.10.1995 it has been held:

"We have heard learned counsel for the parties. Learned counsel for the petitioners has raised only one contention to the effect that there has to be separate zone for consideration so far as SC/ST candidates are concerned. According to him, clubbing the schedule caste with the general category in the same zone of consideration would defeat the very purpose of reservation. He relies of this Court‟s Judgment in U.P. Rajya Vidyut Parishad SC/ST Karamchari Kalyan Sangh Vs. U.P. State Electricity Board and Ors. (C.A. No.4026/88) decided on November 23, 1994. This precise point was not raised before the Tribunal. The point was sought to be raised in a review petition but the Tribunal did not permit the same to be raised at that Stage. We see no ground to interfere with.

We are, however, of the view that the law laid down by this court in U.P. Rajya Vidyut Parishad‟s Case is binding on all the authorities including the Union of India. The petitioners may, if so advised, approach the Government seeking enforcement of the law laid by this Court. Special leave petitions are disposed of."

14. In view of the aforesaid judgment, there can be no dispute that a

separate zone of consideration should be prepared by the authorities

without clubbing the SC/ST candidates along with the General Category

candidates for the purpose of the zone of consideration.

15. In this case having analyzed the facts of the case, we do not find

that the appellant were entitled to their promotion at the time of filing

of the writ petition even by extending the zone. The appellants became

eligible only when they completed 5 years of the eligibility criteria in

the grade as Junior Pharmacist and could not have been considered

prior thereto, yet appellants No. 1 to 3 were considered and promoted

even before that to take care of the backlog.

16. Nothing has been pointed out to show as to how the appellants

are entitled to a back dated seniority. Merely because the vacancies

could not be filled up earlier on account of there being no suitable

candidate, the appellants cannot be granted seniority from the date of

arising of the vacancies.

17. In LPA No.318/1998 the situation is more precarious inasmuch as

the appellant acquired the requisite qualification for being promoted to

the next post of Head Pharmacist only after completing one year as

Senior Pharmacist and thereafter he was promoted. Thus, there is no

occasion for making any grievance by him.

18. The submission made by learned counsel for the appellants that

the agreement entered into between the Delhi Vidyut Board and DESU

Scheduled Castes/Scheduled Tribes Workers Association thereby

reducing the eligibility criteria for promotion as provided for by the

recruitment rules also cannot be accepted because the recruitment

rules cannot be amended by a mutual agreement between the parties,

the respondent being a statutory authority. Reliance may be made to

the judgment of the Apex Court in Secretary, State of Karnataka Vs.

Umadevi, AIR 2006 SC 1806. The relevant paragraph of the aforesaid

judgment is reproduced hereunder for the sake of reference:

"34. ...........

The rule of law constitutes the core of our Constitution of India and it is the essence of the rule of law that the exercise of the power by the State whether it be the Legislature or the Executive or any other authority should be within the constitutional limitations and if any practice is adopted by the Executive which is in flagrant and systematic violation of its constitutional limitations, petitioner No. 1 as a member of the public would have sufficient interest to challenge such practice by filing a writ petition and it would be the constitutional duty of this Court to entertain the writ petition and adjudicate upon the validity of such practice.

Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public

employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of Court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is Page 1945 found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates."

19. Taking into consideration the above facts in this case, we find no

reason to interfere with the orders passed by the learned Single Judge

in W.P.(C) 4824/1993 & W.P.(C)1789/1991. Accordingly, both the

Letters Patent Appeals bearing No 302/1998 and 318/1998 are

dismissed with no orders as to costs.

MOOL CHAND GARG, J.

SANJAY KISHAN KAUL, J.

OCTOBER 31, 2008 anb/sv