Harish Chand Sharma & Ors. vs Dda & Ors.
2009 Latest Caselaw 5211 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Judgment Reserved on : December 13, 2010
                         Judgment Pronounced on: December 15, 2010

+                          W.P.(C) 11038/2009

        HARISH CHAND SHARMA & ORS.       ..... Petitioners
                 Through: Mr.C.Mohan Rao, Advocate with
                          Mr.Lokesh Sharma, Advocate.

                                versus

        DDA & ORS.                                ..... Respondents
                 Through:       Mr.Arun Birbal, Advocate for R-1
                                Mr.Manjeet Singh Reen, Advocate
                                for R-4, 8, 10, 11, 15 & 17.

        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MR. JUSTICE SIDDHARTH MRIDUL

     1. Whether the Reporters of local papers may be allowed
        to see the judgment?
     2. To be referred to Reporter or not?
     3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J.

1. In the Secretariat of the Delhi Development Authority the Cadre of Secretarial Services has the post of Upper Division Clerk (UDC) which is the feeder post to the promotional post of Assistant. The applicable recruitment rule for the post of Assistant, vide serial No.5 stipulates that the post is 'Non-Selection'. Serial No.10 of the Recruitment Rule stipulates the method of recruitment to the post and provides that the recruitment would be by promotion with further clarification that 50% posts would be filled by promotion and 50% by way of departmental examination. Serial No.11 amplifies what has been provided for vide Serial No.10 i.e. the two channels of recruitment, being: (i) 50% by way of

promotion from UDCs having 5 years of service; and (ii) 50% by way of departmental examination from UDCs with 5 year service.

2. At the outset it may be noted that the instant dispute relates to recruitment made by way of promotion to the post of Assistant pertaining to a departmental examination conducted and for which UDCs with 5 years experience took the exam.

3. It strikes the reader that the applicable recruitment rule uses the expression by way of departmental examination without throwing any further light whether the departmental examination contemplated is a competitive examination or a qualifying examination. We clarify that pertaining to departmental examinations, service Jurisprudence recognizes two kinds of departmental examinations, the first is 'Limited Departmental Qualifying Examination' (LDQE), and 'Limited Departmental Competitive Examination' (LDCE).

4. On 14.7.2007, DDA conducted the departmental exam to fill up vacant posts of Assistant falling to the 50% quota to be filled up by way of departmental examination and issued a promotion order on 29.02.2008 which was questioned by the writ petitioners herein who filed OA No.838/2008 before the Central Administrative Tribunal and the grievance raised was that having obtained more marks than the persons promoted, the department had acted illegally. It was projected by the petitioners that merit is inherent in every examination and since the applicable service rule provided 50% promotions by way of departmental examination, it was urged that the promotion order in favour of the private respondents be set aside and directions be issued to DDA to promote persons strictly in order of merit obtained by them at the departmental examination.

5. In the response filed by DDA it was brought to the notice of the Tribunal that the applicable service rule simply provided for a departmental examination to be conducted and that vide resolution against item No.94/1995 dated 11.9.1995 pertaining to the post of Assistant Director it was resolved that all those who qualified would be promoted in order of seniority and that vide resolution pertaining to item No.48/2005 it was resolved by DDA that the norm applicable for Assistant Director would be followed for various other posts including that of Assistants. It was further the case of DDA that vide resolution dated 11.9.1995 vide item No.94/1995 it was resolved that the eligibility cut off point i.e. pass percentage would be 45% in the aggregate with minimum 40% in each paper and that those who secure 50% in each paper would be exempt. It was urged that it was apparent that the department was treating the departmental examination as a qualifying examination and not as a competitive examination. It was highlighted that the practice was that those who obtained 50% marks in each paper would not be required to take the subsequent exam and would earn a promotion as per the seniority position with reference to their performance at examination in which they obtained 50% marks in each paper.

6. In the rejoinder filed before the Tribunal the petitioners highlighted that DDA had not been implementing the resolutions on which DDA was relying and for which office orders pertaining to promotions effected to the post of Assistant Director were annexed. It was pleaded that seniority had a role in the 50% promotions to be effected in the quota allocable to UDCs having 5 years service and who were senior enough. It was urged that to bring in seniority pertaining to the departmental examination would be blurring the distinction in the two groups.

7. Vide impugned order dated 30.4.2009 the Tribunal has dismissed the Original Application filed by the petitioners and we note that the stand taken by the petitioners in the rejoinder of DDA not having implemented the stated resolutions relied upon by DDA has not been dealt with by the Tribunal. The Tribunal has simply held that the resolutions relied upon by DDA clarify with reference to the Recruitment Rule and make it clear that the departmental examination conducted by DDA is to determine suitability and not the merit. In other words, though not expressly so said by the Tribunal, the Tribunal has interpreted the Recruitment Rule as envisaging 'Limited Departmental Qualifying Examination' and not 'Limited Departmental Competitive Examination'.

8. Learned counsel for the petitioners urged before us that the Tribunal erred in ignoring that DDA had not been following the resolutions on which they had relied. Learned counsel reiterated that seniority had no role to play where promotions have to be effected on the basis of a departmental examination and that the concept of promotion by a departmental examination inheres in it the merit.

9. We have noted above that the post of Assistant, as per the applicable Recruitment Rule, is described as a 'Non- Selection Post'. We have noted hereinabove that the method of appointment to the post is 'Promotion'. We have noted hereinabove that there are two channels of promotion. 50% is by way of simple promotion i.e. seniority and 50% by way of a departmental examination.

10. It is settled law that Rules have to be read harmoniously and if there is any ambiguity to be found the same has to be resolved in a manner that the harmony within the Rules is not disturbed.

11. What is the distinction between a 'Non Selection Post' and a 'Selection Post', in our opinion would yield the answer which we are seeking to find. The question is not a new question and has not arisen to be answered by us for the first time. In the decision reported as 1993 Supp. (2) SCC 326 UOI Vs. Dr.B.Rajaram & Ors. (vide para 28) the Supreme Court held that the basic distinction between the two types of posts is whether it is to be filled up by a comparative assessment on merit or on the basis of service subject to suitability. In the decision reported as 1995 (6) SCC 684 UOI & Ors. Vs. Virpal Singh Chauhan & Ors. (vide para 23 and 24) the position culled out was that Non-Selection post appointments would be in the category of seniority-cum-suitability. Thus, the post of an Assistant being a Non-Selection Post the 'Limited Departmental Examination' has to be of a kind which is in harmony with the concept of appointment to a Non-Selection Post i.e. it has to be an examination where suitability is determined and this mean that the examination has to be a 'Limited Departmental Qualifying Examination'.

12. We find harmony in the resolutions passed by DDA and as noted by us hereinabove; the harmony being with DDA's understanding of the correct law and obligation cast to conduct a qualifying and not a competitive examination.

13. As regards the argument that DDA has not been following its resolutions, suffice would it be to state that two wrongs cannot make a right. De-hors the resolutions, since the post of Assistant is a Non-Selection Post, as per law DDA would be obliged to effect promotions based on the principle of seniority-cum-suitability and thus we concur with the conclusion arrived at by the Tribunal.

14. We would be failing not to deal with a decision cited by learned counsel for the petitioners reported as 2006

(5) SCC 789 K.K.Parmar & Ors. Vs. H.C. of Gujarat. The decision is wholly inapplicable for the reason it deals with appointment to a 'Selection Post' and interprets Rule 47 of the High Court of Gujarat (Recruitment and Conditions of Service of Staff) Rules 1992 as also deals with the issue whether the service rules framed by the State Government i.e. the Gujarat (Recruitment and Conditions of Service of Staff) Rules 1964 could be read as applicable to appointment made to the post of Section Officer in the High Court which was a 'Selection Post'. Observations in the said decision pertaining to merit being the criteria for promotion have to be understood in light of the fact that the post was a Selection Post and the applicable rule clearly envisaged merit to be the basis for promotion. The debate was on what parameters merit would be determined. In the determination of merit a weightage was contemplated by the Rules to past performance and needless to state while allocating marks to past performance some marks can be assigned to the length of service for the reason it is universally accepted that experience brings in maturity and wisdom and these two factors enhance the merit.

15. Regretfully for the petitioners, notwithstanding they having secured more marks, but their lesser brothering not being up to the mark and qualifying as per the standard set by DDA, it must be held that on account of seniority it is they who would steal the march ahead and thus we dismiss the writ petition.

PRADEEP NANDRAJOG, J.

SIDDHARTH MRIDUL, J.

December 15, 2010/mm