Yogesh Kumar vs Union Of India & Ors.
2009 Latest Caselaw 2795 Del

*               HIGH COURT OF DELHI: NEW DELHI

+     Writ Petition (Civil) No. 7795/2009

                          Judgment reserved on: July 20, 2009
%                         Judgment delivered on: July 23, 2009

      Yogesh Kumar                                  ..... Petitioner

                          Through: Mr. D.N. Goburdhan, Adv. with
                                   Ms. Aakansha Munjal, Adv.

                    Versus

      Union of India & Ors.                      ..... Respondents

                          Through: Mr. M.K. Bhardwaj, Adv. for R-1
                                   Mr. Rajiv Nanda, Adv. for R-2
                                   Mr. Satish Dayanand, Adv. for R-3
      Coram:

      HON'BLE MR. JUSTICE MADAN B. LOKUR
      HON'BLE MR. JUSTICE A.K. PATHAK

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

      2. To be referred to Reporter or not?                       Yes

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



A.K. PATHAK, J.

1. Petitioner was appointed as Skilled Worker (Printing

Technology) in the pay scale of Rs.5000-8000/- and was posted

in the Department of Printing Technology, Pusa Polytechnic,

Pusa, Delhi on 4th January, 2000. Petitioner belongs to scheduled

caste community. Petitioner made a representation on 1st of

July, 2005 followed by a reminder of 6 th September, 2005 for

considering him for the next promotional post of Foreman

Instructor on the ground that he was having experience of seven

years and six months as Skilled Worker in Printing Technology

and was eligible for vacancy against the said post lying vacant for

long.

2. Finding no response from the Respondents, Petitioner filed

an Original Application being OA No. 1222/2007 before the

Central Administrative Tribunal, Principal Bench, New Delhi (for

short hereinafter referred to as "the Tribunal") on the ground that

the Petitioner was eligible for the post of Foreman Instructor

since the vacancy against the said post was lying vacant for long

and was reserved for scheduled castes and scheduled tribes

community. As per the Recruitment Rules, UPSC had the

discretion to relax the experience in case of candidates belonging

to scheduled castes and scheduled tribes community. Thus,

Respondents can relax the eligibility clause in so far as

experience was concerned because the Petitioner fulfilled all

other requisite qualifications in terms of the Recruitment Rules.

3. As per the Respondents, Rule 12 of Recruitment Rules

provided that Workshop Instructor/ Instrument

Repairer/Mechanical/Motor Mechanic-cum-driver/Electrician /

Skilled Worker/ Laboratory Technician/Workshop Technician

with eleven years of regular service in the grade were eligible for

consideration for promotion to the post of Foreman Instructor.

Power of UPSC to relax the experience, in terms of the

Recruitment Rules, was in respect of the direct recruitment.

Petitioner was not having experience of eleven years of regular

service in the grade as he was appointed in Feeder grade only in

the year 2000 and as such was not eligible for consideration for

promotion to the post of Foreman Instructor in terms of the

provisions of the notified Recruitment Rules.

4. Tribunal held that as per Rules there was no provision to

relax the experience with regard to filling up of the vacancies by

promotion. Para 8 of the Recruitment Rules related to the direct

recruitment, thus, Petitioner could not take advantage of the said

clause. Since the Petitioner was not having requisite experience,

no directions could be given by the Tribunal to consider the

Petitioner for the post Foreman Instructor de hors the Rules.

5. We have heard arguments of learned counsel and perused

relevant Recruitment Rules. We are not inclined to interfere with

the impugned order passed by the Tribunal. Petitioner was

appointed in the feeder grade in the year 2000 and as such was

not having experience of eleven years of regular service.

Department of Training and Technical Education framed

Recruitment Rules which were notified on 13th January, 2004

and the said Rules were in supersession of earlier Rules notified

vide notification of 2nd May, 1991. Rule 11 of the said Rules

provide that the recruitment to the post of Foreman Instructor

was to be done by promotion, failing which by deputation, failing

both, by direct recruitment. As per Rule 12 of the said Rules,

Workshop Instructor/Instrument Repairer/Mechanical/Motor

Mechanic-cum-driver/Electrician/Skilled Worker/Laboratory

Technician/Workshop Technician with eleven years of regular

service in the grade were eligible for the post. Note 1 further

provides that the eligibility list for promotion shall be prepared

with reference to the date of completion by the officers of the

prescribed qualifying service in the respective grade/post.

Admittedly, Petitioner was not having requisite experience of

eleven years to be considered for the post. We do not find any

provision in the Recruitment Rules vesting powers in the

Respondent to relax the experience of eleven years of regular

service in the grade while considering the candidates for the post

of Foreman Instructor on promotion basis. Note 2 of Rule 8

provides that the qualification(s) regarding experience are

relaxable at the discretion of the UPSC in case of candidates

belonging to scheduled castes and scheduled tribes community,

if at any stage of selection, the UPSC was of the opinion that

sufficient number of candidates from these communities

possessing the requisite experience are not likely to be available

to fill up the post reserved for them. However, Rule 8 relates to

direct recruits and would not be applicable with regard to the

appointments made by way of promotion. We are of the view that

Tribunal has rightly held that no direction can be given to the

Respondents to consider the petitioner for the post of Foreman

Instructor de hors the rules.

6. Learned counsel for the Petitioner has vehemently

contended that by virtue of 82 nd Amendment made in the

Constitution one proviso has been added in Article 335 which

provides that nothing shall prevent the making of any provision

in favour of members of the Scheduled Castes and the Scheduled

Tribes, for relaxation in qualifying marks in any examination or

lowering the standards of evaluation, for reservation in matters of

promotion to any class or classes of services or posts in

connection with the affairs of the Union or of a State.

Respondents have failed to take note of the amendment in Article

335 of the Constitution in the year 2000 while amending the

Recruitment Rules. Respondents ignored this amended

Constitutional provision while framing the Recruitment Rules for

the post of Foreman Instructor vide notification dated 13 th

January, 2004. He has further contended that the new

Recruitment Rules were nothing but a carbon copy of the earlier

Recruitment Rules made in the year 1991. In view of the 82nd

Amendment, a provision should have been made in the

Recruitment Rules for relaxing the experience criteria of 11 years

in case of Scheduled Caste candidates.

7. We do not find any merit in this contention of the learned

counsel for the Petitioner in as much as in the counter affidavit of

respondent No.2 filed before the Tribunal, it had been

categorically mentioned that the rule of appointment/promotion

had been framed by the Competent Authority by keeping in mind

the mandate of provision of Article 335 of the Constitution as a

whole and all the appointments/promotion have to be done in

accordance with the Recruitment Rules. There is no reason to

disbelieve the counter affidavit. We are of the view that the

appointments by way of direct recruitment or by way of

promotion, to the post of Foreman Instructor have to be made as

per the prevailing Recruitment Rules.

8. Accordingly, we do not find any merit in this writ petition.

The same is dismissed.

A.K. PATHAK, J

MADAN B. LOKUR, J

July 23, 2009 rb