Balvinder Singh vs Union Of India & Anr.
2009 Latest Caselaw 2167 Del

*             THE HIGH COURT OF DELHI AT NEW DELHI

+                     Writ Petition (Civil) No.6147/2008


                                         Date of Decision : 20.5.2009

BALVINDER SINGH                                   ......Petitioner
                                 Through:   Ms.Anusuya      Salwan,
                                            Advocate

                                   Versus

UNION OF INDIA & ANR.                            ...... Respondents
                                 Through: Mr.Arjun Mitra, Adv. for
                                 respondent Nos.2 and 3.
                                 Mr.Dinkar Singh, Adv. for UOI.


CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers may be
       allowed to see the judgment?                    YES
2.     To be referred to the Reporter or not ?         NO
3.     Whether the judgment should be reported
       in the Digest ?                                 NO

V.K. SHALI, J. (Oral)

CM Nos. 11746/2008 & 3709/2009

1. This order shall dispose of CM No.11746/2008 and CM

No.3709/2009. Both these applications have been filed by the

main contesting parties namely the petitioner and the respondent

no.2/IIT Delhi. The first application is for stay while as the

second one is for vacation of the ad interim order granted on

25.8.2008.

2. Briefly stated the facts as given in the petition are that the

petitioner filed the present writ petition for quashing of the Board

Resolution dated 29.3.2005 passed by the respondent no.2 by

virtue of which the three posts in the cadre of Assistant Registrar

were directed to be upgraded to the post of Deputy Registrar. It

was also prayed that respondent no.2 should be directed to

consider the case of the petitioner for promotion to the post of

Asstt. Registrar (Admn.) on the basis of the test /interview and

after taking into consideration the ACRs for the period when he

was on deputation. The main contention of counsel for the

petitioner in assailing the said Board Resolution was that the

aforesaid conversion of the post was in violation of the

instructions of respondent no.1 inasmuch as that there was a ban

on creation of new posts and further that upgradation of the

existing posts to any higher post tantamount to creation of a new

post. Reliance in this regard is placed at page 57 on letter dated

14.8.2002 issued by the Ministry of HRD/respondent no.1,

wherein in Clause 6 it was observed that no new posts /pay scales

shall be created or upgraded by the Institute itself without prior

approval of the Government. It was also urged that according to

letter dated 16.9.1991 issued by the Government of India,

Ministry of Finance upgradation of a post in effect amounts to

creation of posts. It was on the basis of this submission, the

learned counsel has contended that because of this upgradation of

posts, the petitioner's right to be considered against one of such

vacancies of Assistant Registrar will get reduced and therefore, he

was aggrieved by such an action on the part of the respondent

no.2.

3. The second submission of the counsel for the petitioner was

to the effect that the aforesaid conversion of three posts of

Assistant Registrar to the post of Deputy Registrar could not be

said to be a simple rationalization of posts in the efficient

functioning of the institute on account of the fact that such a

rationalization under the Indian Institute of Technology Act, 1961

such a power is only vested with the Council under Section 33 of

the Act. The relevant Section of 33 of the said Act reads as

under:-

"33. (1) It shall be the general duty of the Council to co-

ordinate the activities of all the Institutes. (2) Without prejudice to the provisions of sub-

section (1) the Council shall perform the following functions, namely :

(a) .......................................

(b) to law down policy regarding cadres, methods of recruitment and conditions of service of employees, institution of scholarships and

freeships, levying of fees and other matters of common interest;

(c) ......................................

(d) .....................................

(e) .....................................

(f) ....................................."

4. So far as the stand of the respondent no.1 is concerned, it

has been stated that the Ministry of HRD has not issued any

instructions to IIT for upgradation of any post of Assistant

Registrar to the post of Deputy Registrar and further that as per

instructions of Government of Ministry of Finance dated

03.8.1967, the competent authority to create a post should

ordinarily not resort for creation of post retrospectively. Thus so

far as the respondent no.1 is concerned, it has supported the case

of the petitioner that UOI has not permitted the respondent no.2

to upgrade the post of Assistant Registrar to the post of Deputy

Registrar and further if at all any upgradation is to take place, the

same cannot be done retrospectively.

5. The respondent no.2 has contested the claim of the

petitioner that the upgradation of three posts of Assistant

Registrar tantamounts to creation of new posts or that so far as

the ban which is imposed on creation of new posts by the

Government of India/ respondent no.1 that will be applicable to

the case of the respondents. The respondent for this purpose has

relied upon Section 6(h) and 13 (a) & (d) of the IIT Act, 1961. The

aforesaid two sections reads as under :-

6. (1) Subject to the provisions of this Act, every institute shall exercise the following powers and perform the following duties namely:

(a) ........................

(b) .......................

(c) ......................

(d) ......................

(e) ......................

(f) ......................

(g) .......................

(h) to institute academic and other posts and to make appointments thereto (except in the case of the Director)

13. (1) ......................

(2) Without prejudice to the provisions of sub- section (1), the Board of any Institute shall

(a) take decisions on questions of policy relating to the administration and working of the Institute;

(b) .....................

(c) .....................

(d) Institute and appoint persons to academic as well as other posts in the Institute;"

(e) ....................

(f) .....................

(g) ................... "

6. It was urged on the strength of these two provisions that so

far as the exercise which has been undertaken by respondent no.2

is concerned, it is only the rationalization in the cadre of

Registrars which includes not only one Registrar but three Deputy

Registrars and existing 14 Assistant Registrars by virtue of which

three posts of Assistant Registrars have been directed to be

upgraded as Deputy Registrar for the efficient discharge of the

Registry though such upgraded posts can be interchanged by the

post of Assistant Registrar thereby meaning that the functions

which will be discharged by the Deputy Registrar can also be

permitted to be discharged by the Assistant Registrar. It was also

contended by counsel for the respondent no.2 that so far as the

petitioner is concerned apart from the fact that he has woken up

belatedly to challenge the resolution only in 2008 though it was

passed in 2005. Further it was urged that he can by no stretch of

imagination be said to be aggrieved person because he is yet to be

selected as Assistant Registrar. It was contended that according

to the Recruitment Rules which are not disputed by the petitioner,

50% of the posts of Assistant Registrar are to be filled up by direct

recruitment while as other remaining 50% are to be filled up on

the basis of departmental promotion recommendations. It is only

a person working as a Assistant Registrar who has put in 8 years

of service that he can be considered in the quota of direct

recruitment to the post of Deputy Registrar which has been fixed

at 75%. For departmental promotion quota, he ought to have

completed 16 years of service to the said post of Asstt. Registrar

before being considered for the post of Deputy Registrar.

Therefore, today when the petitioner is yet to be appointed as a

Assistant Registrar, he cannot be said to be aggrieved on account

of creation or the conversion of three posts of Assistant Registrar

to the post of Deputy Registrar as he does not fall in the zone of

consideration for the appointment to the post of Deputy Registrar.

7. It has been further contended by the respondent no.2 that

the petitioner has already been rejected twice for appointment

under the departmental promotion to the post of Assistant

Registrar while as for the third occasion his name is still under

consideration and the proceedings are yet to be finalized. On the

strength of these submissions, it has been urged that so far as the

petitioner is concerned, he cannot be said to be in any manner

being prejudiced on account of vacation of the interim order which

has been granted on the very first date i.e. 25.8.2008 by virtue of

which though the respondent no.2 was permitted to go ahead with

the selection process but no appointment to the post of Deputy

Registrar was to be made. Another submission which was made

by counsel for respondent no.2 was that Section 67 read with

Section 13 (a) & (d) empowers the respondent no.2 not only to

institute a post but also fill up the same. It was urged that on the

strength of these provisions which forms part of the Act of

Parliament, the subordinate legislation in the form of

administrative instructions of the Government of India cannot be

read so as to have overriding effect on the provisions passed by

the Parliament. In any case, it was urged by the learned counsel

for the respondent no.2 that at the time when the aforesaid

impugned Board Resolution was passed, the nominee of the Govt.

of India were present and the said resolution was sent to the

concerned administrative Ministry and till date no objection to

such a resolution has been raised.

8. This fact was disputed by counsel for respondent no.1 as

well as by counsel for the petitioner. Learned counsel for the

petitioner had drawn my attention to a letter wherein it was

shown that the resolution in question was brought to the notice of

respondent no.1 only in December, 2008 and it was urged by

counsel for the petitioner that it is only after filing of the present

writ petition that respondent no.2 has deemed it necessary to

bring this fact to the notice of respondent no.1.

9. It was also contended by the learned counsel for the

petitioner that Section 33 of the Act which gives the power to the

Council to rationalize the cadre only is authorized to change the

strength of the cadre be that in the category of Assistant Registrar

or any other and since the Council has not passed any such

resolution therefore, the resolution in question cannot be given

effect to.

10. I have carefully considered the respective submissions of the

parties and gone through the record.

11. On the very first date i.e. on 25.8.2008, this Court was

pleased to pass an ad interim order by virtue of which respondent

no.2 was permitted to continue with the process of selection to the

post of Deputy Registrar but this was subject to final outcome of

the present writ petition but not appointments.

12. It may be pertinent here to mention that if one sees the stay

application of the petitioner the prayer of the petitioner in CM

No.11746/2008 at the time of filing of the writ petition was that

the interviews to the post of Deputy Registrar itself should be

stayed which the Court was not inclined to do so in order to

balance the equities. The Court permitted the selection process to

continue subject to the final outcome of the writ petition. Today,

admittedly the selection process has culminated in certain

recommendations which are kept in a sealed cover and they have

also produced in Court. The question which needs to be

considered at this point of time is as to whether the respondent

no.2 should be permitted to make the appointments to the post of

Deputy Registrar on the basis of the said selection subject to the

protection of interest of the petitioner or whether the interim order

which has been passed on 25.8.2008 should be continued and

made absolute till the disposal of the writ petition which obviously

may take some time. It may also be pertinent here to mention

that respondent no.2 has already filed an application for vacation

of the interim order granted on 25.8.2008 in which the aforesaid

pleas have been taken in modification of the interim order. The

petitioner has also filed the reply to the said application and

reiterated the stand which was taken in the petition and which in

nutshell is given hereinbefore.

13. Before an interim order is passed or confirmed in favour of a

party, three things have to be established. These are that the

petitioner has prima facie a very good case, the balance the

convenience should be in his favour and that the petitioner must

suffer an irreparable loss in case the interim order is not granted

to him.

14. Coming back to the facts of the present case though the

petitioner may have been able to show that prima facie case as the

petition cannot be said to be without any merit with regard to the

ban which has been imposed by the Union of India on creation of

a new post and the fact that upgradation of a post has been

observed to be tantamounting to create a new post, the question

which arises for consideration is as to whether even in such

contingency the same would entitle the petitioner to put the entire

functioning of the respondent no.2 to a grinding halt. I am

tempted here to refer to the stand of the respondent no.2 which is

at variance with regard to the factum that the instructions of the

Govt. of India to ban is not applicable to the respondent no.2 and

the upgradation of the post by it does not require any prior

permission of the UOI. So far as the plea of the petitioner that the

resolution with regard to the upgradation or rationalization of

cadre has to be taken by the Council it had been submitted by

counsel for respondent no.2 that there is only one Council for

governing all the seven IITs and there has been only one meeting

in the last six years of the Council. Therefore, to assume that the

power of rationalization of cadre is vested with the Council is not

correct. In the instant case by conversion of three posts of

Assistant Registrar to the post of Deputy Registrar by the Board

which functions individually for each IIT's in terms of Section 6

read with Section 13 (2) (a) & (d) seems to be perfectly prima facie

in order. In any case, these rival contentions can be left to be

analyzed and adjudicated only after a detailed hearing not at the

threshold when the application for stay is being considered. For

the present, the petitioner has to show a serious prejudice and the

balance of convenience as well as the irreparable loss which he

will suffer in case the respondents are permitted to give effect to

the recommendations of the Selection Committee.

15. This Court is of the opinion that since the petitioner is yet to

get selected as an Assistant Registrar therefore, it is too farfetched

to assume that conversion of three posts of Assistant Registrar to

the post of Dy. Registrar will cause serious prejudice to him or

would diminish chance of getting selected as Assistant Registrar.

In any case, it has been pointed out by the learned counsel for the

petitioner that the petitioner has already been not found to be

suitable on two occasions when he was not considered for

promotion as Assistant Registrar and the third time his name is

still not considered. Though this aspect that the rejection of the

petitioner on two earlier occasions has been attributed by the

learned counsel for the petitioner on account of the fact that the

petitioner was on deputation and his entire CRs were not

considered at the time of promotion.

16. Be that as it may, the fact of the matter remains that on two

occasions, the case of the petitioner has been considered for

promotion to the post of Assistant Registrar and has not been

found to be fit and since he did not assail the same, therefore,

today when the 3 posts of Assistant Registrars have been

converted, upgraded to the post of Dy. Registrar, it cannot be said

that the petitioner is being prejudiced in the light of the fact when

he has yet to put in eight years of service for getting promoted to

the post of Deputy Registrar as a direct recruit and even as a

candidate departmentally he has to put in 16 years of service to

the said post of Asstt. Registrar before being considered as Deputy

Registrar. However, still in order to balance the equities, the

appointment to the post of Dy. Registrar can be made subject to

the respondent no.2 to make it clear in the appointment orders of

the recommendees that their appointment is subject to the

decision in the writ petition. Since the balance of convenience is

being held not to be in favour of the petitioner or is rather in

favour of the respondent no.2, I am of the opinion that the

petitioner will not suffer an irreparable loss in case the interim

order dated 25.8.2008 is modified on the lines stated above.

17. For the reasons mentioned above, the interim order dated

25.8.2008 is modified so as to permit the respondent no.2 to make

appointment to the post of Deputy Registrar with the condition

that in the appointment letter, it will be specifically mentioned

that the appointment is subject to the decision in the writ petition.

18. With these directions, the present applications are disposed

of.

Writ Petition (Civil) No.6147/2008

List the matter for disposal on 7th September, 2009.

V.K.SHALI, J.

MAY 20, 2009 RN