Krishan Pal And Ors. vs Mcd & Ors.
2010 Latest Caselaw 2411 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            WP(C) No.1223/2010

%                        Date of Decision: 05.05.2010

Krishan Pal and Ors.                              .... Petitioners
                  Through Mr. Javed Ahmed and Mr. Vaseem Mian,
                          Advocates

                                 Versus

MCD & Ors.                                               .... Respondents
                       Through Nemo

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

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




ANIL KUMAR, J.

*

The petitioners have impugned the order dated 11th December,

2009 passed by the Central Administrative Tribunal, Principal Bench in

TA No. 903/2009 titled as Krishan Pal & ors Vs. MCD, dismissing their

Original Application claiming grant of 2nd financial upgradation in their

pay scale in accordance with the office order dated 13th May, 2003

allegedly also granted to the similarly situated other employees.

The petitioner no.1 was initially appointed as Seasonal Malaria

Jamadar in January, 1971 and were promoted as AMI/SW on 6th

September, 1977. The petitioner No. 2 was also initially appointed as

Seasonal Malaria Beldar on 12th August, 1976 and was promoted as

AMI/SW on 1st June, 1978 and ACP benefit was granted to the

petitioner No. 2 w.e.f. 12th August, 2000. The petitioner No. 3, Sh. Suraj

Bhan was also appointed as Seasonal Malaria Beldar (SMB) on 8th

February, 1978 and was promoted as AMI/SW on 4th July, 1978 and

was granted first ACP benefit w.e.f. 8th February, 2002.

Under the policy of Assured Career Progression (ACP), benefits

were to be granted w.e.f. 9th August, 1999. First ACP was granted w.e.f.

2.8.1999 and according to the respondent, the petitioners were not

entitled for 2nd ACP as they were promoted from Seasonal Malaria

Jamadar to Assistant Malaria Inspector in 1977-78.

This was challenged by the petitioners contending that they

were directly appointed to the post of Assistant Malaria Inspector

during the period 1977-78 and consequently, after their direct

appointment, since they have not been given any promotion besides the

first ACP benefit, they are entitled for 2nd ACP benefit also.

Since the 2nd ACP benefit was denied to them, they filed the

writ petition in this Court being WP (C ) No. 3936-38/2006, which was

transferred to the Central Administrative Tribunal and was registered

as TA 903/2009, which has been dismissed by the Tribunal holding

that the appointment of the petitioners was initially as Seasonal Malaria

Jamadar and they were promoted in 1977-78 and they were not

appointed directly to the post of Assistant Malaria Inspector as they did

not have the requisite educational qualification and therefore, they

could not have been appointed directly rather they were promoted from

Seasonal Malaria Jamadar to the post of Assistant Malaria Inspector

and thus, the 2nd ACP benefit could not be granted to them.

The learned counsel for the petitioner has very vehemently

contended, referring to the appointment order dated 5th September,

1977, that they were not promoted to the post of Assistant Malaria

Inspector but they were directly appointed to the said post. The

eligibility conditions for appointment to the said post of Assistant

Malaria inspector are stipulated in the relevant Recruitment Rules

which are as under:-

"7.       Educational & other                 (1) Matric preferably
          qualification for direct recruits       with science subject

                                              (2) Sanitary Inspectors Diploma
                                                  or Malaria inspectors
                                                  Course




 10.       Method of recruitment             (i) 50% by direct appointment
          Whether by direct recruitment     (ii)50% by promotion from
          or by promotion and percentage    categories of Anti malaria/DDT
          of vacancies to be filled         Beldars & Jamadars with 1
                                            year experience in the case of
                                            matriculates & 10 years
                                            experience in the case of
                                            Middle.




11.       In case of recruitment by         1. Anti Malaria/Anti Larval
          promotion, grade from which         Beldars
          promotion to be made              2.Anti   Malaria/Anti     Larval
                                              Jamadars.

                                            3.DDT Jamadars (Superior
                                              Field Workers.

                                            4.DDT Beldars
                                             (Field Workers)"

The learned counsel for the petitioner has not been able to deny

that all the petitioners did not have the requisite qualification of

Sanitary Inspector Diploma or Malaria Inspector Course. If the

petitioners did not possess the requisite Sanitary Inspector Diploma or

Malaria Inspector Course, they could not be appointed to the post of

Assistant Malaria Inspector directly.

The learned counsel for the petitioner could not justify that

though they did not have the requisite qualification for appointment as

Assistant Malaria Inspector, however they were appointed on account of

alleged concession granted at that time. The learned counsel, however,

is unable to show any such order or any order granting such relaxation

for appointment as Assistant Malaria Inspector despite not having pre-

requisite qualification in case of petitioners or to any other persons.

The learned counsel for the petitioner has contended that the

respondents have the necessary orders or notification granting

relaxation and the same has not been produced. This is not disputed by

the learned counsel for the petitioner that the production of such

relaxation order or notification was not sought by the petitioners from

the respondent before the Tribunal. Perusal of the writ petition, which

was filed before this Court, which was later on transferred to the

Tribunal, reveals that no such plea was taken by the petitioners that

though they were not eligible for appointment by direct recruitment to

the post of Assistant Malaria Inspector on account of not having pre-

requisite qualification, however, they were appointed on account of

relaxation granted by MCD.

The plea of the petitioners is rather that they were given ad hoc

appointment as Assistant Malaria Inspector and they have continued to

work as such. In the circumstances, the petitioners cannot be permitted

to contend that though they did not possess the requisite qualification

in accordance with the Recruitment Rules, however, they were

appointed as Assistant Malaria Inspector directly on account of

relaxation from the requisite qualification granted by MCD to them. In

the circumstances the plea of the respondent that the petitioners were

promoted to the post of Assistant Malaria Inspector has to be accepted

and the finding of the Tribunal in this regard cannot be faulted.

The learned counsel for the petitioner has also relied on a show

cause notice dated 9th August, 2005 stipulating that the petitioners

were promoted from the post of Seasonal Malaria Beldar and since the

petitioner did not fulfill the eligibility for direct recruitment for the post

of Assistant Malaria Inspectors applicable at that time as per

Recruitment Rules for the said post and as the candidates for the post

of Assistant Malaria Inspector were required to possess Sanitary

Inspector Diploma and since the petitioners were promoted, therefore,

why the 2nd financial upgradation granted under the ACP Scheme may

not be withdrawn with retrospective effect.

The said show cause notice was not restricted to the petitioners

only but was given to number of employees on the premise that the

second upgradation under the scheme scheme had already been

granted to the petitioner and other persons. This is not disputed that

the 2nd financial upgradation had not been granted to the petitioners.

Therefore, on the basis of the show cause notice dated 9th August,

2005, they cannot contend that they were appointed as direct recruit to

the post of Assistant Malaria Inspector and they were not promoted

from the post of Seasonal Malaria Beldar.

In the totality of the facts and circumstances, the petitioners

have not been able to establish that they were appointed directly to the

post of Assistant Malaria Inspector as they did not have requisite

qualification as contemplated under the Recruitment Rules and

consequently, the inevitable inference that they were promoted from the

post of Seasonal Malaria Beldar to the post of Assistant Malaria

Inspector and on account of getting one promotion in 1977-78, they are

only entitled for one benefit under the ACP Scheme and not to the other

benefits, cannot be faulted.

In the circumstances, this Court does not find any such

illegality or irregularity or such perversity in the order of the Tribunal,

which shall require any interference by this Court in exercise of its

jurisdiction under Article-226 of the Constitution of India.

The writ petition, in the facts and circumstances, is without

any merit and, it is therefore, dismissed.

ANIL KUMAR, J.

MAY 05, 2010                                    MOOL CHAND GARG, J.
„rs‟