N.D.M.C. vs Aftab Singh
2010 Latest Caselaw 5320 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                  WRIT PETITION (C) NO. 7221/2007


                                           Date of Decision : 23.11.2010


       N.D.M.C.                                 ..... Petitioner
                         Through:    Mr. Ankur Chhibber, Advocate

                               versus

       AFTAB SINGH                               ..... Respondent

                         Through: Mr. P.N.Dwivedi, Advocate

CORAM:
    HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA


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


SUDERSHAN KUMAR MISRA, J. (ORAL)

1. This writ petition impugns the decision of the Labour Court

dated 1.7.2006, whereby the petitioner was directed to promote the

respondent Aftab Singh, to the post of, "Technical Supervisor" from

the date on which another employee, Ms. Rajni Gaur, was also

promoted to that post, on similar terms, along with all consequential

benefits.

2. Admittedly, the respondent, who joined the services of the

petitioner on 16.6.1973 as a Lab Assistant, was recruited before Ms.

Rajni Gaur, who had also joined as a Lab Assistant later. To begin

with, Ms. Rajni Gaur was promoted as Senior Lab Technician in

preference to the respondent with effect from 7.5.1978.

Consequently, the respondent raised an Industrial Dispute bearing

No. 109/91, seeking promotion to the post of Senior Lab Technician

from the same date, on the ground that he was senior to Ms. Gaur.

This was allowed by the Labour Court, and the petitioner promoted the

respondent as well to the post of Senior Lab Technician, from

7.5.1978, with all consequential benefits.

3. Thereafter, on 9.8.1996, Ms. Rajni Gaur was promoted

again. This time, to the post of Technical Supervisor. The respondent,

who maintained that he was senior to Ms. Rajni Gaur on the basis of

his initial appointment on 16.06.1973, now raised another Industrial

Dispute bearing No. 239/2001 before the Labour Court, seeking

promotion to the post of Technical Supervisor as well. This resulted in

the impugned order of 1.7.2006, granting the relief sought by the

respondent.

4. The petitioner has no grievance as regards the

respondent's stand that he was recruited before Ms. Rajni Gaur as a

Lab Assistant and that, to that extent, he was senior to Ms. Rajni

Gaur. It also does not have any grievance with regard to the

promotion of the respondent to the post of Senior Lab Technician

w.e.f. 7.5.1978, in terms of, and in compliance with the directions of

the Labour Court in the earlier Industrial Dispute No. 109/1991.

5. However, notwithstanding this position, it is the

petitioner's case that even if it is assumed that the respondent was

entitled to be promoted to the post of Senior Lab Technician before

Ms. Rajni Gaur, that by itself would not entitle him to the next post of

Technical Supervisor. This is because the relevant recruitment rules

for the post of Technical Supervisor, in respect of which the

respondent has raised a claim, admittedly state that that post is a

purely selection post, for which the following educational and other

qualifications are required;

"6. Educational and other B.Sc. (Medical Lab.

            qualifications             Technology) with 3 years
            required for direct        experience as Tech. Asstt.
            recruitment.               In any of the group of these
                                       Lab.         Of       Medical
                                       Institution/Hospital.

                                       OR
                                       1. Matriculation/Hr. Sec./Sr.
                                          Sec. with Science.
                                       2. Diploma in Medical Lab.
                                          Technology from a recog.
                                          Institution.
                                       3. 3 years experience as a
                                          Tech. Asst. in a Hospital."

With regard to promotees, the position is set down in

paragraph 7 of the aforesaid recruitment rules, thus;

     "7. Whether       age        &      Age ...... No
         Educational qualifications
         prescribed   for    direct      Educational Qualifications...Yes"
         recruitment will apply in
         case of promotees.

From this, it is obvious that in the case of promotees, such

as the respondent, the educational qualifications prescribed for direct

recruitment are fully applicable.

6. Admittedly, the respondent does not possess a degree of

B.Sc. in Medical Lab. Technology. Consequently, to be eligible for

consideration for the post of Technical Supervisor, it was necessary for

him to have the other qualifications prescribed in the aforesaid

recruitment rules, which were: (1) Matriculation/Higher

Secondary/Senior Secondary with Science, (2) Diploma in Medical Lab.

Technology from a recognized institution, and (3) 3 years experience

as a Tech. Asstt.

7. The bone of the contention is with regard to the

qualification prescribed at Serial No. 2, which is a, "Diploma in Medical

Lab. Technology from a recognized institution". Admittedly, the

respondent has only a Certificate of training in a Laboratory.

8. In support of his case, counsel for the respondent refers to

paras 9 and 10 of the aforesaid recruitment rules for the post of

Technical Supervisor, which set down that the method of recruitment

is to be by promotion, failing which it is by direct recruitment. In this

case, since suitable departmental candidates were available for

promotion, therefore, the question of direct recruitment did not arise

and the promotional channel was required to be followed. Counsel

further points to paragraph 10 of the aforesaid rules, which states as

follows:

     "10.    In case of Rectt. By              Sr. Lab. Technician
             promotion/    deputation/         with   five    years
             transfer  grades     from         regular service."
             which         promotion/
             deputation transfer to be
             made.

It is the respondent's case that since the recruitment was

by promotion, the grade of Senior Lab Technician with five years'

regular service is the prescribed or feeder grade from which the

promotion is to be made. He submits that, consequently, the

respondent, having admittedly satisfied the requirement of being a

Senior Lab Technician with five years' regular service, the promotion

ought to have been granted to him without insisting that he also

satisfy the aforesaid educational qualifications prescribed in

paragraphs 6 and 7 of the Rules.

9. If the contention of the respondent is accepted, it would

mean that, as regards the promotional channel, the educational

qualifications which are prescribed as applicable in the case of

promotees also, by virtue of paragraph 7 of the same recruitment

rules, will have no effect and will thus be rendered otiose. This Court

cannot give an interpretation to a Rule by which another part of the

same Rules becomes unworkable or becomes null and void. The only

weightage that can be given to the aforesaid paragraph 10 of the

Rules is that if recruitment has to be done through the promotional

channel, then, the grade from which that promotion can be made must

be of Senior Lab Technicians with five years' regular service. This

would be in addition to the requirement of the educational

qualifications prescribed under paragraphs 6 and 7 of the same Rules.

In other words, in my view, the Rules cannot be interpreted to mean

that the requirement given in paragraph 10 is the only requirement

that is to be satisfied and that the educational qualifications given in

paragraphs 6 and 7 of the same Rules need not be satisfied.

10. Counsel for the respondent then relies on Annexure R-2A

that has been placed on record to show that, in fact, in another case,

one Sh. J.C.Kaushal, who was a Senior Lab Technician in the

petitioner's service, was granted a relaxation of the requirement of five

years' regular service in the feeder grade, and was promoted to the

post of Technical Supervisor although he did not have the necessary

experience as a Senior Lab. Technician. Counsel contends that since

the petitioner demonstrably relaxed one requirement, the respondent

is entitled to a similar relaxation with regard to the prescribed

educational qualifications. I do not agree. An educational qualification

is an altogether different thing from experience, and without going into

the question of the correctness or otherwise of the concerned

Departmental Promotion Committee's decision to grant a relaxation of

the requirement of five years' experience to Sh. J.C.Kaushal, Sr. Lab

Techninician, I do not think any such relaxation with regard to the

required experience, granted by the DPC in some other case, would

vest in the respondent a right to claim relaxation of the educational

qualification prescribed for the post of Technical Supervisor. In any

case, the DPC's decision with respect to Sh. Kaushal clearly states that

it is to be a, "one time measure which will not be quoted as a

precedent."

Furthermore, grant of a benefit de hors the rules, in some other

instance, cannot form the basis of any enforceable right to a similar

benefit.

11. In this context, counsel for the petitioner has also relied on

Indian Council of Agricultural Research & Anr. v

T.K.Suryanarayan & Ors.,1997 (6) SCC 766, wherein it has been

held in paragraph 8 thereof, that;

"Incorrect promotion either given erroneously by the department by misreading the said Service Rules or such promotion given pursuant to judicial orders contrary to Service Rules cannot be a ground to claim erroneous promotion by perpetrating infringement of statutory Service Rules."

Similar view has been taken by the Supreme Court in U.P.

State Sugar Corporation Ltd. Vs. Sant Raj Singh 2006 (9) SCC 82, as

well as Union of India Vs.International Trading Company, (2003)

5 SCC 437, paragraph 13. Similarly, in Siddharth Singhal vs. Guru

Gobind Singh Indraprastha University & Anr. in WP (C) No. 3356/08

decided on 30.4.2008, this Court has also held that, even if the

respondents in that case had permitted some students to appear for

the semester examinations as a special case by giving them some

grace attendance to make up the shortage, which could not have been

done under the rules, does not entitle the petitioners to the benefit of

the same infraction. Similarly, in this case also, in my view, simply

because some other Departmental Promotion Committee has granted

a relaxation of the requirement of five years experience to some other

candidate in the past, which has no effect on the petitioner's service,

the same cannot form the basis for the type of relief being sought by

the petitioner in this case.

12. Counsel for the respondent has been unable to

demonstrate any rule or regulation which permits the NDMC, or the

DPC, to waive the specifications in the Recruitment Rules. The

Recruitment Rules have a certain legality and sanctity behind them,

and cannot be bypassed in such a manner. If this Court were to hold

that the respondent was entitled to a relaxation of the educational

requirements prescribed in the rules, it would amount to completely

changing the recruitment rules with regard to the educational

qualifications, with the effect that the educational qualifications will

stand downgraded from a diploma to a certificate. I do not find any

ground to follow this course of reasoning.

13. Counsel's further submission, to the effect that when the

respondent joined the petitioner's services in 1973, the recruitment

rules for the post of Technical Supervisor were different, does not, in

my view, support his case. When a person either applies, or becomes

eligible for being considered for a particular post, the extant rules and

educational qualifications in force at that time, are the ones which will

be applicable. Further, it is settled law that for appointment to any

further post by selection or by promotion, the candidate must also

satisfy the qualifications prescribed. If the rules themselves do not

provide a waiver for in-house candidates, then in the absence of the

required qualifications, such candidates cannot claim a vested right to

be considered for that post. The only thing a candidate is entitled to

is a proper and uniform application of the applicable rules.

14. A perusal of the impugned Award shows that the Labour

Court proceeded on an erroneous assumption that the post of

Technical Supervisor was a 100% promotional post from amongst the

grade of Senior Lab Technicians with a minimum five years' service,

and nothing more was required. It is on this assumption that the

Labour Court proceeded to conclude, in paragraph 17 of the Award,

that the petitioner had erred in earlier promoting the aforesaid Smt.

Rajni Gaur to the post of Senior Lab Technician ahead of the

respondent and thereafter had again erred in promoting her to the

post of Technical Supervisor, even though the respondent was senior

to her. It also erroneously concluded that simply because the

respondent was directed to be appointed to the post of Senior Lab

Technician with effect from the date Smt. Rajni Gaur was given that

post, and since the respondent had initially joined before Smt. Rajni

Gaur, therefore, on this fact alone, the respondent was assumed to

have fulfilled the necessary qualifications for promotion to the post of

Technical Supervisor in preference to Smt. Rajni Gaur. Clearly, the

learned Labour Court lost sight of the additional requirement of a

Diploma in Medical Lab. Technology from a recognized institution, for

being considered for the post of Technical Supervisor, which the

respondent did not have. Counsel for the respondent has been unable

to show that this requirement of a Diploma in Medical Lab. Technology

from a recognized institution stands satisfied in the case of the

respondent in any other way.

15. In view of the conclusion that I have reached, I am not

going into the other aspect that has been raised, which is whether, in

granting relief to the respondent, the Tribunal could have directed the

creation of a supernumerary post, as it has done in the impugned

Award. Since the respondent does not have the prescribed

educational qualification, his allegation that the post in question was

denied to him on account of any mala fides by the petitioner, also does

not require examination.

16. In that view of the matter, the writ petition deserves to be

allowed. The impugned award dated 1st July, 2006 is accordingly set

aside.

SUDERSHAN KUMAR MISRA, J.

NOVEMBER 23, 2010 rd/sl