Delhi High Court
Delhi Jal Board vs Sh.Sharad Kumar on 18 April, 2011
Author: Anil Kumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No.7439/2010
% Date of Decision: 18.04.2011
Delhi Jal Board ...... Petitioner
Through Mr.U.N.Singh, Advocate.
Versus
Sh.Sharad Kumar ...... Respondent
Through Mr.Amit Dubey, Advocate.
CORAM:
HON'BLE MR.JUSTICE ANIL KUMAR
HON'BLE MR.JUSTICE SUDERSHAN KUMAR MISRA
1. Whether reporters of Local papers may YES
be allowed to see the judgment?
2. To be referred to the reporter or not? NO
3. Whether the judgment should be NO
reported in the Digest?
ANIL KUMAR, J.
*
1. The petitioner, Delhi Jal Board, has challenged the order dated
18th May, 2010 passed by Central Administrative Tribunal, Principal
Bench, New Delhi in T.A No.727/2009 titled "Sh.Sharad Kumar v. Chief
Executive Officer, Delhi Jal Board & Anr." directing the petitioner to
consider the claim of respondent for the post of Chief Water Analyst
under 20% carved out quota from the feeder cadre of Bacteriologist
within three months from the date of receipt of the copy of the order.
2. Brief facts to comprehend the controversy are that the respondent
filed a writ petition being W.P(C) No.3276/2007 praying inter-alia to
issue a writ in the nature of certiorari for quashing/setting aside
proceedings/result dated 17th April, 2007 of DPC held on 15th March,
2007 qua Sh.Vinod Kumar and for issue of a writ in the nature of
mandamus directing the petitioner to consider the respondent for
regular promotion as Assistant Chief Water Analyst (hereinafter referred
to as "ACWA"). The respondent had impleaded Sh.Vinod Kumar as
respondent No.2 in the said writ petition filed before the High Court
which was later on transferred to Central Administrative Tribunal and
was registered as TA No.727/2009 titled as "Sh.Sharad Kumar v. Chief
Executive Officer and Anr."
3. The respondent had contended that he and his colleague namely
Mr.Rakesh Chandra Bahukhandi had been working as Bacteriologist.
According to him Chemist and Bacteriologist are feeder cadre to the
post of Assistant Chief Water Analyst, ACWA. The respondent
contended that he and his colleague were seniors in the combined list of
Chemist and Bacteriologist on the basis of old Recruitment Rules of
1982, however, the petitioner issued amended recruitment rules in
1997 which are under challenge. The respondent also disclosed that he
has filed another writ petition along with other employees of Delhi Jal
Board being W.P(C) No.4321/1997 titled as "Sh.Rakesh Chandra
Bahukhandi & Ors v. Delhi Jal Board" where the reliefs sought were a
writ of certiorari for quashing the notification of amended recruitment
rules to the post of ACWA dated 22nd September, 1997 and to promote
the respondent with other petitioners in the said writ petition
No.4321/1997 to the post of ACWA with retrospective effect and for a
direction to the petitioner to remove the disparity, if any, existing in the
promotion to the post of ACWA.
4. The respondent had contended that the amended recruitment
rules dated 22nd September, 1997, where the ratio of 80:20 was fixed for
promotion to the post of ACWA from the combined cadre of Chemist
and Bacteriologist, were challenged by the respondent and other
employees of Delhi Jal Board. According to the respondent, the Court
in W.P(C) No.4321/1997 had stayed the operation of the amended
recruitment rules to the extent that the petitioner was permitted to fill
up the post of ACWAs on the basis of amended recruitment rules,
however, the promotion was to be subject to the outcome of the said
writ petition.
5. The grievance of the respondent as pleaded in the writ petition
No.3276/2007 was that the petitioner had promoted four junior
Chemists to the post of ACWA on the basis of ratio of 80:20 though the
respondent and Sh.Rakesh Chandra Bahukhandi were senior most in
the combined seniority of both cadres of Chemist and Bacteriologist.
The respondent‟s plea was that he was promoted as ACWA on adhoc
basis on 29th October, 2004 subject to the outcome of writ petition
No.4321/1997 and since then he has been working as ACWA on adhoc
basis. The respondent asserted that in the combined seniority list his
name is at serial No.8.
6. The other plea of the respondent in the writ petition was that
Sh.Vinod Kumar was shown at serial No.9 in the seniority list of
ACWAs, however, he was promoted on current duty charge with effect
from 28th November, 2005, i.e., much after the respondent. According to
respondent since he was working as ACWA on adhoc basis since 29th
October, 2004, he was entitled to be considered for regular promotion to
the post of ACWA earlier to the said Sh.Vinod Kumar. It was contended
that in promoting Vinod Kumar prior to respondent, petitioner has
acted illegally and has considered the junior candidate Sh.Vinod Kumar
in the DPC held on 15th March, 2007 without any rhyme and reason for
regularization of his promotion to the post of ACWA and thus the
respondent has been denied even consideration contrary to rules and
illegally and in an arbitrary manner.
7. The respondent alleged that he filed an application to the
petitioner which was received on 22nd March, 2007 and also got a legal
notice issued to the petitioner on 2nd April, 2007 as no response to his
application was received from the petitioner regarding not regularizing
his promotion to the post of ACWA. The respondent had alleged that the
DPC held on 15th March, 2007 whose result was declared on 17th April,
2007 where respondent was denied regular promotion whereas
Sh.Vinod Kumar who was junior to the respondent had been illegally
considered and thus the respondent prayed for quashing and setting
aside the DPC held on 15th March, 2007 and its result declared on 17th
April, 2007.
8. The petitioner contested the petition and contended inter-alia that
the recruitment rules to the post of ACWA were amended and notified
on 22nd September, 1997. The amendments were carried out primarily
to reconcile the conflicting interest of both the feeding grades for the
said post ACWA, namely Chemist and Bacteriologist. The petitioner
disclosed that there existed 12 sanctioned posts of ACWA which are to
be filled from Assistant Chemists and Assistant Bacteriologist.
Sanctioned post of Assistant Chemist and Chemist are 67 and 20
respectively whereas the sanctioned post of Assistant Bacteriologist and
Bacteriologist are 13 and 18 respectively. It was also asserted that the
earlier recruitment rules which were notified on 4th January, 1982 had
contemplated promotion to the post of ACWA from the Chemists and
Bacteriologists with five years regular service in respective grades
possessing at least a degree of Chemistry/Bio-chemistry/Biology.
According to the petitioner promotional avenues of Assistant
Bacteriologist to the post of Bacteriologist was considerably high as
compared to that of Assistant Chemist to Chemist, as there were only
13 posts of Assistant Bacteriologist constituting the feeder cadre for
promotion to 8 posts of Bacteriologist as against 67 Assistant Chemist
constituting the feeder cadre for promotion to 20 posts of Chemist. In
the circumstances, it was pleaded that promotional avenues of
Assistant Chemist to that of Chemist was 30% and promotional
avenues of Assistant Bacteriologist to the post of Bacteriologist was
90%, therefore, to bring parity in promotional prospects in both the
categories, the recruitment rules were amended providing 80% of the
posts of ACWA to be filled up by the Chemist and 20% from amongst
Bacteriologist by promotion.
9. The stand of the petitioner in the counter affidavit filed in reply to
the writ petition being W.P(C) No.3276/2007 was that resolution No.696
for the proposed amendment was passed on 15th October, 1985 which
was approved by the Corporation and the mandatory approval sought
from Union Public Service Commission was given on 7th March, 1997
and the amended recruitment rules were notified on 22nd September,
1997. The petitioner denied the combined seniority list which was
produced by the respondent along with the writ petition contending that
no combined seniority list of ACWA had been issued by the petitioner.
The petitioner asserted that the respondent himself had prepared the
said combined seniority list of ACWA without taking into consideration
other factors such as categories to which the candidates belong and the
same could not be relied on or referred to.
10. Regarding respondent, the petitioner disclosed that respondent is
working on adhoc basis as ACWA since 29th October, 2004 and as there
is no regular vacancy for the cadre of Bacteriologist as per post based
roster, therefore, he could not be regularized.
11. After the writ petition No.3276/2007 was transferred to the
Central Administrative Tribunal, Principal Bench and was registered as
T.A No.727/2009 the same was allowed by order dated 18th May, 2010.
The petitioner contends that while allowing the petition of the
respondent, the Tribunal did not notice the order dated 23rd November,
2009 passed by the Tribunal in another T.A No.1051/2009 titled as
"Sh.Rakesh Chandra Bahukhandi and Ors. v. Delhi Jal Board & Ors."
which was a writ petition filed by the respondent and other employees
of Delhi Jal Board being W.P(C) No.4321/1997 where the Tribunal had
upheld the amended recruitment rules notified on 22nd September,
1997. While passing the impugned order dated 18th May, 2010 in T.A
No.727/2009 the Tribunal relied on the statement made by the
respondent that out of 2 posts carved out as 20% quota of
Bacteriologist only one Sh.Rakesh Chandra Bahukhandi has been
working on regular basis whereas the petitioner has been keeping a
post for the last six years functioning as ACWA and, therefore, the
contention of the petitioner that the regular vacancy is not available
cannot be countenanced and there is a presumption of it being of
permanent nature which cannot be refuted by the petitioner and,
therefore, disposed of the petition with direction to the petitioner to
consider the claim of the respondent for the post of Chief Water Analyst
under 20% carved out quota being the feeder category of Bacteriologist.
12. The said order of the Tribunal dated 18th May, 2010 in T.A
No.727/2009 is challenged by the petitioner inter-alia on the ground
that there is no regular vacancy for the post of Chief Water Analyst
reserved for Bacteriologist quota. The petitioner has asserted that the
order dated 18th May, 2010 passed in T.A No.727/2009 is in conflict
and contrary to order passed by the Tribunal dated 23rd November,
2009 in T.A No.1051/2009 which has not been followed while passing
the impugned order by the same bench. The petitioner has also
impugned the order on the ground that there are two posts carved out
as 20% quota being the feeder category of Bacteriologist and Sh.Rakesh
Chandra Bahukhandi was working on regular basis under the quota of
Bacteriologist and Sh.Ram Kishan, who is a regular ACWA from the
category of Bacteriologist is holding the post of CWA on adhoc basis.
The case of regular promotion of Sh.Ram Kishan to the post of CWA is
under process and has to be approved by UPSC as per the recruitment
rules. The petitioner pleaded that the name of the respondent against
the resultant vacancy of Sh.Ram Kishan will be considered for regular
promotion only on availability of regular vacancy for the post of ACWA
reserved for Bacteriologist category quota. As there are only two regular
posts of ACWA reserved for Bacteriologist, therefore, the name of the
respondent cannot be considered till the vacancy occurs on account of
approval of Sh.Ram Kishan‟s posting on regular basis to the post of
CWA. The petitioner also contended that promotion of the respondent
as ACWA on adhoc basis was subject to the outcome of writ petition
No.4321/1997 which was later registered as TA No.1051/2009 and
since the said writ petition has already been dismissed, the respondent
could not claim the rights as alleged by him.
13. The petitioner also contended that promotion of Sh.Vinod Kumar
was as per rules and regulations and as per the seniority list as
Sh.Vinod Kumar belongs to reserved SC/ST category and, therefore, his
seniority could not be the basis for promotion claimed by the
respondent. In any case there has not been violation of the amended
recruitment rules which amendments to the rules have been upheld by
the Tribunal in TA No.1051/2009 titled as "Sh.Rakesh Chandra
Bahukhandi & Ors. v. Delhi Jal Board & Ors.". The petitioner pleaded
that the impugned order would have the likelihood of disturbing the
ratio of cadre strength in the amended recruitment rules and, therefore,
the impugned order is not sustainable.
14. This Court has heard the learned counsel for the parties in detail
and have perused the record of the Tribunal produced along with the
present writ petition. This is not disputed and cannot be disputed that
the recruitment rules to the post of ACWA were amended in 1997. The
schedule to the recruitment rules regarding Assistant Chief Water
Analyst for recruitment by promotion contemplates as under:-
"12. In case of rectt.by promotion Promotion
deputation/transfer, grades i) 80% from Chemist
from which promotion/ with 3 yrs regular
deputation/transfer to service in the grade
be made and possessing at least
a degree with
Chemistry/ Bio-
chemistry/Biology
from a recognized
university or
equivalent.
ii) 20% from ii)
Bacteriologist with
3 years regular service
in the grade and
possessing at least a
degree with chemistry/
bio-chemistry/ biology
from a recognized
University equivalent.
NOTE: Where juniors who have completed their
qualifying/eligibility service are being considered for
promotion, their seniors would also be considered provided
they are not short of the requisite qualifying/eligibility
service by more than half of such qualifying/eligibility
service or have successfully completed their probation
period for promotion to the next higher grade along with
their juniors who have already completed such
qualifying/eligibility service.
15. The said amendment was challenged by the respondent along
with other employees of Delhi Jal Board in W.P(C) No.4321/1997 which
on transfer to Central Administrative Tribunal was registered as T.A
No.1051/2009 which was dismissed by order dated 23rd November,
2009 upholding the amendment in the rules for the post of ACWA.
While dismissing the petition challenging the amendment to the
recruitment rules it was held that fixing of ratio between Bacteriologist
and Chemist which was not malafide or against the Constitution and
was based on policy decision could not be termed and treated as
irrational or arbitrary. The Tribunal in T.A No.1051/2009 had held as
under:-
"On careful consideration of the rival contentions of the
parties we are of the considered view that chances of
promotion are not the right guaranteed to a person. It is
only a right to be considered on fair and equitable basis,
which is a right guaranteed as a fundamental right under
the Constitution of India to a government servant.
Moreover, as a policy decision, amendment of recruitment
regulations, when right of consideration for promotion to
applicants has not been affected, the claim of the applicant
cannot be countenanced in law as they were considered on
promotion later on. Mere fixing the ratio when not
established to be either mala fide or against the
Constitution, the policy decision cannot be treated as
irrational, arbitrary or against the Constitution of India.
We have persistently pointed to the learned counsel for the
applicant as to whether before the amendment being
effective either from 22.09.1997 or 1985, was there any
vacancy available, the counsel has neither taken such a
pleading in the TA nor established before us. In such view
of the matter, the challenge of the applicants to the
recruitment regulations is misconceived.
In the result for the foregoing reasons, TA being bereft of
merit is dismissed."
16. The DPC held on 15th March, 2007 had considered the promotion
of Bacteriologist and Chemist in terms of amended recruitment rules
and recommended regular promotion to the post of ACWA in the pay
scale of Rs.6500-10500/- of the following persons:-
1. Sh.R.C.Bahukhandi bacteriologist
(working as ACWA as
ad-hoc basis)
2. Sh.Mahesh Chand (SC) Chemist
(working as ACWA on
ad-hoc basis) on his
own turn against UR)
3. Sh.B.L.Sharma Chemist (working as
ACWA on ad-hoc
basis)
4. Sh.Vinod Kumar (SC) Chemist
(working as ACWA on
ad-hoc basis) on his
own turn against UR
17. The Tribunal has held that there are two posts of Bacteriologist
on the basis of 20% quota, however, it assumed that one post on which
the respondent is working is being kept vacant for past six years
without regularizing the respondent. No such facts can be culled from
the pleadings of the parties that the petitioner has been keeping one
post of ACWA vacant and not filling it up.
18. In the petition filed by the respondent though Sh.Vinod Kumar
was impleaded as respondent No.2 as it was alleged that he is junior to
the respondent yet he has been promoted, however, the Tribunal has
not even considered the plea raised by the petitioner in respect of
Sh.Vinod Kumar that Sh.Vinod Kumar belongs to the reserved/SC/ST
category who was the senior most in that category from Chemist cadre
and, therefore, on the basis that he has been promoted pursuant to the
DPC held on 15th March, 2007, the claim of the respondent for
promotion could not be considered nor the respondent becomes entitled
for promotion who is Bacteriologist on the basis of promotion given to a
Chemist in accordance with recruitment rules.
19. The learned counsel for the respondent is also unable to show as
to how the respondent can claim promotion or consideration for
promotion to the post of ACWA on the basis of the cadre of Chemist
when the respondent belongs to the cadre of Bacteriologist. The
respondent is not entitled for consideration for promotion on the ground
that Sh. Vinod Kumar is junior to the respondent as he was given even
current duty charge after respondent had been appointed on ad-hoc
basis as ACWA. The cadre of respondent and Shri Vinod Kumar are
different and amended recruitment rules have been upheld by the
Tribunal. There is no combined seniority list of Chemist and
Bacteriologists. Shri Vinod Kumar also belongs to reserved SC/ST
category and his seniority cannot be the basis for consideration of
respondent for promotion.
20. This cannot be disputed in the facts and circumstances on the
basis of pleading of the parties that there are only two posts for ACWA
for Bacteriologist. On one post Shri R.C.Bahukhandi had been
appointed and on the other post Shri Ram Kishan was appointed who
has been further appointed on ad hoc basis to the post of CWA. Till the
appointment of Shri Ram Kishan to the post of CWA is not regularized,
it cannot be held that the other post of ACWA is available for
consideration of respondent for promotion. The petitioner has asserted
and categorically pleaded in the writ petition that the name of the
respondent against the resultant vacancy of Shri Ram Kishan will be
considered for regular promotion only on availability of regular vacancy
for the post of the ACWA.
21. The learned counsel for the respondent has not been able to make
out any ground as to how the respondent is entitled for consideration
for promotion when no post for promotion as ACWA is available in the
cadre of Bacteriologist. The order of the Tribunal impugned by the
petitioner cannot be sustained as the respondent had sought quashing
of the DPC dated 15th March, 2007 and its result declared on 17th April,
2007. DPC had considered the candidates for promotion in accordance
with the amended recruitment rules which have been upheld by the
Tribunal. In the circumstances there are no grounds to set aside the
DPC held on 15th March, 2007 as had been prayed by the respondent.
The respondent had also sought consideration for promotion to the post
of ACWA and not to the post of CWA. In the circumstances direction by
the Tribunal to consider the claim of the respondent for the post of CWA
is not sustainable and is contrary to the plea of the respondent. It is
also pertinent to notice that there is no regular vacancy for the post of
CWA reserved for Bacteriologist. In the circumstances the order of the
Tribunal dated 18th May, 2010 passed in TA No. 727 of 2009 impugned
by the petitioner is not sustainable and is liable to be set aside.
22. Therefore for the foregoing reasons the writ petition filed by the
petitioner against the impugned order dated 18th May, 2010 passed in
TA No. 727 of 2009 is allowed and the said impugned order is set aside.
The petition of the respondent being TA No. 727 of 2009 titled as "Shri.
Sharad Kumar Vs Chief Executive Officer, Delhi Jal Board & Anr."
seeking quashing of DPC dated 15th March, 2007 and direction to the
petitioner to consider the respondent for regular promotion to the post
of CWA is dismissed. Considering the facts and circumstances, the
parties are however, left to bear their own costs.
ANIL KUMAR, J.
April 18, 2011 SUDERSHAN KUMAR MISRA, J.
„k'
