Mukesh Kumar Sharma & Anr. vs The University Of Delhi & Ors.
2011 Latest Caselaw 4165 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Date of decision: 26th August, 2011
+                                   W.P.(C) 12269/2009

         MUKESH KUMAR SHARMA & ANR.              ..... Petitioners
                    Through: Ms. Neela Gokhale, Advocate.

                                      versus

    THE UNIVERSITY OF DELHI & ORS.           ..... Respondents
                 Through: Mr. Mohinder J.S. Rupal, Advocate.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may       Yes
         be allowed to see the judgment?

2.       To be referred to the reporter or not?            Yes

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

RAJIV SAHAI ENDLAW, J.

1. The two petitioners impugn the office order dated 17 th August, 2009

reverting them from the "irregularly upgraded posts of Laboratory

Assistants" to "the sanctioned posts of Laboratory Attendants" w.e.f. 2nd

May, 2008 and the consequent order fixing their salary w.e.f. 1 st April,

2002 when they were "irregularly upgraded/promoted".

2. Notice of the petition was issued and vide order dated 9th October,

2009 the respondents restrained from reverting the petitioners from the

post of Laboratory Assistant to the post of Laboratory Attendant. The said

order was made absolute on 22nd July, 2010. Rule was issued on 29th

November, 2010. The petitioners filed CM No.9379/2011 claiming interim

direction for payment to them of wages as of a Laboratory Attendant in

pursuance to the 6th Pay Commission Report. The said application came up

before this Court on 7th July, 2011 when the counsel for the respondents

was asked to take instructions as to whether there was any difference in the

emoluments as of a Laboratory Assistant and Laboratory Attendant. The

counsels were also directed to come prepared for addressing on the merits

of the petition. The counsel for the respondents has today informed that the

petitioners have already received from the respondents amounts in excess

of their entitlement as per the 6th Pay Commission Report also. The

counsels have also been heard on the writ petition.

3. The petitioners, vide letter dated 31st March, 1999 of the respondent

no.2 Dr. Baba SahebAmbedkar Center for Biomedical Research (herein

after called respondent no.2 Centrer) of the respondent no.1 University of

Delhi and in accordance with Ordinance XX (6) Clause 2 of the Calendar

of the University of Delhi were appointed as Laboratory Attendants. The

appointment letters stated that the appointment was temporary but likely to

continue. The appointment of the petitioners as Laboratory Attendants was

confirmed vide office order dated 9th November, 2001 of the respondent

no.2 Center. The respondent no.2 Center thereafter, in accordance with the

decision taken in the meeting of its Governing Body held on 8th January,

2002, vide office order dated 10th January, 2002 promoted the petitioners,

temporarily, as Laboratory Assistants; the said office order required the

petitioners to attend the Training Programmes of the required duration

before 8th January, 2003.

4. It is the case of the petitioners, that they have since January, 2002

been discharging their duties as a Laboratory Assistants; they were

however not given their revised salary as per the recommendation of the 6 th

Pay Commission and continued to be paid at the old scale; that they made

representations for fixation of their salary in terms of the 6 th Pay

Commission Report; that the respondents instead of so fixing their salary

vide orders aforesaid reverted them from the post of Laboratory Assistant

to Laboratory Attendant. Upon representation of the petitioners to the

respondents not meeting with any success, the present petition was filed.

The petitioners besides impugning the orders dated 17 th August, 2009 and

15th September, 2009 (supra) have also sought a direction to the

respondents to fix their salary to the post of Laboratory Assistant in

accordance with the Report of the 6th Pay Commission.

5. The respondents in their counter affidavit have stated, that the letters

of appointment of the petitioners were issued under the signatures of the

then Director of the respondent no.2 Center Prof. Ramesh Chandra against

whom, since then inquiry into various misconducts committed by him had

been initiated; that the respondent no.2 Center, as per Ordinance XX is

wholly maintained and is under the control of the University; that as per

Clause 2 of the said Ordinance, the Governing Body of the respondent no.2

Center is allowed to manage the affairs of the respondent no.2 Center

subject to the general control and supervision of the Executive Council of

the University; that though the Governing Body of the respondent no.2

Center in terms of Clause 2 (h) is empowered to appoint, suspend and

terminate the services of administrative and other non-teaching staff of the

respondent no.2 Center in respect to which such powers may have been

delegated by the Executive Council and to determine the emoluments and

conditions of service but the qualifications for appointment, emoluments

and conditions of services of such persons have to be in accordance with

those laid down by the Executive Council of the University for similar

posts in the University.

6. It is further the case of the respondents that a Departmental

Promotion Committee of the respondent no.2 Center in its meeting held on

7th January, 2002 had recommended promotion of the petitioners though

they had not undergone any Training Programme; that the Governing Body

of the respondent no.2 Center in its meeting on 8th January, 2002

considered the said recommendation and observed that the petitioners had

not undergone any Training Programme though they had rendered service

for more than the minimum experience required for promotion and

approved the promotion of the petitioners with immediate effect subject to

the condition that the petitioners attend the Training Programme of

required duration by 8th January, 2003.

7. It is further the case of the respondents that the post of Laboratory

Attendant on which the petitioners were serving was treated as Laboratory

Assistant by treating the same „as personal‟ to the petitioners; that the post

of Laboratory Assistant was so created although there was no sanctioned

post of Laboratory Assistant; that this anomaly as well as several other

issues concerning the respondent no.2 Center came to the knowledge of the

respondent no.1 University of Delhi and accordingly the Executive

Council vide Resolution No.142 dated 13th December, 2006 appointed a

Committee to look into the issues of the non-teaching staff of the

respondent no.2 Center and to make recommendation in this regard; that

the said Committee arrived at a conclusion that the Governing Body of the

respondent no.2 Center had in the meeting held on 8th January, 2002

promoted the petitioners despite the fact that in the roster of respondent

no.2 Center the post of Laboratory Assistant did not exist; accordingly the

Committee recommended that the Governing Body of respondent no.2

Center had no authority to upgrade any post on "personal basis" in as

much as upgradation required the approval of Executive Council and the

Funding Authority namely UGC; accordingly the petitioners were

recommended to be reverted; that the Executive Council in its meeting

held on 2nd May, 2008 approved the said reversion of the petitioners.

8. The petitioners in their rejoinder have stated that they have

undergone the required Training Programme; that they could not have been

reverted after eight years; that it was in the knowledge of the respondent

no.1 University of Delhi that they were drawing the salary as of a

Laboratory Assistant and even loans were sanctioned to them on the basis

of their drawing the salary of Laboratory Assistant; that they have been

reverted in retaliation to their demand for implementation of the 6th Pay

Commission Report.

9. The counsel for the petitioners has argued, that the petitioners could

not have been reverted without giving them an opportunity of being heard;

that they were paid the salary as of a Laboratory Assistant even after 17 th

August, 2009; that it is not in dispute that the Governing Body of the

respondent no.2 Center did pass a Resolution promoting the petitioners;

that the said Resolution could not be undone after long lapse of time; that

the Committee aforesaid constituted by the Executive Council of the

respondent no.1 University of Delhi, while had, applying the principles of

natural justice, fair play and good faith, recommended regularization of

other illegally appointed non-teaching staff of the respondent no.2 Center,

had discriminated against the petitioners by recommending reversion of the

petitioners instead of their being regularized on the post of Laboratory

Assistant; that the Governing Body of the respondent no.2 Center was year

after year sending its proposed budget showing the salaries of the

petitioners as of Laboratory Assistants and from which the respondent no.1

University of Delhi ought to have known of the promotion of the

petitioners as Laboratory Assistants and the respondent no.1 University is

now estopped from contending to the contrary.

10. The counsel for the respondents has argued that the services of the

then Director of the respondent no.2 Center who had appointed the

petitioners have since been terminated by the respondent no.1 University

of Delhi; though as per the recommendation of the Departmental

Promotion Committee of the respondent no.2 Center, the petitioners, to be

eligible for promotion to the post of Laboratory Assistant, were required to

have minimum six years experience as Laboratory Attendant and to have

undergone at least one Training Programme for a minimum six weeks

duration in the field and were ineligible for promotion till the year 2005

but were promoted with immediate effect in the year 2002 itself; that there

was no sanctioned post of Laboratory Assistant in the respondent no.2

Center; that in the circumstances the decision of the Executive Council of

the respondent no.1 University of Delhi of reverting the petitioners cannot

be found fault with. It is further stated that on compassionate grounds

however a decision has been taken not to make any recovery from the

petitioners of the excess amount received by them for the post which did

not exist.

11. It is further argued that it is the UGC which creates the posts and till

date there is no post of Laboratory Assistant in the respondent no.2 Centre.

It is further shown from the documents filed by the petitioners themselves

that the training subject to which they were promoted was also of 18 days

only and not of six weeks as required.

12. The counsel for the petitioners has not been able to show that there

was/is any post of Laboratory Assistant in the respondent no.2 Center. The

case thus being of promotion to a post which did not exist and the entire

case of the petitioners being based on promissory estopple and on the long

delay after which the petitioners were reverted, it was enquired from the

counsels whether the principles of estopple applied to service

jurisprudence.

13. The counsel for the respondents in this regard has invited attention

to S.K. Khanna v. State of Haryana (1994) 1 SCC 601 laying down that a

promotion if impermissible is no promotion and rectification of a wrongful

promotion cannot be said to be a case of reversion. Reliance is also placed

on Union of India v. Rakesh Kumar (2001) 4 SCC 309 laying down that

if by an erroneous interpretation of statutory rules, benefits are conferred

on someone, it would not mean that the said mistake should be perpetuated

by direction of the Court and the Court should not direct something

contrary to the statutory rules. It was further held that in such

circumstances there is no question of application of Article 14 of the

Constitution and no person can claim any right on the basis of a decision

which is de hors the statutory rules, nor can there be any estopple. It was

yet further held that there cannot be any consideration in such cases on the

ground of hardship.

14. Reference in this regard can also be made to;

A. Ram Shankar Bhattacharjee v. Gauhati High Court

(2005)9SCC702 holding that promotion can be given only to

a post which was given in the classification of rules and since

there was no post mentioned in the schedule there could not

have been a promotion to that post;

B. S.I. Paras Kumar vs. S.I. Ram Charan (2004)6SCC88 where

it was observed the right to the considered for promotion and

procedure to be followed for affecting promotion is a

condition of service and promotion can be made only as per

the rules and no other procedure can be adopted for affecting

promotion; the promotion made contrary to the rules cannot

be treated as promotion and is only ornamental in nature;

C. Sanjay K. Sinha-II v. State of Bihar (2004)10SCC734 laying

down that appointments to posts not available are mere

fortuitous and cannot confer the benefit of seniority from the

date of appointment; there could be no appointment to a post

not available and the promotees cannot be given seniority

from the date of appointment;

D. D. R. Yadav v. R.K. Singh (2003)7SCC110 also laying down

that posts means posts which are available having been legally

created or borne on the cadre and promotion to a non existent

post does not confer any right and the persons so promoted for

all intense and purposes are to be treated as not promoted at

all.

15. Faced with the aforesaid, the counsel for the petitioners has

contended that there is a post of Technical Assistant in the roster of the

respondent no.2 Center and the petitioners are eligible therefor and ought

to be promoted thereto.

16. I have also enquired from the counsel for the respondents as to how

the petitioners appointed to the post of Laboratory Attendant can be

permitted to stagnate on the said post and there ought to be scope for the

petitioners to improve their status. Allowing the petitioners to so stagnate

would certainly be contrary to law.

17. The counsel for the respondents has stated that though at present

there does not appear to be any scope for promotion but the petitioners

otherwise would be entitled to an upward increment.

18. In the circumstances, though no error can be found in the orders of

the respondent no.1 University of Delhi impugned in this petition and the

petition is dismissed but nevertheless the respondent no.1 University of

Delhi is directed to consider the case of the petitioners if eligible and in

accordance with the rules for promotion to the post of Technical Assistant

and/or to consider as to how steps against stagnation can be taken. The

decision in this regard be taken on or before 31st March, 2012.

The petition is disposed of. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) AUGUST 26, 2011 pp (corrected and released on 17th September, 2011).