Delhi High Court

Shri I.P. Dhawan vs Govt. Of Nct Of Delhi & Ors. on 18 November, 2011

Author: A.K.Sikri

                              Reportable

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                W.P.(C) No.1482 of 2001

                      Judgment Reserved On:15th September, 2011
%                  Judgment Pronounced On: 18th November, 2011


      SHRI I.P. DHAWAN                                    . . . PETITIONER

                                 Through:      Mr. R.V. Sinha and Mr. A.S.
                                               Singh, Advocates.

                                 VERSUS

      GOVT. OF NCT OF DELHI & ORS.                     . . .RESPONDENTS

                                 Through:      Mr. J.C. Malik, Advocate for R-
                                               5.
                                               Ms. Barkha Babbar, Advocate
                                               for R -1 to 4.
CORAM :-
    HON'BLE MR. JUSTICE A.K. SIKRI
    HON'BLE MR. JUSTICE SIDDHARTH MRIDUL

      1.      Whether Reporters of Local newspapers may be allowed
              to see the Judgment?
      2.      To be referred to the Reporter or not?
      3.      Whether the Judgment should be reported in the Digest?

A.K. SIKRI, J.

1. The petitioner belongs to Delhi Administration Subordinate

Service (hereinafter referred to as „DASS‟). In the year,

1986, he was working in various Departments of erstwhile

Delhi Administration. In the Jail Department, some

vacancies for the posts of Assistant Superintendents were

created and the Service Department vide letter

No.F.10(2)(84)-SIIP dated 17.4.1986 asked for nomination

from amongst the members of DASS for selection to the said

posts. On the basis of Annual Confidential Report (ACR)

dossiers and interview, 24 certain officials including the

petitioner were selected for the post of Assistant

Superintendent (Jail) against the newly created posts vide

order dated 19.6.1986. The petitioner was, at that time, in

the pay scale of `330-560/- and on promotion, he was

placed in the pay scale of `425-700/-, which was attached

to the post of Assistant Superintendent. The pay of the

petitioner was fixed vide letter dated 12.8.1986 in the said

pay scale under FR 22(1).

2. The case of the petitioner that he was selected on promotion

basis, although he was not in the feeder cadre for promotion

to the aforesaid post. Still he was promoted in relaxation of

Rule which was permissible as per Note - 4 appended to the

extant Recruitment Rules.

3. In July, 1989, eleven vacant posts of Assistant

Superintendent were filled up by direct recruitment. The

petitioner along with other officials who were given ad hoc

promotion kept on working in the said position and this ad

hoc promotion was extended from time to time. However,

sometime in December, 1989, they were asked to exercise

their option. However, it was on the condition that they will

not claim benefit of past services for the post of seniority.

13 Assistant Superintendents including the petitioner signed

the declaration to this effect and on that basis, these

persons were absorbed in the DASS cadre. However,

thereafter, the petitioner along with others made

representation dated 26.5.1993 for counting their seniority

from the date of initial appointment, which was rejected.

Obviously, as the petitioner was not given seniority from the

date of initial appointment, but from the date of absorption,

all such persons including the petitioner were ranked junior

to the Assistant Superintendents, who were appointed by

way of direct recruitment in the year 1989 and also in 1990

and 1992. Challenging the action of the official respondents

in rejecting their requests, the petitioner approached the

Tribunal, but the Tribunal dismissed his OA vide impugned

orders dated 27.12.2000.

4. Perusal of the order would reveal that the factor, which is

weighed with the Tribunal is that the petitioner was

appointed as an Assistant Superintendent in 1986 purely on

ad hoc basis when he did not even fulfil the eligibility

conditions in the Rules. The Tribunal, thus, followed

Constitutional Bench judgment of the Supreme Court in the

case of Direct Recruit Class II Engg. Officers' Assocn.

Vs. State of Maharashtra 1990 (2) SC 264 as explained by

a subsequent judgment of the Supreme Court in the case of

State of W.B. and Others Vs. Aghore Nath Dey and

Others (1993) 3 SCC 371 and held that when the initial

appointment could not be made as per rules, the petitioner

was entitled to count the seniority for the said period. In the

process, following facts were also noted by the Tribunal:

"6. As in the present case, applicants‟ initial appointment as Asstt. Supdt. (Jail) by order dated 19.6.86 was specifically limited to the period till regular incumbents became available, notwithstanding that they worked continuously as Asstt. Supdts. (Jail) till they were permanently absorbed vide order dated 31.7.92, they would be hit by the corollary to proposition „A‟ of the Direct Recruits‟ case (supra) and would therefore not be entitled to count their seniority from 19.6.86."

5. Before we advert to the arguments of the counsel for the

petitioner challenging the aforesaid decision, it would be

appropriate to take note of the relevant Rules and the nature

of appointment of the petitioner.

6. As per the Recruitment Rules, the post of Assistant

Superintendent (Jail) is a selection post for which essential

educational qualification is a degree from a recognized

University. There are essential physical standards for female

and male candidates also prescribed. 25% of the posts are

to be filled up by the promotion, failing which by the direct

recruitments and 75% by direct recruitments failing which

by deputation. For promotion, feeder cadre is Head

Warders/Head Matrons who should have five years regular

service in the grade with ten years regular service as

Warder/Matron. For those who are recruited by way of

transfer or deputation, it is prescribed that such officials

should be holding analogous or similar post in the present

department of other States.

7. It is an admitted case of the parties that the petitioner and

others who were appointed on ad hoc basis in the year

1986, did not fulfil the aforesaid qualifications. In fact, they

were not working in Jail Department, but various other

Departments. No doubt, there was paucity of Assistant

Superintendents in Jail Department and for this purpose, the

official respondents wanted the willingness of those officials

working in other Department to come and man the posts of

Assistant Superintendent (Jail) and pursuant thereto, the

petitioner and other respondents joined the services here.

At the same time, however, they were taken Assistant

Superintendents (Jail) by way of interim measure till

appointments are made from regular incumbents. That is

very clearly provided in orders dated 19.6.1986 vide which

the petitioner was selected for the post of Assistant

Superintendent (Jail). At that time, he was working as

Junior Accountant in Pay and Accounts office and the order

dated 19.6.1986, inter alia, provided following conditions:

"These officials will hold the post till the appointments are made from the regular incumbents."

It was also specifically provided that the officials will not be

entitled for any seniority. This ad hoc arrangement was

extended vide orders dated 26.11.1987 on same terms and

conditions.

8. Admittedly, when certain other persons were appointed by

way of recruitment in the years 1989, 1990 and 1992, the

petitioner was still continuing on ad hoc basis which could be

possible only because of the reason that certain more posts

were still lying vacant. This was also the reason for which

steps were taken to absorb these persons as Assistant

Superintendent (Jail) and the petitioner with some other

persons were absorbed in these posts which occurred

sometime in the year 1992. That too when these 13

Assistant Superintendents had given categorical declaration

that they would be opting for absorption in Jail Department

and would leave the DASS cadre without claiming any

benefit of past services for the purpose of seniority. On

these facts, it is clear that normally, the petitioner would not

be entitled to benefit for past services having regard to the

Constitution Bench judgment of the Supreme Court in Direct

Recruit Class II Engg. Officers' Assocn. (supra).

9. Notwithstanding the aforesaid position , the contention of

the learned counsel for the petitioner is that when the

petitioner was initially appointed on ad hoc basis to the post

of Assistant Superintendent (Jail) vide orders dated

19.6.1986, the Selection Committee had relaxed the

essential educational qualification and physical standards as

prescribed in the Rules. Further, when the case of the

petitioner and other persons were processed for absorption,

the same was in recognition of service rendered by them.

Therefore, the past service should be counted. In support,

the learned counsel referred to the judgment of the Supreme

Court in the case of State of U.P. & Ors. Vs. Dr. Deep

Narain Tripathi & Ors. JT 1996 (4) S.C. 320 and submitted

that when ad hoc service was followed by regular service, in

relaxation of the provision, the petitioner‟s past service

should be counted.

10. We are not impressed with the aforesaid arguments.

Learned Tribunal has rightly applied the ratio of

Constitutional Bench judgment in Direct Recruit Class II

Engg. Officers' Assocn. (supra). After discussing the

issue, the Supreme Court summarized the position in para

44 as under:

"44. To sum up, we hold that:

(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation.

The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.

(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted.

(C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly.

(D) If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case,

however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down.

(E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date.

(F) Where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota rule.

(G) The quota for recruitment from the different sources may be prescribed by executive instructions, if the rules are silent on the subject.

(H) If the quota rule is prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the executive instruction has ceased to remain operative.

(I) The posts held by the permanent Deputy Engineers as well as the officiating Deputy Engineers under the State of Maharashtra belonged to the single cadre of Deputy Engineers.

(J) The decision dealing with important questions concerning a particular service given after careful consideration should be respected rather than scrutinized for finding out any possible error. It is not in the interest of Service to unsettle a settled position."

11. We are concerned herewith Principle (A) and (B). Learned

counsel for the petitioner wants the application of principle

(B) and submits that the petitioner was appointed as per the

Rules as Rules were relaxed and therefore, even when the

appointment was on ad hoc basis, initial appointment was

not made as per Rules, but he continued the post

uninterrupted till relaxation of service in accordance with the

Rules, the period of ad hoc service should be counted. This

very judgment is explained by the Supreme Court in Aghore

Nath Dey (supra). In that case also, ad hoc service was

also followed by regular service. However, the ad hoc

appointment was made in violation of Rules. The Court

explained that in such a circumstance, benefit of ad hoc

service is not admissible. Contention of the petitioner that

once relaxation of Rule permitted and the conditions relaxed,

the appointment should be treated as per Rules, is totally

misconceived in the facts of this case. Note - 4, which

empowers the administrator reads as under:

"Whether the Administrator is of the opinion that it is necessary or expedient so to do, he may, by order for reasons to be recorded in writing relax any of the provisions of the rules with respect to a class or category of persons/posts."

12. As already pointed out above, the post can be filled up by

direct recruitment or promotion or transfer or deputation.

The petitioner‟s case was not by way of direct recruitment; it

was not by way of promotion either, as the petitioner did not

belong to the feeder cadre. In case of transfer or

deputation, it could be only an official is holding an

analogous or similar post in the present department of other

states. It is here where relaxation in rules is to be read in

that context. In the present case, the petitioner and others

belong to DASS and not Jail cadre. There was no question of

relaxation. They were brought as Assistant Superintendent

(Jail) because of lack of man-power. In normal case, the