Dilip Kumar vs Govt. Of Nct Of Delhi & Ors.
2012 Latest Caselaw 2717 Del

       *       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                        Judgment reserved on:   20.04.2012
                                         Judgment pronounced on: 25.04.2012

+      W.P.(C) No. 2169/2012 & CM Nos. 4678-4680/2012

DILIP KUMAR                                               ..... Petitioner
                          versus

GOVT OF NCT OF DELHI & ORS                              ..... Respondents

Advocates who appeared in this case:
For the Petitioner   :    Petitioner-in-person.
For the Respondent   :    Ms. Anjana Gosain with Ms. Prerna Shah Deo, Advs.

CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE V.K.JAIN

V.K. JAIN, J.

1. This writ petition is directed against the order dated 22.12.2011 passed by

the Central Administrative Tribunal, Principal Bench, New Delhi (herein after

referred to as „the Tribunal‟), whereby OA No.2203/11, filed by the petitioner was

dismissed. The facts giving rise to the filing of the writ petition can be summarized

as under:-

The petitioner holds a Bachelor‟s Degree Course in Mental Retardation from

Osmania University. He also holds a certificate in the Rehabilitation Education

Programme and is registered with the Rehabilitation Council of India. He claims to

be well experienced in the field of rehabilitation of the disabled. He has been

running a project for the disabled persons and is a director in Mother Home

(Special School). The petitioner is also running a Non-Governmental Organization

(NGO) in consultation with the Rehabilitation Council of India for rehabilitation of

disabled persons.

Vide notification dated 04.02.2009, Secretary, Social Welfare invited

nominations for the post of Deputy Commissioner for Persons with Disabilities.

The name of the petitioner was sponsored by an NGO, Karunapath and he

submitted an application for the said post on 25.02.2009. Department of Social

Welfare appointed one Mrs. S. Roy Choudhry to the said post. The appointment of

Mrs. S. Roy Choudhry was challenged by the petitioner before the Tribunal by way

of OA No.1743/09. The Tribunal vide order dated 10.12.2010, quashed the order

of appointment of Mrs. S. Roy Choudhry and directed the official respondents to

take steps to fill up the post of Deputy Commissioner of Persons with Disabilities

within three months from the date of the receipt of the certified copy of the order,

as per the prescribed rules. It was, further, directed that the petitioner shall also be

considered for selection, subject to eligibility.

2. Pursuant to the aforesaid directions of the Tribunal, the process to fill up the

said post was initiated vide notification dated 19.04.2011. The OA No.2203/11

was then filed by the petitioner contending that only those persons who had applied

for the said post, pursuant to the earlier notification issued in the Year 2009, could

be considered for appointment and no fresh notification to fill up the post could be

issued. The Tribunal noticing that no such direction had been given by them,

dismissed the OA filed by the petitioner.

3. During the course of arguments before us, the petitioner, who appeared in

person, contended that the respondents can consider only those persons, who had

applied pursuant to the notification which had been issued on 04.02.2009 inviting

nominations for the post. He further submitted that if this is done, he would be

appointed to the said post since other persons who applied pursuant to the

notification dated 04.02.2009 were not eligible for the said post.

We find no merit in the contention of the petitioner. The order passed by the

Tribunal in OA No.1743/2009 was not challenged by the petitioner and, therefore,

became final and is binding on him. The operative part of the order reads as

under:-

"The impugned order dated 19.06.2009 appointing the seventh Respondent to the post of Deputy Commissioner for Persons with Disabilities is, therefore, quashed and set aside. The Respondents will take steps to fill up the post of Deputy Commissioner for Persons with Disabilities as soon as possible, but not later than three months from the date of receipt of a certified copy of this order as per the prescribed rules. The applicant shall also be considered for selection, subject to eligibility. No costs."

4. While passing the order dated 10.12.2010, the Tribunal did not confine the

selection to only those who had applied pursuant to the notification issued in the

Year 2009. The Tribunal only directed the respondents to fill up the post within

three months from the date of receipt of the certified copy of the order, as per the

prescribed rules. The petitioner was to be considered, subject to his being found

eligible to the post. Therefore, the respondents were very much entitled to issue a

fresh notification to fill up the said post. While doing so, they were also required

to consider the petitioner, subject to his otherwise being found eligible for the post.

We, therefore, find no infirmity in the order passed by the Tribunal on this account.

5. It transpired during the course of arguments that the Recruitment Rules were

modified by the respondents after the order of the Tribunal dated 10.12.2010. The

post of Deputy Commissioner of Persons with Disabilities fell vacant when the

appointment of Mrs. S. Roy Choudhry was quashed by the Tribunal on 10.12.2010.

The vacancy such created was to be filled within three months from the date of

receipt of the certified copy of the order of the Tribunal. The question which arises

for our consideration is as to whether the respondents can apply the amended rules

to fill up the said post.

The question as to whether the vacancies which exist on the date of

amendment of the rules have to be filled up as per the amended rules or as per the

rules as they were prior to the amendment, came up for consideration before us in

W.P.(C) No.5549.2007, Dr. Sahadeva Singh v. Union of India and Ors., decided

on 28.02.2012. After reviewing the case law, this Court summarized the legal

position on the issue, as under:-

(a) The general rule is that the vacancies which exist on the date of amendment

of rules have to be filled up in accordance with the rules, as they stood prior

to amendment, provided the amendment is not retrospective. If the

amendment made in the rules is retrospective, even the vacancies which

exist on the date of amendment are also required to be filled up as per

amended rules;

(b) The Competent Authority may take a decision to amend the rules and fill up

all the vacancies in accordance with the amended rules. If such a decision is

taken by the Competent Authority, that would justify the delay in making the

promotion, against the existing vacancies. In such a case, all the vacancies,

including the vacancies which existed on the date of amendment of the rules

can be filled up as per the amended rules;

(c) The decision to amend the rules needs to be taken by the authority which is

competent to amend the rules and if such a decision is taken by some

authority other than the authority competent to amend the rules and the rules

are later amended, the vacancies which existed on the date of amendment of

the rules have to be filled up in accordance with the rules as they stood prior

to amendment.

6. In the case before us, it is not the case of the respondents that the relevant

rules have been amended retrospectively. This was also not their case before us

that the competent authority had taken a decision to fill up the vacancy to the post

of Deputy Commissioner of Persons with Disabilities as per the amended rules.

Since there has neither been any retrospective amendment of the rules nor has the

competent authority taken a decision to fill up the post of Deputy Commissioner

for Persons with Disabilities in terms of the amended rules, the respondents cannot

apply the amended rules, to fill up the vacancy which was created consequent to

order of the Tribunal dated 10.12.2010, whereby appointment of Mrs. S. Roy

Choudhry to the said post was quashed.

7. Even otherwise, the respondents cannot be allowed to circumvent the order

of the Tribunal by not filling up the post within the time given to them by the

Tribunal in this regard and then amend the rules and fill up the post in accordance

with the amended rules.

8. For the reasons stated above, we direct the respondents to issue a fresh

notification for appointment to the post of Deputy Commissioner for Persons with

Disabilities, within two month from today. The rules which were applicable to fill

up the said post, at the time order dated 10.12.2010 was passed by the Tribunal,

would be applied by the respondents while issuing notification inviting

applications/nominations for making appointment in terms of this order. The post

shall be filled up by the respondents within six months from today. The petitioner,

if found eligible in terms of the rules which existed on 10.02.2012, shall also be

considered for the said post.

9. The writ petition stands disposed of accordingly.

There shall be no orders as to costs.

V.K.JAIN, J

BADAR DURREZ AHMED, J

APRIL 25, 2012 rb