Delhi High Court
Mcd vs Raj Kumar on 11 May, 2012
Author: A.K.Sikri
* IN THE HIGH COURT OF DELHI AT NEW DELHI
LPA 78 OF 2012
LPA 102 OF 2012
% Judgments Reserved on:16.4.2012.
Judgment Delivered on:11.5.2012.
LPA 78 OF 2012
MCD . . . APPELLANT
Through : Mr. Gaurang Kanth, Advocate
with Ms. Biji Rajesh,
Advocate.
VERSUS
RAJ KUMAR ... RESPONDENT
Through: Mr. Rajiv Agarwal, Advocate.
With Ms. Neelam Tiwari,
Advocate.
Judgments Reserved on:17.4.2012.
LPA 102 OF 2012
MCD . . . APPELLANT
Through : Mr. Gaurang Kanth, Advocate
with Ms. Biji Rajesh,
Advocate.
VERSUS
MOREDHWAJ ... RESPONDENT
Through: Mr. K.K. Rai, Sr. Advocate
with Mrs. Rekha Palli and Ms.
Amrita Prakash, Advocates.
CORAM :-
HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
A.K. SIKRI, ACTING CHIEF JUSTICE:
1. In both these appeals common issue is raised namely promotion from
the post of Garden Chaudhary to Section Officer. As per the MCD, the
workmen in both the cases do not fulfill the eligibility conditions and were
given promotions. For convenience, we take note of facts in LPA 78 of
2012.
2. By this intra court appeal preferred by the appellant Municipal
Corporation of Delhi (MCD), filed under Clause 10 of Letter Patents Act,
the MCD questions the validity of judgment dated 2.12.2011 passed by the
learned Single Judge of this Court in Writ Petition (C) 11737/2009 which
was preferred by the MCD challenging the Award dated 24.3.2009 rendered
by the Industrial Tribunal-I in favour of the respondent workman herein.
Vide the said Award, the Industrial Tribunal has held that the workman is
entitled to be promoted from the post of Garden Chaudhary to that of
Section Officer from the date when the juniors to him were promoted. He
was granted consequential benefits including monetary or otherwise as well.
The learned Single Judge has modified this Award by holding that the
respondent would be entitled to ad-hoc promotion as Section Officer as was
given to other 9 Garden Chaudharies named in Office Order dated
29.9.2000. The controversy falls in a narrow compass. As per the MCD,
such a direction was impermissible because of the reason that the respondent
does not fulfill the eligibility conditions for promotion to the post of Section
Officer as per the extant Recruitment Rules, and, therefore, he has no right
to seek promotion to the said post. The Recruitment Rules for the post of
Section Officer (Horticulture) as framed by the MCD inter alia stipulates
the following educational and other qualifications:-
"7.Educational and other qualifications
Prescribed for direct recruitment Essential: Degree in
Agriculture or in Science with
Botany as a subject from a
recognized University or
equivalent.
Desirable Experience in the
field of ornamental
Horticulture/landscape
Gardening.
8.Whether age and educational Age: No.
qualifications prescribed for Qualifications: Yes.
direct recruits will apply in
the case of promotes:
11. In case of rectt. By promotion/deputation (i) Nursery Record
Transfer, grades from which promotion/ Keeper with 5 years
Deputation/Transfer to be made. Service in the grade.
(ii) Choudhary with 12
years regular service in
the grade.
Note: The eligibility for
promotion shall be prepared
with reference to the date of
completion by the officers of
the prescribed qualifying
service in the respective grade
post."
3. Reading of the aforesaid columns of the Recruitment Rules makes it
clear that holding a degree in Agriculture or in Science with Botany as a
subject from a recognized University is an essential qualification. This is so
specified against column no.7 which prescribes the qualification for direct
recruitment. However, column 8 provides that this educational qualification
is required even in the case of a promote.
4. The respondent workman had joined the duties as Garden Chaudhary
on daily wage basis w.e.f. 6.11.1978 and thereafter pursuant to the award
passed in an industrial dispute raised by him which was upheld by this
Court, he was regularized to the post of Garden Chaudhary on 2.7.1984.
Thus, he is working as Garden Chaudhary on regular basis w.e.f. 2.7.1984
and has thus rendered more than 12 years of regular service in this grade, he
therefore fulfills the eligibility criteria/conditions prescribed in column 11
for the promotion to the post of Section Officer (Horticulture). However, it
is an admitted case that he does not have essential qualification namely
degree in Agriculture or in science with Botany as a subject from a
recognized University or equivalent. Thus, insofar as educational
qualification is concerned, he lacks the same. It is also clear that holding of
this qualification for being eligible to the post of Section Officer
(Horticulture) is "essential" and therefore cannot even be relaxed.
Obviously, this makes the respondent ineligible for consideration to the post
of Section Officer (Horticulture).
5. In R.S. Garg Vs. State of U.P. (2006) 6 SCC 430 the Supreme Court
relying on its earlier decision in Suraj Prakash Gupta Vs. State of J & K
(2000) 7 SCC 561 held as under:-
" It would not be a mere irregularity, when a
person not eligible therefor would be considered for
promotion. It may be that for the purpose of direct
appointment, experience and academic
qualifications are treated to be on a par, but when
an eligibility criterion has been provided in the
Rules for the purpose of promoting to a higher post,
the same must strictly be complied with. Any
deviation or departure therefrom would render the
action void."
6. Notwithstanding the aforesaid position, the Award of the Labour
Court as well as the judgment of the learned Single Judge raised a
discrimination i.e. some other Garden Chaudharies who did not fulfill these
qualifications were also promoted as Section Officers on ad-hoc basis vide
order dated 29.9.2000 to take effect from 3.5.1997 and therefore this benefit
was to be given to this workman as well.
7. The discussion contained in the Award, on this aspect, reveals two
reasons given in support of the award holding the workman to be entitled to
promotion:-
(i) Juniors to the respondent workman were
promoted to the post of Section Officer w.e.f.
29.9.2000 and 1.10.2003.
(ii) That the MCD has taken the plea that the
workman did not fulfill the eligibility criteria as per
Recruitment Rules, which was not correct as the
workman had completed more than12 years of
service and there was no reasonable or justifiable
cause to ignore the workman for the promotion
when juniors to him were promoted.
8. The learned Single Judge on the other hand went only by
consideration that vide order dated 29.9.2000 ad hoc promotion was given to
junior Garden Chaudhary to the post of Section Officer and non-granting of
this promotion to the respondent herein amounts to discrimination.
However, since others were promoted on ad hoc basis and not on regular
basis, award is modified by making the promotion of the respondent as
Section Officer on adhoc basis.
9. It is clear from the above that the learned Single Judge did not go into
the question of the eligibility of the respondent workman for promotion to
the post of Section Officer. Learned Counsel for the respondent argued that
this contention was never raised earlier and could not be raised for the first
time in this appeal. This is factually incorrect. As pointed out above, the
contention was raised before the Industrial Tribunal and was in fact dealt
with by the Tribunal. Recruitment Rules were proved on record as MW1/1.
The mistake which the Tribunal committed was it went only by the length
of service and ignored column no.7 & 8 of the Recruitment Rules which lay
down educational qualification as one of the essential eligibility conditions.
10. Once we find that the workman was not eligible for consideration,
merely because his juniors were promoted even on adhoc basis would be
insignificant and when the respondent is not eligible, he cannot plead
discrimination.
11. A faint attempt was made by the learned counsel for the respondent to
argue that MCD has been promoting non-qualified and even illiterate
persons to the post of Section Officer. In the written submission example of
one Hari Chand and one Sh. Asha Ram is given and it is submitted that the
said fact has been admitted by the Mr. R.K. Mehra, Assistant Director,
Horticulture. A perusal of the cross-examination of the said witness of the
MCD would show that he was categorical in his statement that persons
promoted from the post of Garden Chaudary to Section Officer fulfills the
eligibility criteria as per Recruitment Rules. (incidentally this also nullifies
the contention of the workman that no such case was set up before the
Industrial Tribunal by the MCD). However, this witness accepts that Sh.
Hari Chand was promoted to the post of Section Officer in the year 1992 and
he did not fulfill the eligibility crieteria laid down in the Recruitment Rules
and Mr. Amba Prasad was promoted who did not fulfill the eligibility
conditions as per recruitment rules. The explanation which comes on record
of LPA 102/2012 in respect of these two persons is as under:
In the case of Amba Prasad, the order was passed by the Court and
therefore, the MCD has no choice but to implement the said order.
Interestingly, the MCD has taken up the matter to Supreme Court and the
Supreme Court has dismissed the appeal only on the ground that the MCD
had not pointed out that it was following the recruitment regulation
approved in the year 1984 prescribing certain qualification and a
considerable time had intervened. At the same time the Supreme Court
very categorically clarified that it is not to be used as a precedent in other
cases. As is clear from the brief order passed in that that:-
"Leave granted.
It is more or less an admitted position that at
earlier stages of the proceedings. It was not
pointed out on behalf of the appellant-corporation
that they were following the Recruitment
Regulations approved in the year 1984, prescribing
certain qualifications. As a considerable time has
intervened, we are not inclined to interfere with the
impugned order."
The appeal is accordingly dismissed. However,
this should not be used as precedent in other cases
and if similar petitions are filed it will be open to
the appellant corporation to point out the relevant
Recruitment Regulations. No costs."
Insofar as Hari Chand is concerned, the submission of the MCD was
that he had obtained promotion by fraudulent means without possessing
necessary qualifications. This is taken note of by the learned Single Judge in
the impugned judgment dated 22.12.2011 which is the subject matter of
LPA 102/2012, however, not allowed to be raised on the ground that it was
not raised before the Labour Court. The learned Single Judge has also
drawn inference to the effect that Hari Chand was given promotion by
relaxing the Rules if he did not possess the requisite qualification. However,
this was not the correct approach for two reasons:-
(i) The Regulations clearly mention that it is
the essential qualification which cannot be relaxed.
(ii) However, even if that be so, the plea of
discrimination cannot be a right as equity is not a
negative concept.
12. If wrong is committed in two cases that would not mean that it has to
be perpetuated, that too, by the Courts by giving such directions of
promotion to a person who is otherwise not eligible as per the recruitment
rules.
13. We thus are of the opinion that the Award of the Industrial Tribunal
as well the order of the learned Single Judge are contrary to the law and
cannot be sustained. We allow this appeal and set aside the Award passed
by the Industrial Tribunal as well that of the learned single Judge.
14. There shall be no order as to costs.
ACTING CHIEF JUSTICE
(RAJIV SAHAI ENDLAW)
JUDGE
11.05.2012
Skb
