Delhi High Court
Uttam Singh & Ors. vs Mcd & Ors. on 26 July, 2013
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: July 24, 2013
Judgment Pronounced on: July 26, 2013
+ W.P.(C) 2512/2012
UTTAM SINGH AND ORS ..... Petitioners
Represented by: Mr.C.Harishankar, Advocate
with Mr.S.Sunil and
Mr.N.Jagdish, Advocates
versus
MCD AND ORS ..... Respondents
Represented by: Mr.Mukesh Sharma, proxy counsel
for Ms.Shobha Gupta, Advocate
for MCD
Ms.Zubeda Begum, Advocate
with Ms.Sana Ansari,
Advocate for GNCTD
Ms.Jyoti Singh, Sr.Advocate
with Ms.Saahila Lamba,
Ms.Tinu Bajwa and
Mr.Amandeep Joshi,
Advocates for R-3 to R-7
W.P.(C) 2513/2012
HARISH CHANDRA AND ORS ..... Petitioners
Represented by: Mr.C.Harishankar, Advocate
with Mr.S.Sunil and
Mr.N.Jagdish, Advocates
versus
MCD AND ORS ..... Respondents
Represented by: Ms.Zubeda Begum, Advocate
with Ms.Sana Ansari,
Advocate for GNCTD
Mr.Alpha Phiris Dayal and
Mr.Jindal, proxy counsels for
W.P.(C) No.2512/2012 & conn.matters Page 1 of 13
Mr.Sanjeev, Advocate for
DPCC
Ms.Jyoti Singh, Sr.Advocate
with Ms.Saahila Lamba,
Ms.Tinu Bajwa and
Mr.Amandeep Joshi,
Advocates for private respondents
W.P.(C) 987/2013
CHATTAR SINGH ..... Petitioner
Represented by: Mr.C.Harishankar, Advocate
with Mr.S.Sunil and
Mr.N.Jagdish, Advocates
versus
MUNICIPAL CORPORATION OF DELHI
AND ORS ..... Respondents
Represented by: Ms.Biji Rajesh, proxy counsel for
Mr.Gaurang Kanth, Advocates for
R-1/MCD
Mr.Varun Gupta, Advocate
with Ms.Sonia Arora, Advocate
for R-2
W.P.(C) 1570/2013
SATYAVEER SINGH AND ORS ..... Petitioners
Represented by: Mr.C.Harishankar, Advocate
with Mr.S.Sunil and
Mr.N.Jagdish, Advocates
versus
MUNICIPAL CORPORATION OF DELHI
AND ORS ..... Respondents
Represented by: Ms.Rachna Golchhha,
Advocate for R-1
Mr.Varun Gupta, Advocate
with Ms.Sonia Arora, Advocate
for R-2
W.P.(C) No.2512/2012 & conn.matters Page 2 of 13
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR.JUSTICE V.KAMESWAR RAO
PRADEEP NANDRAJOG, J.
1. On January 07, 1983 the erstwhile Municipal Corporation of
Delhi notified the Recruitment Rules to the post of Lower Division Clerk.
As per column No.5 the post was declared to be a selection post and as
per serial column No.10, 10% posts had to be filled by promotion on the
basis of a competitive examination conducted by the Municipal
Corporation of Delhi from Class IV employees and the remaining 90%
posts had to be filled up by direct recruitment through the 'Clerks Grade
Examination' to be conducted by the Staff Selection Commission. Serial
No.6, 7, 8, 9 and 10 the Recruitment Rule read as under:-
6. Age limit for For clerks grade examination for
direct recruits class IV staff. Not exceeding 45 year
on the 1st Jan of the year preceding
year of the examination. (Relaxable
for clerk scheduled caste/scheduled
tribe candidates).
For clerks grade examination.
Not less than 18 year on the 1st
January of the year in which the
examination is held (Relaxable for ex-
servicemen, scheduled
caste/scheduled tribe candidates and
other specified categories).
7. Education & For clerks grade examination and
other clerks grade examination for class IV
qualifications staff:
required for direct Essential:
recruits (i) Matriculation from a recognized
University/Board or equivalent.
(ii) Ability to type at a speed of not
less than 30 w.p.m. in English or not
less than 25 w.p.m. in Hindi.
Note: Candidates who attain at the
written examination such minimum
standard as may be fixed by the staff
selection commission in their
discretion will be subject to a type
writing test as per the Standards
indicated above and only those who
qualify there at will be eligible to be
recommended for appointment.
8. Whether age & Age: As in column 6 for class IV Staff
Educations Qualification: As in column No.7.
qualifications
prescribed for
direct recruits will
apply in the case
of promotees.
9. Period of Two year.
probation if any
10. Method of (i) not more than 10% by promotion
recruitment on the basis of the competitive
whether by direct examination held by the Municipal
or by promotion or Corporation of Delhi for class IV
by staff.
deputation/transfer
and percentage of (ii) Remaining vacancies by direct
the vacancies to be recruitment through the Clerks Grade
filled by various Examination conducted by the Staff
method. Selection Commission
Provided that on more than 10% of
the vacancies filled by direct
recruitment in any year shall be
reserved for Ex-servicemen.
Note: - not more than 5% of the total
vacancies arising in year may be filled
otherwise than as provide for above
by appointment of a son or daughter
or wife or husband or brother or
sister of an employee of the Municipal
Corporation of Delhi who dies daring
the period of his service subject to the
condition that the person to be so
appointed possess as the
qualifications prescribe for direct
recruitment or acquires them within 2
years of his appointment.
2. And suffice would it be for us to note at the outset that the
draftsman of the Recruitment Rule, while giving ink to the thought of the
author thereof has done a fairly clumsy job. Notwithstanding it being
settled legal position that appointment on promotion through a Limited
Departmental Competitive Examination is not appointment by direct
recruitment, in column No.6 the draftsman wrote against 'Age limit for
direct recruits‟: 'for Clerks Grade Examination for Class IV staff not
exceeding 45 years..... for Clerks Grade Examination not less than 18
years‟. It evidences that the draftsman misunderstood the mind of the
author and as against providing two serial numbers with distinct head of
applicability i.e. age limit for direct recruits and age limit for promotees,
treating both to be direct recruitment, indicated two different age limits.
This misunderstanding continued when column 7 was inked. Listing the
subject matter in column 7 'Education and other qualifications required
for direct recruits' the draftsman wrote: „for Clerks Grade Examination
and Clerks Grade Examination for Class IV staff‟ followed by listing at
sub-para (i) the educational qualification and under para (ii) a skill test
prescribed with a typing speed of not less than 30 words per minute in
English or not less than 25 words per minute in Hindi. At serial No.8
pertaining to the subject: 'whether age and educational qualifications
prescribed for direct recruits will apply in the case of promotees' the
draftsman wrote that the age and qualifications would be as per column
No.6. Further, while penning the note under sub-para (ii) in the column
against serial No.7 the draftsman wrote that the minimum standard of the
type test may be as fixed by the 'Staff Selection Commission' and while
so doing overlooked the fact that as per the column at serial No.10 the
direct recruitment alone had to be through an examination conducted by
the Staff Selection Commission, meaning thereby there is a serious
problem in the various columns at serial No.10 on account of the reason
pertaining to the essential qualifications the same are made applicable for
the clerk grade examination to be conducted by the Staff Selection
Commission as also the clerk grade examination for Class-IV staff which
as per serial No.10 is conducted by the Municipal Corporation of Delhi.
3. In what manner the aforesaid mismatch between the thought
of the author and the ink of the draftsman has created a problem would
require us now to note the facts giving birth to the instant dispute.
4. On May 12, 2005 the Municipal Corporation of Delhi issued
a circular inviting applications from Class IV employees to fill up the
existing and future vacancies likely to arise in the future; and we note the
number was not indicated in the circular, indicating in the circular that the
age has not to be more than 45 years as on January 01, 2004. It was
indicated that matriculation from a recognized board/university or
equivalent was a must. It was indicated that the candidates would be
subjected to a written test and those who qualify would have to qualify
the skill test by passing a typewriting test at the speed of 30 words per
minute in English or 25 words per minute in Hindi. The written
examination was conducted and the process was halted. A list in order of
merit with reference to the marks obtained at the written test was
published. Those who had cleared the written test and probably had
learnt of the vacancies available were obviously impatient for the reason
it would be a quantum jump in their life. From lowly paid Class IV
employees their social status would rise to that of a clerk. From a white
collared job to a blue collared job; and who says that colour does not
matter. 85 writ petitions by 85 impatient and expectant persons were
filed. They prayed that the selection process for purposes of promotion to
the post of Lower Division Clerk be directed to be completed and they
pleaded a past practice consistently followed by the Corporation since the
year 1988 of making appointment by promotion on the basis of the
Limited Departmental Competitive Examination but providing a
stipulation in the appointment letter that those who had been selected and
promoted would clear the typing test within a period of two years.
5. On notice being issued in the said writ petitions, counsel for
Corporation conceded to the past practice and the result was that on
January 09, 2006 the 85 writ petitions were allowed by a singular order
directing the Corporation to promote the petitioners to the post of Lower
Division Clerk but subject to the outcome of proceedings in W.P.(C)
No.22546-48/2005, which we find was a writ petition filed by Uttam
Singh and two others, which writ petition on transfer to the Tribunal
when a notification was issued requiring service disputes between the
Corporation and its employees to be heard exclusively by the Tribunal,
was registered as TA No.323/2009. It has been decided along with two
other transferred writ petitions to the Tribunal as per the order dated
August 03, 2011; the subject matter of challenge in W.P.(C)
No.2512/2012, 2513/2012 and 987/2013.
6. It needs to be noted therefore at this stage what was the
challenge by Uttam Singh and others. They were claiming that the list of
successful candidates at the written test could not form the basis for
promotion. They stated that clearing a skill test i.e. a typing test was a
condition precedent for promotion. They stated that only after
conducting a skill test and weeding out those who could not clear the
same from amongst those whose names stood entered in the list of
candidates who had cleared the written test, should promotions be
effected. To wit: say there were hundred posts to be filled up by
promotion. Ten out of the first hundred candidates in order of merit at
the written examination failed to clear the typing test. They would be out
of reckoning.
7. Under cover of the order dated January 09, 2006, the
Municipal Corporation of Delhi effected promotion without subjecting
the candidates who had cleared the written test and whose merit position
entitled them to be promoted against the existing vacancies. Letter
offering appointment issued on January 31, 2006 contained a condition
that the candidate concerned would have to clear a typing test as
prescribed by the Recruitment Rule i.e. achieve the requisite typing test
within two years.
8. As noted above, writ petition filed by Uttam Singh and
others and two other writ petitions filed by the writ petitioners of W.P.(C)
No.2513/2012 and 987/2013 were also transferred to the Tribunal when a
notification referred to in paragraph 4 above was issued and the three writ
petitions were registered before the Tribunal as TA No.318/2009, TA
No.323/2009 and TA No.506/2009.
9. The debate before the Tribunal fought between the two
warring fractions before the Tribunal was in the following words: Uttam
Singh and others argued that the note appended under sub-para (ii) of
column 7 ought to have been applied to the promotions effected. The
other group argued that the note did not apply and could not be applied on
account of the fact that column at serial No.8 restricted application of the
subject matter of the column only to age and education qualification. In
other words the opposite group drew a distinction between educational
qualification and a skill qualification.
10. The debate has been won by the latter group i.e. the ones
who were promoted without being subjected to a skill test before
promotions were effected. Vide decision dated August 03, 2011 the three
writ petitions which were transferred before the Tribunal were dismissed
and review sought of the order dated August 03, 2011 was rejected when
order dated March 05, 2012 was passed by the Tribunal dismissing the
review applications. The reason for seeking review was the past practice
referred to by the Corporation that in the past since the year 1988 it have
been effecting promotions without a skill test but subject to the promoted
candidate clearing the skill test within two years of promotion which was
accepted by the Tribunal when the order dated August 03, 2011 was
passed. It was brought to the notice of the Tribunal that on information
obtained under the Right to Information Act the Corporation had
informed that it had never conducted any skill test by subjecting anybody
to a typing test. It was then brought to the notice of the Tribunal that the
practice adopted by the Corporation was to accept certificates issued by
Industrial Training Institutes, which after training students/candidates as
per course designed by the Institutes, conduct a test and issue a certificate
akin to some kind of a diploma and the skill test is at a speed required
under the Recruitment Rule.
11. The protagonist of the fourth writ petition i.e. W.P.(C)
No.1570/2013 were the companions sailing the boat in which Uttam
Singh was sailing, and the Original Application filed by them was
dismissed by the Tribunal following the reasoning in the order dated
August 03, 2011.
12. We need not cull out the reasoning of the Tribunal in its
decision dated August 03, 2011 for the reason we find that the Tribunal
has centered on what was being projected as the rival view points before
it without noticing a patent error in the language of the Recruitment Rule
in question creating fair amount of confusion if one reads the language of
the Recruitment Rule keeping in mind the settled principles of law.
13. It is settled law that appointment from a lower post, on the
basis of a Limited Departmental Competitive Examination, is
appointment by promotion and not appointment by direct recruitment.
The first and the foremost confusion created by the draftsman of the
Recruitment Rule was to list under the subject 'Age limit for direct
recruits' the age limit for those who had to be appointed by promotion. It
is apparent that the draftsman thought that appointment through the
Limited Departmental Competitive Examination was also a case of direct
recruitment. This erroneous reflection continued in column 7 where
pertaining to the subject 'Education and other qualifications required for
direct recruits‟ the draftsman, before listing under sub-para (i) the
educational qualifications and sub-para (ii) the ability to type at a speed,
wrote: 'For Clerks Grade Examination and Clerks Grade Examination
for Class IV staff'. Meaning thereby, that the content of column at serial
No.7 is capable of being read, as sub-para (i) and (ii) thereof, being
applicable to both i.e. direct recruitment 90% quota and the 10%
promotee quota. But, we should hasten to add that the note would
suggest that the skill test contemplated is limited only to the written
examination for the direct recruitment 90% quota for the reason the note
refers to the written examination conducted by the Staff Selection
Commission; and relevant would it be to highlight that as per column
No.10, where the method of recruitment is prescribed, the 90% direct
recruitment vacancies have to be filled up on the basis of the Clerks
Grade Examination conducted by the Staff Selection Commission.
14. It is no doubt true that every attempt has been made to
interpret a statute, which would include even a Rule, in a manner that no
part thereof becomes redundant i.e. Rule against redundancy has to be
followed and thus ordinarily one should not lead oneself to hold that a
word or a group of words in a statute are surplus but situations may arise
when, to give effect to the intention of the Legislature or the Executive
(in the case of delegated legislation) the un-skillfulness of the draftsman
in introducing certain words in the statute or the Rule may have to be
taken into account and those words have to be ignored to give effect to
the intention of the Legislature. One such problem was encountered way
back in the year 1856. Section 1 of the Natal Ordnance of 1856 came to
be interpreted with respect to the meaning of the word 'Resident' in the
context of the expression 'as if such natural born subject resided in
England´. Lord Hobusu observed:-
"It is, however, a very serious matter to hold that when the
main object of a statute is clear, it shall be reduced to a
nullity by the draftsman‟s un-skillfulness or ignorance of
law....... Very likely the draftsman, whose want of skill is
shewn by other expressions in the ordinance, attributed to
residence a legal effect which it does not possess...... And he
then adds words which may add nothing to what has gone
before, but which ought not without necessity to be construed
so as to destroy all that has gone before."
15. In the decision reported as (1990) 1 All. ER McMonagle Vs.
Westminster City Council, construing the Local Government
(Miscellaneous Provisions) Act 1982, the words 'which are not unlawful'
were found to be surplus and ignored. The court opined:-
"I entertain no doubt in my own mind that we should be
giving effect to the true intention of the legislature if we could
avoid this absurdity by treating the phrase which is not
unlawful in each of the sub-paragraphs of para 3A where it
appears as mere surplusage. I recognize that this is a strong
course to take in construing a statute and one which imputes
an unusual degree of ineptitude to the draftsman. The
difficult question is whether in the circumstances the course I
would choose, if it is available, is a legitimate judicial
exercise in construction or whether it must be left to the
laborious process of amending legislation to make sense of
the statute. The presumption that every word in the statute
must be given some effective meaning is a strong one, but the
Courts have on occasion been driven to disregard particular
words or phrases when, by giving effect to them, the
operation of the statute would be rendered insensible, absurd
or ineffective to achieve its evident purpose."
16. It is settled law that while interpreting a Recruitment Rule a
past practice consistently followed by the department needs to be kept in
view by the Court: See the decision of the Supreme Court reported as
AIR 1992 SC 564 N.Suresh Nathan Vs. Union of India & Ors. And the
aforesaid dictum of law would be applicable with greater vigour where
there is an ambiguity in the Recruitment Rule.
17. The undisputed position is that the consistent practice
followed in the past by the Municipal Corporation of Delhi was to make
appointment by promotion of Class IV employees to the post of Lower
Division Clerk on the basis of a written test and the typing skill test was
to be satisfied within two years with reference to certificates so certifying
filed by the candidates on clearing the tests conducted by Industrial
Training Institutes.
18. Thus, not for the reasons given by the Tribunal but for our
reasons above noted we dismiss the writ petitions but without any orders
as to costs, simultaneously recommending that clarity be brought to the
Recruitment Rule by making necessary amendment.
(PRADEEP NANDRAJOG)
JUDGE
(V.KAMESWAR RAO)
JUDGE
JULY 26, 2013
mamta
