Govt. Of Nct Of Delhi And Ors vs Sam Mathew
2013 Latest Caselaw 4124 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+                           W.P. (C) 1778/2013
%                                                DECIDED ON: 12.09.2013

       GOVT. OF NCT OF DELHI AND ORS              ..... Petitioners
                     Through: Ms. Zubeda Begum, Advocate.

                            versus

       SAM MATHEW                                          ..... Respondent

Through: Mr. N.M. Varghese with Ms. Tessy Varghese, Advocates.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT)

1. The Government of NCT of Delhi is aggrieved by an order of the Central Administrative Tribunal (C.A.T.) dated 20.11.2012. The impugned order has directed that the respondent/applicant should be treated as having been appointed to the post of Technical Assistant w.e.f. 2001, i.e., upon his fulfilling the eligibility condition with respect to the technical qualification prescribed by the Rules.

2. The brief facts are that the applicant was appointed as Lab Assistant on 04.08.1978 and was subsequently appointed on direct recruitment basis as Lab Technician on 10.06.1986. That post constituted a feeder grade to the post of Technical Assistant which prescribed the essential qualification to be a B.Sc in (Medical Lab

W.P.(C)1778-13 Page 1 Technician) with requisite experience. The Lieutenant Governor, apparently, upon representation by some existing employees issued an order waiving and relaxing the essential qualification of graduation by an order dated 27.11.1998. Consequent to this, the applicant was promoted - along with ten others - to the post of Technical Assistant. This move was questioned by certain aggrieved individuals who challenged the appointment of the applicant as well as the order relaxing the qualification. The petitions so moved were allowed and the applicant and others approached the Supreme Court by a Special Leave Petition. Eventually, on 03.09.2008, the Supreme Court upheld the quashing of the relaxation notification. The Court also stated as follows: -

"7. Learned counsel for appellants submitted that some of the appellants have retired and others are approaching age of superannuation. He submits that any reversion after ten years of service in the higher post will cause them hardship. He therefore submitted that the appellants may be permitted to submit representations for protection, by treating their service in the higher post as being in ex-cadre supernumerary posts. All that we can say is that the dismissal of these appeals will not come in the way of giving any representation. But such permission to give representation shall not be construed as recognising or conferring any right for relief."

3. In the meanwhile, the applicant appears to have acquired the prescribed academic qualification for being promoted as a Lab Technician sometime in 2001. Pursuant to the liberty granted by the Supreme Court, the applicant sought that his promotion be postponed from 1998 to 2001, i.e., the date after which he acquired prescribed qualification. On 1.2.2012, the petitioner was promoted w.e.f. 2007.

W.P.(C)1778-13 Page 2 However, he was reverted to the post of Lab Technician by withdrawal of the earlier promotion order made in 1998. Being aggrieved, he approached the Tribunal again; this time by filing OA 3442/2010 which was disposed off on 21.04.2011. The Tribunal directed as follows: -

"7. In view of the foregoing, the O.A. is disposed of with a direction to the respondents to give all benefits like promotion, ACP, etc, as per rules to the applicant from the date of his entitlement as per the seniority, qualifications and ACRs after obliterating the benefit of the promotion accorded in 1998, which was quashed. Thus, his case has to be treated according to his qualifications, merit only by excluding the benefit he got under the promotion in 1998, which was quashed. The respondents would pass a speaking order on all these aspects within a period of three months from the date of receipt of a copy of this order."

4. After the Tribunal's order in April, 2011, the Government of NCTD, acting upon the recommendations of the DPC, promoted the applicant to the post of Technical Assistant (Lab Group-IV) on a regular basis w.e.f. 11.09.2007, the date when the last DPC was held on an application of the 'next below rule', i.e., since the applicant's juniors had been promoted as on that date. The applicant's grievance that he ought to be treated as a regular promotee with effect from the date he acquired the prescribed qualification survives. He, therefore, approached the C.A.T. by filing OA 1821/2012.

5. By the impugned order, the C.A.T. allowed the OA 1821/2001 of the applicant and held inter alia as follows: -

"9. From the above facts and circumstances of the case, it is very clear that the applicant who was senior enough was

W.P.(C)1778-13 Page 3 promoted on regular basis to the post of Technical Assistant w.e.f. 27.11.1998 against a clear vacancy and his promotion was challenged only on the ground that he did not have the requisite qualifications. Therefore, when he has acquired the requisite qualifications later on, he should have been promoted from that date and not to wait for his juniors to be promoted. We, therefore, find merit in this case and allow this OA. Consequently, we quash and set aside the impugned order of promotion dated 01.02.2012 promoting the applicant from 11.09.2007. Further, considering (i) his seniority in the grade of Lab Technician, (ii) the fact that he has already been promoted as Technical Assistant w.e.f. 27.11.1998 in his turn but he was reverted only for the reason that he did not have the requisite qualification on that date, (iii) he acquired the necessary qualification on 30.01.2001 and (iv) the fact that he has been continuously working as Technical Assistant w.e.f. 27.11.1998 till he was reverted on 30.07.2009, the respondents shall issue necessary orders promoting the applicant as Technical Assistant w.e.f. 30.01.2001 with all consequential benefits including re-fixation of his pay, annual increments, other financial benefits under the ACP/MACP as admissible under the rules, revision in his retirement benefits, etc. Since the applicant has already retired from service, the respondents shall comply with the aforesaid orders within a period of one month from the date of receipt of a copy of this order. There shall be no order as to costs."

6. The Government of NCT of Delhi urges through its counsel Ms. Zubeda Begum that the Tribunal's directions are untenable. It is submitted that the applicant's chance for promotion occurred only in 2007 and that he could not later lay claim to the post merely upon fulfilling the criteria prescribed under the Rules for the higher post of Technical Assistant. It was submitted that having lost at various stages in the previous litigations, the applicant could at best claim

W.P.(C)1778-13 Page 4 protection of prior service only to the extent that the pay actually drawn by him for the period he worked as a Technical Assistant pursuant to the aborted appointment in 1998 had to be preserved. Since the DPC was actually held in 2007, that constitutes the earliest point of time when the applicant actually claimed to be considered for promotion. Learned counsel relied upon the rulings reported as Union of India v. K.K. Vadera and Ors. 1989 Supp (2) 625; State of Uttaranchal & Anr. v. Dinesh Kumar Sharma 2007 (1) SCC 683; K.V. Subba Rao v. Government of Andhra Pradesh, 1988 (2) SCC 201 and Nirmal Chandra Sinha v. Union of India & Ors (2008) 14 SCC 29 in support of the proposition that a public employee or officer cannot claim promotion automatically upon the occurrence of the vacancy and that such right would accrue only upon his name being recommended and consequent appointment being offered.

7. Counsel for the respondent/applicant submitted that the petition should not be entertained. It was pointed out that the relaxation order of the Lieutenant Governor operated in favour of 11 employees. With the quashing of that relaxation order, ordinarily, all the individuals would have been reverted. However, the applicant and some others continued in the post on account of the interim orders granted. In the meanwhile, the applicant fulfilled the eligibility criteria which had by then undergone a change on account of an amendment to the Recruitment Rules in 1999. The applicant's claim for the post had to be considered, therefore, in accordance with the changed conditions at least with effect from the date he fulfilled them i.e., in 2001. Counsel further submitted that the vacancy in the post which existed was in

W.P.(C)1778-13 Page 5 fact filled by the applicant firstly on account of interim orders and later the very same vacancy was filled by them on account of the order of promotion made effective from 2007. In the circumstances, argued the counsel, the applicant cannot now be placed in a worse situation merely because he was the beneficiary of an order of relaxation which was ultimately held to be illegal.

8. This Court has considered the submissions. It is evident that there can be no controversy about the fact that with the declaration that the relaxation order was illegal, the applicant's appointment became a nullity in 1998. But the matter did not end there. He as well as the others appear to have continued in the post right till the year 2009. On 3.9.2008, the Supreme Court made a final determination with regard to the legality of the relaxation notification. By then three events had occurred. The first was the amendment to the Recruitment Rules in 1999 which indicated qualification other than graduation for the post of Technical Assistant. The second event was that in 2001 the applicant, concededly, acquired the freshly amended qualification. He was continuing to hold the post and discharge the duties in relation to the post of Technical Assistant. There was no fresh vacancy between 1998 and 2007. The third event is that in 2007, i.e., before the order of Supreme Court, the petitioner held the DPC and promoted other employees, juniors to the applicant, to the post of Technical Assistant.

9. The totality of circumstances here would show that the applicant who admittedly acquired the prescribed qualification in

W.P.(C)1778-13 Page 6 2001 - and whose experience confirmed to those prescribed in the Rules - has been worse-off on account of the relaxation order made in his favour and in favour of ten others. At least as far as he is concerned, the original vacancy which was filled on account of the relaxation in 1998 and the post which he continued to occupy uninterruptedly till his superannuation, has been ignored by the petitioner in determining that he could be treated as regularly appointed to the post only from the date his juniors were promoted in 2007. That the legal effect of the quashing of the relaxation notification would undoubtedly be that at least notionally the applicant's vacancy existed along with ten others as from the date they were promoted in 1998. That the applicant by virtue of interim orders continued to fill that vacancy is a matter of fact. Equally, that the applicant acquired the prescribed qualification in 2001 has not been disputed. In these circumstances there is no impediment, in the opinion of this Court, to treat the appointment of the applicant as regular at least with effect from the date he acquired the qualification since he was in all other respects eligible to hold the post of Technical Assistant. The petitioner has not shown as to which of the beneficiaries of the relaxation order had like the applicant acquired the prescribed qualification. If this petition was to be allowed as the Government of NCT of Delhi urges before this Court today, the net result would be that the relaxation order - which itself was to passed on bona fide considerations - would haunt the applicant whose otherwise undisputed eligibility to hold the post and the further admitted position of his actually having discharged the duty in the

W.P.(C)1778-13 Page 7 post of Technical Assistant is not disputed at all. In the circumstances, the Court is of the opinion that ends of justice lie in not interfering with the order of the C.A.T.

10. W.P. (C) 1778/2013 is, therefore, dismissed.

                                                      S. RAVINDRA BHAT, J



                                                           NAJMI WAZIRI, J
       SEPTEMBER 12, 2013
       /vks/




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