Delhi High Court
Union Of India vs Mahender Singh on 13 November, 2014
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% DECIDED ON: 13.11.2014
+ W.P. (C) 12289/2009
UNION OF INDIA ..... Petitioner
Through: Mr. Ajay Digpaul, Advocate.
versus
MAHENDER SINGH ..... Respondent
Through: Mr. S.K. Gupta, Advocate.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE VIPIN SANGHI
S.RAVINDRA BHAT, J. (OPEN COURT)
1. The Union of India is aggrieved by an order of the Central
Administrative Tribunal (hereafter referred to as 'CAT') dated
6.11.2008 in OA 787/2008. By the impugned order, the CAT had
directed the Union to strike off/quash column nos.9 & 12 of the
Recruitment Rules framed under Article 309 of the Constitution of
India in 2005, in respect of the category of Laboratory Assistants to
the extent they are applicable to 50% promotional quota.
2. The facts necessary for deciding this case are that the
respondents/applicants were working as group 'D' employees; they
are 30 in number. They underwent the one year service training
course from the Safdarjung Hospital where they were employed. They
W.P.(C)12289-09 Page 1
approached the CAT challenging the validity of Laboratory Assistants
(Group C posts) Recruitment Rules, 2005 (hereafter referred to as 'the
Rules') - specifically column nos. 9 and 12 thereof. These prescribed
the eligibility and qualifications required for the post of Laboratory
Assistants, for the 50% promotional quota to be filled by Laboratory
Attendants. Their case was that under the pre-existing rules - which
were in force prior to 2005 - i.e., the Laboratory Assistants in the
Safdarjung Hospital (Group C posts) Recruitment Rules, 1987, the
group 'D' employees were eligible to be considered for promotion
provided they successfully completed one year's service training
course preparatory to be promoted as Laboratory Assistants. The
amended rules, which were in dispute before the CAT, to the extent
they are relevant read as follows: -
SCHEDULE
Name of Number Classification Scale of Pay Whether Whether benefit of
the Post of Posts Selection added years of
post or service admissible
Non-selection under Rule 60 of the
Post Central Civil
Services (Pension)
Rules, 1972
Laboratory 35 (2005) General Central Rs.3200-85-4900 Selection Not applicable
Assistant Subject to Service, Group
variation 'C'
dependent Non-Gazetted
on work Non-Ministerial
load
Age limit Educational Whether age and Period of Method of
for direct and other educational probation if recruitment whether
recruits qualification qualification any by direct recruitment
required for prescribed for or by promotion or
direct recruits direct recruits by
will apply in the deputation/absorption
case of promotes and percentage of the
posts to be filled by
various methods.
W.P.(C)12289-09 Page 2
7 8 9 10 11
25 years (Relaxable for Essential: (i) Age: Note 2 years 50% by
Government servants upto 40 10+2 in Science applicable promotion
years in accordance with the subjects from a Educational failing
instructions or orders issued by recognized Qualifications: which by
the Central Government). Note: University or Must possess Direct
The crucucial date for Board. (ii) recognized Recruitment.
determining the age limit shall Diploma in diploma in
be the closing date for receipt Medical Medical
application from candidates in Laboratory Laboratory
index (and not the closing date Technology Technology
prescribed for in Assam, from an institute
Mizoram, Manipur, Nagaland, recognized by
Meghalaya, Arunachal Pradesh, the All India
Tripura, Sikkim, Ladakh Council of
Division of Jammu and Kashmir Technical
State, Lahaul and Spirit Districts Education or
and Pangi Sub Division of any other
Chamba District of Himachal statutory body
Pradesh, Andaman and Nicobar authorised by
Islands or Lakshadweep the Government
for the purpose.
Note:
Qualification (s)
regarding
experience is
relaxable at the
discretion of the
Competent
authority in case
of candidates
belonging to
Scheduled
Tribes, if, at any
stage of
selection the
Competent
authority is of
the opinion that
sufficient
number of
candidates
belonging to
these
communities
possessing the
requisite
experience are
not likely to be
W.P.(C)12289-09 Page 3
available to fill
up the vacancies
reserved for
them.
In case of recruitment by If a Department Circumstances Not
promotion/deputation/absorption Promotion in which applicable
grade from which Committee Union Public
promotion/deputation/absorption exists, what is Service
to be made its composition. Commission
is to be
consulted in
making
recruitment.
Promotion from amongst Group 'C'
Laboratory Attendants with Departmental
seven years regular service in Promotion
the grade. Committee
consisting of: 1.
Additional
Medical
Superintendent
- Chairman.
2. Head of the
Department -
Member
(Pathology).
3. Deputy
Director -
Member
(Administration)
3. The applicants' submission before the CAT was that the
amendments impugned by them had, in fact, blocked their
promotional channel and that given the fact that almost all of them did
not possess the requisite diploma in Medical Laboratory Technology
(MLT), the Union was resorting to direct recruitment, which was to
their detriment. It was also urged that every public employee has a
right to expect at least two promotions in his service career, and the
amendments had an effect of destroying that right. The CAT
accepted these submissions and also took into consideration a plea
apparently made by the Union of India in the course of some
W.P.(C)12289-09 Page 4
pleadings in earlier proceedings.
4. The Union of India contends that the impugned order to the
extent it strikes down the Rules challenged by the applicants cannot
be sustained. Prescribing technical qualifications for purposes of
recruitment channel, i.e., promotion to fill up vacancies, based upon
possession of professional or technical qualifications is a matter of
executive policy and should not have been interfered with by the
CAT. It was contended that the exercise of choice by the executive
government in deciding the appropriateness of particular qualification
is essential for the purpose of recruitment or promotion and should
not be interfered with at all by the Courts unless there is patent
arbitrariness, if such qualification cannot be possessed, or if there is
no infrastructure to acquire the qualification. Learned counsel also
submitted that the mere fact that none of the applicants possess the
DMLT qualification could not have impelled the CAT to strike down
the rules.
5. Counsel for the applicants urged that the pre-existing rules had
balanced the public interest and individual aspirations of the public
employees, in that, only those group 'D' employees - who were able
to successfully complete the in-house service training, could expect to
be promoted. All the applicants had completed the training and at the
time when the candidatures for promotions were to be considered, the
rules were amended - effectively blocking all their chances of
promotion. The CAT, therefore, acted within its powers in holding
that the amendments were arbitrary.
6. As is evident from the Rules extracted above, the Union of
W.P.(C)12289-09 Page 5
India sought to introduce a better educational qualification as an
essential one even for the purpose of in-house promotion under 50%
quota. The requirement of a diploma qualification (DMLT) existed
in the pre-existing (1987) Rules so far as they dealt with candidature
for the purposes of direct recruitment. The amendments, in this
Court's mind, merely sought to align both qualifications by
prescribing the same standards of diploma. If one views the policy
of the government from this angle, the introduction of the DMLT
qualification for the purposes of promotion cannot be termed as
arbitrary. The in-house training course - besides being restricted in
access to only employees of Safdarjung hospital, is not equated with
any technical qualification recognized by the AICTE - unlike the
DMLT. On this ground alone, this Court would have ordinarily set
aside the findings of the CAT.
7. At this stage, this Court notices that the amendment - brought
about by the 2005 Rules was apparently the results of certain
observations made in the course of a public interest litigation, i.e.,
CWP 3018/2000 as to the necessity to review the existing rules. The
government consciously took up the matter and decided that
alignment of the educational qualifications in both channels of
recruitment was essential. In view of these, this Court feels that the
CAT clearly overstepped its jurisdiction in declaring the 2005
amendments, specially column nos.9 & 12 as arbitrary and
unconstitutional.
8. This Court expresses its concern with the manner in which the
CAT rendered the findings of arbitrariness. It needs to be hardly
W.P.(C)12289-09 Page 6
emphasized that the expectations of public employees - for what they
perceive to be fair treatment in the matters of promotions and other
such terms and conditions of employment, have to be balanced with
public interest. The fact of the present case was that the executive
government consciously took into consideration all relevant factors
and decided that only those of the laboratory attendants who fulfilled
the eligibility condition of possessing the DMLT qualification could
be promoted to the post of Laboratory Assistants. It is not in dispute
that the Laboratory Attendants belong to the group 'D' category.
Having regard to the imperative of public health, the interference by
the CAT in this case was utterly unwarranted and we place on record
our disapproval of its reasoning. As far as the promotional aspirations
of the applicants are concerned, they are an entirely different aspect.
The government may be called upon to consider it appropriately; in
any event, they would be entitled to the ACP/MACP benefits
prevalent as on date.
9. For the above reasons, the writ petition has to succeed. The
impugned order is set aside.
10 The writ petition is allowed.
S. RAVINDRA BHAT
(JUDGE)
VIPIN SANGHI
(JUDGE)
NOVEMBER 13, 2014
/vikas/
W.P.(C)12289-09 Page 7
