Delhi High Court
Asi/M Madan Lal & Ors. vs Union Of India And Anr. on 9 October, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 09.10.2014
+ W.P.(C) 644/2012
ASI/M MADAN LAL & ORS. ..... Petitioners
Through: Mr. Raunak Jain, Adv.
Versus
UNION OF INDIA AND ANR. ..... Respondents
Through: Mr. Manish Mohan, CGSC.
+ W.P.(C) 5854/2010
ASI/M KAKA RAM & ORS. ..... Petitioners
Through: Mr. Raunak Jain, Adv.
Versus
UNION OF INDIA AND ANR. ..... Respondents
Through: Mr. Manish Mohan, CGSC.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J. (Oral)
1. In this writ petition under Articles 226/227 of the Constitution of
India, the petitioners have challenged the impugned order of 15 th
February, 2009 whereby they have been promoted to the rank of Assistant
Sub Inspector (Medic) (ASI/M) in the Sashastra Seema Bal (SSB). Their
grievance is that they should have been promoted to the rank of Sub
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Inspector (Medic) instead of ASI/M on the date of their eligibility without
insistence for their registration under the Pharmacy Act, 1948; that
relaxation ought to have been given to them as was given to one Mr.
Mohar Singh who was appointed as ASI/M on 05.01.1998.
2. The facts of the case are that the petitioners had been promoted to
the rank of Head Constable (Medical) in the year 1992 (while the
petitioner no. 6 was promoted in 1996) on the basis of the Recruitment
Rules of 1991; that according to Memorandum No. 1/12//84-SCB/SI dated
5.8.1985 issued by the SSB, promotions to the rank of ASI/M and SI/M
were to be based on seniority-cum-merit without holding any test, subject
to fulfilling other prescribed qualifications. This Memorandum was issued
with reference to an earlier Memo dated 3rd June, 1985 dealing with adhoc
promotions of SI/M and ASI (Comp). It recorded that:
"2. The matter has been engaging the attention of the
DTe for some time past. In view of the fact that
registrations of Pharmacists has been closed in many
states and there is no prospects of its re-opening in the
near future, we have already proposed to Cab. Sectt. to
amend our draft promotion rules (which are under
consideration with them for approval so as to delete the
provision of registration..........".
"4. It has now been decided that till
promotion/recruitment rules are finalized, eligible
HC/Medic and ASI (Comp) may be given ad-hoc
promotion, without insisting on their registration and
without holding and test, subject to the condition that
they fulfil the qualifications mentioned in para 2(1) and
(2) above. Such ad-hoc promotion will also be governed
by instructions contained in para 3 of this DTE memo
No.6/1/78 SSB/E2 dated 29.11.1984.......".
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3. The learned counsel for the petitioner submits that the aforesaid two
clauses do not refer to any registration of pharmacists under the Pharmacy
Act, 1948 but the recruitment rules, subsequently notified on 2nd July,
1991 require that for promotion to the rank of ASI/M, a candidate must
possess qualification specified under Section 31 (d) of the Pharmacy Act,
1948 and registered under Section 33 of the said Act. He submits that
since the post was to be filled 100% by promotion and since such a
requirement did not exist for the earlier rank of Constable or Head
Constable, the requirement at the promotional level of ASI/M was without
reason, arbitrary and therefore, liable to be quashed. He further submits
that in view of the Government having already acknowledged vide
Memorandum dated 05.08.1985 that registration of pharmacist had been
closed in many States and there was no prospect of its re-opening in the
near future, the insistence upon registration and possession of the said
qualifications is ex facie, impractical, unjustified and onerous upon Head
Constables (Medic). He submits that for the identically placed, direct
recruits, although the said condition is supposedly binding, the
respondents have not insisted upon it but indeed in the face of it have
directly recruited one Mr. Mohar Singh as ASI on 05.01.1998 to the said
post. He submits that the said ASI possesses no qualification better than
the petitioners.
4. In reply, the respondents have submitted that the said person was
re-employed in SSB with effect from 15.01.1998, being qualified in
various courses of Medical Cadre in the Army which are (i) General
Nursing Technical Class IV of 9 months duration, (ii) General Nursing
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Technical Class III of 9 months duration, (iii) General Nursing Technical
Class II of 6 months duration and (iv) General Nursing Technical Class I
of 12 months duration. The justification being that the Recruitment Rules
of 1991 itself provided for the re-employment of ex-servicemen, who had
held the same or equivalent ranks in the Armed Forces. However, on 1st
September, 2008, the Government of India has notified the Sashastra
Seema Bal Combatised Medics Cadre (Non-professional) Group „C‟ posts
Recruitment Rules, 2008 for the Sashastra Seema Bal (SSB). It dropped
the requirement of registration under the Pharmacy Act, 1948 for the rank
of ASI/M. The notification was made applicable from the date of its
publication in the official gazette i.e., from 19th September, 2008;
therefore, it was to be prospective. The impugned order dated 15.2.2009
was issued under the said Recruitment Rules.
5. Mr. Raunak Jain, the learned counsel for the petitioners submits
that the petitioners have been working on the rank of ASI/M since 2003,
when they were allowed to wear the rank badge of ASI/M. This
development was on account of an order issued by the Government of
India on 19/25th August, 2003 which reads as under:-
"Promotion to the rank of ASI (Comp/Medic) from
HC/Medic have not taken place since long owing to
certain clarification laid down in Pharmacy Act,
Amendment in eligibility condition of qualification
prescribed in clause D of Sec. 31 of Pharmacy Act
and registration u/s.33 of said Act for promotion of
HC (Medic) to ASI (Medic) is being proposed.
Pending the amendment, the Director General, SSB
is pleased to approve wearing of rank badge of ASI
(Medics)/Comp by the under mentioned H.C.
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(Medics) who have fulfilled the other eligibility
conditions except the once stated above. It is,
however, clarified that wearing of the rank badge
will not entitled them to any kind of seniority in the
subsequent promotion or any service or financial
benefits in pay, allowance and pension etc."
6. Mr. Jain contends that the petitioners ought to have been considered
for promotion to the rank of ASI/M in the year 1995 (1999, in the case of
petitioner no.6); that in a petition before the High Court of Jammu and
Kashmir, the Hon‟ble Court had directed the respondents to take a
decision in this regard and pass an appropriate order for promotion of the
petitioners. The learned counsel submits that the High Court had directed
the respondents to take a decision apropos the relaxation of the eligibility
criteria in view of the order of the Government on 25.08.2003 which
mentioned the now effected proposal to amend the requirement of
registration under the Pharmacy Act, 1948. It is submitted that the
petitioners in the meanwhile since 25.8.2003 had already been working in
the rank of ASI/M. Later, when the impugned order of 15.2.2009 was
passed, one of the petitioners sought initiation of contempt proceedings
before the High Court of Jammu and Kashmir. The petition was disposed
off with the observation that the Court‟s direction had been duly complied
with. However, liberty was granted to initiate proceedings in case it was
felt that there was a violation of a right.
7. The learned counsel for the petitioners submits that all along, the
Government itself did not insist upon the requirement of registration under
the Pharmacy Act, 1948; that for a similarly placed person viz. Mr. Mohar
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Singh, who too was required to cross the hurdle of registration under
Pharmacy Act, the respondents/Government overlooked the requirement
thus, acknowledging that the requirement was only in name and was not
to be put into effect or insisted upon; that the Government‟s own
communications and orders would show that all alone ever since 1985, the
Government had been contemplating the removal of the requirement
under the Pharmacy Act because the registration under the said Act had
already closed long ago in many states and there was no likelihood of its
opening in the near future; and finally that the notification of 2008 itself
effected the removal of the said requirement. The learned counsel further
submits that the petitioners are identically placed with the direct recruits
who have been recruited to the rank of ASI/M, who do not possess the
qualification under the Pharmacy Act; therefore, the petitioners have been
discriminated agsinst. He seeks parity in law. He further submits that the
petitioners have been working in the rank of ASI/M, therefore, under the
principle of equal pay for equal work they should be paid equal money as
well as treated as regular ASI/M, under Article 14 of the Constitution of
India; that the delay in taking a decision with respect to removal/dropping
of the requirement under the Indian Pharmacy Act is entirely on part of
the Government for which the petitioners cannot be blamed nor be
subjected to suffer the consequences of such lethargy.
8. Mr. Manish Mohan, the learned Standing Counsel for the Central
Government submits that the order impugned has been passed under the
applicable rules after consideration of all the facts pursuant to the orders
of the Hon‟ble High Court of Jammu and Kashmir. However, there is no
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clear answer forthcoming when this Court asked the learned counsel as to
why the case of Mr. Mohar Singh was treated differently from those of the
petitioners, although they were equally placed i.e., neither of them
possessed the qualification and registration prescribed under the Indian
Pharmacy Act.
9. Having heard the learned counsel for the parties, this Court is of the
view that the petitioner has made out a case for being treated equally with
the direct recruits such as Mr. Mohar Singh whose induction as a direct
recruit has not been answered by the respondents. We have noted
hereinabove that there is relaxation for ex-servicemen for their
consideration to the rank of ASI/M, if they held same or equivalent rank
in the armed forces and it does not insist for their registration under the
Pharmacy Act. Therefore, the petitioners too should be treated likewise.
The respondents had contended that the principle of equal pay for equal
work would not be applicable in the present case because the petitioners
only wore the rank badge of ASI/M but they were performing the duty in
the Unit Hospital as Head Constable (M). Therefore, they argue that till
such time they perform the duty of an ASI(M) they could not seek equal
pay for the said rank. However, on behalf of the petitioners, it is submitted
that they have not only been promoted to the rank of ASI/M in the year
2003 but also made to perform the duties on the said rank ever since.
Their duties included:
(a) The rank of HC/M comes under Non-
Commissioned Officer or Under Officer
["NCO/UO"] in terms of Section 2 (x) of the SSB
Act, 2007 while the rank of ASI/M comes under
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Junior Commissioned Officer or Subordinate Officer
["JCO/SO"] in terms of Section 2 (v) of the SSB Act,
2007. The same position existed even prior to
enactment of the SSB Act, 2007.
(b) As per Provisioning Manual, Volume I of
SSB regarding arms, ammunition, explosives and
general stores, Clause 20 states that "All stores
received which are above the value of Rs.25/- will be
examined by the Board of Officer Presided over by a
Gazetted Officer and constituted under the order of
DIG/Commandant. The board will meet to examine
the stores and furnish in duplicate a survey
committee report in the form as per department Line
Committee Report form." Clause 23 of the said
manual further provides that the Board of Officer for
conduct of Survey will be composed of officers as
given below-
"Upto Rs. 1 Lakh - One Gazetted Officer
and
two Subordinate Officers
Between Rs. 1 Lakh and Rs. 5 Lakh -
One Dy. Commandant/
Equivalent Officer, one
Ac and two Subordinate
Officers
Rs. 5 Lakh and above -
One Commandant/
/AD/Equivalent Officer,
one DC/AC and
two Subordinate Officers"
Accordingly, the Office Order dated
01.06.2004 of the Respondents shows that a board of
officer was detailed for opening of quotations,
purchasing committee of Govt. stores and to conduct
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line committee of Govt. stores. In the said Officer
Order, Petitioner No.3 has been shown to be holding
the rank of ASI/M and has been detailed for opening
of quotations. There are several such Office Orders
that have detailed the Petitioners in their capacity as
ASI/M. It is to be noted that a HC/M cannot be
detailed to open quotations etc. And hence the
Petitioners could not have been detailed in case they
were still HC/M for all practical purposes as
contended by the Respondents.
(C) A bare perusal of the Force Orders
published by the Respondents prescribing weekly
duties of the Petitioners would reveal that the duties
performed by the Petitioners from 2003- 2009 are
that of Subordinate officers i.e. ASI/M while the
associated pay benefits have not been extended. The
list of duty NCOs or HC/M has been shown
separately and distinct from that of duty SOs. There
are several such Force Orders that have detailed the
petitioners in their capacity as ASI/M.
(d) The duties performed by the Petitioners in
their capacity and rank of ASI/M have been
appreciated and duly commended by various
authorities including the Director General, SSB. All
the said commendations mention the rank of the
concerned Petitioner as ASI/M.
(e) As per Charter of Duty of Medical Officer
and Para-Medical staff in terms of Letter dated
04.10.2008 of the Respondents, it can be noticed t hat
the duties prescribed to Petitioners No. 1 and 4 are
that of ASI/M and are different from that prescribed
for HC/M.
(f) Pursuant to Order dated 19/25.08.2003 of
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the Respondnts, the Petitioners have always worn the
uniform of AS/M. The identity card issued by the
Respondents also states that the Petitioners are
ASI/M."
10. In view of the preceding discussion, this Court is of the view that
the petitioners are entitled to be treated at par with the direct recruits and
others similarly placed, who were inducted in the SSB, without insistence
upon the requirements of the Pharmacy Act. For the past nearly 30 years
the Government‟s own conduct and admission has been that there was no
registration under the Pharmacy Act. The need to do away with this
requirement has been acknowledged all along and after much
consideration it was dispensed with under the 2008 Rules. Quite clearly,
the petitioners could not have complied with the requirements under the
Pharmacy Act, since by the Government‟s own admission, it was an
impossibility because many States had closed the registration years ago.
For the respondents to not have considered the case of the petitioners
because of their failure to perform an impossible act, would be untenable
and unjustified. The legal maxim Lex Non Cogit Ad Impossibilia would
operate in these circumstances. The Government could not encroach
upon the petitioners‟ right to be considered for promotion till such time
that it removed the unfeasible requirement under the Pharmacy Act. The
petitioners have a right to be treated equally with Mr. Mohar Singh a
direct recruit, and they shall be so treated. This Court notices that simply
because a candidate had held an equivalent rank in the armed forces, he
would not automatically qualify the eligibility criteria. Having held the
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same or equivalent rank in the armed forces, an ex-serviceman is only
eligible for consideration of re-employment. It does not in any case waive
or alter the prescribed eligibility criteria. Additionally from the records, it
is borne out that the petitioners had been promoted to the rank of ASI/M
but they were not treated equivalent because of the impediment in
complying with the requirements under the Pharmacy Act. Therefore,
insofar as the petitioners have worked in the rank of ASI/M, they would
be entitled to the benefits applicable to the said rank.
11. Accordingly, the petition is allowed. The petitioners shall be
deemed to have been promoted to the rank of ASI/M from 25th August,
2003 and shall be entitled to all consequential benefits of service and pay.
The respondents shall issue the requisite notifications/letters within a
period of four weeks from today. The learned counsel for the petitioners
does not insist upon any other claim or relief.
12. The petition is disposed off in the above terms.
NAJMI WAZIRI, J.
KAILASH GAMBHIR, J.
OCTOBER 09, 2014/ak
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