Delhi High Court
Sunita Khatolia vs Delhi Sc/St/Obc/Minorities & ... on 28 March, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 2060/2004
% 28th March, 2017
SUNITA KHATOLIA ..... Petitioner
Through: Mr. K.C. Mittal and Ms.Ruchika
Mittal, Advocates.
versus
DELHI SC/ST/OBC/MINORITIES & HANDICAPPED FINANCIAL
& DEVELOPMENT CORPORATION LTD. & ORS.
.... Respondents
Through: Ms. Avnish Ahlawat and Ms.
Palak Rohmetra, Advocate for
R-1.
Mr. N.S. Arora, Advocate for R-
2.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J. MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J
C.M. Appl. No. 7103/2016 (for restoration)
1. This is an application seeking restoration of the W.P. (C)
No. 2060/2004 which was dismissed for non-prosecution.
2. For the reasons stated in the application and no opposition
on behalf of the opposite counsel, the application is allowed and W.P.
(C) No. 2060/2004 is restored to its original number.
3. C.M. stands disposed of.
W.P.(C) No.2060/2004 Page 1 of 13
W.P.(C) No. 2060/2004
4. By this writ petition under Article 226 of the Constitution
of India, petitioner seeks the following reliefs:-
"a) quash the amendment dated 15.3.1996 being not in consonance
with the procedure;
b) issue a writ in the nature of mandamus directing the Respondent
No. 1 Corporation to re-draw the seniority list as per the recruitment rules
existing at the time of the entry of the Petitioner into the service of
Respondent no. 1 Corporation;
c) direct the Respondents to regularize the promotion of the Petitioner
to the post of Deputy Manager (G) from 13.5.1996 i.e. from the date when
she was eligible to be considered for promotion and grant all consequential
benefits;
d) direct the Respondent No. 1 Corporation to produce the records
and minutes of meetings of the Board of Directors held on 15.3.1996;
e) direct the Respondent No. 1 Corporation to produce the records of
the communication between the Respondent No. 1 Corporation and the
Respondent No. 2 wherein the Respondent No. 1 Corporation have
justified their stand in amending the recruitment rules on 15.3.1996;
f) direct the Respondent No. 1 to promote her as Manager being the
senior-most person in the feeder grade;
AND
g) pass any other order/orders as this Hon'ble Court may deem fit in
the facts and circumstances of the case."
5. The effect of the prayer clauses is that if the petitioner is
successful in quashing the amendment to the recruitment rules dated
15.3.1996, and quashing of which are a sine qua non for the petitioner
to succeed, then petitioner will get promotion as per the unamended
rules. In order to decide the issue which thus arises it is necessary to
refer to the circular of the respondent no. 1 dated 24.7.1996, and this
circular gives the hierarchy of posts as per the unamended rules as also
as per the amended rules. This circular reads as under:-
"DELHI SCHEDULED CASTES FINANCIAL &
W.P.(C) No.2060/2004 Page 2 of 13
DEVELOPMENT CORPORATION LIMITED
(A GOVERNMETN OF DELHIL UNDERTAKING)
2-BATTERY LANE RAJPURA ROAD, DELHI -54
No. F. 9 (213)/96-DSFDC/17179 to 17194 Dated 24.7.96
ORDER
Consequent upon passing a resolution by the Board of Director in its 56th
meeting held on 15.3.96 & 3.6.96 the existing nomenclature of posts of
Delhi Scheduled Castes Financial & Development Corporation Ltd., are
hereby changed/revised with immediate effect. As per new hierarchy
approved by the Board of Director, some new posts are also hereby created.
The new nomenclature of posts of this Corporation in future will be reads as
under:-
PRESENT NOMENCLATURE OF POST(S) REVISED NOMENCLATURE OF
POSTS(S) CREATION OF POST(S) AS PER
NEW HIERARCHY APPROVED BY B.O.D.
S. No. Name of post No. of Pay scale Name of post No. of Pay scale
post post
1. Chairman Nominated by the Govt. of N.C.T. of Delhi
2. Managing 1 7300- Managing 1 7300-
Director 7600 Director 7600
(IAS)
3. General 1 4100- General 1 4100-
Manager 5300 Manager 5300
(DANILCS) (DANILCS)
4. Company 1 3000- Company 1 3000-
Secretary 4500 Secretary 4500
5. Not Existing - - Manager 1 3000-
(Loan & 4500
Advances)
6. Not Existing - - Manager 1 3000-
(Accounts & 4500
Finance)
7. Not Existing - - Manager 1 3000-
(Personnel & 4500
Training)
8. Not Existing - - Manager 1 3000-
(Planning & 4500
Evaluation)
9. Not Existing - - Manager 1 3000-
(Enforcement 4500
& Recovery)
10. Executive 1 3000- Not Existing - -
Engineer 4500
11. Manager illegible- Not Existing - -
12. Accounts 1 2375- Deputy 1 2375-
Officer 3500 Manager illegible
(Accounts &
Finance)
13. Field Officer 5 2000- i. Deputy 1 2000-
3500 Manager 3500
(SC/ST)
ii. Deputy 1 2000-
Manager 3500
(O.B.C.)
iii. Deputy 1 2000-
Manager 3500
(Planning &
Evaluation)
iv. Deputy 1 2000-
Manager 3500
(Enforcement
follow up &
recovery)
14. Administrative 1 2000- Dy. Manager 1 2000-
Officer 3500 (Admin. & 3500
Training)
15. Assistant 1 2000- Not Existing - -
Engineer 3500
16. P.R.O. 1 2000- Not Existing - -
17. P.S. to 1 2000- P.S. to 1 2000-
Chairman 3200 Chairman 3200
18. P.S. to 1 2000- P.S. to 1 2000-
Managing 3200 Managing 3200
Director Director
19. Law Officer 1 2000- Assistnat 1 1640-
(Pay of 3200 Manager 2900
Assistant Law (Law)
Officer in the
pay scale of
Rs.1640-2900
is being
drawn)
20. Research 1 1640- Assistant 1 1640-
Officer 2900 Manager 2900
(Evaluation/
Monitoring &
Research)
21. Not Existing - - Assistant 1 1640-
Manager 2900
(General Loan)
22. Not Existing - - Assistant 1 1640-
Manager 2900
(N.S.L.R.S.)
23. Not Existing - - Assistant 1 1640-
Manager (TSR 2900
& DLY Taxl)
24. Not Existing - - Assistant 1 1640-
Manager 2900
(STA/NSFDC)
25. Not Existing - - Assistant 1 1640-
Manager 2900
(Planning)
26. Not Existing - - Assistant 1 1640-
Manager 2900
(Recovery)
27. Accountant 2 1640- i. Assistant 1 1640-
2900 Manager 2900
(Disbursement
& Bills)
ii. Assistant 1 1640-
Manager 2900
(Audit &
Budget)
28. Assistant 1 1640- Assistant 1 1640-
Programmer 2900 Manager 2900
(Programming)
29. Field 10 1640- Field Inspector 10 1400-
Inspector 2900 2300
30. Assistant 5 1400- Assistant 8 1400-
2300 2300
31. Liasion 1 1400- Liasion 1 1400-
Assistant 2300 Supervisor 2300
32. Not Existing - - Recovery 1 1400-
Assistant 2300
33. Not Existing - - Accounts 2 1400-
Assistant 2300
34. Draftsman Gr- 1 1400- Not Existing - -
II 2300
35. Junior 7 1400- Not Existing - -
Engineer 2300
36. Statistical 1 1400- Statistical 3 1400-
Assistant 2300 Assistant 2000
37. P.A. to 1 1400- P.A. to 1 1400-
General 2600 General 2300
Manager Manager
38. Not Existing - - Senior 2 1400-
Stenographer 2300
39. U.D.C 9 1200- U.D.C. 9 1200-
2040 2040
40. Care-Taker 1 1200- Not Existing - -
41. Accounts 4 1200- Accounts 4 1200-
Clerk 2040 Clerk 2040
42. Statistical 2 1200- Statistical 4 1200-
Investigator 2040 Investigator 2040
43. Junior 9 1200- Junior 7 1200-
Stenographer 2040 Stenographer 2040
44. Sr. Data 1 1200- Sr. Data 1 1200-
Processor 2040 Processor 2040
45. Draftsmen Gr- 1 1200- Not Existing - -
III 2040
46. Data 1 950-1500 Data Processor 1 950-
Processor 1500
47. L.D.C. 54 950-1500 L.D.C. 31 950-
48. Compiler 1 950-1500 Data Compiler 2 950-
49. Machine 1 950-1500 Machine 1 950-
Operator Operator 1500
50. Driver 12 950-1500 Driver 7 950-
51. Motor Cycle 1 950-1500 Motor Cycle 1 950-
Messenger Messenger 1500
52. Electrician 3 950-1500 Not Existing - -
53. Mason 3 950-1500 Not Existing - -
54. Carpenter 3 950-1500 Not Existing - -
55. Plumber 3 950-1500 Not Existing - -
56. Bailiff 11 800-1150 Bailiff 8 800-
57. Peon 35 750-940 Peon 28 750-940
58. Farash-cum- Illegible 750-940 Farash-cum- 4 750-940
Water carrier Water carrier
59. Baldar Illegible 750-940 Not Existing - -
6. A reading of the aforesaid circular of the respondent no. 1
dated 24.7.1996 shows that as per the unamended rules, after the post
of Field Inspector which had the pay-scale of Rs. 1640-2900/- the next
post with the higher pay-scale was that of a Field Officer in the pay
scale of Rs.2000-3500/-. After the post of Field Officer the next higher
post was the post of Manager with the pay-scale of Rs. illegible-
4000/-. Also, it requires to be noted that between the post of Field
Inspector and Field Officer there are various other posts given from
serial numbers 14 to 28, and all of which posts carry the same pay-
scale of Rs.1640-2900/-, and which was also the pay-scale of Field
Inspector. Essentially, therefore, the posts from serial numbers 20 to
29, including the post of Field Inspector to which petitioner was
initially appointed, have to be taken as one set of group/common post.
Above these posts from serial numbers 20 to 29, are the group of posts
with the pay-scale of Rs. 2000-Rs.3200/3500/- and which are from
serial numbers 13 to 19. The petitioner admits that so far as the
petitioner is concerned her promotion from Field Inspector has to be to
the Field Officer. Above the post of Field Officer is one solitary post
of Accounts Officer with the pay-scale of Rs.2375-3500/- and
thereafter is the post of Manager at the pay-scale of Rs.illegible-4000/-.
7. In view of the wide variance of posts and pay-scales and
designations hence amendments were carried out by the respondent
no.1 in accordance with the rules in order to rationalize the posts
structure and the promotion structure in the posts. It is seen that as per
the amended rules the Field Inspector's post is a post below the post of
Assistant Manager and the next higher promotion post after Assistant
Manager is the post of Deputy Manager. After Deputy Manager's post
the next post is of Manager.
8. The aforesaid hierarchy as per the unamended rules and
amended rules are required to be referred to as they would have
bearing in the facts of the present case as discussed below. Petitioner,
admittedly, was appointed as a Field Inspector with the respondent
no.1 with effect from 13.5.1991. Petitioner was appointed as a Field
Inspector in the pay-scale of Rs.1640-2900/-. This pay-scale of Rs.
1640-2900/- as per the amended rules was brought down to Rs.1400-
2300/-, however, existing employees of the respondent no. 1 at the post
of Field Inspectors, including the petitioner, who had existing higher
pay-scale than the lower pay-scale as per the amended rules were not
prejudicially affected so far as monetary emoluments are concerned,
because, the earlier higher pay-scales of such Field Inspectors,
including the petitioner, were protected by the respondent no. 1.
9. Petitioner admittedly after the amended rules were
brought in force was promoted to the post of Assistant Manager
(General) on 29.10.1997 and this promotion post of Assistant Manager
(General) carried the pay scale of Rs.1640-2900/-. Hence, the
grievance of the petitioner begins for the higher post of Assistant
Manager (General) to which the petitioner was promoted on
29.10.1997 that the same carried the same pay-scale being already
drawn by the petitioner of Rs. 1640-2900/-. It may be however noted
that admittedly the petitioner has not challenged her promotion given
to her to the post of Assistant Manager (General) as per the amended
rules on 29.10.1997 either in this writ petition or otherwise.
10. After petitioner got the promotion to the post of Assistant
Manger (General) on 29.10.1997, petitioner thereafter got promotion
on 11.6.2001 to the post of Deputy Manager (General) in the pay-scale
of Rs.6500-10500/- and original equivalent pay-scale of which was
Rs.2000-3500/- as per the unamended rules. This promotion granted to
the higher post of Deputy Manger (General) from the post of Assistant
Manager (General) granted to the petitioner on 29.10.1997, was with
effect from 11.6.2001, but it was subsequently amended in favour of
the petitioner in view of the recommendation of the Review
Departmental Promotion Committee (DPC) dated 14.10.2003 and
which granted promotion of the petitioner to the post of Deputy
Manager (General) with effect from an earlier date of 4.9.1998 instead
of 11.6.2001 which had been granted earlier.
11. In sum and substance, therefore, what the petitioner pleads
and argues is that the petitioner should be granted promotion to the
post of Deputy Manager (General) not from 4.9.1998 but earlier from
13.5.1996 and which entire grievance is because of higher pay-scale
drawn by the petitioner under the unamended rules and which if old
pay-scale would continue then petitioner on applicability of amended
rules would, as per the petitioner, bring about deemed promotion to the
post of Assistant Manager (General) and thus accelerated promotion to
the post of Deputy Manager (General) w.e.f 13.5.1996. The petitioner
hence wants to interpolate the pay-scales of the unamended rules by
the application of amended rules on the ground of petitioner drawing
higher pay-scale of the higher post as per the unamended rules.
Petitioner will get this relief only if the amended rules dated 15.3.1996
are held to be illegal by this Court and otherwise petitioner can only
get promotions and pay-scales as per the amended rules.
12. Petitioner has, in the writ petition for challenging of the
amended recruitment rules, urged a total of six grounds, for seeking all
the reliefs in the writ petition, and which grounds read as under:-
"A. For that the amendment to the recruitment rules was purposefully
done to enable certain employees of the Respondent No. 1 Corporation to
attain seniority over the employees who were employed prior to them in the
Respondent No.1 Corporation.
B. For the officers, who were junior to the Petitioner, have been
considered and promoted prior to that of the Petitioner, though, they were
not eligible for promotion as per the recruitment rules since they had not
completed five years of regular service in their initial post before being
considered for promotion, though, the Petitioner had completed five years of
regular service in her initial post at that time.
C. For that the Petitioner was promoted to the post of Deputy
Manager (General) in 2001 i.e. almost after ten years of regular service with
effect from 7.6.2001 and subsequently after the recommendation of the
Review Departmental Promotion Committee meeting with effect from
4.9.1998. No cogent reasons have been set forth by the Respondent No. 1
Corporation with regard to the said artificial date of regular promotion, since
the Petitioner was eligible for the said promotion on 13.5.1996 and
therefore, her date of regular promotion to the post of the Deputy Manager
(General) ought to have been 13.5.1996, especially when a next higher post
of Field Officer was available on that date.
D. For that it is reliably learnt that the Services Department,
Government of Delhi has categorically indicated that the promotional
avenues for a category of posts cannot be blocked and the service condition
of an employee as prevalent at the time of his appointment cannot be
changed to the disadvantage of an employee.
E. For that there were no proper notification with regard to the
amendment that was carried out on 15.3.1996 and was not in compliance
with the procedure. There was no gazette notification and no prior
concurrence of the Service Department, Government of Delhi to the said
amendment."
13. A reading of the grounds A and B show that challenge to
the amended rules is on the ground that recruitment rules have been
amended to benefit certain employees. In my opinion, such type of
bland statement cannot be a basis for the petitioner to successfully
challenge amendment of the recruitment rules and the hierarchy of the
structure of appointments/promotions to posts in the respondent no. 1.
It is undisputed that an employer has always a right to change the
service rules and this was so because in the unamended rules there was
unnecessary variance of the hierarchy of posts and their pay-scales. In
some cases service rules are amended which give benefit to the
employees of the higher pay-scales and in some cases amendments
bring down the pay-scales, but such bringing down of the pay-scales is
not illegal if because of the amendment existing pay-scale of an
employee is not reduced, and which is the position in the present case
so far as the petitioner is concerned because even after the amendment
of the rules giving a lower pay-scale to the post of Field Inspector
which the petitioner was occupying, petitioner however continued to
receive the higher pay-scale as per the unamended rules.
14. Therefore, self serving grounds A and B cannot be a valid
basis for the petitioner to question the amended recruitment rules and
the fresh hierarchical and organizational structure of the respondent
no.1.
15. Ground D is also meaningless because there is no
prejudice to the petitioner, inasmuch as, the petitioner herself admits
that her higher pay-scale was continued in spite of the amended
recruitment rules bringing about the pay-scales of the posts of Field
Inspectors.
16. For the self same reasons given above ground C is also
liable to be rejected because ground C is only on the basis of a self
serving ipse dixit and it is again reiterated that an employer has always
a right to change the service conditions and hierarchical/organizational
structure in an employer, and more so in the facts of this case of the
respondent no.1's varied and cumbersome hierarchical and pay-scales
as per the unamended rules.
17. So far as ground E is concerned, no such argument has
been urged before this Court on behalf of the petitioner.
18. In view of the above discussion, it is seen that amended
rules, and whose hierarchical structure has been given as per circular of
the respondent no. 1 dated 24.7.1996, cannot be challenged by the
petitioner. Petitioner also cannot seek appointment to the post of
Deputy Manager (General) from 13.5.1996, inasmuch as, before the
post of Deputy Manager (General) is the post of Assistant Manager
(General) and petitioner has not challenged the promotion granted to
her to the post of Assistant Manager (General) granted w.e.f
29.10.1997. Once promotion of the petitioner to the post of Assistant
Manager (General) as per the amended rules is final with effect from
29.10.1997, then surely the petitioner cannot get the next post above
the post of Assistant Manager (General) being the post of Deputy
Manager (General) from a date even earlier than 29.10.1997 i.e from
13.5.1996 as prayed for by the petitioner.
19. In view of the above said discussion, there is no merit in
the present writ petition and the same is therefore dismissed. No costs.
MARCH 28, 2017 VALMIKI J. MEHTA, J
AK
