Union of India v. Mahender Singh

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 2014:DHC:6021-DB W.P.(C)12289-09 Page 2 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 the Post Number of Posts Classification Scale of Pay Whether Selection post or Non-selection Post Whether benefit of added years of service admissible under Rule 60 of the Central Civil Services (Pension) Rules, 1972 1 2 3 4 5 6 Laboratory Assistant 35 (2005) Subject to variation dependent on work load General Central Service, Group ‘C’ Non-Gazetted Non-Ministerial Rs.3200-85-4900 Selection Not applicable Age limit for direct recruits Educational and other qualification required for direct recruits Whether age and educational qualification prescribed for direct recruits will apply in the case of promotes Period of probation if any Method of recruitment whether by direct recruitment or by promotion or by deputation/absorption and percentage of the posts to be filled by various methods. W.P.(C)12289-09 Page 3 7 8 9 10 11 25 years (Relaxable for Government servants upto 40 years in accordance with the instructions or orders issued by the Central Government). Note: The crucucial date for determining the age limit shall be the closing date for receipt application from candidates in index (and not the closing date prescribed for in Assam, Mizoram, Manipur, Nagaland, Meghalaya, Arunachal Pradesh, Tripura, Sikkim, Ladakh Division of Jammu and Kashmir State, Lahaul and Spirit Districts and Pangi Sub Division of Chamba District of Himachal Pradesh, Andaman and Nicobar Islands or Lakshadweep Essential: (i) 10+2 in Science subjects from a recognized University or Board.

(ii) Diploma in Medical Technology from an institute recognized by the All India Council of Technical Education or any other statutory body authorised by 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 Age: Note applicable Educational Qualifications: Must possess recognized diploma in Medical Technology 2 years 50% by promotion failing which by Direct Recruitment. W.P.(C)12289-09 Page 4 available to fill up the vacancies reserved for them. In case of recruitment by promotion/deputation/absorption grade from which promotion/deputation/absorption to be made If a Department Promotion Committee exists, what is its composition. Circumstances in which Union Public Service Commission is to be consulted in making recruitment. Not applicable 12 13 14 Promotion from amongst Laboratory Attendants with seven years regular service in the grade. Group ‘C’ Departmental Promotion 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 5 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 6 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 7 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.

S. RAVINDRA BHAT (JUDGE)

VIPIN SANGHI (JUDGE) NOVEMBER 13, 2014 /vikas/