Mohd Shakir & Ors. v. Delhi Public Library & Anr.

1. This writ petition has been preferred on behalf of the Petitioners under Article 226 of the Constitution of India seeking a challenge to Advertisement dated 19.09.2022 issued by Respondent No.1/Delhi Public Library (‘DPL’) to the extent applications were invited for filling up 13 posts of Library Clerk (‘LC’) on deputation (including short term contract)/absorption basis, ignoring the Petitioners, who were eligible to be considered first for appointment to the post of LC by way of promotion as per the Recruitment Rules (‘RRs’) governing the post of LC.

2. Facts to the extent necessary are that Petitioners joined DPL as direct recruits in the post of MTS (Lib), a Group ‘C’ post in Pay Level-1 in different periods between January, 2018 to March, 2018. Appointments were on regular basis and Petitioners were placed on probation for a period of 2 years, extendable at the discretion of the Competent Authority.

3. It is averred that from the post of MTS (Lib), Petitioners were eligible for promotion to the post of LC and as per the RRs, appointment on the said post was through the mode of promotion, failing which by transfer on deputation/absorption, failing both by direct recruitment. The essential qualification required for appointment to the post of LC was three years regular service in the grade of MTS (Lib). All the Petitioners completed three years regular service in MTS (Lib) on different dates in the year 2021, being the appointees of 2018 batch. Petitioners have also successfully completed their probation period and were eligible in all respects for consideration for appointment to the post of LC.

4. Petitioners made representations from time to time to DPL to consider their case for promotion to the post of LC but no steps were taken. On 19.09.2022, impugned advertisement was issued by DPL, inviting applications for filling up the posts of Library & Information Officer, Library & Information Assistant, Assistant Library & Information Officer (Braille), LC and Consultant (Admn.), by transfer on deputation mode. In the present case, Petitioners are only concerned with the 13 posts of LC sought to be filled on deputation (including short term contract)/absorption basis. As the Petitioners had completed three years regular service in the grade of MTS (Lib) and were eligible for consideration for appointment to the post of LC, they approached this Court immediately and challenged the impugned advertisement. When the writ petition was listed before the Court on 28.09.2022, the Court passed an interim order directing that though Respondents may proceed with the selection process pursuant to the advertisement, no appointment order will be issued in favour of the selected deputationists without the leave of the Court.

5. Mr. S. Sunil, learned counsel appearing on behalf of the Petitioners submits that the impugned advertisement is illegal and cannot be sustained in law for filling up the 13 posts of LC. The argument is that the RRs dated 17.06.2021, duly approved by Ministry of Culture, Nodal Ministry of DPL, stipulate that the post of LC will be filled up by promotion, failing which by transfer on deputation/absorption failing both, by direct recruitment and therefore, the advertisement inviting applications for the post of LC through the mode of deputation (including short term contract)/absorption basis deserves to be quashed being contrary to the approved RRs. In this context, learned counsel places reliance on a recent judgment of the Supreme Court in Employees’ State Insurance Corporation v. Union of India and Others, (2022) 11 SCC 392, wherein the Supreme Court reiterated the legal proposition that any part of the advertisement which is contrary to the statutory rules has to give way to the statutory prescription and referred and relied on earlier judgments of the Supreme Court in Ashish Kumar v. State of Uttar Pradesh and Others, (2018) 3 SCC 55 and Malik Mazhar Sultan and Another v. U.P. Public Service Commission and Others, (2006) 9 SCC

507.

6. Learned counsel for DPL, on the other hand, relying on the counter affidavit filed by DPL opposes the writ petition on a singular ground. It is urged that one Mr. Lokesh Sharma joined as Director General of DPL on 16.10.2017 and remained in office till 23.08.2019 on which date he submitted his resignation, which was accepted. During his tenure, he committed grave misconduct and flouted all prevailing rules and procedures including those relating to recruitment of employees. Charge sheet was issued against him but on a writ petition filed by him in this Court, the same was quashed. It is he who is responsible for appointment of the Petitioners once again flouting norms and procedures of appointment and since the appointments of the Petitioners are illegal, they have no locus to challenge the advertisement in question.

7. Heard learned counsels for the parties and examined their rival submissions.

8. The issue arising for consideration before this Court is in a narrow compass i.e. whether the impugned advertisement dated 19.09.2022 is in consonance with the RRs for the post of LC. Petitioners were appointed on different dates to the post of MTS (Lib) in Pay Level-1 through the process of direct recruitment having undergone a due process of selection and with the approval of the Competent Authority. The appointment letters placed on record reflect that the appointments were on regular basis. Accepting the offer of appointments, Petitioners joined on different dates in 2018 as indicated in the writ petition in a tabular form and were placed on probation for a period of two years.

9. The RRs for the post of LC, duly approved by the Ministry of Culture provide the mode and method of recruitment and the relevant portion is extracted hereunder, for ease of reference:-

10. It is evident from a bare perusal of the RRs that the method of recruitment to the post of LC is by promotion, failing which by transfer on deputation/absorption failing both, by direct recruitment. The RRs also provide that for appointment through the mode of promotion, the feeder grade is MTS (Lib) with three years regular service in the grade. The impugned advertisement issued by DPL on 19.09.2022 shows that applications were invited for 13 posts of LC on deputation (including short term contract)/absorption basis. Relevant portion of the advertisement is as under:-

11. From a reading of the advertisement, it is evident that DPL invited applications only on deputation/absorption basis. It was open to DPL to resort to the mode of deputation/absorption only failing promotion as per the RRs. In the present case, Petitioners who were appointed in 2018 in the post of MTS (Lib) had completed three years regular service in 2021 and therefore, persons within the DPL were available and eligible in the promotion quota and there was no reason to adopt the method of recruitment through deputation/absorption and therefore, learned counsel for the Petitioners is correct in his argument that the advertisement was not in consonance with the RRs for the post in question.

12. The only defence taken by DPL in the counter affidavit is that the appointments of the Petitioners were illegal as they were appointed during the tenure of Mr. Lokesh Sharma, the Director General of DPL, who himself was guilty of grave misconduct and flouted procedures and rules of DPL including rules of appointment of employees and was charge sheeted. This argument in my considered view is wholly misconceived. First and foremost, no action has been taken by DPL against the Petitioners from 2018 on the ground that they were allegedly illegally appointed and moreover, the appointment letters of the Petitioners show that the appointments were made on a regular basis and they were placed on probation for a period of two years. The terms and conditions of the appointments also indicate that the appointments were approved by the Competent Authority and Petitioners are governed by provisions of New Pension Scheme, 2004. It is therefore too late in the day for DPL to defend the impugned advertisement on the basis of a frivolous stand that the appointments of the Petitioners were illegal. Insofar as Mr. Lokesh Sharma is concerned, it is true that a charge sheet was issued against him for certain alleged irregularities but the same was quashed by this Court in W.P.(C) No. 6928/2020 on the ground that DPL had wrongly invoked Rule 9 of CCS (Pension) Rules, 1972. Even otherwise, whether or not Mr. Lokesh Sharma had committed any grave misconduct, is irrelevant to the present case inasmuch as the appointments of the Petitioners on regular basis are till date unquestioned and unassailed. Therefore, once the Petitioners were available in the feeder grade of MTS (Lib) and had completed the eligibility criteria of three years regular service in the said grade, DPL could not have resorted to the mode of recruitment to the post of LC through deputation/absorption. The advertisement is, therefore, in the teeth of the RRs of the post in question and cannot be sustained.

13. It is a settled law that an advertisement cannot be contrary to the statutory RRs and as held by the Supreme Court in Ashish Kumar (supra), if there is variance in the advertisement and the statutory Rules, the latter shall take precedence. This position of law has been recently re-stated and re-affirmed by the Supreme Court in Employees’ State Insurance Corporation (supra). I may quote the relevant passage from Ashish Kumar (supra), as follows:-