Nirmala v. North Delhi Municipal Corp. & Anr.

2. The petitioner who was working as an Assistant Education Officer ‘AEO’ (Physical) had filed a writ petition in this Court in the year 2007 for promotion as Deputy Education Officer ‘DEO’(Physical) with effect from 2002-03 with notional seniority. Direction for holding a Review Department Promotional Committee was prayed. This writ petition on 2017:DHC:629-DB transfer to the Tribunal was registered as TA No. 116/2009 and disposed of vide order dated 6th May, 2009 along with TA No. 115/2009 filed by Mr. Som Prakash. The operative portion of this order dated 6th May, 2009 reads:-

3. Alleging non-compliance of this order, the petitioner had filed Contempt Petition No.563/2010. The said Contempt Petition, however, remained pending in view of the order dated 9th November, 2010, which reads as under:- “Counsel for the parties are ad idem that his matter needs to be heard after final decision is recorded by Division Bench of this Tribunal in TA No.154/2009. This matter is adjourned sine die with liberty to apply.”

4. TA No. 154/2009 had a chequered history with an order being passed by a Three Member Bench on 15th September, 2010.

5. Thereafter, the order dated 18th October, 2010 was passed by the same Full Bench to the following effect:-

6. The reference to the Division Bench, vide the order dated 18th October, 2010 passed in TA No. 154/2009 did not result in the final order, for the matter was referred to the Five Member Bench of the Tribunal and became the subject matter of order dated 27th January, 2012.

7. Paragraph 2 of the order dated 27th January, 2012 in TA No. 154/2009 reads as under:- “2. After hearing all the parties, detailed order was passed on 16.7.2009 by the Division Bench taking the view that the regular promotion of R-3 and R-4 as DEO Physical, who were earlier AEO (Physical) was not sustainable in law because the RRs had not yet been amended for the purpose. However, the Division Bench was informed by the counsel for R-3 that in other TAs bearing No.115/2009 and 116/2009 contrary directions have been given by the Coordinate Bench viz. that AEO (Physical) should be considered for the post of DEO (Physical) by holding review DPC. Since there would have been apparent contradiction in implementing the directions as mentioned above, therefore, as a measure of abundant precaution, keeping in view the mandate of Hon’ble Supreme Court in the case of SI Roop Lal and Another Vs. Lt. Governor through Chief Secretary, Delhi and Others reported in 2000 (1) SCC 644, the matter was referred to the Full Bench by framing 2 questions viz.- “(1) Whether AEO (Physical) can be considered for promotion to the post of DEO (Physical) merely on the basis of resolution which has not been notified in the Gazette in terms of Section 480 (2) of the MCD Act 1957. (2)whether AEO (Physical) can be considered for the sanctioned post of DEO without the RRs being amended.” The issue which had arisen before the Five Member Bench was whether the Resolution/decision of the MCD dated 31st January, 1997 creating 15 new posts of Deputy Education Officer (DEO) and fixing the quota of DEO under different heads i.e. DEO (General) - 10; DEO (Physical) - 2; DEO (Science) – 2; and DEO (Nursery) – 1, was legal and valid as no amendment had been made and carried out as per law in the Recruitment Rules. As per Recruitment Rules, there were only three posts of DEO without any division or classification between DEO(General), DEO (Physical), DEO (Science) and DEO (Nursery).

8. The Five Member Bench of the Tribunal, vide order dated 27th January, 2012, held that the executive instructions dated 31st January, 1997, and the subsequent communication dated 11th October, 2006 were invalid as an executive instruction could not have amended the Recruitment Rules, which were statutory. The Five Member Bench of the Tribunal, accordingly, held as under:- “41. Seen from any angle, the regular promotion of R-3 and R-4 as DEO(Physical) cannot be sustained in law. The same is accordingly quashed and set aside. However MCD may treat the promotion of R-3 and R-4 as DEO(Physical) to be on adhoc basis as was done with others. Ultimately we must uphold the rule of law as is the consistent view taken by the Hon’ble Supreme Court in catena of cases including Secretary, State of Karnataka and Ors. Vs. Uma Devi and Ors. Reported in 2006(4) SCC 1.

42. The next question is what relief should be granted in these circumstances. We have already held that as on date almost the entire department of education in MCD is working on adhocism. An endeavor must be made to make regular promotion by holding regular DPCs. As far as petitioner nos. 1 to 5 are concerned, they were admittedly promoted initially on current duty and subsequently as AEO on adhoc basis. They have sought a direction to the respondents to convene year wise DPC for promoting the petitioner on their respective posts as per their eligibility in accordance with law. MCD had filed their reply in July, 2008 in which they had stated as follows:- That under the aforesaid circumstances, the matter was referred to UPSC with the request to either review the DPC to the post of DEO (Physical) held in the case of Shri N.K. Ghai and Smt. Pushpa Devi, (who joined MCD as regular AEO (Physical) on 1998-99), and promotion to the post of DEO(Physical) or for considering the case of other AEO/DEO (Gen.), who are working on adhoc basis since 1997 and regular AEO (Gen.) since 1992 for their promotion as regular DEO(Gen.) on the basis of existing notified RRs of 1976, from the date of their holding the post of DEO (General) on adhoc basis on the same analogy in which Shri N.K. Ghai and Smt. Pushpa Devi were considered and promoted to the post of DEO(Physical) on regular basis, to avoid any further dispute/litigation in regard to their seniority. Accordingly, the matter has already been referred to the UPSC for necessary action in this regard vide this office letter dated 17.3.2008 and 18.6.2008. We are already in December, 2011. The status of CR is not known till date. The fact remains that even the DPC for AEOs has not been held which means unless positive directions are given by the Court, DPC would not he held for another 10 years on the specious ground that CRs are not available. After all CRs are to be written and maintained by the department. Why the CRs for last 10 years are not available has not been explained by the MCD. The instructions on this point are clear that if CRs are not available for some reasons, a certificate to that effect should be issued and candidate should be assessed on the basis of available CRs. The officers cannot be denied their right of consideration, if they are eligible, on the ground that CRs are not available. The controversy seems to be starting from the stage of AEO, therefore, (1) MCD is directed to convene in consultation with UPSC DPC for the post of AEOs by earmarking the vacancies yearwise and consider those who were within the zone of consideration. (2) In case CRs are not available, certificate to that effect should be issued so that such candidates may be considered on the basis of available CRs. (3) MCD should take a final decision in the matter as to how the posts of DEO are required to be filled and finalise the RRs as per their decision, get it approved and publish it in the official Gazette. This shall be done within 6 months from the date of receipt of a copy of this order. (4) MCD shall then request UPSC to hold DPC for the post of DEO in accordance with the amended/New notified RRs as may be decided by the MCD by earmarking the vacancies year-wise and consider only such of the officers who were eligible against those vacancies and prepare year-wise panel so that final promotion orders may be issued in accordance with law. (5) MCD is directed to complete all other formalities simultaneously viz. preparation of seniority list etc. so that no further time is wasted in these things. Before we part with this case, we would like to reiterate that our endeavor has been to uphold the rule of law with a view to ensuring that no further litigation crops up in MCD at least on account of the questions raised in this case. We would also gracefully accept that the case of petitioner No.7 in TA No. 158/2009 should not have been disposed of on 1.4.2011. In any case the issues as raised in the present case were neither discussed nor decided at that time whereas now the controversy has been discussed threadbare and decided by a Larger Bench on merits, therefore, we direct that MCD should act in accordance with the directions given now. As far as TA No.154 of 2009 is concerned, the Full Bench had already observed in its order dated 18.10.2010 that there is no conflict in the judgment because in that case, these issues were neither raised nor discussed. It was suggested that liberty may be given to the parties to seek appropriate remedy, therefore, nothing more need be said on this account.”

9. The aforesaid judgment dated 27th January, 2012 was upheld by this Court vide judgment dated 31st May, 2013 in Writ Petition (C) 2215/2012 titled Sh. N.K. Ghai vs. Municipal Corporation of Delhi & Ors., inter alia, observing:- “21. The aforesaid conclusion of the Tribunal is correct in as much as it can’t be said that the Rules have been amended as amendment has necessarily to be carried out in terms of the prescribed procedure. Further, the Rules of 1976 are holding the field for promotion to Deputy Education Officer, the increase in the number of posts with a changed nomenclature and new feeder categories necessarily must be incorporated in the regulations. The judgments relied upon by Mr.Duggal are in peculiar facts of the case where the Supreme Court has held pending notification by the Central Government, drafts rules can regulate the service conditions; till statutory rules are framed Government can issue administrative instructions; there is no bar for making appointments under the States Executive Powers without framing statutory rules. The aforesaid position of law was in the context where there are no statutory rules holding the field but where the Regulations exist holding the field, the Regulations are required to be followed scrupulously. If the scope of the Regulations have to be expanded, the same has to be by way of an amendment as per procedure so as to include the increased posts, change of nomenclature and the newly created feeder posts etc. Suffice would it be to state that the executive instructions or decisions taken, which does not have the effect of regulations cannot over ride validly made regulations. We agree with the submission of Mr.Garg that executive instructions cannot over ride statutory rules. The Resolution dated January 31, 1997 cannot be a ground to grant promotion to the petitioner and respondent No.10 by excluding the respondent Nos.[3] to 9.” The last portion of the aforesaid judgment clearly held that the resolution/decision dated 31st January, 1997 cannot be a ground to grant promotion to the petitioner therein namely N.K. Ghai and Pushpa Devi, the third respondent in TA No. 116/2009 preferred by the petitioner herein – Nirmala. In other words, the promotion granted to Pushpa Devi, the third respondent in TA No. 116/2009 was itself quashed.

10. In view of the aforesaid factual position, the Tribunal, in our opinion, was right in dismissing MA No. 1893/2012 filed by the petitioner for revival of Contempt Petition No. 543/2010. The effect of the order of the Five Member Bench of the Tribunal dated 27th January, 2012, as affirmed by the judgment of this Court dated 31st May, 2013 in Writ Petition (C) NO. 2215/2012 was that the very basis for seeking promotion was quashed. There were no promotional or vacant post in the cadre of DEO, as the resolution dated 31st January, 1997 was struck down. Consequently, there was no need to hold Review DPCs as vacancies did not exist. In view of the decision dated 31st May, 2013 and the subsequent orders, the directions vide order dated 6th May, 2009 given in TA No. 115/2009 filed by Som Prakash and TA No. 116/2009 filed by the petitioner herein, were rendered infructuous.