Full Text
JUDGMENT
W.P.(C) Nos. 19087-91/2006 & CM Nos.15854/2006, 3374/2015
PRADEEP KUMAR & ORS. ..... Petitioners
Through : Mr. S.K. Gupta, Advocate.
Through : Mr. Sanjoy Ghose, Additional Standing Counsel for GNCTD/R1 with Mr.Vikramaditya, Advocate.
HON'BLE MR. JUSTICE I.S.MEHTA G.S.SISTANI, J (ORAL)
1. Petitioners are aggrieved by the Orders of the Central Administrative Tribunal (briefly „the Tribunal‟) dated 01.08.2005 in O.A. No. 162/2005 and 29.09.2006 in R.A. 188/2005, whereby the plea of the petitioners/ applicants therein seeking promotion as per existing rules has been dismissed.
2. Some necessary facts which are required to be noticed for the disposal of this writ petition are that the petitioners, at the relevant time, were working as „Head Constables‟ in the Communication Unit of the Delhi Police and are working as „Fitter Electricians‟ in broader term. They are aggrieved by the non-consideration for their case for promotion to the post of Radio Technicians (ASI/SI) when certain vacancies arose in the year 2003.
3. It is not in dispute that at the time when the vacancies arose, the old recruitment rules, being the Delhi Police (Appointment and Recruitment) Rules, 1980 as amended by the Delhi Police (Appointment and Recruitment) (Amendment) Rules, 1986 (briefly „1986 Rules‟) were prevalent. Rule 17- 2016:DHC:5567-DB B(vii) governs the promotions to the post of Radio Technicians (ASI/SI). As per the said rule, the Head Constables as a Fitter Battery/Fitter Electrician with five years service in the grade and having passed the B.R.T. Course conducted by the D.C.P.W. were eligible to be considered for promotion. The petitioners contend that they were eligible for the posts when the vacancies arose as they had the requisite experience as well had passed the B.R.T. Course.
4. The petitioners had sent representations to the respondent no. 3/ Joint Commissioner of Police in 2004 pleading that their case may be considered for promotion to the post of Radio Technicians (ASI/SI) as they were eligible and vacancies were available. The request of the petitioners was rejected by means of an Order dated 30.12.2004, whereby they were informed that amendment to the recruitment rules for the post of Radio Technicians (ASI/SI) was under consideration with the respondent no. 1/ Government of NCT of Delhi and therefore, they should wait until the finalization of the same. The said Order bearing No. 12700/Estt.
(II) DCP- Comn. reads as under: “The applications dated 24/9/2004 & 27/10/2004 submitted by HC (Fitter Electrician) Pradeep Kumar, No.96/Comm. Regarding promotion to the rank of ASI (RT) has been considered in PHQ. The matter regarding amendment in Recruitment Rules for the post of ASI (RT) is under consideration for approval with Govt. of NCT of Delhi. Hence the applicant may be asked to wait till the finalisation of Recruitment Rules.” (Emphasis added)
5. Being aggrieved by the Order dated 30.12.2004, the petitioners had approached the Tribunal in O.A. No. 162/2005, inter alia, seeking a direction to the respondents for filling up the vacancies to the posts of Radio Technician (ASI/SI) as per the existing rules, without waiting for the proposed amendment to the same.
6. The Tribunal dismissed the O.A. and the review application of the petitioners which has led to the filing of the present writ petition.
7. We may also note that the amendment to the recruitment rules has already taken place during the pendency of the present writ petition by means of Delhi Police (Appointment and Recruitment) (Amendment) Rules, 2005 on 22.12.2005 (briefly „2005 Amendment‟). There is no doubt that the 2005 Amendment is prospective in nature as Rule 1 (2) of the same clearly states that the said amendment was to come into effect from their publication in the Gazette. The same were notified in Janurary, 2006.
8. Mr. Gupta, learned counsel for the petitioners, has strenuously urged before us that at the time when the vacancies arose, as per the existing recruitment rules/ 1986 Rules, all the petitioners should have been considered for promotion. In any case, Mr. Gupta contends that the petitioners cannot be blamed or penalized, if at all there are any ambiguities in the existing recruitment rules and that the right of petitioners to promotion cannot be curtailed.
9. Learned counsel for the petitioners has placed reliance on the decision of the Supreme Court of India in the case of Y.V. Rangaiah & Ors. v. J. Sreenivasa Rao & Ors., AIR 1983 SC 852, wherein the Supreme Court held that a panel, which was mandated to be created every year, should be prepared and vacancies occurring prior to amendment to the rules will have to be filled up as per the old rules. Relying upon the same, the learned counsel for the petitioners submits that the petitioners cannot be deprived of their promotion when they were eligible as per the existing recruitment rules. In this regard, Mr. Gupta contends that the Tribunal has failed to consider the law in the right perspective. The Tribunal has exceeded its jurisdiction which has resulted in grave injustice to the petitioners who were eligible and due for promotion.
10. Learned counsel has also drawn our attention to the Guidelines issued by the Department of Personnel and Training, Government of India dated 10.04.1989 (amended upto 08.02.2002) to buttress his argument that the DPC meetings need not be delayed or postponed on the ground that the recruitment rules are being reviewed or amended. Mr. Gupta has also urged that the Guidelines provide that vacancies are to be filled up in accordance with the existing rules in force, unless the amendment to the rules is to have a retrospective effect.
11. Learned counsel contends that the amendments carried out are prospective in nature and thus cannot apply to the vacancies which occurred prior to the enforcement of the same. It is also contended that the ambiguities sought to be urged by the respondents are in fact not ambiguities. The 1986 Rules have to be applied in the manner they have been notified and merely terming them as ambiguous can be of no avail to the respondents.
12. Per contra, Mr. Sanjoy Ghose, learned Additional Standing Counsel for the Govt. of NCT of Delhi, contends that there is no infirmity in the order passed by the Tribunal which would require interference under Article 226 of the Constitution of India. Mr. Ghose contends that the order is a well reasoned order based on settled law and thus, requires no interference. It is further submitted that the petitioners have failed to point out that the order passed by the Tribunal is illegal, perverse or unreasonable. Mr. Ghose submits that there were cogent reasons as to why the vacancies were not being filled up. Mr. Ghose further submits that on account of ambiguities in the rules, it was deemed necessary to amend them. It is further contended that the anomalies and the ambiguities in the recruitment rules were not fictitious, but were also subject matter in the case of Sudhir Kumar and Ors. v. Union of India and Ors., O.A. No. 64/2004 before the Tribunal. The OA was filed by persons, who were seniors to the petitioners herein and posted as „ASI (Workshop Assistant)‟; but on account of the ambiguities/ lacunas in existing recruitment rules/ 1986 Rules, they were not entitled for promotion to the post of Radio Technician (ASI/SI). At the same time persons lower to them in seniority, serving as Head Constables, were eligible for the post.
13. Learned counsel contends that when the O.A. No. 64/2004 was taken up for hearing, the respondents herein had taken up a fair stand and informed the Tribunal that the respondents were in the process of amending the recruitment rules. They had shared with the Tribunal that they were aware of the ambiguities. Rejecting the claim of the applicants therein for promotion, the Tribunal considering that the amendment had been pending for numerous years granted them six months time to take a final decision on the proposed amendment.
14. The learned counsel further contends that since the present petitioners were aggrieved by the act of the respondents in not filling up the vacancies to the post of Radio Technicians (ASI/SI) which arose in the year 2003, when the first representation was made, the respondents had given a personal hearing to the petitioner and thereafter, passed an order stating that the matter was under consideration and the petitioners must wait until the finalization of the recruitment rules.
15. Learned counsel for the respondents submits that the Tribunal has rightly differentiated and distinguished the judgments sought to be relied upon by the petitioners/ applicants therein, as the ratio laid down by the Supreme Court in the case of Dr. Ramulu and Anr. v. Dr. S. Suryaprakash Rao and Ors., (1997) 3 SCC 59 would in fact be applicable. Learned counsel submits that the respondents have in fact taken a conscious decision not to fill up the vacancies and postpone the grant of promotions till the recruitment rules were amended and the ambiguities were pressed out. In this regard, Mr. Ghose has relied upon Dr. Ramulu (supra); Shankarsan Dash v. Union of India, (1991) 3 SCC 47; State of Punjab and Ors. v. Arun Kumar Aggarwal and Ors., (2007) 10 SCC 402; Commandant Shamsher Singh Malik v. Union of India and Ors., ILR (2011) Supp. (4) Delhi 822; and Deepak Agarwal and Anr. v. State of Uttar Pradesh, (2011) 6 SCC 725 in support of his submission.
16. We have heard learned counsel for the parties, considered their rival submissions and have also examined the order passed by the Tribunal. The O.A. No. 162/2005 was dismissed by the Tribunal holding that in light of the fact that a conscious decision was taken by the respondents, the applicants/ petitioner herein could not claim promotion as per the old recruitment rules. Thereafter, the petitioners/ applicants had filed a review application, being R.A. 188/2005 before the Tribunal, wherein the Tribunal had refused to interfere with its previous order.
17. The respondents had placed the following ambiguities before the Tribunal in the 1986 Rules which had warranted a conscious decision to defer further promotions:
18. The above ambiguities had also led to the filing of an OA before the Tribunal, being O.A. No. 64/2004, wherein certain persons being ASI (Workshop Assistant) were claiming a right to be promoted to the post of Radio Technician (ASI/SI). The Tribunal had dismissed the OA observing that no person can claim promotion de hors the rules. At the same time, the Tribunal had granted six months time to take a final decision upon the proposed amendment to the Recruitment Rules. We deem it appropriate to reproduce the operative portion of the Order of the Tribunal dated 13.08.2004: “4. The settled principle in law is that no person can seek a promotion dehors the rules. When the rules for the post of ASI (RT) does [sic] not provide promotion from ASI (WSA), who are direct recruits, necessarily, the applicants cannot claim it as of right that they must be promoted on the basis of the said rules. To that extent, the claim as for present, must be rejected.
5. However, once the proposal is under consideration for amendment of the recruitment rules for ASI (RT) and it is stated that it is under consideration for past three years, it would be in the fitness of things that a final decision is taken by the respondents in this regard preferably within a period of six months from the date of receipt of a certified copy of this order.
19. We also note that the applicants in O.A. 64/2004 had approached this Court in Sudhir Kumar and Ors. v. Union of India and Ors., W.P. (C) 2209/2005, again seeking promotion during the currency of the 1986 Rules. The writ petition has been dismissed as the order of the Tribunal was found to be in conformity with law.
20. In view of the above, the short question which arises for our consideration is whether the vacancies which arose in the year 2003 are to be filled up by the prevalent recruitment rules/ 1986 Rules or as per the new recruitment rules/ 2005 Rules made applicable from 2006; especially when the new recruitment rules are prospective in nature.
21. In Y.V. Rangaiah (Supra), the petitioners therein were aggrived by the failure of the department to prepare a panel for making appointments to the grade of Sub-Registrars Grade II by transfer. There was no decision by the department to defer the creation of a panel, the deprivation of promotion was due to delay occassioned by the department. By the time, the panel was created, the relevant rules had been amended, by which the petitioners therein were no longer eligible for the post they desired. The Supreme Court ordered that the vanancies which had occurred prior to the amendment of the rules shall be governed by the old rules only. The relevant part reads as under:-
23. In State of Bihar and Ors. v. Md. Kalimuddin and Ors., [1996] 1 SCR 314, the Government of Bihar had taken a conscious decision to defer the appointments of wait-listed candidates until the decision to revise the policy in respect to reservation was finalized. The Government had decided that further appointments will only be made as per the revised rules. The High Court had condemned the decision of the Government by expressing a “serious doubt” in the objective of the policy of the Government. The Supreme Court reversed the decision of the High Court holding that since the Government decided to defer appointments for proper reasons and there was no mala fide on the part of the Government.
24. A Full Bench of the Supreme Court in Dr. Ramulu (Supra) took into consideration all the ertswhile judgments, including Y.V. Rangaiah (Supra) and held that if the department takes a conscious policy decision to stop further promotion as per existing rule and the same is backed by proper reasons, then the eligible employees cannot claim as a right the preparation of a panel as per the old rules. The relevant paragraphs read as under:
26. Further in the case of Deepak Agarwal (Supra), it has been held as under:
27. The law in this regard was summarized by this Court in Commandant Shamsher Singh Malik (Supra) as under: “25. From a conjoint reading of the afore-noted judicial decisions, the legal principle which emerges is that the normal rule is that the vacancy which had arisen prior to amendment of the rules would be governed by the unamended Rules and not by the amended Rules unless the amending rule is made retrospective in operation or a conscious decision is taken to fill up existing vacancies as per the amended Rule.”
28. In view of the aforegoing, it is clear that law in this regard is no longer res integra. The general rule is that vacancies occurring should be filled up as per the prevalent recruitment rules. The same is subject to two exceptions, i.e. when the rules are under consideration for amendment or revision and the authority has taken a conscious decision to defer further promotions until the changes are carried out or that the proposed new rules are to be made applicable retrospectively. Further, the decision to defer promotions should not be actuated by mala fides and must be based on proper reasons. Such a reason may be gathered from the background and circumstances in which the decision was taken. The right of an employee to be considered for promotion accrues only on the date of consideration of eligible candidates by the department and not before or if the rules provide for a particular time-frame in which the selection process is to be concluded. No right accrues to the candidates upon the occurance of vacancies.
29. Having regard to the aforesaid principle of law, what is to be considered is, as to whether the vacancies were not filled up on account of a conscious decision or not. Such a decision may also be gathered from the background and circumstances. In this regard, the Original file has been produced in Court (which has been seen and returned). In the original file, we find a detailed note dated 21.10.2014, relevant portion of which reads as under: “The case is submitted for favour of perusal and orders as to whether we may keep the case reg. filling up the vacant posts of ASI (WSA) (12 posts) and ASI (RT) (24 posts) pending for the present and fill up these vacant posts after finalisation of pending recruitment Rules or otherwise.”
30. It would also be useful to reproduce the comments written by the Officers of Delhi Police on the noting dated 21.10.2004: “In view of glaring anomalies in Existing Promotion Rules and the matter being sub judice we may wait for the proposed amendment Rules, if approved. May pl. see noting Para 26/N onwards. Concerned dealing hands of GNCTD were also present. We are processing the matter early and may not fill the posts till then.” (Emphasis supplied)
31. A perusal of the above notings, leaves no room for doubt that the respondents had taken a conscious decision not to fill up the existing vacancies till the amendment in the recruitment rules. The reasons are cogent, as reproduced by us in para 17 aforegoing. Identical stand was taken by the respondents in the O.A. No. 64/2004, which was filed by persons aggrived by then prevalent rules/ 1986 Rules. In view of above, we find no infirmity in the impugned order passed by the Tribunal, which would require interference.
32. Resultantly, the writ petition stands dismissed.
33. In view of the order passed in the writ petition, all the pending applications have been rendered infructuous and are disposed of as such. G.S.SISTANI (JUDGE) I.S. MEHTA (JUDGE) AUGUST 04, 2016 j/msr