GOVT OF NCT OF DELHI v. DRAMRISHCILpsrA^Af&^

2. The brief facts are that on 09.09.2009 Chaudhary Brahm Prakash Ayurved Charak Sansthan ~ a Government ofNCT ofDelhi controlled autonomous body(hereafter called as 'the society')issued an advertisement calling for applications from eligible candidates for the post of lecturer carrying the pay scale of Rs.15800-39100 with grade pay of Rs.5400/- and other allowances. The advertisement LPA 513/2013 Page 1 of10 2016:DHC:8412-DB stated that the candidates should possess a post graduate degree in the concerned subject i.e. those listed in the various Ayurvedic Disciplines. This advertisement was next time modified. The subsequent advertisement was published on 19.02.2010. It stated (i) that out of14 post advertised on 09.09.2009,three were kept apart for reserved candidates-i.e. one each for SC/ST and the balance for the other backward class candidates (in Delhi). The advertisement also carried a note/clarification, which reads: "Posts atSr.^pfFandx2mplfbe foraperiodof 7 7.[7] I t.)}ffy 11 monthly ^ ^ PostaP0r.3fwill bejDp^en^orary basisfMg&tis relaxable forffefedrsfor for OBCphperDelhi Government iristri^l^ilSt^i0^relaxablefof^'Gdvprnment servants as per Delhif&W'erMment instructions. However, no'iduelrelaxation wiUlbeWevmitted. 9 [i '/ifa f| J-'' The,Sansthan reserves0ih tiigfit to amend or modify any of the\;eligibilityj;ondfyofy/bfy^dahpjel the notificatiph ofthe 2^'' •"K /.'• -/T vacancies..'c ■•'c'x •'\y./-v 'j" rt'-'.

3. Sl.No.lW^2''^the'^'adyertisem.ent-stateB'!were'to be on contract basis for 11 post of Lecturer but rather that of the vacanciesIh^tife cadre of Clinical Registrar and Panchkarma Technician. On 23.11.2011 another advertisement inviting applications from eligible candidates including nine vacancies for the post of lecturer for listed discipline was published. The advertisement inter alia stated "these starredposts will be filled on contract of 11 months likely to continue upto three years or till regular appointment is made whichever is earlier." LPA 513/2013 Page 2 of10 could were entitled

4. Note 1 to the advertisementstated"alltheposts exceptstarred postare temporary butarelikely to continue upto65years ofage"

5. The respondents who were claiming to be successful candidates approached this Court under Article 226 in writ proceedings contending that though their candidature was approved by the selection committee after interview and even the governing council approved their appointment, they were issued appointment letters which stated that the appointments were on temporary basis. The appointees were keptomprobatidfffor one^year extendable by another year. The contentibm^p'Tjjt^^ writ^ pelifioners%as that having been successful in:^a regular recruitment againstthefavailable vacancies it could not;ie4|eated eime^SJsKaf tempbraiy and rather they J % mtitled'to be treatedjsaS'^eMhdneht members-^ofthe cadre. The Governrnfent of NCT of Delhifiasj well as the society]which were arrayed ^s respondents,coift|n|e|^j^stly that.though the vacanciesin the cadre oflecturef'andpbflflrBoll's e regular basis, in the absence of m|e|||tl;ie^ajDp6iffi.wnt^etitfeiiers were at best temporary and \beji& were framed and recruitments were resdi^d4o^^d|^^eh?nXles. It was secondly urged that in terms of the bye-laws of the society, recruitment could be resorted to only in accordance with the appropriate recruitment rules framed in that regard. A specific argument here was that mere existence of sanctioned posts did not entitle the writ petitioners to claim the declaration that they were permanent appointees. The Government ofNCT ofDelhi relied upon the decision ofthe Council ofMinisters dated 09.05.2008 that the recruitment to the post ofthe LPA 513/2013 Page3of10 lecturers and other teaching staff will be as per the recruitment rules for similar postin Government ofNCT ofDelhi.

6. The note put up to the Council of Ministers which was approved by the latter reads as follows: "5. 407posts have been sanctionedfor the project with the stipulation that appointment to teaching posts shall not be made till a decision is taken by the Government regarding commencement of academic activities. (Annexure-VI)Recruitment will be as per the recruitmentRutes^^forsmilqrpostsirifhe Governmentof NCT of0elhL^<AUy4ffdidpl^'AC-yap shall be made by jhe "^dnsthaipfdirectly (witkbpt^.y to.UPS0,fbfmg ■anjfduMpDm:ous:^pody.'^'^crmtment to Groiip.,^''and^yCf^ds^hallbe made tHkdughDSSSB asper standinginsinUaho^ ofi^oyernment oftheSNCTof DShi Group "D" posts wil^fbe "Out-^sourced'^fo the extentposAble." i [f ■ T. '- ' ' ' ■ ' ■ • i

7. / •It: was lastlil^^^^^^^ tHe^;omparable^^^^^^^ i.e. Tibbia Colldge^hd,;A-yprvedic and and Hospital notifieditsTules m^a}g;^0f6';■3^.:

8. The learned Singie"Judge;-rejeCted"t^ Govermnent of NCT of. Delhi and the society's contention. It was held that the posts to which the writ petitioners were appointed were regularly sanctioned and that they were pennanent vacancies. The learned Single Judge was of the opinion that the use of the expression 'temporary' was not conclusive. He took note of the circular of the Government of NCT of Delhi dated 05.06.2006 to hold that the posts were in fact sanctioned.- It was also held that the circumstance that the writ LPA 513/2013 Page 4 of10 / petitioners were keptas probationers for a year,extendable by another year was seen as an indication ofthe fact that the posts though styled as temporary were in fact part ofregular and permanent cadre. These findings are recorded in para 22 and 23 ofthe impugned judgment. On the basis of these findings learned Single Judge held that the petitioners were entitled to reliefs they claimed and accorcjingly issued a direction that they were to be treated as permanent members ofthe cadre oflecturers to which they were appointed.

9. Counsel fortlie^^^app|ilaj^%stly.iStitended that in the absence ofrecruitmentrules,^fhdrPefe existence 6fthei-sahctioned post did not meanthatthd r^sp^ohdent/writpetitioner^ heldtH^«post,on apermanent basis. CounseJS'elied uponfhe'terms-ofthe adveftisen^ent,especially the laterl advertisement of 19^612010 which clariled "earlier ■ i ' I ■ advertisementof09.09.2009 by^st§i^thatthepostoflipturer wasto ■\i ■ • - ^ • I? befilledon temporaryba^f'^Mfi^ubmittedthat the/JfeamedSingle Judge correctly./hptfe that at the time/the adveffisements were issued, there w%rc4n/faGtno.r rules thatprovided for filling of regular or permanent vacancies. Both theCircular of 05.06.2006 and the Cabinet decision of 09.05.2008 were unanimous on one issue, i.e., that the vacancies Were to be filled in accordance with the rules which are similar or analogous to the institution. Since the only other comparable institution, Tibbia College which too did not have any rules, the Society's contention that the posts were filled only on temporary basis was justified and the only correct manner of looking at the appointment of the respondent/writ petitioners. Counsel contended that the subsequent framing of the recruitment rules, in LPA 513/2013 Page 5 of10 fact, precluded the claim for relief since that specifically prescribed the manner offilling up ofthe vacancies. Since the petitioners did not fulfil those criteria, they could not have been declared as regular members ofthe cadre-which would be the inevitable consequence of giving effect to the impugned judgment. Learned counsel also relied upon Constitutional Bench'sjudgmentofthe Supreme Courti.e.State ofKarnataka vs. Uma Devi(2006)4 SCC 1. It was submitted that the rule enunciated by the Supreme Court is that if sanctioned posts are governed by recruitment rtdesf they continence norms cannot be departed from.,.'In the present case recmitmenfrules were framed later, for Tibbia Cbllede and ididhfrdtbheahHhat rule'in Uma Devi's case (supra)wdsirilpplicable aS^e^qneo^^^ bytli9^,ih|le Judge.

10. Thb writ petitioners\^Ubnplth|t this court should|not interfere with the|]impugned judgment.!/|fiiey relied upon the|ferms of the fl circular dhted 05.06.2006ffd-^fry|tiat4the posts were/Sanctioned on ' %-V ■ H 't-fw? /' ' pennanent'^basis/ttAe'^Ii'§t;%.(^|®i^iOT5'^^positi'on that in the absence of reciditmeht regular'or/;perinahent post could be resorted to. It^is sufe&tl^SMMtfr^|ae'ah'cids'in various posts were advertised firstly on 09.09.^OO^f^TKe society sought to clarify that advertisement later on 19.02.2010 by stating that the recruitment for the post oflecturer would be on temporary basis. However,the effect of both the advertisements clearly was that those appointed as lecturers selected were kept on probation after which they would be continuing in service. They also rely upon the offer of appointment of one of the successful candidates, which clearly stated that the appointment was to be on temporary basis "but is likely to continue LPA 513/2013 Page6of10 o till attaining the age ofretirement i.e. 65years or may be decided by the competent authority". It is urged that the subsequent advertisement of23.11.2011 clarified that some vacancies especially those of lecturer were to be filled on contract basis but even that advertisement stated that other posts were to be treated as temporary but likely to continue till 65 years. It was thus argued that the application ofrecruitment rules framed later could not have been the basis of denying the benefits of regular appointment once the existence of sanctioned posts;; were_ admitted and recourse to a ■ " O.C" constitutionallyj^^^sanclidned recmitment^'processiyvas made by the appointing auiorfty. %,[9] V;, Vk ANALYSIS JSm CONdlfliliM:>''- 1

11. It i's clear from the ^love decision thatthe GovernmentofNCT '<: -r > Ifi ^ ri 1 "1 j'l e| 'I of Delhi's grievance is not as toH^]|ether the posts advertised were

5. It would be convenient to deal with this argument at this stage. Mr Nambiar contends that the words "shall be as setforth in the rules ofrecruitment of such service specially made in that behalf" clearly LPA 513/2013 Page?of10 show that till the rules are made in that behalf no recruitment can be made to any service. We are unable to accept this contention. First it is not obligatory under proviso to Article 309 to make rules of recruitment, etc., before a service can be constituted or a post created orfilled. This is not to say that it is not desirable that ordinarily rules should be made on all matters which are susceptible ofbeing embodied in rules. Secondly, the State Government has executive power, in relation to all matters with respect to which the Legislature of the State has power, to make laws.Itfollowsfrom this thatthe State Government will have executive power in respect of List II, Entry 41, State Public Services. It was settled by this Court in Ram Jawava Kapurv.State of Punjab:[(1955) 2 SCR 225]that it is not necessary that there must be a law already in existence before thd executive is enabled to function and that the (poyvers of the executive are limited merely to the parrying,out of these laws. We see nothing in the ]errns of Article 309 of the Constitution which abridges the power of the executive to act under Article 162 of the Constitution without a law. It is hardly necessary to mention that ifthere is astatutory rule or an act on the matter, the executive must abide by that act or rule and it cannot in exercise of the executive power under Article 162 ofthe Constitution ignore or actcontrary to that rule or act.

12. The reliance placed upon Uma Devi's case (supra) in our opinion is inapt and uncalled for. UmaDevi's case(supra)pertains to a factual situation where the appointing authorities flout existing norms - be that statutory or executive. Uma Devi's case (supra) is premised on an application ofArticle 14 and insists that where norms exist,they require adherence to and thatthe executive exigencies is no LPA 513/2013 Page8of10 Vy defence for their defiance. However,that is not the situation in this case.There is no contextto the following facts:

(i) That the post to which the respondents/applicants were sanctioned by the Government of NCT of Delhi cabinet and approved by the governing council ofsociety(evident from the circular dated 05.06.2006 and cabinetdecision on 09.05.2008);

(ii) These posts were advertised - on 09.09.2009, 19.02.2010 and