Govt of NCT of Delhi v. Amit Kumar & Ors.

1. This petition has been filed challenging the Order dated 16.12.2022 passed by the learned Central Administrative Tribunal (PB), New Delhi (hereinafter referred to as ‘Tribunal’) in O.A. No.1644/2021, titled Sh. Amit Kumar & Ors. v. Govt, of NCT of Delhi & Ors. filed by the respondent Nos.[1] to 5, with the following directions: “14. In view of the aforesaid the present OAs are allowed with the following directions:

(i) The order dated 03.09.2021, impugned in

(ii) The respondents are directed to convene

DPC and consider the eligible persons in accordance with the relevant rules and instructions on the subject against 20% quota, for the years for which the same have become due and have not been convened and to take the same to its logical conclusion for the post of leading fireman, as expeditiously as possible, and preferably within 8 weeks from the receipt of a copy of this order.”

2. The limited grievance of the petitioners against the Impugned Order is that a direction to convene the Departmental Promotion Committee (DPC) and to consider the eligible persons in accordance with the then prevailing Recruitment Rules and instructions for filling up the 20% quota vacancies towards accelerated promotions, could not have been issued by the learned Tribunal as the Recruitment Rules were under process of amendment and in fact, were amended almost immediately after passing of the Impugned Order.

3. Placing reliance on the Judgment of the Supreme Court in State of Himachal Pradesh v. Rajkumar & Ors.,(2023) 3 SCC 773, the learned counsel for the petitioners submits that there can be no direction issued to fill up the posts in accordance with the old Recruitment Rules. She further submits that in the present case, as a conscious decision had been taken by the petitioners not to fill up the posts as the Recruitment Rules were under process of amendment, the impugned direction could not have been passed by the learned Tribunal.

4. On the other hand, the learned counsel for respondent Nos. 1 to 5 reiterates that the existing posts had to be filled in accordance with the existing Rules, which were prevailing at the time. He further submits that the vacancies existing as on the date are to be filed in accordance with the then prevailing Rules, and merely on an anticipation that the Rules will be amended, promotion cannot be denied to the respondents.

5. We have considered the submissions made by the learned counsels for the parties.

6. In the present case, it is not denied that the petitioners had decided not to fill the vacant positions towards the 20% quota, only for the reason that after receiving certain complaints, they were contemplating amending the Recruitment Rules in order to do away with this 20% quota. This was specifically pleaded by the petitioners in their counter-affidavit filed before learned Tribunal in paragraph 4.10, which is reproduced herein below: “4.10 That in reply to this Para, it is submitted that the submission of the applicants with regard to 100 vacancies are wrong and has been made only to mislead this Hon’ble Tribunal because as on date only 45 vacancies are available. However, it is pertinent to mention that all the applicants are having Grade-I qualification except Sh. Naresh Kumar and the matter of recognition of Grade-I qualification is sub-judice before the Hon’ble High Court of Delhi in WP N0. 6226/2013 and the decision is still awaited. Moreover, the department is in receipt of various complaints against the Grade-I qualification with the conclusion that the Grade-I qualification may not be considered for promotion and because of that the recruitment rules are under amendment in order to remove 20% quota from the existing recruitment rules for the post of leading fireman in Delhi Fire Service. The amendment of requirement rules are at final stage, whenever the issue of Grade-I qualification will be resolved, the promotion may be carried out without any delay to the vacant post.” (emphasis supplied)

7. In fact, it has also not disputed that almost immediately after the passing of the Impugned Order, the petitioners did indeed amend the Rules to do away with this quota.

8. Though the vacancies should be filled in accordance with the prevailing Rules, it is settled principle of service jurisprudence that no person has a right to promotion, but only has a right to a fair consideration for the same. It is also settled principle of law that a Court generally does not issue direction to the authorities to fill up the vacant posts; that is the prerogative of the authority, which must decide the same keeping in view the service exigency. Once a conscious decision had been taken up by the petitioners not to fill these posts as the Recruitment Rules were under process of amendment, and the process was in the final stages, the only direction that the learned Tribunal could have passed was to direct the petitioners to expedite this process, rather than to consider the respondent Nos.[1] to 5 for appointment to the said posts.

9. In the State of Himachal Pradesh (supra), the Supreme Court has clarified this position as under: “ 82. A review of the fifteen cases that have distinguished Rangaiah would demonstrate that this Court has been consistently carving out exceptions to the broad proposition formulated in Rangaiah. The findings in these judgments, that have a direct bearing on the proposition formulated by Rangaiah are as under: 82.[1] There is no rule of universal application that vacancies must be necessarily filled on the basis of the law which existed on the date when they arose, Rangaiah case must be understood in the context of the rules involved therein. 82.[2] It is now a settled-proposition of law that a candidate has a right to be considered in the light of the existing rules, which implies the “rule in force” as on the date of consideration take place. The right to be considered for promotion occurs on the date of consideration of the eligible candidate. 82.[3] The Government is entitled to take a conscious policy decision not to fill up the vacancy arising prior to the amendment of the rules. The employee does not acquire any vested right to being considered for promotion in accordance with the repealed rules in view of the policy decision taken by the Government. There is no obligation for the Government to make appointments as per the old Rules in the event of restructuring of the cadre is intended for efficient work of the unit. The only requirement is that the policy decisions of the Government must be fair and reasonable and must be justified on the touchstone of Article 14. 82.[4] The principle in Rangaiah need not be applied merely because posts were created, as it is not obligatory for the appointing authority to fill up the posts immediately. 82.[5] When there is no statutory duty cast upon the State to consider appointment to vacancies that existed prior to the amendment, the State cannot be directed to consider the cases.”

10. Applying the above principles to the facts of the present case, the Impugned Order cannot be sustained. The same is, accordingly set aside.

11. The Writ Petition is allowed in the above terms. Pending applications are disposed of as having been rendered infructuous.

NAVIN CHAWLA, J RENU BHATNAGAR, J MAY 23, 2025/pr/kz/ik Click here to check corrigendum, if any