Municipal Corporation of Delhi v. Moredhwaj

% IN THE HIGH COURTOF DELHIAT NEW DELHI T.PA78 OF 2012 I.PA 102 OF 2012 Judgments Reserved on:16.4.2012. Jiidsment Delivered on: 11.5.2012. LPA 78 OF 2012 MCD RAJ KUMAR I.PA 102 OF 2012 MCD MOREDHWAJ Through VERSUS Through: . . . APPELLANT Mr. Gaurang Kanth, Advocate with Ms. Biji Rajesh, Advocate. ... RESPONDENT Mr. Rajiv Agarwal, Advocate. With Ms. Neelam Tiwari, Advocate. Judgments Reserved on:17.4.2012. Through: VERSUS Through: . .. APPELLANT Mr. Gaurang Kanth, Advocate with Ms. Biji Rajesh, Advocate. ... RESPONDENT Mr. K.K. Rai, Sr. Advocate with Mrs. Reldia Palli and Ms. Amrita Prakash, Advocates. CORAM HON'BLE MR. JUSTICE A.K. SIKRI HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW Page 1 of9 A.K. SIKRI. ACTING CHIEF JUSTICE:

¶1In both these appealscommonissue is raisednamelypromotionfrom the post of Garden Chaudhaiyto SectionOfficer. As per the MCD, the worlcmen in boththe cases do not fulfillthe eligibilityconditionsand were given promotions.For convenience,we take note of facts in LPA 78 of 2012.

¶2By this intra court appeal prefeiTed by the appellant Municipal Corporationof Delhi (MCD), filed under Clause 10 of LetterPatents Act, the MCD questionsthe validityof judgmentdated 2.12.2011passedby the learned Single Judge of this Court in Writ Petition(C) 11737/2009which was preferredby the MCD challengingthe Award dated24.3.2009rendered by the IndustrialTribunal-I.in favour of the respondentworlanan herein. Vide the said'Award, the IndustrialTribunalhas held that the woiiananis entitled to be promoted from the post of Garden Chaudhary to that of SectionOfficer from the date when the juniors to him were promoted.He was grantedconsequentialbenefitsincludingmonetaiyor otherwiseas well. The learned Single Judge has modified this Award by holding that the respondent wouldbe entitled to ad-hocpromotionas SectionOfficeras was given to other 9 Garden Chaudharies named in Office Order dated

29.9.2000.The controversyfalls in a nan-ow compass. As per the MCD, such a directionwas impermissiblebecauseofthe reasonthattherespondent does not fulfillthe eligibilityconditionsfor promotionto the postof Section Officeras per the extantRecruitmentRules, and, therefore,he has no right to seek promotionto the said post. The RecruitmentRules for the post of LPA 78/2012&102 OF 2012 ; Page2of9 SectionOfficer(Horticulture) as framed by the MCD inter alia stipulates the followingeducationaland otherqualifications "T.Educational and other qualifications Prescribedfor directrecruitment Essential: Degree in iAgricultureor in Science with iBotany as a subject fi-om a •recognized University or equivalent. Desirable Experience in the field of ornamental Horticulture/landscape Gardening.

8.Whetherage and educational Age: No. qualificationsprescribedfor Qualifications: Yes. direct recruits will apply in the case of promotes:

¶11In case of rectt. By promotion/deputation Transfer,gradesfrom whichpromotion/ Deputation/Transferto be made.

(i) Nursery Record Keeper with 5 years Service in the grade.

(ii) Choudhary with 12 years regular service in the grade. Note: The eligibility for promotion shall be prepared with reference to the date of completion by the officers of the prescribed qualifying service in the respective grade post."

¶3Readingofthe aforesaidcolumns ofthe RecruitmentRules makes it clearthat holdinga degree in Agricultureor in Sciencewith Botany as a subjectfrom arecognizedUniversityis an essentialqualification.This is so specifiedagainst column no.7 which prescribesthe qualificationfor direct Page 3 of9 2-recruitment. However,column8 providesthatthis educationalqualification is required even in the case of a promote.

¶4The respondentworlcmanhad joinedthe duties as Garden Chaudhary on daily wage basis w.e.f. 6.11.1978 and thereafterpursuantto the award passed in an industrialdispute raised by him which was upheld by this Court, he was regularized to the post of Garden Chaudharyon 2.7.1984. Thus, he is working as Garden Chaudharyon regularbasis w.e.f 2.7.1984 and has thus renderedmore than 12 years of regularservicein this grade,he therefore fulfills the eligibilitycriteria/conditionsprescribedin column 11 for the promotionto the post of SectionOfficer(Horticulture).However,it is an admitted case that he does not have essential qualification namely degree in Agriculture or in science with Botany as a subject from a recognized University or equivalent. Thus, insofar as educational qualificationis concerned,he lacksthe same. It is also clearthat holdingof this qualification for being eligible to the post of Section Officer (Horticulture) is "essential" and therefore cannot even be relaxed. Obviously,this makesthe respondentineligiblefor considerationto the post of Section Officer (Horticulture).

¶5In R.S. Garg Vs. State of U.P. (2006) 6 SCC 430 the SupremeCourt relyingon its earlierdecision in Suraj Prakash Gupta Vs. State ofJ&K

(2000) 7 SCC 561 held as under:- " It would not be a mere in-egularity, when a personnot eligiblethereforwouldbe consideredfor promotion. It may be that for the purposeof direct appointment, experience and academic qualificationsare treated to be on a par, but when LPA 78/2012& 102 OF2012 • ! Page4of9 an eligibility criterion has been provided in the Rules for the purpose of promoting to a higher post, the same must strictly be complied with. Any deviation or departure therefrom would render the action void"

¶6Notwithstanding the aforesaid position, the Award of the Labour Court as well as the judgment of the learned Single Judge raised a discrimination i.e. some other Garden Chaudharies who did not fulfill these qualificationswere also promotedas SectionOfficerson ad-hoc basis vide order dated 29.9,2000 to take effect from 3.5.1997 and therefore this benefit was to be given to this workman as well.

¶7The discussion contained in the Award, on this aspect, reveals two reasonsgiven in supportof the award holdingthe woiianan to be entitledto promotion

(i) Juniors to the respondent 'Workman were promoted to the post of Section Officer w.e.f

29.9.2000 and 1.10.2003.

(ii) That the MCD has taken the plea that the workman did not fulfill the eligibility criteria as per Recruitment Rules, which was not correct as the workman had completed more than 12 years of service and there was no reasonable or justifiable cause to ignore the workman for the promotion when juniors to him were promoted.

¶8The learned Single Judge on the other hand went only by consideration that vide order dated 29.9.2000 ad hoc promotion was given to i • [0 juniorGardenChaudharyto the post of SectionOfficerand non-grantingof tliis promotion to the respondent herein amounts to discrimiijation. j However, since others were promotedon ad hoc basis and not on regulai basis, award is modified by making the promotion of the respondent as Section Officer on adhoc basis.

¶9Itis clearfrom the abovethat the learnedSingleJudge did not go into the questionof the eligibility ofthe respondentworlananfor promotionto the post of SectionOfficer. LearnedCounselfor the respondentarguedthat this contentionwas neverraisedearlierand could not be raised for the fnst time in this appeal. This is factuallyincon-ect. As pointedout above, the contentionwas raised before the IndustrialTribunal and was in fact dealt with by the Tribunal. RecruitmentRuleswere provedon recordas MWl/1. The mistakewhichthe Tribunalcommittedwas it went only by the length ofserviceand ignoredcolumnno.7 &8ofthe RecruitmentRuleswhichlay downeducationalqualificationas one ofthe essentialeligibilityconditions.

¶10Once we find that the workman was not eligible for consideration, merely because his juniors were promotedeven on adhoc basis would be insignificantand when the respondent is not eligible, he cannot plead discrimination.

¶11Afaint attemptwas made by the learnedcounselfor the respondentto argue that MCD has been promoting non-qualifiedand even illiterate personsto the postofSectionOfficer. In the writtensubmissionexampleof one Hari Chand and one Sh. AshaRam is givenand it is submittedthat the said fact has been admitted by the Mr. R.K. Mehra, AssistantDirector, LPA 78/2012&102 OF 2012 Page6ot9 Horticulture. A perusal of the cross-examination of the said witnessof the MCD would show that he was categorical in his statement that, persons promotedfrom the post of Garden Chaudaryto SectionOfficerfulfillsthe eligibilitycriteriaas per RecruitmentRules, (incidentallythis also nullifies the contention of the worlonan that no such case was set up before the IndustrialTribunal by the MCD). However,,this witness accepts that Sh. Hari Chandwas promotedto the postofSectionOfficerin the year 1992 and he did not fulfillthe eligibilitycrieterialaid down in the RecruitmentRules and Mr. Amba Prasad was promoted who did not fulfill the eligibility conditionsas per recruitmentrules. The explanationwhich comes on record ofLPA 102/2012 in respectofthesetwopersonsis as under; In the case of Amba Prasad, the order was passed by the Court and therefore, the MCD has no choice but to implement the said order. Interestingly, the MCD has taken up the matterto SupremeCourt and the SupremeCourt has dismissedthe appealonly on the groundthat the MCD had not pointed out that it was following the recruitment regulation approved in the year 1984 prescribing certain qualification and a considerable time had intervened. At the same time the Supreme Court very categoricallyclarifiedthat it is not to be used as a precedentin other cases. As is clear from the brief order passed in that that:-"Leave granted. It is more or less an admitted position that at earlier stages of the proceedings. It was not pointed out on behalf of the appellant-coi-poration that they were following the Recruitment Regulationsapprovedin the year 1984,prescribing certain qualifications.As a considerabletime has intervened, we are not inclined to interfere with the ' impugned order." LPA 78/2012& 102OF2012 The appeal is accordingly dismissed. However, this should not be used as precedent in other cases and if similarpetitionsare filed it will be open to the appellantcorporationto point out the relevant Recruitment Regulations.No costs." Insofar as Hari Chand is concerned,the submissionof the MCD was that he had obtained promotion by fraudulentmeans without possessing necessaryqualifications.This is takennoteofby the learnedSingleJudgein the impugnedjudgmentdated 22.12.20:11 which is the subject mattei of LPA 102/2012,however,not allowedto be raisedon the groundthat it was not raised before the Labour Court. Ihe learned Single Judge has also drawn inference to the effect that Hari Chand was given promotion by relaxingthe Rulesifhe did not possessthe requisitequalification.However, this was not the correct approach for two reasons:-

(i) The Regulations clearly mention that it is the essentialqualificationwhichcannotbe relaxed.

(ii) However, even if that be so, the plea of discrimination cannot be a right as equity is not a negative concept.

¶12Ifwrong is committedin two casesthat wouldnot meanthat it has to be perpetuated, that too, by the Courts by giving such directions of promotionto a person who is otherwisenot eligibleas pei the lecruitment rules.

¶13We thus are ofthe opinionthat the Award ofthe IndustrialTribunal as well the order of the learned Single Judge are contraryto the law and Page 8 of9 cannot be sustained. We allow this appeal and set aside the Award passed by the IndustrialTribunal as well that of the learned single Judge.

¶14There shall be no order as to costs.

11.05.2012 Skb mt CHIEF JUSTICE (RAJIV SAHAIENDLAW) JUDGE Page 9 of9