2019 NearLaw (DelhiHC) Online 150
Delhi High Court

JUSTICE A.K.CHAWLA JUSTICE VIPIN SANGHI

N.K. ARORA & ORS. Vs. MUNICIPAL CORPORATION OF DELHI & ANR.

W.P.(C.) No. 719/2012

10th January 2019

Petitioner Counsel: Mr. I.S. Dahiya
Respondent Counsel: Mr. D.S. Mahendru

Petitioners assail the impugned orders on the premise that the fresh OA No 3136/2011 (in which the impugned orders have come to be passed), did not invite any fresh adjudication inasmuch as according to the petitioners, vide order dated 06.11.2009, the Co-ordinate Bench of CAT had already directed consideration of notional promotion to the petitioners and the resultant revision of pension and therefore, for such purpose, no actual vacancy was required, though, according to them, the vacancies did exist.
Any regulation made by the Corporation under the Delhi Municipal Corporation Act, 1957 in short 'the DMC Act', at the relevant time, was required to be approved by the Central Government and then, published in the official Gazette as provided for under Section 480 of the DMC Act.
This Section 480 of the DMC Act takes into its sweep Section 98 which empowers the Corporation to make regulations to provide for inter alia the qualification of the candidates for appointment to posts and the manner of selection thereof.
No order as to costs.

Cases Cited :

JUDGEMENT

A.K.CHAWLA, J.

1. Petitioners are aggrieved of the order dated 06.09.2011 passed by the Central Administrative Tribunal, Principal Bench, New Delhi in short 'CAT' and, in effect, seek issuance of a writ of mandamus to the respondents for grant of notional promotion w.e.f. the date their juniors were promoted to the post of AO/AA&C in terms of the order dated 06.11.2009 passed by CAT in TA No. 548/2009 alongwith consequential benefits. Simultaneously, it is also prayed that the respondents be directed to consider the regularisation of the service of the petitioner nos. 5,6 and 7 to the post of AO/AA&C, who were promoted to the said post on ad-hoc basis and notional promotion be so given to them in terms of the order dated 06.11.2009 in TA No. 548/2009 for the purposes of their pensionary benefits.

2. Concisely, the facts are that the petitioners, who were Non-Graduates, have been working as Senior Stenographers (Stenographers Gr.-I) with Municipal Corporation of Delhi in short 'MCD'. The recruitment Regulations for the post of AO/AA&C, which were notified in 1996, inter alia, provided for the qualifications for promotion to the said post, earmarking 75% of the vacancies from the grade of Superintendent with three years regular service in the grade; 20% of the vacancies from the grade of Stenographers Gr.-I with three years regular service in the grade; and, 5% from the grade of translators (Urdu/Hindi) with three years regular service in the grade. These regulations, stipulated a degree from recognized university or equivalent as an essential qualification. It emerges from the record that at the time of the notification of the Recruitment Rules 1996, the petitioner nos. 5, 6 and 7 were officiating in the post of AO/AA&C, having been promoted on ad-hoc basis, though, they did not fulfill the essential qualification of being graduates from a recognised university. A challenge was thus extended to the RRs of 1996 by way of WP(C) no. 3952/1996. During the pendency of this writ petition, in pursuance of the Recruitment Rules 1996, the petitioner nos. 5, 6 and 7 were reverted back to their post of Senior Stenographers vide order dated 26.11.1996. It resulted into filing of a Miscellaneous Application being CM no.7805/1996 and this court, disapproving of the act of the respondents in passing the order dated 26.11.1996, stayed the operation of the order of reversion dated 26.11.1996, so far as it pertained to the petitioner nos. 5, 6 and 7, till further orders. Later, WP(C) no. 3952/1996 came to be transferred to CAT and was registered as TA No.548/2009. During the pendency of the said TA No. 548/2009 before CAT, Corporation passed a resolution No. 392 dated 09.10.2000, inter alia, for one time relaxation in the educational qualification of Senior Stenographers and Superintendents for the post of AO/AA&C. However, such relaxation could be granted only with the approval of the UPSC. Consequently, an application was moved to the UPSC to seek its approval for one-time relaxation in the RRs. Vide letter dated 27.05.2002, Union Public Service Commission 'UPSC', gave its approval for one time relaxation in the educational qualification in favour of non-graduate Superintendents and Senior Stenographers, for consideration for promotion to the post of AO/AA&C. According to the petitioners, MCD implemented the said decision only as regards the non-graduates Superintendents, but non-graduate Senior Stenographers were still left out. On 06.11.2009, CAT dismissed TA No. 548/2009 with a direction to the respondents to take a final decision on their own proposal initiated in 2000 for giving promotional avenues to the petitioners with consequential reliefs. On this, the petitioner Nos. 5, 6 and 7 made representations to the respondents for regularization on the post of AO/AA&C and notional promotion as AC/Dy.A&C as per the seniority list. In absence of any positive result, the petitioner Nos. 3, 4, 5 and 6 approached back CAT with a contempt petition being CP No.603/2010 for non-compliance of the directions of the CAT dated 06.11.2009. It was disposed of by CAT on 10.12.2010 allowing further time of two months for compliance of its directions dated 06.11.2009. It appears that, thereafter, the respondents issued order dated 09.05.2011, in effect, rejecting their claim on the premise that no vacancy earmarked for the feeder cadre of Senior Stenographers existed in the post of AO/AA&C in the year 2000, and, that the number of Senior Stenographers already promoted to the post of AO/AA&C exceeded the ratio prescribed in the RRs, for which, one time relaxation was granted vide resolution dated 09.10.2000. On 11.5.2011, CAT closed the contempt proceedings, reserving the liberty to the petitioners to extend challenge to the order dated 09.05.2011 in appropriate proceedings. This resulted into filing of OA no. 3136/2011 by the petitioners and that was dismissed by the CAT in limini on 06.09.2011. Review sought thereof by way of RA no. 353/2011 was dismissed by CAT on 19.10.2011. Aggrieved of the orders dated 06.09.2011 and 19.10.2011 so passed by CAT, the petitioners have preferred the instant writ petition.

3. Petitioners assail the impugned orders on the premise that the fresh OA No. 3136/2011 (in which the impugned orders have come to be passed), did not invite any fresh adjudication inasmuch as according to the petitioners, vide order dated 06.11.2009, the Co-ordinate Bench of CAT had already directed consideration of notional promotion to the petitioners and the resultant revision of pension and therefore, for such purpose, no actual vacancy was required, though, according to them, the vacancies did exist. Thus, according to the petitioners, the order dated 09.05.2011 issued by the respondent was contrary to the mandate of the order dated 06.11.2009 and therefore, it could not be sustained.

4. Mr. Dahiya, learned counsel for the petitioners adverting to resolution No. 392 dated 09.10.2010, and the approval of UPSC dated 27.05.02, strenuously contended that in and by virtue thereof, the non-graduate Senior Stenographers were eligible to be considered to the post of AO/AA&C. In the submissions of Mr. Dahiya, the diverse office notings in the record of the respondent also reflected that the respondent had proceeded to give relief to the petitioners in line with the resolution and the approval granted by UPSC for one time relaxation. The only other pertinent submission on behalf of the petitioners has been to the effect that the juniors to the petitioners were given promotion and therefore, on parity, the petitioners were also entitled to the same treatment of being granted promotion to the post of AO&AAC.

5. At the onset, we observe that the submission of Mr. Dahiya that the resolution No. 392 dated 09.10.2000 with the approval granted by UPSC for one time relaxation, had the effect of its enforcement in law, has an inherent fallacy. Any regulation made by the Corporation under the Delhi Municipal Corporation Act, 1957 in short 'the DMC Act', at the relevant time, was required to be approved by the Central Government and then, published in the official Gazette as provided for under Section 480 of the DMC Act. Section 480 of the DMC Act, at the relevant time, prior to the amendments carried out w.e.f. 13.012012, read as under :

"Supplemental provisions respecting regulations –
(1) Any regulation which may be made by the Corporation under this Act, may be made by the Central Government within one year of the establishment of the Corporation; and any regulation so made may be altered or rescinded by the Corporation in the exercise of its powers under this Act.
2. No regulation made by the Corporation under this Act shall have effect until it has been approved by the Central Government and published in the Official Gazette."
This Section 480 of the DMC Act takes into its sweep Section 98 which empowers the Corporation to make regulations to provide for inter alia the qualification of the candidates for appointment to posts and the manner of selection thereof. Sub-Sec.(2) of Sec. 480 clearly stipulates that no regulation made by the Corporation shall have effect until it has been approved by the Central Govt. and published in the official gazettee. Mr. Dahiya on his part did not point out for the purported resolution of the Corporation on the grant of approval by UPSC, having the effect of a regulation (or amended regulation) as contemplated under Sub-Sec. (2) of Section 480. In the absence thereof, what could be effect of the subject one time relaxation is the moot question that arises, for consideration. To this, our considered view is that the regulations, which have a statutory force, cannot be deviated from unless and until an exception thereto is made in a manner, which is recognized by law. In other words, any resolution of the Corporation and the approval of UPSC ipso facto cannot be construed to make an exception to the subject regulations. We have also no hesitation to say that the approval granted by UPSC cannot be construed to be on behalf of the Central Government, which at the relevant time, had invested such powers in the Lt. Governor of the Union Territory of Delhi. In view thereof, the plea of the petitioners founded merely on the resolution passed by the Corporation and the approval of UPSC as regards the essential qualification to the post of AO/AA&C, was devoid of any merit.

6. As regards the vacancy of the subject post, to which the petitioners assert their claim, the copy of the noting dated 06.06.02 at running page 124 of the paper book, shows the status of vacancies against the respective categories of posts of Superintendents, Sr. Stenographers and Translators, with an added note thereto, as under:

"...........................................................................................................................................................................................................
It is to be mentioned that since 3 categories are eligible for promotion to the post of AO/AA&C, the RRs provide their quote as under:
75% from Supdts.
20% from Sr. Stenographers
5% from Translators
At present, 115 posts of AO/AA&C are sanctioned. The position of each category is as under :
Posts Posts in their quota Filled up Vacant
Supdts 86 10 76
Sr. Stenos 23 22 1
Translators 6 4 2
Presently, 11 Sr. Stenos/Translators are working as AO/AA&Cs against the quota of Suptds.
.........................................................................................................................................................................................................."
A bare perusal of the above-said status of the vacancies purportedly available to the Sr. Stenos was only 01 and the note attached thereto, shows that at that time 11 Sr. Stenos/Translators were working as AO/AA&C against the quota of Superintendents. Claim of the petitioners, who are seven (7) in number, and assert their claim against such purported one vacant post for their category, in the light of the fact that 11 Sr. Stenos/Translators were working as AO/AA&C against the quota of Superintendents, by itself, negates their claim for being entertained. Moreso, for the reason that the status of any vacancy available to the Sr. Stenographers has been the subject matter of TA no. 548/2009, which was disposed of by CAT on 06.11.2009 and, even the contempt proceedings arising therefrom, came to be disposed of on 11.05.2011. Any fresh agitation on the same issue by filing the OA, in which the impugned orders have come to be passed, was not permissible in law and barred by the principles of res judicata and it has been so observed to by CAT in the impugned orders. CAT has also elaborately dealt with the plea of the petitioners as regards any juniors having been promoted with the observations that those promoted were so promoted in terms of the Recruitment Rules, 1996 being graduates. We do not see any perversity in the impugned orders and find that the instant proceeding.

7. For the foregoing reasons, we do not find any merit in the instant writ petition and the same is hereby dismissed. No order as to costs.