W.P.(C)/937/2018 of RAJESH KUMAR AND ORS. Vs DELHI URBAN SHELTER IMPROVERMENT BOARD AND ORS.

*IN THE HIGH COURT OF DELHI AT NEW DELHI

%Date of decision: 04.09.2019

+W.P.(C) 937/2018

RAJESH KUMAR AND ORS.

..... Petitioners

ThroughMr.M.K.Bhardwaj,Mr.Shubham Gairola andMr.Akash Dahiya, Advocates.

versus

DELHI URBAN SHELTER IMPROVEMENT BOARD & ORS.

..... Respondents

ThroughMr.Parvinder Chauhan,Standing Counsel andMr.Nitin Jain for DUSIB.

CORAM:

HON'BLE MR. JUSTICE A.K.CHAWLA

J U M N T

A.K. CHAWLA, J.

1.By the instant petition filed under Article 226 of the Constitution ofIndia, the petitioners, seek the following reliefs:

(a) To declare the actions of respondents in neitherholding departmental examination for promotion tothepostofLDCasperofficeorderdatedW.P.(C.) No.937/2018Page 1 of 9

15.09.2014norgrantingpromotiontothepetitioners to the post of LDC on Adhoc basis asillegalandarbitraryandissueappropriatedirections to the respondents to treat the petitionersas eligible for promotion to the post of LDC andconsider their claim for promotion to the said postof LDC on regular / Adhoc basis at par with otherGroup 'D' employees.

(b) To declare the action of respondents in notholding departmental examination as decided to beheld on cancellation of departmental examinationon 14.06.2014 as illegal and arbitrary and issueappropriate directions for holding departmentalexamination for promotion to the post of LDC onsame terms and conditions as mentioned in circulardated 30.05.2014 and fill up the available vacanciesof LDC by considering the claim of petitioners.

(c) To quash and set aside the letter dated22.06.2017 and direct the respondents to treat thepetitioners eligible for promotion to the post of LDClike other Group 'D' employees i.e. Peon, Daftari,Safai karamchari, etc."

2.The petitioners - who joined DUSIB as security guards (Group 'D'), ineffect, seek to be declared eligible to the post of LDC, and, thereby, beingconsidered for promotion to the post of LDC on regular / Adhoc basis interalia through departmental examination. They had earlier approached thiscourt by way of WP(C) No.3712/17 Rajesh Kumar and Others vs. DelhiUrban Shelter Improvement Board & Ors. It was dismissed as withdrawnwith the liberty to approach the respondents by way of representation. Therepresentation so made has come to be declined vide communication dated22.06.2017. By the instant petition, the petitioners, now extend challenge to

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decision communicated vide said letter dated 22.06.2017. The petitionersassert that all Group 'D' posts have been re-designated as MTS and now fallin Group 'C' category and the petitioners are required to be treated as thefeeder cadre for the purposes of promotion to the post of LDC. In support ofsuch assertion, the petitioners advert to the communication dated 26.03.2013issued by DUSIB requesting the DDOs and Assistant Director to furnishdetails of all Group 'D' officials, who had passed 12th grade from recognizedboards and their qualifications added in their personal files/service books.According to the petitioners, it was thereafter only, the respondents issuedthe circular for holding departmental examination for promotion to the postof LDC. Thus, according to them, they were treated eligible and evenallowed to appear for the examination scheduled for 14.06.2014, though, itcame to be cancelled later. Thereafter, the petitioners made representationon 23.02.2015 followed by reminder dated 07.07.2015 inter alia pointingout that the petitioner No.1 - Rajesh Kumar had even served as LDC for thelast two years and therefore, he should get fair chance for promotion to thepost of LDC.The petitioners allege that while their such representationremained pending consideration, vide communication dated 20.07.2016, therespondents called for the work performance reports of the similarly placedpersons and in doing so, the respondents had considered all categories ofposts like peon, daftari, baildar, process server but for the security guards i.e.the petitioners. Such action, according the petitioners, was discriminatoryand violative of their fundamental rights of equality. They allege that therewas no promotional hierarchy nor were there any notified recruitment rulesfor promotion for the security guards and they were stagnating on the post

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for years. In support of such plea, reliance is placed on State of Bengal vs.Rabindra Nath Sengupta, 1998 (2) SLR (No.) 535;Marine ProductsExport Development Authority vs. A.Geetha, 1997 (6) SLR No.331; and,Union of India vs.Anil Kumar, 1999 (4) SLR (No.) 298.

3.The respondents resist the claim made in the petition on the premisethat DUSIB has adopted the recruitment regulations of DDA with theapproval of the competent authority of the DUSIB and the recruitmentregulations so applicable provide that the group 'D' employees - upgraded toGroup 'C' as per the 6th Central Pay Commission Report - having definedhierarchy in their own cadre like malies, security guards etc. are not entitledto promotion as LDC.It is also their plea that in the absence of anychallenge to the vires of the applicable recruitment regulations, thepetitioners cannot be considered for promotion to the post of LDC inasmuchas the security guards in DUSIB have their defined hierarchy and their nextpromotional post is of Head Security Guard, whereas, the baildars, safaikaramchari and process servers have no promotional post in their cadre. Forany of the petitioners having been invited to participate in the departmentalexamination held in May, 2014, according to the respondents, it ipso factodoes not vest any legal right in their favour for being eligible forappointment to the post sought for. Similarly, according to the respondents,if, the petitioners or any one of them, were asked to perform some duty ofthe LDC by the branch heads, it does not bind the appointing authority toconsider them to the said post. It is thus the plea of the respondents thatthere was distinction between an eligibility condition and right to claimappointment and an ineligible person cannot claim right to be appointed to

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post lying vacant only on the premise that he or she has the requisitequalifications to be appointed to the post. In support of such contentions,reliance is placed upon Shankarsan Dash vs. Union of India (1993) 3 SCC47 and the decision of this court in LPA No.612/2011 Vikas Gachli vs.Competition Commission of India.

4.Inthesubmissions ofMr.Bhardwaj, learnedcounselforthepetitioners, the petitioners met the criteria of qualifications for beingpromoted to the post of LDC and therefore, the petitioners - who were allgroup 'D' employees - could not be discriminated against in the departmentalexamination for promotion to the post of LDC. In his submissions, few ofthe petitioners having applied for such examination, were even issued admitcard and appeared for the examination as well and therefore, it is to be takenthat the respondents had accepted that the petitioners were eligible for beingappointed to the post of LDC. Mr.Bhardwaj also strenuously contended thatthe respondents did not have their own recruitment rules and therefore, anyadoption or application of the recruitment rules of another institution i.e.DDA was bad in law. In his submissions, in the absence of any recruitmentrules of DUSIB of its own, the petitioners, who fulfill all the qualifications,were eligible and liable to be considered for promotion to the post of LDC.

5.Mr.Chauhan, learned counsel for the respondents, on his part howeverpoints out that the respondents were following the recruitment rules fordifferent posts as applicable to DDA employees with the approval of thecompetent authority and therefore, any contention raised to the contrary wasunmerited.He also points out that as per such recruitment rules, copy

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whereof is annexed to the counter affidavit, the petitioners had definedhierarchy in their own cadre and therefore, they were not entitled topromotion as LDC.

6.Vide letter dated 22.06.2017, the respondents declined the requestmade by the petitioners for promotion to the post of LDC stating as follows:"This has reference to your letter dated 06.05.2017addressed to Chief Executive Officer, Delhi UrbanShelter Improvement Board, Govt. of NCT of Delhion the subject cited above.

In this regard, I am directed to inform that as perprevailing RRs for promotion to the post of LDC,group 'D' employees having defined hierarchy intheir own cadre like malies, security guards etc.shall not be entitled for promotion to the post ofLDC.

Further, Security Guard has its own hierarchy i.e.Head Security Guard and recently the Departmenthas promoted some security guards to the post ofHead Security Guard."

7.The forgoing impugned communication dated 22.06.2017 does notleave any doubt that the petitioners, who are the security guards, have adefined hierarchy of promotion to the post of Head Security Guard. Few ofthe security guards were even promoted to such promotional post, thepetitioners do not dispute. In fact, the petitioners who are the securityguards, have defined hierarchy of promotion in DUSIB, is wellacknowledged by them in the RTI application they made, copy whereofforms part of the paperbook. In the face of such undisputed fact, it does not

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lie in their mouth to contend otherwise that they did not have any definedhierarchy for promotion and they must be considered for the post of LDC.

8.DUSIB is applying the recruitment regulations as have been notifiedfor the DDA is matter of fact. The respondents state that it is applyingsuch regulations with the approval of the competent authority. Whether thecompetent authority has given the approval rightly or not is not the subjectmatter of the instant petition.Fact of the matter is that such recruitmentregulations are being applied with the approval of the competent authorityand, the petitioners, on the basis of such recruitment regulations, are alsobeing given the defined hierarchical promotion to the post of Head SecurityGuard. They therefore, cannot be allowed to contend otherwise. Here, it isalso worthwhile to observe that even if there would have been somestagnancy in promotion, it is not the case of the petitioners that they werenot being given the financial upgradations as per the applicable scheme(s)inasmuch as no prayer to that effect is made.

9.As regards the plea of the petitioners that they are being discriminatedfrom amongst the same class of MTS or Group 'C' employees for beingconsidered for promotion to the post of LDC though they are also eligible tobe considered, the plea raised has fallacy, at least, on two counts. Firstly,possessing academic qualifications required for post by itself cannot be acriteria for being considered for any employment. Besides the basicqualifications, the other factors of consideration, which befit the job profile,are always relevant to be kept in mind and cannot be ignored. Prerogative tostipulate or impose conditions for appointment to particular post is

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therefore, always that of the employer. It appears that in that direction only,the recruitment regulations in vogue, exclude malies and security guards etc.only, from being considered for promotion to the post of LDC. It does notrequire elaboration that the job profile of malies, security guards, etc. isspecialized for the duties assigned to them and therefore, they form aseparate cadre within the same category of MTS or Group 'C' employees.

10.Anyinformationcalledbytherespondentsasregardsthequalifications added in the personal files of the petitioners or any of thepetitioners having been issued admit card and, possibly, having evenappearedforthedepartmentalexaminationforpromotion,whichexamination, came to be cancelled or abandoned, cannot be construed toinvest any right in the petitioners to be considered for promotion.Anycontention raised to the contrary is wholly misconceived and is rejected.

11.In the given factual conspectus, reliance placed on State of Bengal(supra) and Marine Products Export Development Authority (supra) by thelearned counsel for the petitioners is wholly misplaced. In State of Bengal(supra), the court was concerned with the invocation of the right of equalityenshrined under Article 14 of the Constitution of India vis-a-vis thegovernment accommodation qua government employees and licence inrespect of government accommodation being co-terminus with service.Principle of equality elaborated in the State of Bengal (supra) has nobearing to the facts and circumstances of the case in hand. In MarineProducts Export Development Authority (supra), the court was concernedwith aspect of interpretation of the applicable standing instructions or the

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clauses to different sets of employees of the organization rather than on theprinciple of any equality as enshrined under Article 14.Union of India(supra), it would be seen, in effect, does not lend support to the case of thepetitioners inasmuch as it reiterates that in service matters, merit orexperience could be proper basis for classification to promote efficiency inthe administration.

12.In view of the foregoing, the court does not find any merit in thepetition and the same is hereby dismissed.

A.K. CHAWLA, J.

SEPTEMBER 04, 2019/dm