Padam Chand And Ors. vs Municipal Corporation Of Delhi And Anr. on 11 August 2005
Delhi High Court
Padam Chand And Ors. vs Municipal Corporation Of Delhi And Anr. on 11 August, 2005
Equivalent citations: 2005(84)DRJ123
Author: S. Ravindra Bhat
Bench: S. Ravindra Bhat
JUDGMENT
S. Ravindra Bhat, J.
1. Issue Rule. With consent of counsel for parties, the matter was taken up for final hearing.
2. Both sets of petitions have been taken up for hearing with consent of counsel for the parties since issues arising in these proceedings are inter-related. The petitioners in the first batch of petitions namely, WP(C) No. 14780-814/04 seek an appropriate order/ direction to the respondent (MCD) to follow the recruitment rules for filling-up Class III posts from eligible Class IV posts. Other reliefs have also been claimed; however, during the course of hearing counsel did not press for consideration of such reliefs. In WP(C) No. 8890-99/05 the relief claimed is for a direction to quash a circular issued by Municipal Corporation of Delhi (MCD) by which the maximum age had been fixed, for consideration to the post of Lower Division Clerks (LDCs) sought to be filled Departmentally, from amongst Class IV employees in the MCD.
3. The petitioners are Class IV employees working with the MCD for periods ranging between 15 and 20 years. At different points in time some of them worked as Toll Tax Collectors (TTC’s), in the Toll Tax Departments. By virtue of a decision of the MCD collection of Toll Tax was privatized; consequently many Class IV employees who were engaged in that work, were redeployed/ assigned other dues.
4. Some aggrieved TTC’s, approached this Court by filing several writ petitions, including Writ Petition No. 5255/2002 and a connected batch of cases. The reliefs claimed in there included a direction to regularize them in the post of LDC. By a common judgment and order dated 21.4.2004, this Court disposed off those petitions. The claim for regularization was denied. The Court, however, noticed that as per the policies of MCD, 10 % of the vacancies of LDCs had to be filled by promotion on the basis of Competitive Examination, from amongst Class IV staff. It would be relevant to extract two paragraphs from that judgment; they are reproduced below:
“22. Notified recruitment regulations to the posts of lower division clerks would reveal that it is a class III post and is a selection post. Educational and other qualifications required are matriculation from a recognized university/ board or equivalent. In the case of appointment the incumbent has to clear the “lerks grade Examination”. As per the recruitment regulations, 10% of the posts have to be filled by promotion on the basis of competitive examination held by the Municipal Corporation of Delhi from amongst the class IV staff, 90% posts have to be filled by direct recruitment through the clerks Grade Examination conducted by the staff selection commission.
23. All Class-IV employees who have the requisite educational qualification would be eligible to complete in the department examination for promotion to fill up 10% posts of lower division clerks merely because the petitioners have the requisite education qualifications would not entitle them to be regularize ad lower division clerks. In any case it is not case petitioners that there are vacant posts of lowser division clerks, same have to be filled up as per the recruitment regulations mandate of Article 16 of the constitution of India that all persons would have equality of opportunity in seeking employment under the state would require that subject eligibility, all class-IV employees working under municipal corporation of delhi would have an equal right compete for promotion.”
In view of those observations, the petitions were dismissed.”
5. The petitioners in these proceedings have disclosed the judgment and order dated 21st April, 2004. However, their claim in these proceedings is that the statutory mechanism provided for in the Regulations ought to be resorted to and that the quota of 10% earmarked for promotion to Class III posts, from amongst Class IV employees, ought to be operated since no action in that regard was taken for the past 17 years; the last departmental test having been conducted since 1988. The petitioners have relied upon the recruitment regulations notified in 1983; they were framed under Section 480(2) of the Delhi Municipal Corporation Act, 1957 (the Act); Column 10 of the said Recruitment Rules earmarks a 10% quota for promotion on the basis of competitive examination to be held by MCD for Class IV staff. The eligibility prescribed is five years continuous service in Class IV posts or in any higher posts on 1st January of the year of examination. Regulation 15 of the Regulations empowers the Competent Authority to relax provisions of the rules in respect of any class or category of persons. It may also be mentioned that age limit prescribed in this regard is 45 years. It is alleged by the petitioners that in the recruitment process scheduled to be conducted this month, MCD is not proposing to follow the norms laid down in the 1983 Regulations and is intending to follow certain revised/ amended norms. They have relied upon certain proposals annexed along with the counter affidavit and averred that if the proposed provisions/ decisions is followed, they would be prejudiced since the age requirement has been lowered from 45 years to 35 years; in other matters too, the proposed norms would act to their detriment.
6. In WP(C) No. 8890-99/2005 the grievance raised is that the inordinate delay in the conduct of examination for the period 1988 onwards has led to an impasse whereby several Class IV employees who would, otherwise, be eligible for consideration cannot even be considered due to their having become over age. It is contended that the inaction or culpability lies solely at the door-step of the MCD which cannot penalize such Class IV employees who have been in their services for all these years. An appropriate order has, therefore, been sought to enjoin the MCD to permit such petitioners to appear in the examination and also to consider them for promotion in the 10% quota.
7. Learned counsel appearing for both sets of petitions, Mr. P.K. Dey reiterated the contentions raised in the petitions. He submitted that if the decision/ Resolution of the MCD taken in 1994, to amend the 1983 regulations are implemented, the petitioners case for consideration for promotion under the 10% departmental quota would become an academic exercise. He submitted that the fault for not making any recruitment in the 10% departmental quota, lies exclusively with the MCD which deliberately did not choose to hold examinations for 17 years. As a result, the petitioners were deprived of their chances and now, when the examination is to be held for all the backlog vacancies, the petitioners cannot be made to suffer on account of such careless inaction on the part of the MCD.
8. Learned counsel for the petitioners also sought to content that the number of vacancies existing in respect of 10% quota are to the tune of more than 400 or so whereas MCD is seeking to fill fewer posts.
9. Mr. Roopesh Kanwar and Mr. Sharma, learned counsel appearing for the MCD have stated that the petitioners cannot claim any direction for regularization since those issues stand concluded by the judgment and order of this Court dated 21st April, 2004. As far as the other claims in these proceedings are concerned it has been contended that the respondent-MCD is proposing to hold the examination for the 10% quota earmarked for departmental promotion from amongst Class IV employees shortly, within a month. It was submitted that there has been no change in the norms governing recruitment to that 10% quota and that the respondent-MCD would be adhering to, or following the 1983 Regulations since the amendments proposed in 1994 were never notified or implemented. As far as the issue regarding relaxation of age was concerned, the stand of the MCD in reply to Para Q in WP(C) No. 8890-99/2005 was reiterated; the same reads as follows :-
“(Q) That the contents of this sub para are wrong and denied. It is submitted that the age bar of 45 years has been put as per the provisions of notified recruitment rules. The Circular dated 12.05.2005 for holding departmental test is as per the provisions of notified RRS. It is further informed that total 1273 applications have been received out of which only 1126 have been found to be eligible to appear in departmental test. Rest of the applicants have been found ineligible due to the following reason:-
(i)They do not possess regular service of 5 years,
(ii)The application form is incomplete (columns have been left blank).
(iii)Applications have been received late i.e. after the cut off date (30.05.2005).
The total number of applicants above 45 years of age is 71. They will be allowed to appear in the departmental examination provisionally subject to further directions of this Hon’ble Court.”
It was also submitted that by virtue of order of this Court dated 24.5.2005 in WP(C) No. 8890-99/2005 even those who had crossed 45 years of age were permitted to apply for the examination.
10. As far as the vacancy position was concerned, learned counsel for the respondent submitted that a total number of 1626 vacancies had arisen in the entire category of LDCs between the period 1988 and 2005. 10% of that figure namely 163 had been earmarked for being filled through the forthcoming departmental examination.
11. The facts of the present case show that the relief of regularization cannot be claimed by any of the petitioners. That was precisely the subject matter of previous proceedings in WP(C) No. 5255/2002 and connected cases which were decided on 21.4.2004. The Court specifically held that the relief of regularization could not be pressed.
12. As far as grievances with regard to the applicability of the norms is concerned, I am of the considered opinion that whatever apprehensions existed in the minds of the petitioner, have been allayed by the stand of the respondents. It is now clear by virtue of the counter affidavit of MCD by the Regulations of 1983 and not as amended through the Regulation of 1994, would be applicable. The MCD had categorically stated that the un-amended or original regulations which articulate filling-up of 10% of the vacancies in the Class IV (LDC Cadre) from amongst Class IV employees, through a departmental examination would be operated and that all the conditions in the original, 1983 regulations would be followed. Consequently, the vacancies, which admittedly number 163, have to be filled on an application of those norms.
13. A substantial grievance of the petitioners is that many of them have crossed the age bar of 45 years prescribed by the Regulations and that their participation in the departmental promotion examination would be an academic exercise, since they would never stand a chance for appointment. There is some merit in this submission. Undisputedly, the MCD did not take any action to operate the 1983 Regulations, after the year 1988, in so far as it related to filling-up the 10% promotional quota from Class IV employees who were eligible to compete in that regard. It is in the larger interest of efficiency of every public organization that recruitment rules, particularly those which prescribe filling up of vacancies through quotas for separate channels ought to be followed at reasonable intervals of time. The inaction of MCD in this regard is in my considered opinion arbitrary. If the respondents are to proceed with the departmental examination without the imposition of any condition by the Court, there is no dispute that several employees would be irreparably prejudiced. The MCD itself has admitted this position and stated that 71 such employees have in fact become over age.
14. The record and the averments disclosed that 163 vacancies arose in respect of these last 17 years in 10% departmental quota. If the MCD had taken timely action and filled them up through examinations held periodical intervals, the problem of, otherwise, eligible employees having become over-aged for the post would not have arisen. In other words the grouping of all vacancies and holding a common examination almost two decades after the previous examination has resulted an anomalous situation. I am, therefore, of the view that the MCD should take appropriate steps and recommend the case for relaxation, as far as the case of employees who have become overage is concerned, in the peculiar circumstances of the case. This in my considered opinion, this has to be done within a time bound manner.
15. In view of the foregoing discussion, the following directions are issued to the respondents:
(a) Pursuant to the order dated 24.5.2005 in WP(C) No. 8890-8899/05 all petitioners as well as other Class IV employees who fulfilll all conditions, (save the one relating to age), for appearing 4th Common Departmental Examination, for filling the post of LDCs in respect of the 10% quota earmarked under the 1983 Regulations shall be permitted to appear in such examination;
(b) The respondents are directed to conduct the departmental examination in accordance with the un-amended 1983 Regulations, in view of the averments made in these proceedings and submission of its counsel;
(c) The MCD shall recommend relaxation of the condition with regard to maximum age, applicable for the 10% quota, in respect of all the Class IV employees who are, otherwise, eligible to compete in the departmental examination, to be held for the 163 posts, in terms of the Regulations. This is in view of the fact that no examinations have been admittedly held for the past 17 years.
(d) The direction (c) above, shall be complied with within a period of four weeks from today and the results of the departmental examination shall be published after the orders of the Competent Authority, with regard to the condition of age, are passed.
16. The petitions are disposed of in terms of the above directions. No costs.