* IN THE HIGH COURT OF DELHI AT NEW DELHI. Judgment Reserved on: August 02, 2016 % Judgment Delivered on: August 08, W.P.

Transcription

1 * IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment Reserved on: August 02, 2016 % Judgment Delivered on: August 08, W.P.(C) 446/2016 SURENDER SINGH DALAL & ORS... Petitioners Represented by: Mr.Jyoti Singh, Sr.Advocate instructed by Mr.Dinesh Yadav and Mr.Maneesh Goyal, Advocates versus UNION OF INDIA & ORS Represented by:... Respondents Mr.Rakesh Kumar, Advocate CORAM: HON BLE MR. JUSTICE PRADEEP NANDRAJOG HON BLE MS. JUSTICE PRATIBHA RANI PRADEEP NANDRAJOG, J. 1. The petitioners are working as Sub-Inspectors under the Central Industrial Security Force (CISF). 2. As amended in the year 1997 the CISF Recruitment Rules, 1969 stipulated four sources of appointment to the post of Assistant Commandant in CISF as under:- i. by promotion, failing which by transfer on deputation - 50% ii. by transfer from Public Sector Undertakings, failing which by promotion - 20%, iii. by transfer on deputation/re-employment - 10% iv. by direct recruitment through the IAS examination conducted by the UPSC - 20% W.P.(C) No.446/2016 Page 1 of 8

2 3. In the year 1988 the Rules were amended. 20% appointment by transfer from public sector undertakings was reduced to 10% and appointment by direct recruitment through examination was enhanced to 30%. 4. The Rules were further amended in the year The mode of appointment was as under:- i. Promotion - 33% ii. Limited Departmental Competitive Examination (LDCE) failing which by promotion - 17%, iii. Absorption from Public Sector Undertakings - 02% iv. Direct recruitment through the CPF examination - 48% 5. The amendment incorporated vide notification dated February 17, 2009 to the recruitment rules is challenged by the petitioners who are, as noted hereinabove working as Sub-Inspectors with CISF on the ground that reducing 50% of the posts, where appointment had to be by promotion, to 33% has resulted in acute stagnation. The petitioners bring home the point that a person appointed as a Sub-Inspector reaches the post of an Assistant Commandant after serving between 19 to 22 years. 6. An additional point concerning introduction of the 200 point roster reservation has been pleaded in the writ petition but there is no prayer to quash the same. Thus, the hearing of the writ petition was confined only to the first issue raised. The prayers made in the writ petition may be noted. They read as under:- (i) Issue a writ of Certiorari quashing the CISF Assistant Commandant (Executive), Recruitment Rules 2009, to the effect they have decreased the promotion quota to 33% from 50% in 1988 Recruitment Rules; W.P.(C) No.446/2016 Page 2 of 8

3 (ii) Issue a writ of Certiorari quashing the CISF Assistant Commandant (Executive), Recruitment Rules 2009 to the effect it carves out the 17% LDCE quota from the promote quota and further reduces the promotion prospects; (iii) Issue a writ of Mandamus directing the Respondents to consider the Petitioners for promotion to the post of Assistant Commandant (Exe) in accordance with the un-amended Recruitment Rules of 1988; (iv) Issue any other writ/direction that this Hon ble Court Pass may deem fit and proper in the facts of this case. 7. With respect to the 17% quota reserved for appointment through a Limited Departmental Competitive Examination an additional point has been raised by the petitioners concerning upper age limit prescribed of 35 years. The argument was that this makes ineligible a large number of Sub- Inspectors as also Inspectors working in CISF thereby depriving them the benefit of the 17% quota reserved for appointment through a Limited Departmental Competitive Examination. Though not prayed for in the writ petition, learned Senior counsel for the petitioners urged that if this Court were to decline the main relief prayed for i.e. the Court does not quash the recruitment rules as amended on February 17, 2009, the upper age limit prescribed may be quashed so that all Inspectors and Sub-Inspectors become eligible to compete at the Limited Departmental Competitive Examination. 8. It is settled law that a mere chance of promotion is not a fundamental right, but the right to be considered for promotion is a right which flows from the applicable rule or a policy governing the matter of promotion. 9. The amended rule bifurcates the pre-existing 50% quota for appointment to the post of Assistant Commandant by promotion. 33% continues to be reserved for appointment by promotion from those who are W.P.(C) No.446/2016 Page 3 of 8

4 eligible and meet the prescribed benchmark. 17% is reserved for appointment by promotion through a Limited Departmental Competitive Examination. 10. It may be that the rule of seniority, subject to achieving the benchmark for promotion is reduced as per the amended recruitment rules, but the question would be whether this would be sufficient to declare the amendment as violative of Article 14 and Article 16 of the Constitution of India. 11. A matter of policy, being within the domain of the executive, can be attacked either on the ground that it violates the parent Act or the Constitution. There is no argument that the rule violates the CISF Act. The argument simply is that by reducing the posts available for appointment by promotion the right to be promoted gets restricted and therefore it is arbitrary. 12. Now, as noted above, 50% quota by promotion has been retained. It has been split up into two compartments. 33% continues to be in the original compartment of appointment by promotion. The hived off compartment of 17% continues to be promotion but through a Limited Departmental Competitive Examination. 13. The rationale for the amendment is that young, laborious, hardworking and talented Inspectors and Sub-Inspectors should be given an incentive to move up the ladder and this would be in the interest of the organization because it would instil a sense of competitiveness amongst the Inspectors and Sub-Inspectors who would strive to achieve their best and the result would be the efficiency in the department. 14. We do not find the amendment to the rule arbitrary or violative of Article 14 and Article 16 of the Constitution of India. It is not a case where W.P.(C) No.446/2016 Page 4 of 8

5 their right to be promoted is taken away. Hithertofore, the right to be appointed by promotion was restricted to 50% of the posts. Hitherto onward the right to be appointed by promotion is restricted to 33% with a subchannel of promotion created through the Limited Departmental Competitive Examination. 15. Learned counsel for the petitioners had cited two decisions to bring home the point urged. The first is reported as 2008 (5) SCC 100 FCI & Ors. vs. Purushottam Das & Anr. and second is reported as 2008 (5) SCC 416 A. Satyanarayana & Others Vs. S.Purushotham & Ors. 16. The decision in Purushottam Das case (supra) concerns Engineers working under Food Corporation of India, an organization which was not engineering oriented. The Engineers constituted about 1% of the total work force. There were no promotional avenues for the Engineers. The other employees in the cadre were pressing for an Assured Career Progression Scheme which was accepted by the Food Corporation of India. The Food Corporation of India accepted the demand of the Engineers for an Assured Career Progression Scheme which was not accepted by the Government of India and this became the handicap for the Food Corporation of India to give benefit to the Engineers. The Assured Career Progression Scheme was not implemented qua the others. The learned Single Judge of the Calcutta High Court noted that save and except the Engineers all unionized employees were given adequate promotional opportunities in their respective cadres and this was the reason why the Government of India rejected the demand of the other cadre employees to be granted in addition, Assured Career Progression benefit. The stand of the Food Corporation of India that the Government of India had rejected the career advance scheme even for the Engineers was thus negated by drawing out the distinction that the rejection W.P.(C) No.446/2016 Page 5 of 8

6 was for the cadre employees who already had the benefit of two or three promotions in their cadre. The order passed by the Food Corporation of India rejecting the demand for Assured Career Progression for Engineers was thus struck down. Meaning thereby it was left open to the Food Corporation of India to frame an appropriate Assured Career Progression Scheme. The Division Bench upheld the view taken by the learned Single Judge and so did the Supreme Court. 17. The Supreme Court decision is dated February 05, 2008 and regretfully nobody informed the Supreme Court that to avoid stagnation an Assured Career Progression Scheme had already been implemented with effect from August 09, 1999 which envisaged an in-situ promotion after rendering 12 years service for those who had not earned a promotion and another in-situ promotion if within the next 12 years a second promotion was not earned. 18. Be that as it may, the decision would have no application to the facts of the instant case where the appointment rules have been modified giving 33% quota for appointment to the post of Assistant Commandant by promotion based on seniority, subject to achieving the benchmark prescribed and 17% through Limited Departmental Competitive Examination. 19. The issue which arose in Satyanarayan s case (supra) was whether Assistant Secretary in the State of Andhra Pradesh who had earned appointment by promotion to said post from the feeder post of Private Secretary could be denied further promotion to the post of Deputy Secretary. 20. In the State of Andhra Pradesh there was a separate Secretariat Cadre and a Stenographer Cadre. The post of Section Officer and Private Secretary was in the same pay scale. The post of the Section Officer was in W.P.(C) No.446/2016 Page 6 of 8

7 the Secretariat Cadre and that of the Private Secretary in the Stenographer Cadre. There was no promotional avenue for Private Secretaries. Section Officers could be promoted as Assistant Secretary. To mitigate the stagnation for Private Secretaries, the State of Andhra Pradesh stipulated that 10 Private Secretaries could undergo training for a period of two years as Section Officers and thereafter could be considered for promotion to the post of Assistant Secretary. As that point of time the number of posts in the cadre of Section Officers was 365. The number of Private Secretaries attached to the Secretaries to the Government were 25. In the year 1984 a quota was introduced in the ratio 1:19 between Private Secretary and Section Officers which was given retrospective effect with effect from November 06, This date was later on revised to May 01, On a representation made by the A.P.Secretariat Association the ratio was reduced to 1:14. This was challenged before the A.P.State Administrative Tribunal which upheld the ratio but struck down the restriction on the absolute number of posts that could be held by the Private Secretary and restricting the promotional chance to the post of Deputy Secretary and above. To put it pithily, further promotion above the post of Assistant Secretary made a category of Assistant Secretaries eligible and some ineligible based on their birth mark. Those who were Section Officers i.e. took birth in the Secretariat Cadre could earn further promotion and not Private Secretaries who had earned promotion to the post of Assistant Secretary. Appeal by the State succeeded in the High Court. It is in this context that the Supreme Court held that it was impermissible to do so. In para 29 it was observed as under:- 29. Whereas, on the one hand, it has been contended before us that all future promotions that is promotion from the post of Assistant Secretary upwards are given on merit, on the W.P.(C) No.446/2016 Page 7 of 8

8 other hand, a cap of 10 posts has been made for all the four categories of posts. It is one thing to say that the State evolves a policy of prescribing a reasonable quota at all levels of the promotion but it would be another thing to say that while totally ignoring the question of birthmark, a few posts shall be identified only on the basis of the original posts held by the employee concerned. To the said extent, the rule maintains a birthmark which runs counter to the decision of this Court in Dwarka Prasad vs. Union of India. 21. The decision is obviously of no application in the instant case. 22. The rationale for the amendment in the rules and reason why the amendment to the rule is not violative of Article 14 and 16 of Constitution have already been given by us in para 13 and 14 above. Thus the writ petition is dismissed but without any order as to costs. (PRADEEP NANDRAJOG) JUDGE AUGUST 08, 2016 mamta (PRATIBHA RANI) JUDGE W.P.(C) No.446/2016 Page 8 of 8