1. Supervisors Welfare Association, joined by Smt. Arun Lata Pathak, has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 taking exception to filling up the posts of Child Development Project Officer (hereinafter to be referred as CDPO) by resorting to direct recruitment to the post even though on contractual basis on a consolidated salary of Rs. 12,000/- for a period of six months, vide advertisement dated 17.8.2007 (Annexure A-1). It is the case of the applicants that no direct recruitment to the post under contention can be made as that would negate the right of the members of the Association for promotion. The method of resorting to direct recruitment in preference to promotion is stated to be against the statutory rules and thus, illegal and arbitrary. The applicants would also seek a writ in the nature of mandamus directing the respondents to amend the recruitment rules for the post of CDPO suitably and consider the case of the applicants for promotion to the post of CDPO.2. Brief facts on which the reliefs mentioned above are sought to rest, reveal that whereas applicant No. 1 is an Association of Supervisors, working in the Directorate of Social Welfare, Government of NCT of Delhi, applicant No. 2 Smt. Arun Lata Pathak is a directly affected party. The applicants, as mentioned, are aggrieved by advertisement dated 17.8.2007 by which 21 posts of CDPO have been proposed to be filled on contractual basis for a period of six months on consolidated salary of Rs. 12,000/- for which the date of screening has been fixed from 28.8.2007 onwards. It is the case of the applicants that in the year 1989 the respondents had framed the recruitment rules for the posts of CDPO/Superintendent, Assistant Child Development Project Officer (hereinafter to be referred to as ACDPO)/Deputy Superintendent and Supervisor/Welfare Officer under the proviso to Article 309 of the Constitution of India. The post of CDPO/Superintendent carries the pay scale of Rs. 2000-3200 (unrevised), the post of Deputy Superintendent/ACDPO carries the pay scale of Rs. 1640-2900, whereas the post of Welfare Officer/Supervisor carries the pay scale of Rs. 1400-2600 and Rs. 1400-2300 respectively. The post of CDPO/Superintendent, as per the recruitment rules, was required to be filled up from amongst Deputy Superintendent/ACDPO, and the post of Deputy superintendent/ACDPO was required to be filled up from amongst Welfare Officers Grade-II as well as Supervisors working in the office of the respondents. The post of supervisor/Welfare Officer Grade-II is the feeder cadre for the post of ACDPO/Deputy Superintendent. The post of Supervisor carried the pay scale of Rs. 1400-2300 and the post of Welfare Officer Grade-II was in the pay scale of Rs. 1400-2600, whereas the post of ACDPO carried the pay scale of Rs. 1640-2900. By virtue of order No. 69 dated 26.5.2000 (Annexure A-5), 52 posts of Supervisors (Women) were upgraded to the scale of Rs. 5500-175-9000 w.e.f. 1.1.1996 and in view of the aforesaid upgradation the Supervisors working in the office of respondents 2 and 3 were enjoying the same pay scale as of ACDPO/Deputy Superintendent. Same pay scale of feeder and promotional posts created some kind of anomaly, and that being so, it became necessary for the respondents to take some decision in the matter. In consideration to remove this anomaly, by virtue of notification dated 19.10.2006 (Annexure A-2) it was suggested that five sanctioned posts of ACDPO in the pay scale of Rs. 5500-175-9000 in various ICDS Projects would stand merged with existing sanctioned strength of Supervisors (Women) Grade-I. Supervisors (Women) working in the office of respondent No. 3 were already upgraded in the pay scale of Rs. 5500-9000 by virtue of the order dated 26.5.2000 (Annexure A-5) w.e.f.
1.1.1996. Both the cadres were thus enjoying the same pay scale but by virtue of notification dated 19.10.2006, these two cadres were merged into one. Inasmuch as, in view of the provisions contained in the recruitment rules under proviso to Article 309 of the Constitution, the posts of CDPO/Superintendent were required to be filled up from amongst ACDPOs/Dy. Superintendents and the aforesaid cadre was merged in the cadre of Supervisors (Women), it became necessary to amend the recruitment rules in a suitable manner. The cadre strength of CDPO which was 28 at the time of framing of the recruitment rules in 1989, was added by five more posts by virtue of letter dated 2.3.2006 (Annexure A-6), and five more posts of CDPO became available as five additional urban ICDS projects were approved by the Government of India. Vide letter dated 4.1.2007, Government of India approved for setting up of 16 additional ICDS projects with 1678 Anganwadi Centres under ICDS Scheme, and for this purpose 16 posts of CDPO were created with a stipulation that each new project would have one post of CDPO, one supervisor for 25 Anganwadi Centres, etc. In the manner aforesaid, Government of India approved 21 new projects with 21 posts of CDPO and 88 posts of Supervisors. The cadre of supervisors includes the post as held by the members of the applicant No. 1 Association. It is the case of the applicants that while issuing notification dated 19.10.2006 by which the post of ACDPO in the pay scale of Rs. 5500-9000 was merged with the cadre of Supervisors Grade-I in the scale of Rs. 5500-9000, there had to be an amendment in the statutory rules, for which purpose the applicant Association addressed a letter on 9.10.2006 (Annexure A-8) to the office of respondent No. 3 requesting for amendment of the recruitment rules for the post of Superintendent/CDPO. When the applicants did not receive any reply to the representation referred to above, they made successive representations thereafter on 5.2.2007, 27.4.2007, 25.7.2007 and 16.8.2007 seeking promotion to the post of CDPO and also for amendment of the recruitment rules. While so, the respondents, all of a sudden, invited applications to fill up 21 posts of CDPO for which the required educational qualification was the same as envisaged in the rules for the candidates seeking direct recruitment. This advertisement was issued on 17.8.2007 and the recruitment was to be made for a period of six months on the consolidated salary of Rs. 12,000/- per month. It is the case of the applicants that the method resorted to by the respondents in filling up 21 posts of CDPO on contractual basis by way of direct recruitment is highly prejudicial to their interest. They are holding the post of Supervisor Grade-I and working in the office of the respondents since 20-25 years and even more. The plea raised by the applicants is that instead of inviting applications from open market in accordance with the Government of India instructions as available in Establishment & Administration, respondents are resorting to fill up the vacancies on contractual basis, despite the fact that vide letter dated 20.5.1986 the Department of Women & Child Welfare had already mentioned that the posts of CDPO are required to be filled up from amongst the female Supervisors up to the extent of 75%. It is also the plea of the applicants that the post held by them constitutes a feeder cadre and till such time the recruitment rules are amended suitably, the post is required to be filled up on ad hoc basis, and after amendment of the recruitment rules the case of the applicants is required to be considered for regular promotion. Before approaching this Tribunal for the desired relief, the applicants submitted a representation in the office of respondent No. 1 on 21.8.2007 requesting for suitable action, but when their entreaties brought no tangible result, present Application for reliefs as indicated above has been filed.
3. Pursuant to notice issued by this Tribunal, respondents have entered appearance and by filing counter reply contested the cause of the applicant.
4. In the context of the basic averments having not been disputed, we may mention only such pleadings on the basis of which the claim of applicants has been contested. It is averred in the counter reply that contractual appointments have been resorted to so as to comply with the directions of the Hon'ble Supreme Court of India to operationalise all the Anganwadi Centres sanctioned by Government of India up to January, 2007 by 30.9.2007. The directions issued by the Hon'ble Supreme Court were conveyed to Government of India vide letter dated 10.7.2007. It is further the case of the respondents that no Court/Tribunal can direct the Government to frame statutory rules or amend the existing statutory rules under Article 309 in a specific manner so as to alter condition of service of civil servants. It is then pleaded that the applicants who are Supervisors, are not in the feeder grade to the post of CDPO as per the existing recruitment rules, which were notified on 20.3.1989.
As per existing recruitment rules, Dy. Superintendent/ACDPO are in the feeder grade of CDPO. Even though, the department had merged the posts of Dy. Superintendent/ACDPO with Welfare Officer/Supervisors, the pay scale of these posts became identical, i.e., Rs. 5500-9000 in view of the recommendations of the 5th Central Pay Commission, and the merger notification was also issued on 19.10.2006 and the department has already initiated the proposal for amending the recruitment rules of CDPOs for induction of Supervisors/Welfare Officers in the feeder grade, but till such time the rules are amended, ad hoc promotions cannot be made. The respondents then plead that they have absolutely no choice but to resort to contractual appointments on the posts advertised. The directions issued by the Hon'ble Supreme Court have necessarily to be complied with, failing which they would be liable for prosecution or for initiation of contempt proceedings. It is then pleaded that some officers are already there who are working on ad hoc basis who cannot be regularized due to pendency of OA No. 944/2001: S.R. Gupta & Others, in which the Tribunal has granted stay.
5. We have heard the learned Counsel representing the parties and with their assistance, examined the records of the case.
6. In the context of the pleadings of parties, as fully reflected above, we have to first necessarily find out the directions issued by the Hon'ble Supreme Court, which alone, as per the stand of the respondents, constrained them to resort to appointment on contractual basis to the post of CDPO on consolidated salary of Rs. 12,000/-. The judgment of the Honble Supreme Court has been placed on record by the respondents. Perusal of the same would show that grievance of the petitioners in the case titled People's Union for Civil Liberties v.Union of India and Ors. [WP(C) No. 196/2001, decided on 9.7.2007] was that number of Anagnwadi Centres which were required to be sanctioned by December, 2008 was 14 lakhs, whereas the number of Centres sanctioned as on March, 2007 was 10.53 lakhs. In the manner aforesaid, about 3.47 lakhs Centres were required to be sanctioned. The number of Anganwadi Centres which were operational as on 30.9.2006 was 7.81 lakhs. That being so, even the sanctioned Centres had not become operational by the end of December, 2006. By 31.3.2005 7,64,709, by 30.9.2006 9,46,000 (approx.) and by December 2006 1.02 lakhs Centres had been sanctioned with a total of 10,48,000. In the wake of facts as mentioned above, some directions were issued by the Hon'ble Supreme Court on 13.12.2006 which have been mentioned in the order passed in the aforesaid Writ Petition, copy of which is annexed with the counter reply. The Hon'ble Supreme Court then referred to its order dated 7.10.2004 by which importance of Anganwadi Centres was highlighted. By referring to said order and circumstances prevailing, as reflected in various orders, as mentioned above, the Hon'ble Supreme Court observed that the backlog has to be cleared immediately and the Centres which have been sanctioned up to September, 2006 shall be made operational and functional by 15.7.2007 in the case of all States except the State of U.P. where the last date is fixed to be 31.7.2007. Centres which had been sanctioned up to January, 2007 were to be made functional by 30.9.2007. It has been made clear that if there is any non-observance of the time period fixed, the same would be seriously viewed.
Affidavits were to be filed by 20th July, 10th August and 10th October, 2007 by the States in respect of the date lines fixed indicting the action taken. The case of the respondents is that the posts advertised by Annexure A-1 pertain to only sanctioned strength of Centres which have to be made operational and they have no option but to strictly adhere to the directions issued by the Apex court.
7. Having seen the circumstances in which the respondents resorted to appointments on contractual basis on consolidated salary, it is now time to find out the position in the statutory rules and the orders of merger of some posts referred to above.
8. The case of the applicants, which is not disputed, is that as per the recruitment rules of 1989, Supervisor is the feeder post for promotion to ACDPO, whereas the post of ACDPO is the feeder post for promotion to CDPO. Vide order dated 26.5.2000, 52 posts of Supervisors (Women) were upgraded to the scale of Rs. 5500-9000 and, therefore, 52 Supervisors (Women) were placed in the grade of Supervisor Grade-I, which, as mentioned above, was in the scale of Rs. 5500-9000. This order was to take effect from 1.1.1996. The names of all 52 Supervisors upgraded in the scale admissible to Supervisors Grade-I have been mentioned in the order dated 26.5.2000 (Annexure A-5). It further appears that the post of ACDPO which is the promotional post to Supervisor, had the same pay scale, as would be made out from notification Annexure A-2 dated 19.10.2006. The notification aforesaid mentions that the Fifth Central Pay Commission upgraded the pay scale of Welfare Officer (Grade-II)/Probation Officer (Grade-II) and Prison Welfare Officer as well as upgraded 52 posts of Supervisor (Women) as Supervisor (Women) Grade-I bringing them at par with the pay scales of Dy. Superintendent/P.O. Grade-I, etc, which is the promotional post for these posts, and that had created anomaly. So as to remove the anomaly, the respondents took two decisions as conveyed through the same very order. In the present case, we are concerned with the second decision, which reads as follows: That the 05 (five) sanctioned posts of Asstt. Child Development Project Officers in the pay scale of Rs. 5500-175-9000/= in various ICDS Projects as per the annexure shall stand merged with existing sanctioned strength of Supervisor (Women) Grade-I. 9. Vide order dated 2.3.2006, five additional Urban ICDS Projects under the ICDS Scheme were approved in the State of NCT of Delhi.
Each new project required one post of CDPO, one Supervisor for 25 AWCs, on an average, one Assistant/Statistical Assistant, one Clerk/Typist, and one Peon. Five posts of CDPO were sanctioned vide order referred to above. On 4.1.2007 (Annexure A-7) respondents sanctioned additional 16 ICDS Projects and 1678 AWCs under the ICDS Scheme, and for that purpose, 16 posts of CDPO. In the manner aforesaid, 21 posts of CDPO have become available pertaining to sanctioned strength and there would be no doubt whatsoever that pursuant to orders passed by the Hon'ble Supreme Court, 21 posts of CDPO have to be filled and that too before the cut off date.
9. From the facts as culled out above, it would clearly emerge that the respondents have no other option but to make appointments on 21 posts of CDPO, besides other appointments, with which, we may, however, have no concern. There can be no manner of doubt that appointments have to be made and only then the Anganwadi Centres can be operational, but the significant question that arises is as to whether by resorting to direct recruitment and that too on contractual basis for a period of six months on consolidated salary, any right of the applicants has been infringed. With a view to find out an answer to the question as posed above, the method of recruitment to the post of CDPO under the statutory rules shall have to be seen.
10. The post of CDPO has been shown at Sl. No. 33 in the recruitment rules of 1989. Method of recruitment mentioned in column 11 is (i) by promotion failing which by transfer on deputation and failing both by direct recruitment 25%; (ii) by transfer on deputation failing which by direct recruitment 25%; and (iii) by direct recruitment 50%. Column 12 dealing with promotion would reveal that the feeder posts for promotion to the post under contention are Dy. Superintendent, Assistant Superintendent (Children Home), Inspector, Social Welfare, and Asstt.
Child Development Project Officer. What clearly transpires from the statutory rules is that 25% of the posts have to be filled up by promotion. We may straightway mention at this stage itself that the applicants cannot stake claim for more than 25% posts of CDPO as advertised by Annexure A-2 advertisement, as surely, under the existing rules the quota for promotion is fixed at 25%. Confronted with the position aforesaid, Shri G. D. Gupta, learned Senior Advocate appearing on behalf of the applicants, was fair enough to state that he would not plead for more than 25% seats earmarked for promotees under the existing statutory rules. The position being as mentioned above, there can be no valid objection whatsoever if the respondents are resorting to direct recruitment even on contractual basis for a fixed period on a consolidated salary, insofar as the 16 posts are concerned. The claim of the applicants is only for 5 out of 21 seats advertised vide Annexure A-1. For these 5 seats the applicants have a definite claim for consideration. The only objection of the respondents that the statutory rules have not been amended so far even though the category of employees who can be considered for promotion would include the applicants as well, inasmuch as, their posts have been merged with the feeder post of ACDPO, cannot be accepted. The respondents cannot profess to negate a benefit that might have accrued to the employees and, particularly the applicants, from merger of their post with the feeder post of ACDPO, from which promotion is made to the post under contention, by taking a technical plea that so far the statutory rules have not been amended. The stand taken by the respondents, in the circumstances, would be wholly unfair. The applicants are waiting for promotion for the last more that 20-25 years. The pay scale of the two posts has become equivalent since long and the merger of the two posts has also been done. Assuming that such a technical objection is permissible under law, even though not justifiable under the facts and circumstances of the case, the respondents could well make ad hoc promotions at least to the extent reserved for the quota of promotees, instead of resorting to contractual appointment for a limited period.
Assuming further that pending amendment to the rules, a technical objection like the one as mentioned above, is permissible, then also the respondents ought to have made promotion at least of those persons who were holding the post of ACDPO. From the facts as narrated above, it is conceded position that five employees were holding the post of ACDPO when the merger took place. If, therefore, pending amendment to the rules, only existing rules had to be adhered to, there would have been no choice for the respondents but to promote those who are holding the post of ACDPO, which post is now merged with the post of the applicants. Looked from any angle, thus, resort to direct recruitment on all the posts including the quota of promotees would be unfair and arbitrary. We are conscious that the respondents are resorting to contractual appointment for a period of six months by way of direct recruitment which may not vest any right with those who may be selected, and, therefore, after amendment in the rules, the case of the applicants can be considered for promotion to the post of CDPO, but would it be fair not to give even ad hoc promotion to the applicants to the extent of their quota under the existing rules? We are of the firm view that those who are awaiting promotion for more than two decades cannot be deprived of their right under statutory rules. That being so, the respondents had to necessarily promote at least five employees holding the post of ACDPO if they were to go strictly by the existing rules, or to give effect to the merger order passed by them, by at least giving ad hoc promotion to the employees having now an equal status under the order of merger.
11. The only other objection raised either in the pleadings or during the course of arguments is that no regular appointments can be made as even now whatever promotions are being made, are on ad hoc basis, due to operation of the stay granted by the Tribunal in OA No. 944/2001. No details of the case aforesaid have been given in the pleadings. On enquiry with regard to the nature of the case, Shri Gupta informs us that the said case only pertains to quota of promotion. He states that at one point of time the quota of promotees was 75% which was reduced to 25%. The only plea raised in the OA aforesaid is that vacancies that became available prior to reducing the quota of promotees have to be filled as per quota of promotees, i.e., 75% and the stay granted by the Tribunal is only to that extent. This factual position is not refuted by Shri Vijay Pandita, the learned Counsel representing the respondents.
12. In view of the discussion made above, by observing that the direction issued by the Hon'ble Supreme Court for filling up 21 vacant posts of CDPO and make the Anganwadi Centres operational, has to be necessarily complied with, we direct the respondents to finalise amendment to the statutory rules of 1989 for which the process is already on, as expeditiously as possible, and preferably before expiry of term of ad hoc employees who are going to be appointed pursuant to the advertisement Annexure A-1. Out of 21 posts advertised vide Annexure A-1, the respondents may fill 16 posts, but insofar as 5 posts are concerned, the same will be filled by promotion. If the respondents may like to await amendment in the rules despite the order of merger, then in that case, those who are admittedly holding the posts of ACDPO may be considered for promotion. If, however, the respondents may consider it more appropriate to give effect to the order of merger, they can resort to ad hoc promotions on five posts, which may be from amongst those whose posts have now merged with the post of ACDPO.Inasmuch as, the time granted by the Hon'ble Supreme Court to make the Anganwadi Centres operational is to expire on 30th September, 2007, if the respondents for some valid reasons are unable to make ad hoc promotions, as mentioned above, on five posts at least, they may resort to appointing all 21 persons on contractual basis, as mentioned above, but in that case, the last five candidates who may be selected, be told in writing by mentioning in their letters of appointment that tenure of their service would be till such time persons from the feeder posts are promoted. The respondents would endeavour their very best to make ad hoc promotions as early as possible and preferably within a period of two months, in that event. By this method, the directions issued by the Hon'ble Supreme Court would be definitely complied with and the rights of the applicants shall also be protected.
13. The Application is partly allowed to the extent as indicated above.
Parties shall, however, bear their own costs.