R.K. Mann and Others Vs. Union of India and Others

ORAL:

G. George Paracken, J.

1. The Applicants are Assistant Malaria Inspectors. Their next promotional post is Malaria Inspector. At present, they are governed by the ‘Recruitment Regulations, for the post of Malaria Inspector in the Health Department of Municipal Corporation of Delhi’ notified vide No.F2/210/75-LSG dated February 1976 (1976 Rules for short). According to the said Recruitment Rules, the educational qualification for promotion to the post of Malaria Inspector is ‘Matriculation with Science’. However, the Respondent-MCD in terms of the provisions contained Section in 98 of the Municipal Corporation of Delhi Act, proposed draft Recruitment Rules to amend the ‘1976 Rules’. By the proposed amendment, the educational qualification for the post of Malaria Inspector contained in 1976 Rules as has been prescribed as only ‘Matriculation’. In other words, the MCD wanted to remove the word ‘Science’ for the 1976 Rules in which the prescribed educational qualification was ‘Matriculation with Science’. Thus the ‘educational and other qualifications required for direct recruitment’ in the existing Recruitment Rules for the post of Malaria Inspector in Municipal Corporation of Delhi and in the proposed amended Rules are as under:

Existing notified Recruitment Rules Proposed Recruitment Regulations:

“(i) To direct the respondents to notify the amended recruitment rules for the post of Malaria Inspector, which was sent to respondent no.2 by MCD vide letter dated 20/3/98 for notification in Delhi Gazette, within a fixed time period.

(ii) To direct the respondents to follow the Draft Rules as was being previously done after the Draft Rules were approved by the concerned authorities.

(iii) Award costs and

(iv) Pass any other order/direction as may be deemed just and proper in the facts and circumstances of the case.”

3. According to the applicants, the respondents have been operating the proposed amended regulation without Notification in the Official Gazette for the last several years and number of Assistant Malaria Inspectors without having the essential qualification of ‘Matric with Science’ have been promoted as Malaria Inspectors. Some of the aggrieved Assistant Malaria Inspectors have challenged aforesaid action on the part of the M.C.D.before this Tribunal in TA No.110/2009 in the case of M.S.Yadav and Others vs. Commissioner of MCD and Others and the same was decided by this Tribunal on 17.11.2009 with the following directions:

“8. We leave it to the Respondent-MCD to deal with those category of officials, who have been wrongly promoted. However, in so far as the Applicants are concerned, their promotion cannot be deferred for years together because of the illegality committed by the Respondent-MCD. We, therefore, direct that the Respondents would consider the Applicants for promotion to the grade of MI from the years from which they would become eligible for promotion under the properly notified Recruitment Rules, which were in force at the relevant time. The Applicants would thereafter be considered for further promotion after acquiring eligibility for promotion to SMI etc. The promotions so granted to the Applicants would be notional and they would not be eligible for back wages but it would be counted towards calculation of increment and pension. The aforesaid directions would be complied with within a period of four months from the date of receipt of a certified copy of this order. No costs.”

4. Again another set of Assistant Malaria Assistant Inspectors have approached this Tribunal challenging the aforesaid action of the Respondent in OA 2976/2009 in the case of Mahavir Prasad, AMI and Others vs. Commissioner of MCD and Others which was decided on 17.02.2010 and its operative part is as under:

“2. In light of above, though there is specific resistance on part of the respondent’s counsel, who states that necessary parties have not been made, as the applicants are batch of the candidates who are identically situated, cannot deprived of the dicta in M.S. Yadav’s case (supra). Accordingly, OA is disposed of with a direction to Respondents to extend the benefit of the decision in M.S. Yadav’s case to the applicants as well and their claim be accordingly on the methodology stated in M.S.Yadav’s case shall processed.”

5. The Respondent-MCD has filed its reply stating that it has already taken necessary action to promote the Assistant Malaria Inspectors in accordance with the existing Recruitment Rules. They have also convened a Department Promotion Committee for that purpose. However, this Tribunal at the admission stage of this Original Application has stayed the DPC proceedings on the submission of the learned counsel for the applicants vide order dated 29.10.2010.

6. When this case was taken up for disposal today, the learned counsel for the Applicants has submitted that the draft recruitment regulation has already been sent to the Department of Urban Development, Govt. of NCT of Delhi, which is the concerned authority, to notify the same in the Official Gazette. However, there were some discrepancies in the draft Recruitment Regulation and those discrepancies have to be removed before it is notified.

7. The learned counsel for the NCT of Delhi, on the other hand, has submitted that they have been requesting the MCD to send them a fresh proposal as the existing proposal sent to them was not in accordance with the requirements contained in the DoPandT OM dated 24.03.2007. The said letter reads as under:

“GOVERNMENT OF NCT OF DELHI

DEPARTMENT OF URBAN DEVELOPMENT

10TH LEVEL, DELHI SECTT.

I.P., ESTATE: NEW DELHI

F.No. 19/1/98/UD/RRs/PF/3120                          Dated: 24/2/2010

To

The Deputy MHO,

Malaria and OVBM

Municipal Corporation of Delhi

G-74 Connaught Place, New Delhi.

Sub:- Notification of RRs for the post of Malaria Inspector.

Sir.

I am directed to invite your kind attention to the proposal for amendment in recruitment regulations for the post of Malaria Inspector, wherein it has been clarified for the column No.12 i.e. ‘In case of recruitment by promotion/ department/ transfer, grades from which promotion/deputation/transfer to be made’. In the provision regarding column No.12 the grade pay of feeder cadre has not been mentioned and the qualifying service for promotion from Asstt. Malaria Inspector to Malaria Inspector is not according as per the OM No. AB.14017/61/2008-Estt. (RR) Dt. 24.3.2009 of Do PT. It is also noted that your department has not supplied the schedule for the above said post.

It is requested to clarify the same and provide a fresh proposal in view of above said OM dt.24/03/2009 along with Fresh Notification, Schedule, Relevant Resolution (English and Hindi version) in hard and soft copy. An early reply will enable this department to process the further in this matter.

                                                                                   Yours faithfully,

Encl: As above.                                                                         (K.K.Syal)

                                                                                Dy. Secretary(MB)”

8. They have also sent a reminder to the MCD vide letter dated 07.02.2011. The said letter reads as under:

“DEPARTMENT OF URBAN DEVELOPMENT

10TH LEVEL, DELHI SECTT.

I.P., ESTATE: NEW DELHI

                                                                             REMINDER-1

F.No. 19/01/98/UD/RRs/PF/1285-1286                  Dated: 24/2/2010

To

The Deputy MHO,

Malaria and OVBM

Municipal Corporation of Delhi

G-74 Connaught Place, New Delhi.

Sub:- Notification of RRs for the post of Malaria Inspector.

Sir.

I am directed to refer to this Office letter of even No. 19/01/98/UD/RR/PF /3120 dated 24/02/2010 along wtih U.O. No. 14(4)/09-RN/2151/86 dated 29/12/2009 from Raj Niwas regarding proposal for amendment in recruitment regulations for the post of Malaria Inspector (copy enclosed for ready reference). However, the matter has not responded so far. It is once again requested to examine the matter and furnish the requisite information to this department at the earliest.

                                                                             Yours faithfully,

Encl: As above

Sd/-

                                                          (Jyoti Seth)

 Deputy Secretary(MB)

 Urban Development Department

Copy for information to:

Additional Commissioner (Health), MCD, Municipal Corporation of Delhi, Civic centre building, Aruna Asif Ali Road, Near Zakar Husain College, New Delhi for necessary action please.

                                                                    Sd/-

                                                          (Jyoti Seth)

 Deputy Secretary(MB)

 Urban Development Department”

9. We have heard the learned counsel for the parties. Now the latest position that is emerging is that there is no dispute that promotion for the post of Assistant Malaria Inspector to that of Malaria Inspector should not be stopped because of the pendency of proposed amendment in rules in view of the orders passed by this Tribunal in TA No. 110/2009 (supra) and in OA No. 2976/2009 (supra). There is also no doubt that the appointments have to be made in accordance with the existing Recruitment Rules till the amended Recruitment Rules are notified. Therefore, we vacate the stay order passed by this Tribunal on 29.10.2010 for making promotions to the post of Malaria Inspectors from the qualified Assistant Malaria Inspectors as per the existing Recruitment Rules of 1976. It is also seen from the order of this Tribunal in TA No.110/2009 (supra) it was left to the Respondent-MCD to deal with those category of officials, who have been wrongly promoted in accordance with the proposed amendment in existing Recruitment Rules, which have not so far been notified.

10. In the above facts and circumstances of the case and with the consent of the parties, we dispose of this OA with liberty to the respondent-MCD to hold Departmental Promotion Committee to promote the Assistant Malaria Inspectors to the post of Malaria Inspectors in accordance with the existing Recruitment Rules of 1976. However, the Respondent-MCD shall consider the proposed draft Recruitment Regulations which are yet to be notified and take a decision as to whether they are to be notified or not. In case they decided to notify those draft Recruitment Rules, they shall take necessary steps to do so as expeditiously as possible but preferably within a period of six months.

11. The learned counsel for the applicants has, however, submitted that if the respondents are granting relaxation in the matter of educational qualification, the problem being faced by the Applicants will get solved automatically. In this regard, we do not like to interfere. However, it is for the Applicants to make suitable representation to the respondent-MCD to relax provisions regarding the educational qualification contained in the existing Recruitment Rules. If such a representation is received, the respondent-MCD shall consider the same and pass appropriate orders in accordance with the rules preferably within a period of 2 months from the date of receipt of a copy of the order. With the aforesaid directions, this Original Application is disposed of.

12. There shall be no order as to costs.