Full Judgment
V.K. Bali, Chairman:
1. In hand for disposal is Original Application No.3171/2010 filed by Dr. Alok Kumar Singh and three others, including Dr. Ashish Priyadarshi (3rd applicant), as also two misc. applications bearing MA Nos.2615/2011 and 2616/2011 in Transferred Application (TA) No.913/2009 seeking setting aside of order dated 12.10.2009 allowing the TA aforesaid, styling it as an ex parte order; and seeking condonation of delay in filing the said application. The two misc. applications referred to above have been filed only by Dr. Ashish Priyadarshi, the 3rd applicant arrayed in OA No.3171/2010, even though it is not in dispute that all the applicants were party respondents in TA No.913/2009.
2. This Tribunal disposed of TA No.913/2009 filed by Ranbir Singh, arrayed as 3rd respondent in the present OA, vide order dated 12.10.2009. Ranbir Singh had initially filed a writ petition in the High Court of Delhi, which came to be transferred to this Tribunal and was numbered as TA No.913/2009. He was at that time looking after the charge of Deputy Director and had sought consideration of his promotion as Assistant Director (Horticulture) with effect from 2002, and further consideration for promotion as Deputy Director on regular basis as per recruitment rules. It was his case that he had completed the required number of years in service for consideration for promotion on the post as mentioned above. The operative part of the order reads as follows:
“4. In the light of above, we dispose of this TA with a direction to the respondents to hold a review DPC and consider the case of the applicant for promotion as Assistant Director w.e.f. 2002 and if he is found suitable on deemed eligibility be promoted on notional basis along with his juniors and colleagues w.e.f. 2002 and thereafter he shall also be considered on eligibility as per the recruitment rules for the post of Deputy Director. No costs.”
Pursuant to the orders as mentioned above, the respondents vide order dated 12.05.2010 promoted Ranbir Singh on the post of Assistant Director (Horticulture) in the pay scale of Rs.6500-10500 (pre-revised) on regular basis with effect from 02.09.2002 retrospectively, i.e., with effect from the date of original DPC. Two others, namely Dev Chand Singh and Bhaginder Prasad also came to be appointed on the same post as Ranbir Singh, vide the same order. It is this order which has been challenged by the applicants in the present OA. It appears that since the applicants were respondents in TA No.913/2009, and would apprehend that unless the impugned order dated 12.05.2010 passed in consequence of the orders passed by this Tribunal in TA No.913/2009 is set aside, it may not be possible for them to obtain any relief in OA No.3171/2010, one of them, namely, Dr. Ashish Priyadarshi, has filed two misc. applications referred to above in TA No.913/2009. We may, however, mention that it is the case of the applicants as well that even if the order passed by this Tribunal in the TA aforesaid is not to be set aside, yet, inasmuch as the directions given by this Tribunal were to consider promotion of Ranbir Singh in accordance with the recruitment rules, and inasmuch as, Ranbir Singh would not be eligible under rules for promotion, they would succeed in any case, i.e., without even seeking setting aside of the order dated 12.10.2009 passed in the TA, and, therefore, the misc. applications referred to above, it appears, have been filed by way of abundant caution. Vide a detailed order dated 13.10.2011, the OA and the MAs were ordered to be listed together for disposal.
3. Before we may advert to the facts of the case, we may mention at the very outset that the applicants appear to be right in their approach that if the promotion of Ranbir Singh, the 3rd respondent arrayed in the OA, is against rules, and the direction given by this Tribunal in the TA aforesaid is that he be considered for promotion as per rules, it would not make any difference as to whether or not the order passed by this Tribunal in the TA is set aside. However, since the misc. applications have been hotly contested, it would be appropriate to give a decision thereon. We may, however, first advert to the facts of the case culminating into filing of the OA.
4. In the OA, which came to be amended during its pendency, it has inter alia been pleaded that the applicants are employees of Municipal Corporation of Delhi and were appointed as direct recruit Assistant Director (Horticulture) as per dates given in para 4.1 of the OA. They are all holders of degree of Bachelor of Science in Agriculture, which is a technical degree and the students thereof acquire specialized knowledge of horticulture. It is the case of the applicants that the Horticulture Department, where they have been working, is responsible for propagation of plants and nurseries, maintenance and development of different kinds of gardens and parks, tree plantation and beautification of the city, and that keeping in view the nature of duties in the department, knowledge and study of horticulture is an essential requirement for its employees, and, therefore, for the post of Section Officer, the recruitment rules lay down a degree in Agriculture or in Science with Botany as an essential subject and experience in the field of Ornamental Horticulture/Landscaping Gardening as a desirable qualification. However, for the higher posts beginning from Assistant Director (Horticulture), which post the applicants are occupying, the essential qualification is either a degree in Agriculture of Botany with Horticulture as a special subject of a recognized university or an equivalent diploma in Horticulture. The post of Assistant Director (Horticulture) was earlier known as Assistant Superintendent Garden, and the post of Deputy Director (Horticulture) was earlier known as Deputy Superintendent Garden. Keeping in view the necessity to have persons with knowledge of horticulture in senior posts, the respondents are proposing to have revised recruitment regulations for the posts of Assistant Director and Deputy Director, and these proposed recruitment regulations also make a degree in Horticulture/Agriculture/Forestry as an essential qualification. Copy of the proposed recruitment regulations for the said posts has been placed on records as Annexure A-3 (colly.). Insofar as respondent Ranbir Singh is concerned, the case of the applicants is that he is a holder of degree of Botany without having any knowledge of Horticulture. Insofar as the applicants are concerned, as mentioned above, they are holders of degree in Science in Agriculture, which degree, as per the case set up by them, would include the study of Horticulture/Gardening in their study. The final marks-sheet of the 1st applicant showing the subjects studied during degree in Agriculture has been annexed as Annexure A-5, which reads as follows:
“a) Agricultural Engineering
b) Plant Pathology and Microbiology
c) Agricultural Economics
d) Entomology
e) Bio-Chemistry
f) Soil and Water Conservation
g) Live Stock and Poultry Production
h) Extension
i) Education and Community Development”
It is further the case of the applicants that the essential qualifications in the recruitment rules clearly specify the need to have specialization in Horticulture, which is the industry and science of plant cultivation. Horticulture work includes research in cultivation, crop production, plant breeding and genetic engineering, plant biochemistry and plant physiology. The work particularly involves fruits, berries, nuts, vegetables, flowers, trees, shrubs and turf. The applicants have referred to eight areas of study in Horticulture in para 4.6 of the OA. It is then the case of the applicants that a person holding degree in Botany cannot have the specialization in Horticulture, whereas a person like the applicants, holding degree in Agriculture studies not only Botany, but all the major aspects of Horticulture, because botany is a science and is the study of how plants grow and live, and further that Botany is a basic science where the botanists look more at basic morphology, whereas Horticulture is an advanced since where emphasis is laid on practical application, and Horticulture like land plant propagation. Horticulture is a sort of the art of plant growing, blending things like environmental needs, plant compatibility, hybridization etc., whereas, Botany is the scientific study of plant life. It is then the case of the applicants that the official respondents have been wrongly promoting ineligible persons, including the 3rd respondent, on the posts of Assistant/Deputy Director (Horticulture) during the last two years, and, therefore, some Section Officers with look after charge filed an Original Application bearing OA No.2079/09 in this Tribunal challenging the action of the respondents in promoting ineligible persons as Assistant/Deputy Director, but when the said OA came up for final hearing, the Tribunal was of the view that the applicants in the said OA were not eligible to challenge promotions to the rank for which they themselves were not eligible, and hence the OA was dismissed as withdrawn vide order dated 15.07.2010, with liberty to eligible/effective persons to file a fresh OA. The 3rd respondent, it is pleaded, has been regularized as Assistant Director w.e.f. 07.02.2007 and was junior to all the applicants, but vide a review DPC held on 10.05.2010, the official respondents, in pursuance of order dated 12.10.2009 passed by the Tribunal in TA No.913/2009, have, despite noticing the fact that the 3rd respondent would not fulfill the qualification a per the recruitment rules, granted promotion to him as Assistant Director w.e.f. 02.09.2002, and thereafter also granted him promotion as Deputy Director w.e.f. 12.05.2010 on ad hoc basis. Promotion of the 3rd respondent on the post aforesaid is stated to be de hors the recruitment rules, and that the official respondents failed to appreciate that the Tribunal had specifically directed that the review DPC would consider the case of the respondent for promotion as per recruitment rules, and have promoted him despite his being ineligible. It is the case of the applicants that earlier the respondent MCD vide resolution dated 12.08.2004 took a decision to modify the recruitment rules for the post of Assistant Director (Horticulture) and the said proposed modified recruitment rules though received the concurrence of UPSC on 11.03.2008, yet were never notified, and that the applicants verily believe that the Hon’ble Lt. Governor, Delhi has declined to give his approval thereto. However, the Corporation thereafter initiated steps for fresh amendments in the notified recruitment rules for various posts in the Horticulture Department, including the post of Assistant Director (Horticulture) and Deputy Director (Horticulture). A copy of the proposed recruitment rules has been placed on records as Annexure A-8 (colly.). It is the case of the applicants that a glance at the proposed recruitment rules would manifest that Horticulture/Agriculture is the main subject as essential eligibility criteria for all the posts in the Horticulture Department, and degree in Botany without degree or diploma in Horticulture/Agriculture would be irrelevant criteria, and has not been even shown in the proposed amendments, for all the posts in Horticulture Department. It is then pleaded that the office of Accountant General (Audit), Delhi, vide its audit memo dated 24.01.2011, submitted its report to Deputy Director (Horticulture), MCD, pertaining to irregularities and illegalities committed by the respondent MCD in holding review DPC in respect of the 3rd respondent, wherefrom it would be evident that while holding the review DPC, the respondent MCD knowing that the 3rd respondent would not be eligible, has in an arbitrary and illegal manner recommended him for promotion, which would be unlawful and contrary to the provisions of Section 96 of the DMC Act and relevant regulations. It is on the facts as fully detailed above that a prayer has been made to set aside the order dated 12.05.2010 promoting the 3rd respondent on the post of Assistant Director (Horticulture). Prayer during the course of arguments is also to set aside the promotion of the 3rd respondent on the post of Deputy Director (Horticulture).
5. Pursuant to notice issued by this Tribunal, two sets of counter replies, one on behalf of the official respondents and the other by the 3rd respondent, have been filed. Inasmuch as the reply filed on behalf of all the respondents is on common grounds, and the one filed by the 3rd respondent is more in detail, wherein some additional pleas have also been raised, we may first refer to the reply filed on behalf of the 3rd respondent. By way of preliminary objections, it has been pleaded that the OA would not be maintainable. The applicants in the OA have stated that they are holders of degree of Bachelor of Science in Agriculture. It is pleaded that it is not their case that they are holders of degree in Agriculture of Botany with Horticulture as a special subject. It is the case of the respondent that the applicants have placed on record the recruitment regulations for the post of Assistant Director (Horticulture), and as per the said regulations, the essential requirement for being qualified for direct recruitment is degree in Agriculture or Botany with Horticulture as a special subject. The respondent further pleads that the applicants themselves would not fulfill the minimum eligibility criteria for being appointed as Assistant Director (Horticulture), and as such, cannot be permitted to raise the issue as regards his appointment being in violation of the recruitment rules. It is then pleaded that the applicants have made mis-representations, and inasmuch as they have not come before this Tribunal with clean hands, the OA needs to be dismissed. The other preliminary objection raised is that MCD has appointed the 3rd respondent to the post of Assistant Director (Horticulture) in the year 2007, and the applicants were well aware of the 3rd respondent being in the seniority list of Assistant Director (Horticulture), and that they have suppressed this material fact from this Tribunal. The 3rd applicant, Dr. Ashish Priyadarshi, is further stated to have suppressed a material fact from this Tribunal, inasmuch as the said applicant had filed an affidavit in OA No.2079/2009 titled Narender Singh and others v MCD and others, wherein it was clearly stated that the cause of action for the applicants therein had arisen during 2005-2007, as also that the recruitment rules for the post of Assistant Director (Horticulture) had been modified vide resolution dated 12.08.2004 whereby the recruitment rules have been modified and have been substituted with a new clause which reads as follows:
“Degree in Agriculture or Degree in Science with Botany as a subject from a recognized University or equivalent.”
It is pleaded that the 3rd applicant being conscious of the factum of the said position has submitted wrong facts before this Tribunal, and is thus liable to be punished for perjury. The other applicants being party to the OA and being in the know of the said fact are stated to be guilty of suppression of material facts. The OA is also said to be barred by limitation, inasmuch as the respondent was appointed on the post of Assistant Director (Horticulture) in February, 2007 on regular basis, and the applicants being aware of the promotion of the respondent, filed the OA only in September, 2010. It is then pleaded that objections to the seniority list were invited and on consideration of the objections, the 3rd respondent has been placed in senior position to that of the applicants. The applicants are stated to have not filed any application seeking condonation of delay either. The factual matrix stated by them is stated to be incorrect. Referring to the writ petition which came to be transferred to this Tribunal, it is mentioned that he had challenged regularization of his promotion as Assistant Director (Horticulture) only with effect from 07.02.2007 as he was eligible and was entitled to be appointed as such with effect from 07.07.2000. On transfer of the writ petition to it, the Tribunal considered the plea raised by the 3rd respondent, inasmuch as he was not considered by in DPC held for promotion to the post of Assistant Director (Horticulture) in the year 2002. The Transferred Application was allowed by the Tribunal vide order dated 12.10.2009 with directions as already mentioned above. The order, it is stated, has become final. On the basis of the order passed by the Tribunal, DPC was held and the name of the respondent was recommended for promotion with effect from 31.12.2002, and accordingly, he was appointed on the said post from the said date. It is pleaded that the applicants were appointed in the year 2005 and would thus rank junior to him. It is further pleaded that the applicants have shown themselves as Deputy Director (Horticulture) in MCD, but in fact, they have been given only current duty/look after charge of the said post. As regards rules, it is the case of the 3rd respondent that the same were formulated, and under the head educational and other qualification, it has been incorporated as follows:
“Degree in Agriculture of Botany with Horticulture as a special subject of a recognized University or equivalent Diploma in Horticulture of a recognized University/Institution.”
It is pleaded that the said recruitment rules were considered by MCD and it was considered that the same were not in consonance with the degrees being given by universities, inasmuch as there is no degree as B.Sc. Agriculture or Botany with Horticulture as a special subject, and the degrees available are only B.Sc. Agriculture or B.Sc. Botany, and even in B.Sc. Agriculture, there is no special subject as Horticulture, and that the term ‘special subject’ would mean a subject which is taught as a special subject in B.Sc., and it cannot be considered as the other topics which are taught in B.Sc., meaning thereby it is something special. It is the case of the respondent that the applicants would also be unable to prove and substantiate before this Tribunal that there is any degree such as B.Sc. Agriculture with Horticulture as a special subject, and that taking into consideration the aforesaid anomaly, the recruitment rules were considered for modification and accordingly resolution dated 12.08.2004 came to be passed by MCD, vide which the eligibility under the recruitment rules was substituted with a new clause, which reads as under:
“Degree in Agriculture or Degree in Science with Botany as a subject from a recognized University or equivalent.”
The said modified recruitment rules were forwarded to UPSC for concurrence, which granted its concurrence on 11.03.2008, whereafter the case was sent to the Urban Development Department of the Government of NCT of Delhi for publication. It is pleaded that the ministerial act of only publication is awaited but insofar as the recruitment rules are concerned, the same have been approved by UPSC and concurrence given on 11.03.2008. It is the case of the 3rd respondent that the rules have been amended and he cannot be said to be ineligible under the recruitment rules. The said submission, it is pleaded, is without prejudice to the submission made by him that even in terms of the existing rules he would be eligible as he has degree of B.Sc. in Botany from a recognized university, and that the phrase in the recruitment regulations ‘with Horticulture as a special subject’ is inconsequential inasmuch as, there is no university which grants the degree in Agriculture with Horticulture as a special subject, or degree in Botany with Horticulture as a special subject.
6. Reply on merits is by and large reiteration of the preliminary objections raised by the 3rd respondent, as mentioned above. The respondent, however, on merits also pleads that inasmuch as all the applicants were party respondents in the TA aforesaid and were served, but would not put in appearance nor would object to the claim of the respondent, present OA would need dismissal.
7. Insofar as the official respondents are concerned, their reply, as mentioned above, is on the same lines. However, the primary defence projected by the respondents as regards eligibility for appointment on different posts is stated to be as follows:
“3. That in this context the respondent No.1 submits that in the hierarchy of Horticulture cadre in MCD, Section Officers (Hort.) are promoted to the post of Asstt. Director (Hort.) {earlier known as Asstt. Superintendent (Gardens)}, and further to the post of Dy. Director (Hort.) {earlier known as Dy. Superintendent (Gardens)} in accordance with concerned RRs.
4. That as per RRs for the post of Asstt. Director (Hort.) requirements for eligibility in the case of promotion to the said post are that one should, essentially and primarily, be:-
a) A person working in MCD on the post of Technical Assistant (Horticulture) with 3 year’s service in the said grade, and having either, a degree either, in ‘Agriculture’ or in ‘Botany’ with ‘Horticulture’ as a special subject of a recognized University, or an equivalent Diploma in Horticulture of a recognized University/Institution and having 3 year’s experience in Horticulture including ornamental gardening over various fields of Horticulture and further having adequate administrative experience which is relaxable by the Commission’s discretion in the cases of candidates qualified otherwise.
b) Where no persons as described at (a) above are available, a person working in MCD on the post of Technical Assistant (Horticulture) with more than 3 year’s combined service in the said grade taken together with that of Section Officer (Hort.), and having either, a degree either, in ‘Agriculture’ or in ‘Botany’ with ‘Horticulture’ as a special subject of a recognized University, or an equivalent Diploma in Horticulture of a recognized University/Institution and having 3 year’s experience in Horticulture including ornamental gardening over various fields of Horticulture and further having adequate administrative experience which is relaxable by the Commission’s discretion in the cases of candidates qualified otherwise.
c) Where no person as described at (a) and (b) above are available, a person working in MCD on the post of Section Officer (Horticulture) with 3 year’s service in the said grade, and having either, a degree either, in ‘Agriculture’ or in ‘Botany’ with ‘Horticulture’ as a special subject of a recognized University, or an equivalent Diploma in Horticulture of a recognized University/Institution and having 3 year’s experience in Horticulture including ornamental gardening over various fields of Horticulture and further having adequate administrative experience which is relaxable by the Commission’s discretion in the cases of candidates qualified otherwise.”
It is then pleaded by the respondents that certain printing mistakes had crept in while printing and publishing the recruitment rules for the said post, thereby creating certain confusions in the matter of qualifications prescribed for the candidates for direct recruitment as well as for promotion, and that the competent DPCs and appointing authorities are and have been adopting the said recruitment rules with necessary relaxations keeping in view the printing mistakes in the cases equally of both direct recruits and promotees to avoid any difficulty being faced by candidates of both streams. DSSSB, the statutory recruiting agency, or the appointing authority, as the case may be, after noticing that there does not actually exist a degree in Agriculture with ‘Horticulture as a special subject’, has allowed relaxation to the applicants in the matter of essential qualification of having ‘adequate administrative experience’ as well as in the matter of essential qualification of having ‘Horticulture as a special subject’ in their degrees, while sponsoring their names to MCD or while appointing them in MCD, as the case may be. Similarly, keeping in view the finding that no degree in ‘Botany with Horticulture as a special subject’ actually exists in any university, and also that the 3rd respondent is otherwise qualified for the post with reference to his academic qualifications, the essential qualification of having ‘Horticulture as a special subject’ was relaxed by the competent authority while promoting him to the post of Assistant Director (Horticulture). Appointments/ promotions of the applicants as well as the 3rd respondent were made in relaxation of the concerned recruitment rules keeping in view the printing mistake crept into while publishing the said rules, and as such the applicants as well as the 3rd respondent would be similarly situated in respect of their qualification for the post under reference. As regards seniority between the applicants and the 3rd respondent, it is the case of the official respondents that the 3rd respondent was appointed to the post of Section Officer (Horticulture) on 28.02.1983; he could not be regularized on the said post in absence of notified recruitment rules. However, he was assigned with the current duty charge of the post of Assistant Director (Hort.) w.e.f. 17.05.1993, whereas, all the applicants herein were appointed to the post of Assistant Director (Horticulture) in the year 2005. The 3rd respondent has also held the post of Deputy Director (Horticulture) on look after charge basis w.e.f. 17.09.2004. However, subsequent to the notification of the concerned recruitment rules, i.e., recruitment rules for the post of Section Officer (Horticulture), the 3rd respondent was appointed to the post of Section Officer (Horticulture) on regular basis w.e.f. 04.12.1985 with consequential benefits, in compliance with the directions of this Tribunal in TA No.913/2009.
8. The applicants have filed rejoinder to the reply filed on behalf of the 3rd respondent. We need not refer to the contents of the rejoinder, insofar as the facts mentioned in the OA have been reiterated. In the rejoinder it has, however, been pleaded that all applicants are holders of degree of Bachelor of Science in Agriculture and were appointed as direct recruit Assistant Director (Horticulture). Clause 7 of the recruitment rules stipulates essential educational qualifications, i.e., degree in Agriculture or Botany with Horticulture as a special subject of a recognized university or equivalent diploma in Horticulture of a recognized university/institution. It is pleaded that the 3rd respondent is admittedly having degree in Botany only, and that he is not having diploma in Horticulture nor his degree in Botany is with Horticulture as a special subject, which is an essential qualification. It is then pleaded that number of recognized universities/ institutions are conducting ‘Diploma in Horticulture’. In terms of clause 7(iii) of the rules, the administrative experience qualifications are relaxable at the Commission’s discretion in case of those candidates who are otherwise well qualified, i.e., having essential qualification as stipulated in clause 7(i) thereof. It is pleaded that the discretion of relaxation contained in clause 7(iii) vests in the Commission, i.e., UPSC, and not in the Corporation or the DPC, and that the DPC held on 10.05.2010 had no power to relax educational qualification. It is further pleaded that the only typographical or printing error which has crept in clause 7(i) to the effect that instead of ‘or’, ‘of’ has been printed. Insofar as the degree in Agriculture is concerned, it is the case of the applicants that they need to have degree in Agriculture with Horticulture as a special subject, but the same, however, would be essential if the educational qualification of a person may be degree in Botany, and, therefore, it is their case that whereas, their recruitment to the post of Assistant Director (Horticulture) would be in order, that of the 3rd respondent would be against the rules. As regards there being no university giving degree in Botany which would have Horticulture as a special subject, the same is denied, even though it is not mentioned as to which university would confer such degree. It is, however, further pleaded that assuming though not admitting that a degree in Botany with Horticulture as a special subject is presently not existing in any university, but diploma in Horticulture existed/is existing in number of recognized universities and institutions, and even otherwise, the essential qualifications are not relaxable in any other event. Diploma in Horticulture, it is pleaded, is being imparted by various reputed recognized universities/institutions in India, five of which have been mentioned in the rejoinder.
9. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. Inasmuch as the entire controversy centers around the eligibility of the 3rd respondent for his occupying the post of Assistant Director (Horticulture) and Deputy Director (Horticulture) by way of promotion, it would be appropriate to refer to the recruitment rules. In the hierarchy of posts, Section Officer (Horticulture) comes at the bottom. Recruitment on the post aforesaid is 25% by promotion and 75% by direct recruitment. Essential qualification for both promotion and direct recruitment is degree in Agriculture or Science with Botany as a subject from a recognized University or equivalent. There is no dispute as regards initial appointment of the applicants on the post of Section Officer (Horticulture), and, therefore, there would be no need to give further details of the rules for recruitment on the said post. The post of Assistant Superintendent (Gardens), since re-designated as Assistant Director (Horticulture) is the next post in the hierarchy. The said post is to be filled 50% by promotion and 50% by direct recruitment. Educational qualification for both modes of recruitment is the same and reads as follows:
“Degree in Agriculture of Botany with Horticulture as a Special Subject of a recognized University or equivalent diploma in Horticulture of a recognized University/ Institution.”
The post of Deputy Superintendent (Gardens), the next higher post in the hierarchy, has now been re-designated as Deputy Director (Horticulture). The same is to be filled by way of promotion, failing which by direct recruitment. Essential qualification for both modes of recruitment is exactly the same as is for Assistant Director (Horticulture). We may mention that it is admitted across the board that the word ‘of’ in between ‘Agriculture’ and ‘Botany’ is a misprint, and the rule should be read by substituting it with the word ‘or’. We have pondered over the issue, but the straight answer to the question posed by the applicants that comes to our mind is that the plea raised by them appears to be lying on a very weak wicket. The applicants, as per the case set up by themselves, are holders of degree of B.Sc. in Agriculture, and if one is to go by the strict words used in the rule, they having only a degree in Agriculture would not be entitled to appointment on the post of Assistant Director (Horticulture), on which post they came to be appointed by way of direct recruitment. That being so, they would plead that degree of B.Sc. in Agriculture has to be read in the rules, as there may not be any degree in Agriculture as such. The degree is always in Science, and may be relatable to a special subject like Agriculture, Botany etc. That being so, the applicants would give a margin to the 3rd respondent of his not having a degree in Science with Horticulture as a special subject. The 3rd respondent is having a degree in Botany. If perhaps, the applicants were to say that the 3rd respondent does not have a degree in Science with Botany, their own case would crumble, as surely in that case, they themselves would not have been entitled to appointment on the post of Assistant Director (Horticulture). That being so, whereas they would state that degree of Bachelor of Science or Degree of Bachelor of Botany would be enough as eligibility for appointment on the post under contention, and if one is having degree of B.Sc. in Agriculture, there may not be any special subject of Horticulture, or he may not have done diploma in Horticulture from a recognized university, but when a person has a degree of Bachelor in Botany, the same must be with Horticulture as a special subject of a recognized university or institution. It is not possible to accept the aforesaid plea raised on behalf of the applicants. One may have a degree in Agriculture, or, in other words, one may be having a degree of Science in Agriculture or Botany, but Horticulture as a special subject would be required in both. If there was a full stop after the words ‘Degree in Agriculture’, and the next sentence would have been ‘Degree in Botany with Horticulture as a special subject’, etc., one would understand the contention raised on behalf of the applicants, but after the words ‘Degree in Agriculture’, there is a word ‘of’, which, admittedly, is a misprint and has to be read as ‘or’. The next words are ‘Botany with Horticulture as a Special Subject of a recognized University or equivalent diploma in Horticulture of a recognized University/Institution’. That being so, if at all there has to be Horticulture as a special subject, it has to be with both, i.e., be it degree in Agriculture or Botany. Surely, and admittedly, if that be so, the applicants would themselves be not entitled for appointment on the post of Assistant Director (Horticulture).
10. We are unable to accept the contention raised by Shri Duggal, learned counsel representing the applicants, that after ‘Degree in Agriculture’, disjunctive word, i.e., ‘or’ appears, and, therefore, in simple words, ‘Horticulture as Special Subject’ would qualify degree in Botany and not degree in Agriculture. The word ‘or’ is not disjunctive. It simply means that a person may have degree in Agriculture, or in Botany, and that being so, ‘special subject’ would qualify for both degrees, be it in Agriculture or Botany. Equally devoid of merits is the contention of Shri Duggal that degree in Agriculture would include Horticulture as a subject, whereas, in degree in Botany, Horticulture is not a subject. The nine subjects mentioned hereinbefore, in which the first applicant studied during degree in Agriculture, do not mention Horticulture as a subject at all. What, however, is urged is that the subjects mentioned above, and in which the applicant studied to obtain degree in Agriculture, would be more akin to Horticulture, than the subjects one may have to study while obtaining degree in Botany. In the first instance, we may say that if there is no subject, and that too ‘special’, of Horticulture, the subjects studied by the applicants while obtaining degree in Agriculture, even though the same may be akin to Horticulture, would not advance their case. Once, the rule is that one must have a subject, and that too as ‘special’, in Horticulture, and which, admittedly, the applicant did not have to study while obtaining degree in Agriculture, the contention raised by the learned counsel has to be repelled. Further, we are not experts to comment as to whether any of the subjects, out of the nine studied by the applicant while obtaining degree in Agriculture, would be more akin to Horticulture, even though prima facie, as laymen, but going by only common sense, perusal of the subjects would not advance the case of the applicants. Further, again as laymen, it may appear to us that the subjects which one may have to study while doing Botany may be more closer to Horticulture, as the study of Botany is related to plants. However, we are not in a position to give any findings on this aspect of the case. It may be recalled that it has been the case of the respondents throughout that there is misprint in the recruitment rules, and insofar as the word ‘of’, as mentioned above, is concerned, the same is admitted to be a misprint, which has to be substituted with the word ‘or’. We are also convinced that the words ‘special subject of a recognized University’ do not appear to be in consonance with the ground realities. It is the positive case of the respondents that no university in the country confers a degree in Agriculture or Botany, as the case may be, with Horticulture as a special subject. There is only a general denial to the assertion of the respondents, as mentioned above. The applicants, but for the general denial, as mentioned above, have not been able to point out even one university which may be granting degree in Botany with Horticulture as a special subject. It is then pleaded that even assuming, though not admitting, that a degree in Botany with Horticulture as special subject is presently not in existence in any university, but diploma in Horticulture existed/is existing in number of recognized universities and institutions. The applicants have given names of some universities from where one can obtain diploma in Horticulture. What, however, clearly emerges from the pleadings of the parties is that there is no degree in Agriculture or Botany, as the case may be, which may have Horticulture as a subject, far from that being a ‘special subject’. It may be true that diploma in Horticulture is conferred by some universities, as mentioned by the applicants, but once there is no special subject of Horticulture in B.Sc. Agriculture or Botany, the rule as regards the same would be, as mentioned above, against the ground realities. If passing of such a subject is not possible, then in the very nature of things, the requirement of having the degree of B.Sc. Agriculture or Botany with Horticulture as a special subject has to be held as redundant. It may be possible to obtain diploma in Horticulture, but that is not the only eligibility criteria. One may have degree of B.Sc. in Agriculture or Botany, with Horticulture as a special subject, or diploma in Horticulture, and once it may not be essential for a person to be B.Sc. in Agriculture or Botany with Horticulture as a special subject, the alternative qualification of having diploma in Horticulture also cannot be so essential to render the promotion of the 3rd respondent as illegal. That apart, when the applicants also have not obtained degree of B.Sc. in Agriculture with Horticulture as a special subject, or for that matter, they do not have diploma in Horticulture, they cannot be permitted to question the promotion of the 3rd respondent. The facts of the present case remind us of our childhood when some naughty students with better muscle power in school and college would say that they would neither play nor would let others play, but in the present case, things seem to have gone a bit too far, when the applicants would say that they will play but will not let others play.
11. Apart from non-permissibility at the end of the applicants to call in question the promotion of the 3rd respondent, we are also of the view that unsettling his promotion at this stage will create a complete chaos. The applicants have not been able to state, and it also appears to us that so far there may not be a single person who might have been appointed or promoted with strict adherence to the language employed in the recruitment rules, be it a case of direct recruitment or promotion. If the plea as raised by the applicants is to be accepted, everyone appointed or promoted in the department might have to quit. Still further, insofar as the 3rd respondent is concerned, he came to be appointed on the post of Section Officer (Horticulture) way back in 1983. The essential educational qualification for the said post is the same as that for Assistant Director (Horticulture) and Deputy Director (Horticulture). If the plea raised by the applicants is to be accepted, then the appointment of the 3rd respondent on the post aforesaid has also to be set aside.
12. The official respondents being alive to the inaccuracy in the recruitment rules have moved in right direction in amending the same. It was realized at their end that the recruitment rules were not in consonance with the degrees being given by universities, inasmuch as there is no degree as B.Sc. Agriculture or Botany with Horticulture as a special subject, and the degrees available are only B.Sc. Agriculture or B.Sc. Botany, and even in B.Sc. Agriculture, there is no special subject as Horticulture. That being so, modification of the rules was considered, and accordingly resolution dated 12.08.2004 came to be passed by MCD, vide which the eligibility under the recruitment rules was substituted with a new clause, as already reproduced hereinabove. The modified recruitment rules have already been forwarded to UPSC for concurrence, which has been given on 11.03.2008, whereafter the case was sent to the Urban Development Department of the Government of NCT of Delhi for publication, and it is only the ministerial act of publication which is awaited. The plea raised by the applicants in the OA is that there is proposal to amend the rules so as to bring Horticulture as an essential subject for the post under contention, but the said plea has been rebutted by stating that it was only a proposal, but in fact what has been approved by MCD was the eligibility criteria of a degree in Horticulture or Botany. Reliance of the applicants on the proposed rules is misplaced. What is relevant is the proposal which might have been approved by the department and UPSC, and what has been so approved is as mentioned above.
13. The plea raised by the applicants that if there has to be relaxation in the educational qualification, the same can be done only by UPSC, as per extant recruitment rules, and that the DPC or the department are not clothed with such a power, and that no relaxation has been accorded to the 3rd respondent as regards essential qualifications by UPSC, and, therefore, his promotion in relaxation of the rules would be illegal, in the facts and circumstances of the case, has also to be repelled. We have gone through the minutes of the review DPC held on 10.05.2010, pursuant to which the 3rd respondent came to be promoted to the post of Assistant Director (Horticulture) with effect from 2002. It is mentioned in the minutes aforesaid that the said respondent is having educational qualification of B.Sc. (Botany), whereas in the recruitment rules it is B.Sc. (Botany) with Horticulture as a special subject. The committee felt that there is no degree as B.Sc. (Botany) with Horticulture as a special subject, and recommended that the department should carry out amendment in the recruitment rules appropriately, as otherwise also the amendment became due after introduction of 6th CPC recommendations. Members of the committee also discussed the relaxation provisions in the recruitment rules as given below:
“Qualifications relaxable at Commission’s discretion in case of candidates well qualified.”
Members of the committee were of the view that the promotion was being made on ad hoc basis, and the respondent would otherwise be well qualified, having ten years experience in the post of Assistant Director (Horticulture) grade and had also been looking after the charge of Deputy Director (Horticulture), and that the matter of relaxation in qualification, if any, would be placed before the Commission at the time of regular DPC. It is then recorded that keeping in view the above practice and having examined the relevant record, the DPC would further recommend promotion of the respondent on the post of Deputy Director (Horticulture) with immediate effect on ad hoc basis. In the same very meeting, the case of the respondent was taken up for promotion to the post of Assistant Director (Horticulture) on regular basis. While dealing with his case for promotion on the post aforesaid, it has been mentioned that he was promoted on the post of Assistant Director (Horticulture) on ad hoc basis w.e.f. 07.07.2000 against the reserved category, and subsequently he was regularized on the said post w.e.f. 06.02.2007 vide office order dated 07.02.2007. After examining the relevant records, the respondent, it is mentioned, was to be promoted as Assistant Director (Horticulture) w.e.f. 31.12.2002. It is the positive case of the official respondents that relaxation given to the 3rd respondent has also been given to the applicants. If that be so, once again, we are constrained to observe that it would not be open for the applicants to question the appointment or promotion of the respondent on any of the posts. Further, in the facts and circumstances of this case, even though the official respondents have stated that relaxation has been given, what appears to us is that the present was not a case of relaxation at all. Once, no university in the country confers degree of B.Sc. in Agriculture or Botany with Horticulture as a special subject, the official respondents would have been more accurate to state that such a qualification, even though provided under rules, shall have to be ignored.
14. In view of the discussion made above, finding no merit in this Original Application, we dismiss the same.
M.A. Nos.2615 and 2616/2011
15. We may mention at the very outset that out of the three applicants in OA No.3171/2010, which we have dismissed, present misc. application seeking setting aside of order dated 12.10.2009 passed by this Tribunal in TA No.913/2009, styling it as an ex parte order, has been filed by only one, i.e., Dr. Ashish Priyadarshi. We may not refer to the pleadings made in the misc. application as regards pendency of the writ petition in the High Court, as it does appear that on the very first date notice was accepted on behalf of the official respondents, and, may be, no notice was ever issued to the other respondents already arrayed therein, i.e., the applicant and others. Insofar as service in the TA is concerned, it appears that all the respondents arrayed therein were issued notice. The matter came to be listed before Deputy Registrar on 31.03.2009, when Registry was directed to inform the applicant to appear before the Tribunal on 29.06.2009. On the date aforesaid, Mr. Manish Paliwal appeared on behalf Mr. S. N. Gupta, counsel for the applicant, whereas, Alok Singh, the 1st applicant in the OA, appeared as departmental representative on behalf of the official respondents. He may have appeared as a departmental representative, but surely, he would be aware of the fact that he was a party respondent in the TA. It is for this reason as well, as it appears to us, that he has not chosen to join hands with Ashish Priyadarshi in moving the misc. application in hand for disposal. The proceedings taken in the TA thereafter would show appearance all through of Mr. Himanshu Upadhyay as counsel for the respondents. While hearing arguments at one stage in the case, we required the respondents to file an affidavit as regards service on the private respondents, who were to be served through the department. MCD filed a short affidavit pleading therein that notices to respondents 3 to 6 arrayed in the TA, as received by MCD, had been obtained from the Horticulture department of MCD. The same has been annexed as Annexure R-1 (colly.). The report annexed with the affidavit would reveal that notices to the respondents issued by the Tribunal were received in the Directorate of Horticulture, MCD through Law Department, and diarized at diary No.824 to 832 and 855 in the diary register of the Directorate. Copy of the relevant part of the diary register was annexed as Annexure R1/1 (colly.). The notices so diarized were marked and served upon all the private respondents (four in number). Copy of the relevant part of the dak book (peon book) containing the receipt of the notices by the recipients has been annexed with the affidavit as Annexure R1/2 to R1/5 (colly.). Separate reports acknowledging receipt of the notices by the applicants have been annexed as Annexures R1/6 to 9. We have perused the documents annexed with the affidavit aforesaid and are quite convinced that Ashish Priyadarshi also knew about the proceedings of the case. It is interesting to note that in OA No.2079 of 2009 in the matter of Narender Singh and others (supra) which was disposed of by the Tribunal holding that the applicants therein would have no locus standi to maintain the same, written statement from the side of the department came to be filed by none other than Ashish Priyadarshi himself. The point as regards ineligibility of respondents 3 to 13 arrayed in the OA aforesaid, was the same as raised in the present case, i.e., they may be ineligible under the rules to be promoted. It is interesting to note that, even though as an employee of MCD, the reply was given by Ashish Priyadarshi, wherein the case set up by the applicants in the OA aforesaid had been contested. The error in the recruitment rules was also taken as a ground in opposing the OA. Ashish Priyadarshi would thus know that way back in 2009, the dispute as regards eligibility of those who were promoted on the same very grounds as have been taken by him along with others, had come to surface. It is not possible to believe that all the while the TA filed by Ranbir Singh may be pending, Ashish Priyadarshi would not know about the proceedings therein. It is not possible also to believe that he would not know about the order that came to be passed by the Tribunal in the TA aforesaid on 12.10.2009. When the OA filed by him and others came up for motion hearing on the first day on 22.09.2010, we recorded the following order:
“Counsel for applicant seeks adjournment to place on record orders passed by this Tribunal in TA No.913/2009 dated 12.10.2009. List the matter on 24.09.2010.”
Pursuant to our directions, the applicants would have certainly obtained the order and place it on records as well, and yet, present misc. application came to be filed on 16.09.2011, almost a year after the applicant definitely knew about the order passed in the TA aforesaid on 12.10.2009. That apart, from overwhelming evidence produced by the respondents, and in particular, through their additional affidavit, it is proved that all the applicants in the OA, including Ashish Priyadarshi, were served. The plea raised by the applicant that he would not know about the proceedings in TA No.913/2009 and the orders passed therein, appear to be a bundle of lies and the positive stand of the 3rd respondent that applicant Ashish Priyadarshi knew about the proceedings, and has not only suppressed the facts but has gone to the extent of committing perjury appears to be correct. However, in these proceedings, we may only return a positive finding that the applicant was fully aware of the proceedings culminating into order dated 12.10.2009 passed in TA No.913/2009. There is no merit in the application. The same deserves to be dismissed. The application seeking condonation of delay, for parity of reasons also needs to be dismissed. So ordered. We may, however, repeat and reiterate that dismissal of this application would not be fatal, as surely and admittedly, if the plea raised by the applicant and others in the OA was to be allowed, the order passed in the TA aforesaid would not come in their way for the reasons as already adverted to above.
16. In peculiar facts and circumstances of this case, we are of the view that the Original Application and the misc. applications need to be dismissed with costs, which we quantify at Rupees ten thousand.