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IN THE HIGH COURT OF DELHI AT NEW DELHI
S. MURALIDHAR, TALWANT SINGH, JJ.
Ashwini Khullar - Appellant
Versus
DDA and Others - Respondents
Writ Petition (Civil) No.8469 of 2009, 8479 of 2009, 13931 of 2018; Civil Miscellaneous Application No.7948 of 2019, 54517 of 2018, 27092 of 2019, 31896 of 2019; Review Petition No.331 of 2019
Decided On : 30-09-2019
PLANNING DEPARTMENT - DDA - SENIORITY AND PROMOTION - DIPLOMA HOLDERS VS DEGREE HOLDERS - NOTE ADDED IN COLUMN NO. 11 OF THE RRS - INTERPRETATION - R.B. DESAI V. S.K. KHANOLKER (1999) 7 SCC 54 FOLLOWED - HELD, ELIGIBILITY AND SENIORITY ARE TWO DIFFERENT CONCEPTS - SENIORITY CANNOT BE SUBSTITUTED FOR ELIGIBILITY NOR CAN OVERRIDE IT IN THE MATTER OF PROMOTION TO THE NEXT HIGHER POST.
Fact of the Case:
The vexed question in these petitions is one of seniority and consequent promotion in the Planning Department of the Delhi Development Authority (DDA) between diploma holders on the one side and degree holders in architecture on the other.
Finding of the Court:
The Court finds that in the present case also, the contention of the Respondents that once they become eligible, they should be considered senior to the present Petitioners, cannot be sustained. Whatever may have been the reasons for introducing the note, the ultimate wording of the note is what has to be interpreted. The note only determines the eligibility criteria and does not suggest that those eligible earlier will be senior to those eligible later, if both have crossed the stage of eligibility and have come into a common stream. The Court is, therefore, inclined to accept the case of the Petitioners that their case is squarely covered by the above decision in R. B. Desai (supra).
Issues: Whether the note appended to the RRs in Column 11 were to be interpreted in terms of the decision of the Supreme Court in R.B. Desai v. S.K. Khanolker, (1999) 7 SCC 54 and if the note envisaged two lists, viz., the seniority list and the eligibility list.
Ratio Decidendi: The Court held that eligibility and seniority are two different concepts. Seniority by itself cannot prevail where a senior lacks eligibility for promotion to a higher post. Even if the contention of the appellant on the applicability of the catch-up rule were to be accepted, that will not obviate the requirement of his fulfilling the condition of eligibility for promotion to the next higher post, on the date when the vacancy occurred.
Final Decision: The petitions are hereby allowed. The pending applications are also disposed of. All consequential orders will now be passed by the DDA within a period of four weeks. No costs.
JUDGMENT :
S. Muralidhar, J.
The vexed question in these petitions is one of seniority and consequent promotion in the Planning Department of the Delhi Development Authority (DDA) between diploma holders on the one side and degree holders in architecture on the other.
2. While W.P. (C) Nos. 8469/2019 and 8479/2019 are directed against an order dated 17th February, 2009 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (CAT) in TA Nos.108/2007 and 9/2008 respectively, W.P.(C) No.13931/2018 is directed against an order dated 2nd November, 2018 passed by the CAT in OA No. 682/2016.
Background
3. In terms of the Recruitment Rules (RRs) of the Delhi Development Authority (DDA), to be eligible for the post of Assistant Director (Architecture) [AD (Arch)], the essential qualification for appointment by way of promotion in the 50% quota is that the candidate should have had at least three years of regular service in the post of Architectural Assistant (AA) and a degree in architecture or its equivalent. The alternative was that the incumbent should have had at least eight years of service as AA.
4. As far as eligibility for appointment by way of promotion in the 50% quota to the post of Assistant Director (Planning) [AD (Planning)] is concerned, the RRs laid down that a candidate must have served in the post of Planning Assistant (PA) for a minimum a five years and have a degree in Town Planning/Architecture. In the alternative, the incumbent should have had at least eight years of service as PA.
5. The above RRs were modified by a notification dated 11th December, 2003, whereby the following note was added in Column No. 11 of the RRs:
6. Since promotions had to be made from among AAs and PAs, it was necessary to prepare an eligibility list of AAs and PAs for deciding on promotion to the next higher post of AD (Arch) and AD (Planning) respectively.
Facts in W.P. (C) 8469/2009
7. Mr. Ashwini Khullar, the Petitioner in W.P.(C) No. 8469/2009 was appointed as an AA in the Directorate General of Health Services (DGHS), Ministry of Health, Government of India in 1977. He applied for the post of PA and was appointed as such in the DDA in 1985. Mr. Khullar possessed a Diploma in Architecture Assistantship and at the time of his appointment, he had eight years of experience.
8. The posts above that of PA are AD (Planning), Deputy Director (DD) and Director. There was a 50% promotion quota for appointment to these posts. Promotions from the post of PA to AD (Planning) were being made by the Department Promotion Committee (DPC) on the basis of seniority-cum-fitness. In other words, the senior most among the PAs would be promoted as AD (Planning).
9. Dda circulated a tentative eligibility list of PAs on 17th September, 2004 and called for objections. Mr. Khullar figured at Sl.No.11. According to Mr. Khullar, persons above him in the said eligibility list were already appointed as AD (Planning). Mr. Khullar filed his objections to the list inasmuch as according to him, the benefit of possessing a higher qualification had already been given to degree holders at the time of their initial appointment. According to him, there was a common seniority list of PAs and once a person found himself in that list, it should not be necessary to fulfil the conditions set out in the note. Further, it was contended that the said note could only have prospective application and that vacancies that arose prior to the said note being inserted in the RRs, should be filled in accordance with the unamended RRs.
10. However, these objections of Mr. Khullar were not decided and the tentative Eligibility List was acted upon. A DPC was held on 16th March, 2005 and Mr. A.K. Saini, who was above Mr. Khullar in the seniority list, was promoted as AD (Planning) in terms of the uname
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