Direct recruitment valid despite irregularities if bona fide; no retrospectivity for clarifications; delay bars challenges to settled seniority.

ORDER

Hon’ble Ms. Harvinder Kaur Oberoi, Member (J):

Brief facts of the case are that the applicant is presently working as Lab Superintendent in the Central Hospital, Northern Railway, New Delhi, and was fully eligible for promotion to the post of Lab Superintendent Grade III in the pay scale of Rs. 5000–8000 in accordance with Para 165(4) of the relevant Recruitment Rules. The said Recruitment Rules clearly provide that the post of Lab Superintendent Grade III/Chemist in the pay scale of Rs. 5000–8000 is to be filled both by direct recruitment and by promotion. However, the Rules categorically stipulate that direct recruitment is to be resorted to only to the extent that suitable staff are not available for promotion. The Rules further prescribe that serving staff of the Medical Department possessing the requisite educational qualifications are eligible to be considered for promotion through a duly constituted Selection Board, and even staff working as Lab Technicians or Assistant Chemists in the feeder grade are eligible for promotion by selection subject to fulfillment of prescribed conditions.

2. Counsel for the applicant submitted that although an Advance Correction Slip No. 128 dated 12.11.2001 was issued, inserting Note (1) below Para 165(4) permitting direct recruitment beyond the prescribed quota, even the said note did not prescribe any fixed percentage for direct recruitment and continued to emphasize that direct recruitment could only be resorted to when suitable serving staff were not available. The applicant, being fully qualified and eligible, was very much available and ought to have been considered for promotion in preference to direct recruitment.

3. Counsel submits that despite the clear mandate of the Recruitment Rules, respondent no. 3, on the basis of an indent placed by respondent no. 4, issued an advertisement for filling up posts of Lab Superintendent by direct recruitment and selected respondent nos. 5 and 6, as is evident from the order dated 31.08.2005. Pursuant thereto, respondent nos. 5 and 6 were appointed by direct recruitment and posted at Lucknow Divisional Hospital vide letters of appointment dated 24.01.2006 and 08.02.2006. These appointments were made without first considering eligible departmental candidates like the applicant, thereby violating Para 165(4) of the Recruitment Rules.

4. It is further submitted that the recruitment and appointment of respondent nos. 5 and 6 by direct recruitment was wholly illegal and contrary to the Recruitment Rules, as the claim of the applicant for promotion was completely ignored despite his eligibility. Consequently, the applicant submitted a detailed representation dated 10.04.2006 requesting consideration for promotion to the post of Lab Superintendent over and above the directly recruited candidates with all consequential benefits. The issue was serious enough that respondent no. 2 itself addressed a letter dated 06.11.2006 to respondent no. 1 seeking clarification and prescription of the percentage of quota for direct recruitment, categorically admitting that the direct recruitment of respondent nos. 5 and 6 was in violation of the Recruitment Rules.

5. Thereafter, the department itself clarified vide letter dated 15.01.2007 that Note (1) below Para 165(4) of Advance Correction Slip No. 128 is to be read as “direct recruitment is to be resorted to only to the extent suitable staff are not available for promotion”. Despite such categorical clarification, the applicant’s case for pr