Central Administrative Tribunal Principal

.....,,IRJit

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CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL... BENCH

OA No. 2396/20~3 OA No. 24·75/2003 New Delhi~ this the ll{h'day of December, 2003

__ Hon~ble Mr. Justice V.S._ Aggarwal, Chairman Hon~ble Mr. S.A.Singh, Member (A)

Shri R.C. Sharma, S/o late Shri Ram Gopal Sharma, R/o F-1, Connaught Circus, Fire Headquarters~ New Delhi- 110 001. . .. Applicant

(By Shri G.D.Gupta Senior Counsel with Sh. S.K. Gupta, Advocate) Versus

1. Govt. of NCT of Delhi Through Chief Secretary, Delhi Secretariat, Players Bhawan, I.P. Estate, New Delhi - 110 002.

2. Principal Secretary (Home) Govt. of NCT of Delhi, Delhi Secretariat, Players Bhawan, I.P. Estate, New Delhi- 110 002. 3. Union Public Service Commission, Through its Chairman, Ohoulpur House, Shahjahan Road, New Delhi. . .. Respondents

(By Mrs. Avnish Ahlawat, Advocate with Mr. Mohit Madan, Advocate

1. Delhi Fir~Service Officers Association(Regd.) through its General Secretary, Shri A.K. Bhatnagar, Connaught Place Fire Station, New Delhi- 110 001.

2. Shri Dharam Pal Bhardwaj, Presently working as Assistant Divisional Officer (Fire) Wazirpur Fire Station, Delhi- 110 052. '\..

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3. The Delhi Fire Service Staff Association (Regd.) Through its General Secretary, Shri Mukesh Prakash Sharma, J-64, Laxmi Nagar, De 1 h i - 1 1 0 0 9 2 •

4. Delhi Fire Service Karamchari Sangh (Regd.) Through its General Secretary, Shri Babu Lal, S.P. Marg Fire Station, Delhi- 110 006.

5. Delhi Fire Service Employees Union CRegd.) Through its General Secretary, Shri Sunder Sehrawat, .. _ ,., Najafgarh Fire Station, Delhi- 110 043. . .. Applicants (By Advocate: Shri G.D. Gupta with Shri S.K. Gupta) Versus

1. Govt. of NCT of Delhi Through Chief Secretary, Delhi Secretariat, Players Bhawan, I.P. Estate, New Delhi- 110 002. 2. Principal Secretary (Home) Govt. of NCT of Delhi, Delhi secretariat, Players Bhawan, I.P. Estate, New Delhi- 110 001.

3. Union Public Service Commission, Through its Secretary Dhoulpur House, Shahjahan Road, New Delhi. 4. Chief Fire Officer, Delhi Fire Service, Fire Headquarters, Connaught Circus, New Del hi. ... Respondents (By Advocate: Mrs. Avnish Ahlawat with Mr. Mohit Madan)

By Justice v.s. Aggarwal -

The Delhi Fire Service is the department of National Capital Territory of Delhi. It came into existence in _L.L- j

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1942 after amalgamation of 2 fire stations which were separately functioning under the control of Delhi Municipal Committee and New Delhi Municipal Committee. After World War II, the establishment of Delhi Fire

Service ~as approved as a provincial force. There were ,-.-·only 4 fire stations with 14 appliances and the total

__ staff __ was __ J86. ___ It grew from 4 stations in l948 to 36

stations in 2002 and from the staff of 186 in the year 1947 to 2254 (personnel). The administrative control of Delhi Fire Service which was earlier with the Municipal Corporation of Delhi was transferred to the Government of

... _National __ Cap\._t_a.l_.Jerr.i tory __ of Delht \~i th effect from

10.11.199'+·

2. There had been expansion in the service cadre and there was one post of Chief Fire Officer. On 4.4.2002, 4

posts under the plan scheme were created~ namely one post of Director in the pay scale of Rs.18400-500-22400 and thr·ee posts of Chief Fire Officer in the scale of Rs. 16400-450-20900 in addition to the one post already existing. The recruitment rules for the post of the Director had been notified and in the column ·whether it is a selection post or not·, it had been mentioned that it was not applicable. Pertaining to the method of recruitment i.e. by direct recruitment or by promotion,it had been mentioned that the post could be filled by deputation (including short term contract/promotion). Column No. 12 of the recruitment rules prescribed the

Qualifications including the reQuirement of ZO years of -4-

experience. The same reads:-

"In case of Rectt. by pr-omotion/deputation/ absorption grades from which promotion/deputation/ absor·ption to be made.

Deputation(including short--term contract)/ promotion

1. Officers from the Central /State Governments/ Union Territories including Army/Navy/Air Force/ Para Military Forces/Autonomous Bodies/Public Sector Undertakings. (a)(i) Holding analogous posts on regular basis in the parent cadre/department; or (ii) With two years service in the grade rendered after appointment thereto on regular basis in the scale of Rs. 16400-ZOOOO in the parent cadre/department; and (b) Possessing the following educational qualifications and experience:

(i) Bachelor·s degree from a recognized university or equivalent: (ii) Twenty years experience in Managerial position of large establishment including experience in relief and rescue operations ( which includes coordination and communication between various diverse Government agencies/departments/ undertakings such as Fire, Railways, Medical Communication, Police, Civil Authorities etc.>. In._ majo~_natural calamities/Man made calamities involving large scale loss of life property etc. due to fire/earthquake/floods/chemical warfare/chemical disaster/different types of terrorist activities;exposive materials/communal riots/train accidents/air crash etc. z. The departmental Chief Fire Officer with two years regular service in the grade failing which eight years combined regular service in the grade of Chief Fire Officer and Deputy Chief Fire Officer will also be considered along with the outsiders. In case he/she/they are selected for appointment to the post , the same shall be deemed to have been filled by promotion. (The departmental officers in the feeder category who -5··· are in the direct line of promotion shall not be eligible for consideration for appointment on deputation. Similarly, deputationists shall not be eligible for consideration for appointment by promotion. Period of deputation/contract including period of deputation/contract in another ex-cadre post held immediately preceding this appointment in the same or some other organisation/department of the Central Government shall ordinarily not exceed five years. The maximum age limit for appointment by deputation (including short term contract) shall be not exceeding 56 years as on the closing date of the receipt of applications)."

Applicant is one of the Chief Fire Officers and was appointed as such on the recommendations of the Union ' Public Service Commission on 5.4.2002.

4. In pursuance of calling of the applications for tilling up Ute post of Director wr1ich i.s a Group A Gazetted post,the applicant felt apprehensive and by virtue of the present application, he seeks setting aside of the recruitment rules as well the advertisement and a direction to the respondents to frame the recruitment rules keeping in view the guide-lines issued by the • Department of Personnel and Training and to conduct the selection accordingly. Similar application has also been filed by the Delhi Fire Service Officers Association and

others i.e. OA No. 2'+75/2003. It was conceded that the

decision --~n.OA No.Z396/2003 would govern_the decision in

the OA No.Z475/2003 also and, . ther-efore~ both the applications can be taken up together.

The application has been contested. The respondents contended that seeing the requirement to cope l

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with the challenges which the National Capital Territory of Delhi faces in the form of natural calamities like

earthquakes~ floods~ accidents arising out of chemical

mtshaps.:. __ t.rai_Q_mishaps~etc... ,_ the_ Delhj_ Fire Service was transferred to the Government of National Capital Territory of Delhi. In face of serious security scenario

and other facts~ it calls for special qualities of leadership in the Fire Department going well beyond the V conventional fire fighting discipline. Delhi being the National Capital, in the event of a large scale disaster, the leadership of the Fire Services should be senior and confident enough to relate easily with the highest levels not only in the Government of Delhi but also in the Central Government. All these factors were envisaged at the time, the post of Director of Fire Services was created with the prior approval of the Lieutenant Governor. Therefore, more posts of Chief Fire Officer were created. The recruitment rules had been framed in , consultation with the Union Public Service Commission. It is denied that the recruitment rules are illegal or liable to be quashed, the same being framed keeping in view the job recruitment. So far as the applicant is concerned, he can also be considered in accordance with the recruitment

r~ules. There is no bias for or against any individual or a de par tmen t.

5. We have heard the parties· learned counsel and have seen the relevant record. -7-·

':f. The learned counsel ·for the appU.cant alleged that the recruitment rules are totally illegal because while for the post of Chief Fire Officer there are certain quaJ i.fica tions _prescr:.,1,.bed. but for the post of Director if it is not by way of promotion, only a Bachelor·s degree

from a recognised University with ZO years experience in managerial position of large establishment including experience in relief and rescue operations work has been prescribed. According to the learned counsel, this clearly shows that for the said post, once the experience is the rules would be arbitrary and discriminatory.

£. It is a settled principle that the recruitment rules have to be invariably made keeping in view the job requirements. It not specific to any individual s claim. A person has indefeasible right to be considered. There is no such right to be promoted. We know from the

decision of the Supreme Court in the case of Captain

B.D.Gupta v. State of U.P. and Another, 1990 (5) SLR 304· that whether the rules should have provided for appointmemt to the post by promotion or by direct recruitment, it is for the legislature to decide. It was stated in the writ petition filed in that matter that there was no special qualification required for the post of Director and that certain persons from the Indian ... Administrative Service/Provincial Civil Service could be appointed. The Supreme Court held that there was no wrong that could be attributed to the framers of the Rules if ·-8-

the post was made a promotional post opening an avenue of promotion to the departmental staff. The Supreme Court

held:-

"17. In support of his f).rst contention that the Rules were framed.mala fide and arbitrarily, Shri Ramamurthy relied firstly upon the fact that under the Rules only three posts were created leaving \/ the rest of the posts to be filled in by executive instructions. If the Rules were framed for making regular appointments in the Civil Aviation Department, there was no reason why they should have been confined only to three posts which included the post of Director. Secondly, he pointed out that whereas the post of Director was not a promotional one earlier and was, therefore, open to external candidates as well~ it was made .. Promotional to suit Captain Singh. These circumstances according to us do not prove the mala fides. Admittedly, the Rules are made under Article 309 of the Constitution of India and are, therefore, a piece of legislation. It is well-settled that no legislation can be challenged on the ground of mala fides."

Thereafter, the Supreme Court went on to conclude:-

Further, whether the Rules should have provided for appointment to the post by promotion or by direct recruitment, it was for the legislature to decide. There is no dispute that the post of Director is only one in the Directorate. As stated by the petitioner himself in his writ petition filed in the High Court, there was no special qualification required for the post of Director and hence an IAS/PCS officer could also be appointed to the said post. If that be so, then no wrong could be attributed to the framers of the Rules if the post was made a promotional one opening __ an avenue of_. promotion to the departmental staff. ~hat is further, as pointed out by the Government, Captain Singh who was in the Directorate from the inception i.e., May 1979 as a regular employee all along had the requisite qualifications. As against it the petitioner was employed in the Directorate for the first time·on 1st August, 1980 and on ftxed contractual tenure. The chart of the comparative qualifications produced by the Government shows that there is no substance in the contention advanced on behalf of the petitioner that the relevant qualifications were acquired by Captain Singh after~ his appointment as Di.rector. It is nqt necessary to reproduce the said qualifications here and burden · the judgement."

Similar is the position in the present case and, therefore, the said argument must be rejected.

at. As another 1 irnb of the same argument, it was contended that there cannot be equality amongst unequals and when any person unequal to the applicant is considered, it defeats the applicant's right and otherwise

also is violative of Articles 14 and 16 of the Constitution. The learned counsel in this regard had referred us to a decision of the Supreme Court in the case

of T.Sham Bhat v. Union of India and Another, 1994 Sup (3) sec 340. In the said case, the Indian Administrative Service Recruitment Rules envisaged for appointment to the said service from non-State Civil Service officers who held posts comparable in importance and responsibility to that of the post of Deputy Collector. Amendment had been made by pooling together a Senior Collector in State Civil Service and a Deputy Tehsildar in State Civil Service and made them a common class State Civil Service officers. The Supreme Court held that this classification whereby

unequals had been put together ~as discriminatory and ·-- violative of Articles 14 and 16 of the Constitution.

f (9. The facts of the present case are totally different. Herein, there is no such rule as we have referred to above. Keeping in view the exigencies and the job requirements, the rules have been framed. To state -1 0-·

that 20 years experience contemplated which we have

referred to above cannot be equated with educational

qualifications at this stage would be incorrect. It is entirely for the selection body to consider and look for the best candidate .. pertaining to which we are not expressing any opinion, but the proposition that it was not unequals that have been treated as equals would not be V correct.

Ff· Another decision referred to at the Bar was in the matter was of Sudhir Kumar Halder v. Union of India

and others in OA No. 156/A&N/2001 rendered by the Calcutta Bench of tllis Tribunal at Po~~ir. Per·usal of the facts clearly shows that the recruitment rules for the

post of Director of Industries had been framed long back

in the year 1980. The method of filling up the post was

by ___ transfer:._ on, __ deputation _failing wh i eh by dir·ect

recruitment. There was no provision for promotion to the ,. post of Director from the feeder category. When the matter came up for consideration, this Tribunal held that rules were not valid. It was further held that there was nothing on the record to show how different eligibility

criterion lto'a.s provided without amendment of the recruitment rules. These facts show that herein there are specific recruitment rules and the applicant's right for consideration has not been ignored. In that view of the matter, the plea must on that count fail and the order passed by the Calcutta Bench must be held to be distinguishable. -11-

1'1. Ot.y\...attention in this regard fur-ther was drawn to

the fact that the method of recruitment ignores that it is by way of selection and in this process the rules are violative of the guide-lines issued by the Department of

Personnel and Training dated 18.3. 1988~ a copy of which has been placed on the record. The relevant portions of

which~ according to the applicant~ have been ignored are:- V

"3. 1 2. 2. Pl~omotion may be kept as a. method of recruitment depending upon the availability of the field of consideration. Care should be taken to see that the base for promotion is strong, i.e., the departmental candidates are fully qualified for the responsibilities of the higher post and the field is also adequate, i.e., normally the feeder grade should range from 3 to 5 times the number of sanctioned posts in the higher grade, in case the post in the higher grade is to be filled on selection basis. For posts which are to be filled by seniority-cum-fitness, i.e. by non-selection, it is not necessary that the feeder grades should consisting the base for promotion and determining the ratio of higher grade to the feeder grade, the number of sanctioned posts in the two grades ( and not the number of vacancies at any one point of time) should be taken into ,. consideration."

"3. 1 2. 6. In cases where the method of promotion is by ·selection· and the field of promotion consists of only one post, the method of recr~ui tmen t. by "transfer" on deputation (including shor t-·terrn con tract) I promotion" is prescribed so that the departmental officer is considered alongwith outsiders. If the departmental candidate is selected for appointment to the post; it is to be treated as having been filled by promotion; otherwise, the post is to be filled by deputation/contract for the prescribed period of deputation/contract at the end of which the departmental officer will again be afforded an opportunity to be considered for appointment to the post."

We have no hesitation in ignoring the said argument

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because the guide-lines can only be supplementary to the rules. They cannot overrule the rules. Herein specific rules have been framed and even if they do not ad here to the guide-lines that will not prompt us to quash the same.

1~. A feeble argument had been addressed that a Bill

has alread~been_ introduced, but it is unnecessary for us to express our opinion in this regard because it has not become a law as yet.

1 ~· __ We have already pointed above that t t is a decision to be arrived at by the legislature for framing the rules. Unless the same are invalid wttich in the present case we have already found to be not so, this Tribunal would not be prompted to interfere. In the case of P.U.Joshi and Others v. Accountant General, Ahmedabad and Others, (2003) 2 sec 632, the Supr·erne court clearly held that providing of conditions of service and amendment of rules ordinarily in this regard would be falling beyond ' the interference of the Tribunal. It is in the exclusive discretion of the State. The Supreme Court held that the plea about denial of equal opportunity in the facts could not have been raised nor this Tribunal could direct to give promotional monetary benefits. The Supreme Court held:-

"10. we have carefully considered the submissions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for -13-

such promotions pertain to the field of policy is ~ithin the exclusive_discretion and jurisdiction of the State~ subject, of course! to the limitations or restrictions envisaged in the Constitution of India and it is not for the statutory tribunals, at any rate, to direct the Government to have a particular method of __r_ecr. u i tme_n t_ o_r:_ e lJ gi bi lit y er iter- i a or avenues of' promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/substraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing the existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever__ the_ same as_ the one when he en tared service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of times a government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service.

In face of the aforesaid reasons, it is obvious that the ' applicant cannot raise the grievance about the invalidity of the rules.

1~ Resultantly, the present applications~ namely OA Nos.Z396/Z003 and 2475/2003 are held to be without merit. They are accordingly dismissed. No costs. ~~