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2007 DIGILAW 1442 (DEL)

M. K. KHARE v. REGISTRAR GENERAL

2007-07-23

A.K.SIKRI, ARUNA SURESH

body2007
A. K. SIKRI, J. ( 1 ) THE petitioner was appointed as Naib Nazir in the Court of district and Sessions Judge, Delhi in February 1993. Fifty per cent of these posts were upgraded to that of Civil Nazir. The petitioner, therefore, is aspiring to get promotion as Civil Nazir. In the seniority list his position is quite low. However, the petitioner wants that 25% posts of Civil Nazir be filled up by departmental examination. He made representation in this behalf in the year 1998 when promotions were being made to the post of Civil Nazirs. However, ignoring his request the promotions were made on the basis of seniority. In 1999, the petitioner again made request for filling up of about 28 vacant posts of Civil Nazir through Limited Departmental Competitive examination (in short 'ldce'), which was not heeded to. He again made similar request in the year 2000 which request was not acceded to. When 25% were promoted/upgraded from Naib Nazir to Civil Nazir vide order dated 6. 1. 2004, the petitioner filed the instant petition seeking quashing of order dated 6. 1. 2004 with direction to conduct and hold LDCE for filling up 25% of the posts of Civil nazirs from amongst eligible Naib Nazirs for the yearwise vacancies which arose in 1998 and yearwise thereafter. Certain consequential prayers are also made. ( 2 ) THE petitioner is trying to justify his claim for promotion through LDCE on the basis of Office Memoranda dated 16. 10. 1979 and 30. 3. 1994 and the orders passed on 18. 12. 1997 by a Single Judge of this Court in Civil Writ no. 907/1996. ( 3 ) OFFICE Memorandum dated 16. 10. 1979 issued by the Government of india, Ministry of Home Affairs, Department of Personnel and Administrative reforms, deals with subject of 'restructuring of Central Secretariat Clerical service'. Perusal of this OM would show that restructuring of the Central secretariat Clerical Service (in short 'cscs') was done with a view to provide better avenues of promotion of the LDCs. It was, thus, decided to restructure the post of Upper Division Clerks/lower Division Clerks in the CSCS in the ratio of 40:60. Perusal of this OM would show that restructuring of the Central secretariat Clerical Service (in short 'cscs') was done with a view to provide better avenues of promotion of the LDCs. It was, thus, decided to restructure the post of Upper Division Clerks/lower Division Clerks in the CSCS in the ratio of 40:60. Penultimate para of this OM on which reliance is placed reads as under:- "as the Ministry/departments are aware, posts in the Grade of UDC are to be filled by promotion from LD Grade 75% vacancies being filled by seniority basis subject to rejection of the unfit and 20% through limited Departmental competitive Examination. The additional posts of UDC which will become available in each cadre as a result of the restructuring, will also be filled in the same manner. " ( 4 ) VIDE Om dated 30. 3. 1994, ratio of 40:60 between UDCs and LDCs was changed to 50:50 and it was also stipulated that this restructuring will be subject to the following conditions:- " (i) The interchangeability of functions, including typing, between LDCs and UDCs and flexibility in their deployment by the Ministries/departments, will continue as at present. (ii) Additional vacancies becoming available in UDC Grade as a result of the restructuring will also be in the same manner, and by the same methods, as provided in the CSCS Rules, viz. 75% on the basis of seniority-cum-fitness and 20% on the basis of LDCE. " ( 5 ) THUS, it is pleaded, the Government maintained that 25% posts would be filled up on the basis of LDCE and 75% on the basis of seniority-cum- fitness. Both these circulars are referred to in the order dated 18. 12. 1997 passed by the learned Single Judge of this Court in WP (C) No. 907/1996 and taking into account the fact that there was a restructuring in the CSCS by altering the ratio to 50:50 between UDCs and UDCs, the directions were given to the NCT of delhi to consider the proposal given by the District Judge for upgradation from the post of Naib Nazir to Civil Nazir to the extent of 50%. As noted above, this proposal was ultimately accepted and 50% posts of Naib Nazir were upgraded to Civil Nazir. As noted above, this proposal was ultimately accepted and 50% posts of Naib Nazir were upgraded to Civil Nazir. On the basis of these documents, submission of the learned counsel for the petitioner was that since said Oms were applied by this Court in respect of same cadre in the District and Sessions Judge, namely, Naib Nazir and civil Nazir, the provision of filling up of the posts of Civil Nazir through ldce to the extent of 25% had also to be followed. ( 6 ) IT is, however, not in dispute that statutory rules have been framed by the High Court of Punjab under Section 25 (3) of the Punjab Courts Act for subordinate services attached to Civil Courts other than the High Court. It is also common case that these Rules are applicable for subordinate services attached to the Civil Courts other than the High Court, in Delhi as well. In the classification of posts mentioned in the Rule II post of Civil Nazirs and naib Nazirs are also mentioned and, therefore, these Rules are applicable to these posts. Rule V deals with appointment and, inter alia, stipulates that appointment to ministerial post shall ordinarily be made either by open competition or by selection from a list of qualified candidates or apprentices accepted by the District Judge to whom powers of appointment from either of these methods should be reported to the High Court for confirmation. Rule VI deals with promotion and it is necessary to reproduce these Rule in entirety:- "v. Promotion.- (1) Appointments to the higher grades of the ministerial establishment should ordinarily be made by seniority from lower grades, provided that the official who would thus receive promotion possesses the prescribed educational qualifications and is otherwise fit to perform the duties to which he will be promoted, for which purpose tests may be imposed. This rule does not apply to such posts as that of stenographer for which special qualifications are needed; but preference should be given to officers with such qualifications who are already working in the lower grades: provided that permanent vacancies in the 2[75-5-125] grade shall be filled by District and Sessions Judges in the following rotation:- (i)By selection on merit out of graduates who have at least two years experience in the work of the office. If there is no suitable graduate who fulfills this condition an outsider graduate may be appointed but he must be one who normally resides within the jurisdiction of the District and Sessions Judge. (iii) and (iii) By normal promotion in the office,. e. the appointment of the next senior man whether graduate or non-graduate subject to his fitness. Provided further that the rotation may be modified in very exceptional cases when the direct appointment of a graduate would mean the ousting of a man, who had been officiating quasi-permanently in the post concerned for an appreciable period. What is an appreciable period will depend on the circumstances of each case. After such a modification, the rotation should be restored as soon as possible. (2) In making promotions, preference may invariably be shown to officials who are known to be strictly honest. No promotion should be given and no recommendation for promotion made in the case of an official who does not possess and maintain a reputation for strict integrity. Efficiency without honesty is not be regarded as constituting a claim to promotion. " ( 7 ) SUB-RULE (1) specifically mentions that appointments to the higher grades of the ministerial establishments should 'ordinarily' be made by seniority from lower grades, subject to two conditions, namely, (i) he possesses the prescribed educational qualification and (ii) he is otherwise fit to perform the duties to which he will be promoted. In order to adjudge the fitness, tests may be imposed. Proviso to this Rule, however, stipulates that permanent vacancies in the pre-revised scale of Rs. 75-5-125 is to be filled in the following rotation: (a) by selection on merits out of graduates who have at least two years' experience in the work of the office and if there is no suitable graduate available, then outsider graduate may be appointed. Next two posts by normal promotion in the office,. e. on the basis of seniority subject to fitness, whether graduate or non-graduate. Since promotion is governed by aforesaid Rule, which is statutory in nature, the post of Civil Nazirs in the court of District and Sessions Judge, Delhi, are to be filled as per the aforesaid Rule VI, which prescribes that it should ordinarily be on the basis of seniority subject to fitness. Test can be imposed only to adjudge the fitness. Since promotion is governed by aforesaid Rule, which is statutory in nature, the post of Civil Nazirs in the court of District and Sessions Judge, Delhi, are to be filled as per the aforesaid Rule VI, which prescribes that it should ordinarily be on the basis of seniority subject to fitness. Test can be imposed only to adjudge the fitness. It was accepted before us that present case was not governed by proviso and, therefore, the promotions were not to be made in rotation prescribed therein. The import and mandate of this Rule is, thus, clear. The posts of Civil Nazirs are to be filled as per the seniority subject to fitness. There is no quota for filling up of the 25% posts by LDCE. ( 8 ) IT is trite law that when there are statutory rules covering a particular field, it is those rules which would govern that field and the administrative instructions cannot be applied. The applicability of the administrative instructions, in such a case, would be only when some gaps in the statutory rules are required to be filled. The administrative instructions, thus, supplement the rules but cannot supplant the statutory rules. When the statutory rule in question specifically mentions about filling up of 100% post by seniority, the contention of the petitioner that 25% posts be filled through ldce cannot be accepted. ( 9 ) FROM the order dated 18. 12. 1997 passed in WP (C) No. 907/1996, it is clear that the aforesaid Office Memoranda were relied upon only for the purpose of restructuring,. e. upgradation of 50% posts of Naib Nazirs to that of Civil nazirs. That could be done as there was no statutory rule contrary to the said provision in the OM which dealt with the restructuring. Only because these two office Memoranda were referred to for the aforesaid limited purpose, would not mean that the provision of filling up of the 25% posts through LDCE contained in the said Memoranda should also be made applicable even when the statutory rules provided otherwise. In fact, if the contention of the petitioner is accepted, it would amount to violating the mandate of the statutory rules. We, therefore, do not find any merit in this petition, which is accordingly dismissed. No costs.