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Judgment
L. Narasimha Reddy, J
The 1st applicant is an Association of Delhi Veterinary Doctors, and the applicant No.2 is a member of it. They filed this OA, challenging the provision contained in Column 11, Clause A (III) of the Schedule appended to the "Director (Animal Husbandry) (Group "A" Gazetted) post of Development Department Recruitment Rules, 2012 (for short Rules of 2012), framed by the Government of National Capital Territory of Delhi, the 2nd respondent herein.
The applicants contend that the post of Director is the highest in the hierarchy of the Department, and appointment thereof, is provided under the Rules of 2012. Their grievance is that though the Director can be appointed through promotion, failing which deputation, the qualifications stipulated for the candidates to be brought on deputation are far inferior, and such a course would lead to demoralization in the department. It is also stated that the relevant provision is irrational, arbitrary and untenable. Reliance is placed on the judgment of Hon"ble Supreme Court in Shakuntala Sharma (Mrs.) vs. High Court of H.P. at Shimla and Another (1994) 2 SCC 411.
The respondents filed counter affidavit opposing the OA. It is stated that the Rules were framed providing for alternative mechanisms, to ensure that the Department is not left without the highest authority, on account of non availability of eligible candidates for promotion. It is also stated that the applicants do not have any right to challenge the provision contained in the rules.
The OA is extensively argued by Ms. Eshna Kumar, learned counsel for the applicant and Shri Pradeep Kumar and Shri R. V. Sinha with Shri Amit Sinha, learned counsel for the respondents.
The broad structure of the Veterinary Department in the office of 2nd respondent is that the Veterinary Assistant Surgeons (for short, VAS) are appointed at entry level through the process of selection, and the next higher post is Deputy Director, which is to be filled purely by promoting VAS, with five years of experience. The post at the highest level is that of Director of Animal Husbandry. In Column 10 of Rules of 2012, the method of appointment to this post is indicated. It reads as under:-
(10)
By promotion failing which by deputation including short-term contract.
As regards qualification, the provision is contained in Column 11, and it reads as under:-
(11)
Promotion: Deputy Director (Animal Husbandry) in the scale of pay of Rs. 15600- 39100/- with Grade Pay Rs. 6600 in PB-3 with 05 years service in the grade rendered after appointment thereto on regular basis.
Note:- Where juniors who have completed their qualifying/eligibility service are being considered for promotion, their seniors would also be considered provided they are not short of the requisite qualifying/eligibility service by more than half of such qualifying/eligibility service or two years, whichever is less and have successfully completed their probation period for promotion to the next higher grade along with their juniors who have already completed such qualifying/eligibility service.
Note:- For the purpose of computing minimum qualifying service for promotion, the service rendered on a regular basis by an officer prior to 01.01.2006/ the date from which the revised pay structure based on the 6th Central Pay Commission recommendations has been extended, shall be deemed to be service rendered in the corresponding pay/pay scale extended based on the recommendations of the pay commission.
Deputation (ISTC)
Officers of the Central/State /Government/Union Territories/Autonomous Organizations/ Universities/recognized Research Institute/ Public Sector undertaking or semiGovernment/Statutory Organization.
A) I) Holding analogous posts on a regular basis in the parent cadre/Department; or
II) With 05 years service in the Grade rendered after appointment thereto on regular basis in the scale of pay of Rs. 15600-39100 with Grade Pay Rs. 6600 in PB-3 or equivalent; or
III) With 10 years service in the Grade rendered after appointment thereto on regular basis in the scale of pay of Rs. 15600-39300 with Grade Pay Rs. 5400 in PB-3 or equivalent;
And
B) Possessing the following educational qualification and experience;
I) Recognized Veterinary qualification included in the first schedule or second schedule of the Indian Veterinary Council Act, 1982 (Number 52 of 1984).
II) Should be registered with the State Veterinary Council or Indian Veterinary Council.
III) Post Graduate Degree in Veterinary Science/Animal Husbandry from a recognized University.
IV) Ten years Experience in the field of Veterinary Science/Animal Husbandry, out of which 5 years experience, should be in administrative capacity in the same field.
(Notes 1, 2 & 3 are omitted, as not relevant for the purpose of this case.)
A perusal of the provision extracted above discloses that basically the method of appointment to the post of Director is through promotion of Deputy Directors, Animal Husbandry (DDAH), having five years of service in that post. It is only when the qualified candidates from the feeder category are not available that recourse can be had, either to deputation or short term contract. The qualifications prescribed for the candidates to be taken on deputation are different. There again, the appointing authority has to operate from the top, and can go down, if only, there occurs default at higher level. In other words, if a candidate holding a post analogous to Director on regular basis in the parent cadre is available, the necessity to choose any candidate with lesser qualification, may be for deputation, does not arise. Similarly, if a candidate with 5 years experience in the grade equivalent to the post of DDAH is available for deputation, the occasion to choose a candidate with 10 years of service in the grade equivalent to that of VAS does not arise. Here itself, needs to be noted that, to become eligible to be promoted to the post of Director, Animal Husbandry, a candidate must have at least 10 years of experience, out of which, 5 years as VAS and 5 years as DDAH. Even this is treated as a last resort, but not any preferential choice.
If at a given time, the deputation is resorted to, even when a candidate in the feeder category is eligible for promotion to the post of Director, objections can certainly be raised. Similarly, if candidates as per sub-clause (I) & (II) of Clause (A) of Column.11 are available, objections can be raised for appointment on deputation, of a candidate with qualifications as mentioned in sub clause (III). The provision which is made just to overcome the extreme situations, and aimed at ensuring that there exists a Head of the Department, cannot be said to be either arbitrary or without jurisdiction. Added to that, the deputation by its very nature, is purely temporary. As long as a candidate is not going to be permanently absorbed, one should not have any plausible objection.
In Shakuntala Sharma's case (supra), Rule 10 of the Himachal Pradesh Recruitment (Conditions of Service) Rules, 1992, fell for consideration. The relevant provision reads as under:-
"By promotion from amongst graduate Deputy Superintendents/Revisors with minimum 3 years of service as such in the ratio of 4:1, failing which by promotion from amongst Sr. Assistants/Translators with minimum 6 years" service as such in the same ratio.
Explanation.- After promoting 4 Deputy Superintendents/Senior Assistants as Superintendents from general category.... One Revisor/Translator shall be promoted as Superintendent from amongst Revisors/Translators" category."
It needs to be noted that the alternatives provided therein were not, as between regular promotion on the one hand, and deputation on the other. Both options were in respect of promotion only. The candidates mentioned in the 2nd alternative were found to be far inferior and less qualified, compared to those in the regular feeder category. It was found that a Deputy Superintendent with two years of service is not eligible; and on choosing the other alternative, a Senior Assistant with six years of service, which is a feeder category to the post of Deputy Superintendent, was eligible to be promoted for the post of Superintendent. The fallacy is evident on the face of it. The alternative in the rule was accordingly struck down by the Hon"ble Supreme Court. In the instant case, the alternatives are in respect of deputation and not as regards the regular promotion.
We do not find any merit in the OA. It is accordingly dismissed. There shall be no order as to costs.