JUDGMENT
S. Ravindra Bhat, J.
1. Issue Rule. In these writ proceedings, common question of facts of law arise for consideration. In W.P.(C) 15935/2004, the petitioner has raised an additional issue which would be considered later during the course of the judgment. With consent of learned Counsel for parties, the above writ petitions were heard finally, today.
2. All the petitioners in these cases were appointed to various posts such as Pump Drivers/Assistant Pump Drivers/Fitters/Sewer Cleaning Machine Driver etc. They were initially appointed by the erstwhile Delhi Water Supply and Sewage Board which was under the statutory and administrative control of the Municipal Corporation of Delhi (MCD). Subsequently, with enactment of the Delhi Water Board Act, 1998, a Board by the name of Delhi Jal Board (DJB) was created. The petitioners’ services were transferred to the Board which is the common respondent in all these proceedings.
3. It is contended on behalf of the petitioners that they were all recruited to the positions/posts, by the erstwhile D.W.S.S.B. in the 1980s and 1990s. Initially they were engaged on ad hoc/daily wages basis and later assigned to the duties in respect of the posts which they are currently holding. It is also the case of the petitioners that all of them are holders of Diploma in Mechanical Engineering. It is claimed that the respondent acted arbitrarily and contrary to law in continuing them in the same post without any further career progress.
4. Mr. Rustagi, learned Counsel for the petitioner placed reliance upon a circular of 1987 as well as a policy decision dated 20.1.1992, of the erstwhile MCD. The proposal and the final decision of the MCD of 1992 read as follows:
PROPOSAL
With a view to solving this problem, it is proposed to adopt a policy for regularisation of daily waged employees performing technical jobs in a phased manner with the following conditions/ingredients:
i) All the daily waged technical employees who have worked continuously for more than 4 years without any break (for this purpose absence of 30 days from duty in a year will not be treated as break. However, absence beyond 30 days between 2 spells of daily waged engagement will be treated as break and the earlier service rendered as daily wager, will not be counted for the purpose of regularisation) would become eligible.
ii) All these daily waged employees will be considered for regularisation against the lowest rung of the cadre where direct recruitment is provided in the Recruitment Rules.
iii) Only those employees will be considered for regularisation who fulfilll the requirement of the lowest rung of the post in the cadre.
iv) None of the daily wages, who is facing vigilance case, or whose services have earlier been terminated or who have been awarded punishment on account of any vigilance enquiry, will be eligible for regularisation.
v) Till such time as the regularisation of all such employee is over, no direct recruitment will be made and where-ever it is found necessary to create some posts to accommodate the daily waged employees, the same will be created with the approval of the D.W.S. and S.D. Committee.
vi) Any new creation of the posts (for the purpose of regularisation) will be adjusted against the future proposal of creation of the posts.
The matter may be please be placed before the Authority vested with the powers of DWS and SD Committee/Corporation under Section 490(2)(b) of the D.M.C. Act, 1957 to approve the policy decision as contained in para (i) to (vi). for Commissioner
Item No. 1901:
Decision No. 1941/GW/ Proposals contained in Commissioner’s letter No. Corp. Dated 20.1.92. 76/DWSandSDU dated 17.1.1992 regarding regularisation of muster roll employees working as Technical Worker and fulfillling the recruitment of recruitment rules are approved.
5. It is contended that the petitioners are eligible and hold educational qualifications for appointment to the post of Work Assistants. Learned counsel submits that the post of Work Assistant is the lowest in rung or category post which is to be filled through direct recruitment and as per the policy of the MCD (which continues to bind the DJB), all the petitioners are eligible and should be appointed to the post of Work Assistants. Learned counsel further contended that the petitioners have worked as Work Assistants, though the description given to their posts was something else.
6. The stand of the respondent in all these proceedings is that although the erstwhile DWSSB has formulated a policy in the year 1992, nevertheless under the recruitment rules (finalised in the year 1982), the post of Work Assistants had to be filled exclusively through direct recruitment. A copy of the relevant recruitment rules had been re-produced along with the counter affidavit. Learned counsel Ms. Sadhna Sharma and Mr. R.K. Tewari, submit that the rules are statutory in character, framed in exercise of the power under Section 98 of the MCD Act, and by virtue of the provisions of the Delhi Water Boards Act, 1998, the rules continue to bind the DJB.
7. The relevant rules so far as they deal with the recruitment to the post of work assistants reads as follows:
Method of recruitment whether by direct By direct recruitment or by promotion or by deputation/ Recruitment transfer and percentage of the vacancies to be filled by various methods.
8. It is contended by Ms. Sharma that petitioners cannot claim to be promoted or appointed without undergoing the process of direct recruitment. Learned counsel also relied upon the schedule to the rules which specifically states that the post of Work Assistant is not a promotional post nor a selection post.
9. Learned counsel for the respondent Board contended that the mere circumstance that the petitioners worked for a long periods of time and the notification relied upon did not entitle them to claim appointment as Work Assistant. Reliance was placed upon the judgment in LPA 683/2003, Delhi Jal Board v. Workmen of erstwhile Water Supply and Sewerage Disposal Undertaking, decided on 7th February, 2006 (reported as 2006 LLR 488). Learned counsel also relied upon the Constitution Bench decision of the Supreme Court in Secretary, State of Karnataka and Ors. v. Umadevi and Ors., 2006(4) Scale 197 to say that the Court cannot issue directions contrary to rules and that recruitment and appointment to posts under the union and public authorities should be strictly in accordance with the rules and policies formulated, in that regard.
10. Learned counsel submitted that where the statutory rules are in existence and having been neither amended nor superseded, a policy to regularise or recruit personnel from amongst internal candidates, cannot be insisted upon as the rules would prevail in such cases.
11. The factual narrative would show that the petitioners were initially appointed on ad hoc or daily wage basis. They were subsequently regularised to the post and are admittedly working as Assistant Pump Drivers/Fitters and Sewerage Cleaning Machine Driver. Each of these posts are recognised and permanent positions in the DJB. The question is whether they can insist and seek enforcement of the policy formulated in the year 1992 for appointment as Work Assistants in proceedings under Article 226 of the Constitution of India.
12. It is not seriously disputed that the recruitment rules in question were formulated in the year 1982 and are statutory in nature. They were framed pursuant to provisions of Section 98 of of the Municipal Corporation of Delhi Act, 1957, and notified on 4.11.1982. The law is well settled on this issue that where there is a conflict between administrative instructions or circulars and statutory rules or provisions, the instructions/policies to the extent of repugnance or conflict have to yield to the statutory rules. This further to the proposition that administrative or executive instructions can only supplement but cannot supplant statutory provisions (Ref. Guman Singh v. State of Rajasthan ; Subhash Ramkumar Bind v. State of Maharashtra ; Union of India v. Rakesh Kumar ). If these perspectives are to be borne in mind, the question of issuing a direction to enforce the policy dated 21.1.1992 cannot arise. That would result violation of the pre-existing rules of 1982, which mandate recruitment or appointment to the post of Work Assistant exclusively by direct recruitment. The rule prescribes the qualifications as well as the age limit. This would also imply that the recruitment to the post is to be done in a manner which confirms to the standard prescribed in the Constitution, namely, by advertisement in the public domain so as to notify all concerned eligible candidates and consideration of the applications of such candidates in accordance with the rules.
13. The policy relied upon, restricts the scope of the recruitment to only those working within the organisation and in fact seeks to direct the Board to consider appointment, in the lowest rung (Work Assistants) from among those who have worked for a particular period of time or more within the organisation. I am of the opinion that the scope of these proceedings does not enable the Court to issue such directions. This is apart from the fact that the present Constitution Bench in Umadevi’s case held that the Court in exercise of writ jurisdiction cannot direct the executive authority to deviate from the rule or law prescribed.
14. In view of the above findings, I am of the view that the petitioners are not entitled to the relief claimed, namely, a direction to the respondent DJB that they ought to be appointed to the posts of Work Assistant.
15. As far as the additional grievance of the petitioner in W.P.(C) 15935/2004 is concerned, he had sought for quashing of the order dated 25.9.2002. It is admitted case in this petition that the petitioner was initially employed in 1986 and later assigned the duties of Assistant Pump Driver.
16. By an order dated 25.9.2002, the DJB purporting to issue a show cause notice, relegated him to the position of the Muster Roll Beldar. This was on the view that the petitioner had furnished certificates relating to his qualification that were forged, according to the DJB.
17. During the course of hearing, learned Counsel for the petitioner had relied upon the letter written by the State Board of Technical Education, Haryana dated 15.10.2005 which had certified that the petitioner was duly issued with the diploma and verifying it as genuine. He also relied upon the verification by the Board of School Education dated 24.11.2003 to state that petitioner’s matriculation certificate was genuine.
18. Learned counsel for the respondent submitted that even though the impugned order was issued on 29.10.2002, nevertheless the respondent considered the issue and restored the post and in fact gave a higher grade to the petitioner as Fitter-II in the pay scale of Rs. 3050-4590. This was done some time in August/September 2003.
19. Having considered the submissions of the parties, I am of the opinion that the respondent should not have issued the order dated 29.5.2002 without putting the petitioner on notice about the allegations of having produced false or forged certificate as subsequent events have showed the allegations were unfounded and the petitioner had to be restored his post. In the light of the subsequent events, it would not be appropriate to intervene the matter. However, a direction is issued to the respondent to pay costs of these proceedings to the petitioner, in WP(C) No. 15935/2004 in so far as the grievance is concerned, which is quantified as Rs. 5000/-.
20. In view of the above findings, the all the writ petitions are dismissed subject to the above directions with regard to W.P.(C) 15935/2004.
21. Order dusty.