JUDGMENT
Lokeshwar Prasad, J.
(1) The present petition, filed by the petitioner, under Article 226 of the Constitution of India, raises a short question as to whether the proceedings of a Departmental Promotion Committee (hereinafter referred to as ‘the DPC’) wherein the Dpc considered the candidates who were ineligible for promotion under the Recruitment Rules (hereinafter referred to as ‘the RRs’) as in force, are legal and can be acted upon for giving promotion to the candidates recommended by the Dpc on a subsequent date when the candidates so recommended became eligible for promotion.
(2) The facts relevant for the disposal of the present petition, briefly stated, are that the petitioner was appointed as a Technical Supervisor(Lab.) in the Department of Bio-technology, All India Institute of Medical Sciences (AIIMS) w.e.f. 1.8.89. Respondents 2 & 3 were also appointed as Technical Supervisor (Lab.) (Blood Bank) in the above said Institute w.e.f. 26.6.90. Respondent No.4 & 5 were appointed as Technical Supervisor(Lab.) in the Department of Nephrology, Ahms w.e.f. 26.12.91. As respondents 2,3,4 & 5 were appointed as Technical Supervisors in the various Departments of Ahms after the appointment of the petitioner as Technical Supervisor in the Department of Biotechnology, the respondents 2 to 5 were ranked junior to the petitioner in the seniority list of Technical Supervisors. It is the case of the petitioner that the cadre of Technical Supervisor is a ‘feeder cadre’ for promotion to the post of Sr. Technical Officer(Lab.) and for promotion to the above said post of Sr. Technical Officer(Lab.) it is prescribed that the candidate eligible for promotion should possess a B. Sc. Degree or Intermediate/10+2 with a recognised diploma in Mlt and 3 years experience as Technical Supervisor. It is averred that in the meeting held on 20.4.93 the Dpc considered the candidature of nine Technical Supervisors including the petitioner and respondents 2 to 5 for promotion to the post of Sr. Technical Officer and recommended respondents 2 to 5 for promotion to the post of Sr. Technical Officer. It is alleged that on the basis of the recommendations of the Dpc, held on 20.4.93, respondents 2 to 5 have been promoted to the post of Sr. Technical Officer on a subsequent date i.e. on 7.9.95.
(3) The main grievance’ of the petitioner in the present petition is that on the relevant date i.e. 20.4.93 when the Dpc was constituted and the meeting of the Dpc was held only the petitioner and one Mrs. Manju Kirtani were eligible for consideration for the post of Sr. Technical Officer(Lab.) as per the RRs then in force and that respondent No-2,3, 4 & 5 were not eligible under the RRs for being considered as they did not possess the required experience in the feeder cadre. The petitioner in the present petition has assailed the action of respondent No.1 whereby respondent No. 1 has promoted respondents 2 to 5 to the post of Sr. Technical Ofticer(Lab.) on the basis of the recommendations of the Dpc held on 20.4.93, the date on which the above said respondents i.e. respondents 2 to 5 were not even eligible for consideration under the relevant RRs.
(4) The petition has been contested only on behalf of respondent No.1 (AIIMS). In the counter affidavit filed on behalf of the respondent Aiims it is not disputed that a Dpc meeting was held on 20.4.93 for promotion to the post of Sr. Technical Officer(Lab.). It is also stated in the counter that in the year 1993, for five posts of Sr. Technical Officer(Lab.) various persons were considered including the petitioner and respondents 2 to 5. It is not denied in the counter that on the relevant date i.e. on 20.4.93 when the Dpc meeting took place and the Dpc considered the candidature of various persons for making recommendations for appointment to the post of Sr. Technical Officer (Lab.), respondent No.2 to 5, considered by the Dpc, were not eligible for being considered for promotion to the above said post under the relevant RRs as on that date they did not possess the requisite experience as laid down in the RRs. In the counter filed on behalf of respondent No. I (AIIMS) rt is admitted that respondents 2 to 5 were given promotion from the date of their respective eligibility. The above admission on the part of the respondent Aiims also indicates the fact that on the relevant date i.e. on 20.4.93 when the Dpc meeting was held for considering the candidates for promotion to the post of Sr. Technical Officer(Lab.) the above said responders were not eligible for consideration for the post of Sr. Technical Officer(Lab.) and they became eligible on a subsequent date.
(5) I have heard the learned counsel for the parties at length and have also carefully gone through the documents/material on record. The main thrust of the arguments of the learned counsel for the petitioner was that the Dpc in its meeting held on 20.4.93 could not have considered the candidature of respondents 2 to 5 who were not eligible under the RRs and since the Dpc considered ineligible candidates, the recommendations of the Dpc were not in conformity with the RRs and could not have been acted upon by respondent No.1 for promoting respondents 2 to 5 to the post of Sr. Technical Officer (Lab.) on a subsequent date i.e. after a period of over two years. The , learned counsel for the respondent Ahms (respondent No.1) on the other hand submitted that though on the date the Dpc meeting was held for making recommendations for promotion to the post of Sr. Technical Officer(Lab.) respondents 2 to 5 were not eligible under the RRs but they were given promotion by respondent No.1 to the above said post from the date of their respective eligibility and, therefore, no fault can be found with the promotion of the above said respondents to the post of Sr. Technical Officer(Lab.).
(6) The only question requiring consideration in the present case is as to whether the Dpc in its meeting held on 20.4.93 could have considered the candidature of those persons for promotion to the post of Sr. Technical Officer( Lab.) who were not even eligible for being considered to the above said post as per the relevant RRs. In my opinion, the Dpc was in no way competent to consider the candidature of those persons who were not eligible for being considered to the above said post in terms of the RRs and any such recommendations made in contravention or violation of the RRs could not have been acted upon for promoting respondents 2 to 5 to the said post after a lapse of two years thereby giving a lopsided benefit to respondents 2 to 5
(7) The learned counsel for the respondent Ahms (respondent No.1), made a feeble attempt to justify the action of respondent Aiims in promoting the respondents 2 to 5 to the post of Sr. Technical Officer(Lab.) by saying that no prejudice has been caused to the petitioner because the Dpc held on 20.4.93 considered the case of the petitioner. In my opinion, in the peculiar facts and circumstances of the case the above submission, so made by the learned counsel for the respondent Ahms (respondent No.1) is devoid of substance because from a perusal of the reply affidavit filed on behalf of the respondent Ahms it is apparent that on the date the Dpc was held there were five posts of Sr. Technical Officer(Lab). Respondents 2 to 5, as per the case of the respondent Ahms, were not eligible for being considered to the above said post as they did not possess the requisite experience and only two Technical Supervisors, namely, the petitioner and one Smt. Manju Kirtani were eligible under the RRs for being considered for promotion to the above said post. Thus against the five vacancies existing in the year 1.993 the Dpc could have considered the candidature of the petitioner and said Smt. Manju Kirtani and in case the petitioner was not found suitable the Dpc could have recommended only one person, namely, said Smt. Manju Kirtani for promotion to the said post thereby leaving four vacancies for which another Dpc would have been held and in the another Dpc the case of the petitioner could have been considered alongwith the other eligible candidates. Thus the action of the Dpc in recommending four ineligible candidates thereby making recommendations for all the five vacant posts in other words amounts to denial of opportunity to which in the given facts and circumstances of the case the petitioner was legally entitled.
(8) In view of the above discussion the action of the respondent Aiims (respondent No.1) in promoting the respondent No.2 to 5 on the basis of the recommendations made by the Dpc in its meeting held on 20.4.93 cannot sustain the test of judicial scrutiny and is liable to be quashed.
(9) Por the foregoing reasons the petitioner is allowed and the recommendations made by the Dpc as a consequence of the meeting held on 20.4.93 for promotion to the post of Sr. Technical Officer(Lab.) and subsequent appointments made to the above said post on the basis of the above said recommendations by respondent No.1 are hereby quashed. The respondent No.1 is given a direction to constitute a fresh Dpc within four weeks from the date of this order in terms of the RRs as in force on 20.4.93 for making recommendations for promotion to the post of Sr. Technical Officer(Lab.) and the Dpc so constituted shall consider the candidature of only those candidates who were eligible for consideration for promotion to the post of Sr. Technical Officer( Lab.) on 20.4.93 and as per the RRs in force on the above said date and shall make its recommendations for promotion to the post of the above said post and acting on the said recommendations, promotion to the post of Sr. Technical Officer(Lab.) shall be made by respondent No.l AIIMS. With the above observations the petition stands disposed of. In the facts and circumstances of the case no order as to costs.