Biswanath Somadder, J. - (1.) Let the affidavits filed in Court today on behalf of the parties be taken on record.
(2.) By consent of the parties, the appeal is treated as on day's list and taken up for consideration along with the application for stay.
(3.) The instant appeal arises out of a judgment and order dated 17th April, 2019, passed by a learned Single Judge in W. P. 28939 (W) of 2016 (Ravi Prakash Gautam vs. The Secretary, Ministry of Culture, Government of India & Ors.) whereby the learned Single Judge was pleased to dispose of the writ petition in the following manner:- " 22. From the above facts I hold that there is a permanent post of CT which is within the sanctioned strength of garden staff of VMH as appears from the letter of the Secretary & Curator of VMH dated November, 12, 1991; I hold that there is an existing R/R according to which the petitioner was declared as the only eligible candidate for the post of CT. I further hold that despite agreeing before NCSC to change the petitioner's cadre no steps have been from promoting the petitioner to the post of CT till date despite the petitioner being the only eligible candidate is waiting for the post of CT which is admitted by vacant from December 01, 2011. 23. Based on the facts and circumstances of the case discussed above I direct the R-2 to take all steps to promote the petitioner to the post of CT working now by removing the ad-hoc CT within a period of 4 weeks from date in the appropriate scale of pay with all benefits attached to that post." The instant appeal has been preferred by The Secretary and Curator, Victoria Memorial Hall. During the course of hearing of the instant appeal, the following order was passed on 23rd July 2019: - "During the course of hearing of this matter it transpires that the respondent no.3, namely, Sri Dipak Roy, has been duly served but remains unrepresented during the entire course of the proceedings held by us till today. Having heard the learned advocates for the parties, we are of the view that for effective adjudication of the instant appeal, the Secretary, Ministry of Culture, Government of India, being the respondent no.2, has to clearly spell out the stand of Union of India in respect of the instant matter by means of an affidavit. We notice with concern that even before the First Court, the Union of India never used any affidavit although several opportunities were granted by the learned Single Judge. We, therefore, direct the respondent no.2, to file an affidavit on behalf of the Union of India within a week from date. The affidavit may be affirmed by any competent officer of the Ministry of Culture, Government of India, under authority of its Secretary. The affidavit of Union of India must contain the following details; apart from any other point which the Union of India would like this Court to consider: - 1) How many post(s) of Caretaker has/have been sanctioned by the Central Government as of date? 2) What is the mode of filling up of such post(s) of Caretaker which is required to be adopted by Victoria Memorial Hall? 3) What is the status of the conversion of posts sought for by Victoria Memorial Hall and whether such conversion has been duly approved by the Central Government? 4) Whether a person in technical cadre can be promoted to a higher post in general cadre on an ad hoc basis without approval of the same from the Central Government? 5) What does the word "qualifying service" in a particular grade mean as per DoPT observation referred to in the letter of the Under Secretary to the Government of India dated 4th March, 2016 addressed to the Secretary and Curator, Victoria Memorial Hall? 6) What is the time period for which an ad hoc appointment can be continued? Is there any necessity to have a prior approval for an ad hoc appointment? If so, does the same require periodic approvals?" Consequently, an affidavit has been filed in Court today on behalf of the Secretary, Ministry of Culture, Government of India, affirmed by one S.C. Mondal, an officer of the Ministry of Culture, Government of India. This affidavit appears to have been affirmed before a Notary Public at Delhi on 13th August, 2019. The respondent/writ petitioner has responded to this affidavit by filing a counter affidavit in Court today. The primary issues/grounds which are sought to be raised by the appellant before this Bench, are as follows: - (i) The directions as contained in the impugned judgment and order dated 17th April, 2019, are contrary to the statutory provisions; (ii) The respondent/writ petitioner did not challenge the statutory provisions regarding creation of posts in Victoria Memorial Hall, consequence of which automatically are binding upon the parties; (iii) In the absence of any legally sustainable right, the learned Single Judge could not have issued a direction for creation of a right through implied setting aside of statutory provisions although such statutory provisions regarding creation of post in Victoria Memorial Hall were not under challenge; (iv) The learned Single Judge while issuing directions has made out a third case devoid of pleadings and in effect, set aside the validity of the Victoria Memorial Service Rules read with Victoria Memorial Service Regulations, 1987, insofar as it extends to creation of post; (v) Preparation of a final seniority list for the purpose of promotion, in anticipation of the approval to be granted by the Ministry of Culture, Government of India, does not ipso facto mature into a right of promotion in favour of the writ petitioner; (vi) Promotion cannot be a matter of right and the respondent/writ petitioner had only a limited right for the purpose of being considered for promotion to a post; (vii) The learned Single Judge did not take into consideration that for the purpose of promotion, there has to be a substantive vacant sanctioned post and in its absence there could not be any enforceable right to a temporary/ad hoc appointment; (viii) The learned Single Judge erred in giving weightage to the final seniority list prepared on 7th March, 2016; (ix) The learned Single Judge erred in construing the letter dated 12th November, 1991 - which was disclosed in the supplementary affidavit of the respondent/writ petitioner - as proof of existence of a sanctioned post of caretaker; (x) The letter dated 12th November, 1991, was written by the then Secretary and Curator of the appellant only as a proposal or requisition for sanction of post and in fact there was no post for the caretaker in Victoria Memorial Hall; (xi) The learned Single Judge failed to appreciate that the Board of Trustees of Victoria Memorial Hall had only approved the post of Caretaker for sanction of Government of India and this approval cannot amount to creation of such post under the provisions of Victoria Memorial Service Regulations, 1987, framed in exercise of section 6(1) of the Victoria Memorial Act, 1903. In answer to the specific queries raised by this Court as contained in our order dated 23rd July, 2019, the Secretary, Ministry of Culture, Government of India, through its officer has stated the following as contained in paragraph 12 of his affidavit: - "12. I state and submit that apart from the facts stated in the above paras, the respondent in annexure to the Questions asked from by this Hon'ble Court Kolkata vide their order dated 30th July, 2019, I respectfully submit answers to all the six questions on the basis of guidelines or instructions circulated from time to time by DoPT or Ministry of Finance as under: - (i) Question No. 1 - How may post(s) of Caretaker has/have been sanctioned by the Central Government as of date? Answer - No post of Caretaker has yet been sanctioned by the Central Government i.e. Ministry of Culture in Victoria Memorial Hall, Kolkata. (ii) Question No. 2 - What is the mode of filling up such post (s) of Caretaker which is required to be adopted by Victoria Memorial Hall? Answer - It is provided in the Recruitment Rules of post whether it is to be filled up by direct method, promotion or composite method or by transfer on deputation or on deputation as per requirement of such mode for filling up a post. As per DoPT Circular No. AB 14017/13/2013 - Estt.(R) titled as "Frequently Asked Questions (FAQ)", the R/Rules of the post are framed only after it is approved for creation by the Central Government i.e. Ministry of Finance. Ministry of Finance conveys the approval of creation of post to the administrative Ministry/Department. For filling up the post, the administrative ministry again approaches the Ministry of Finance and on approval the same by the Ministry of Finance, the administrative ministry conveys sanction to its attached or subordinate office or autonomous organisation under its control for filling up the sanctioned post. Thereafter, the concerned organisation frames draft recruitment rules of such post wherein the mode of its filling up is provided and only after approval of the R/Rules of the post by the administrative ministry in its own power or in consultation with DoPT, as the case may be, the post is filled up. Since the Ministry of Culture has not approved the conversion of post of Security Assistant to Caretaker, the question of its filling up with particular mode does not arise. A copy of relevant extract of FAQ of DoPT circulated vide No. AB. 14017/13/2013 - Estt. annexed as Annexure-R-1 (iii) Question No. 3 What is the status of the conversion of posts sought for by Victoria Memorial Hall, Kolkata and whether such conversion has been duly approved by the Central Government? Answer - The issue of conversion of the post of Security Assistant was received from Secretary & Curator, VMH, Kolkata vide their letter No. VM No.2403/III - A (2) -53/2003 dated 30.12.2016. After examination of the issue, Secretary and Curator, VMH was informed that conversion of post amounts to creation of post which do not take effect retrospectively. Hence, Ex-post-facto approval for conversion of the post of Security Assistant to that of Caretaker cannot be acceded to. Nevertheless VMH has been requested in the same letter dated 30.12.2016 to submit a detailed proposal for conversion of Security Assistant to the post of Caretaker prospectively for further examination in the Ministry in consultation with Ministry of Finance. (iv) Question No. 4. - Whether a person in technical cadre can be promoted to a higher post in general cadre on an ad hoc basis without approval of the same from the Central Government? Answer - DoPT have been issuing instructions/guidelines from time to time for framing/amendment/relaxation of Recruitment rules. In this connection, latest guidelines circulated by DoPT vide its OM No. AB. 14017/48/2010 - Estt.(RR) dated 31st December, 2010. Copy of relevant extract of DoPT OM dated 31st December, 2010 are annexed as Annexure -R-2. The guidelines circulated by DoPT vide its OM dated 31st December, 2010 do not precisely identify a post as technical post or general cadre post. A post is classified as per "R/Rules" of the post. If it is a civil post it is classified as Central Service Gr. "A", "B" or Gr. "C" C post. If it is a general post it is classified as General Central Service, Gr. "A", "B" or "C" post. Classification as Gr. A, B or C is identified with reference to the pay scale attached to the post. DoPT in its OM dated 31st December, 2010 has also suggested to classify a post either Ministerial or Non-Ministerial as per ( FR-9 (17)). Ministerial posts are e.g., LDC, UDC, Assistant, Section Officer etc., whereas non-ministerial posts are e.g., driver, mechanical, computer operator, data entry operator, care-taker etc. A copy of the notified recruitment rules of the post of Care-taker under Health Minister is annexed as Annexure - R-3 which reveal that the post of Care-taker is NonMinisterial post and is filled by direct method in level two of pay matrix. As such, there is generally no provision to promote a technical cadre to higher post in general cadre on ad hoc basis unless specifically provided in the Recruitment Rules of the post. In addition, DoPT vide its OM No.28036/1/2012- Estt. (D) dated 3rd April, 2013 on ad hoc appointment/promotion has affirmed that appointments on ad hoc basis are to be resorted to only in exceptional circumstances for exigencies of work where the post cannot be kept vacant until regular candidate becomes available. Such adhoc appointment can be limited to one year. If it is continued beyond one year than approval of DoPT is inevitable. A copy DoPT OM dated 3.4.2013 are annexed as Annexure -R-4. (v) Question No.5 - What does the work "qualifying service" in a particular grade mean as per DoPT observation referred to in the letter of the Under Secretary to the Government of India dated 4th March, 2016, addressed to the Secretary and Curator, VMH, Kolkata? Answer - The word "Qualifying service" in a particular grade would mean the minimum length of service that a person in the feeder grade / post is required to put in for being considered to a post in a higher grade. DoPT guidelines dated 31.12.2010 deal with qualifying service for promotion in clause 3.12.2, so that premature promotion or undue jump in pay is avoided and that an officer has sufficiently acquired competence and potential for holding a higher post by rendering service for a minimum period in the feeder post. Copy of the relevant extract of DoPT guidelines dated 31.12.2010 are annexed as Annexure-R-5. (v) Question No. 6 - What is the time period for which an ad hoc appointment can be continued? Is there any necessity to have a prior approval for an ad hoc appointment? If so, does the same require periodic approvals? Answer - DoPT have been issuing instructions/guidelines from time to time on ad hoc appointment or promotion. In this connection latest instructions issued by DoPT vide its OM No. 28036/1/2012- Estt. (D) dated 3rd April, 2013 on ad hoc appointment/promotion are referred. A perusal of the guidelines reveal that appointments or promotion on ad hoc basis are to be resorted to only in exceptional circumstances for exigencies of work where the post cannot be kept vacant until regular candidate becomes available. Such adhoc appointment can be limited to one year. If it is continued beyond one year that approval of DoPT is inevitable.";