H. C. Sharma & Ors Vs. Municipal
Corporation of Delhi & Ors [1983] INSC 79 (13 July 1983)
VARADARAJAN, A. (J) VARADARAJAN, A. (J)
TULZAPURKAR, V.D.
CITATION: 1983 AIR 881 1983 SCR (3) 372 1983
SCC (3) 567 1983 SCALE (2)983
CITATOR INFO :
R 1987 SC2359 (8) RF 1989 SC 307 (5,8)
ACT:
Constitution of India-Arts. 14 and 16-Scope
of-Carving out two classes in the same category on the basis merely of
qualification not permissible.
Delhi Municipal Corporation Act, 1957-Secs.
47 and 480(2)-Scope of-Delhi Municipal Corporation-A statutory authority-Not
bound by policy of C.P.W.D. unless adopted by its resolution. Recruitment
Regulations dated 27.6.1970 made with approval of Central Government under sec.
480(2) Applicable prospectively, Appointment of Assistant Engineers
(Civil)-Quota rule-50 per cent by promotion and 50 per cent by direct
recruitment-Validity of. Appointment of Jr.
Engineers as Assistant Engineers on current
duty charge basis for long periods.-Irregular.
HEADNOTE:
The first respondent, Municipal Corporation
of Delhi, put up an advertisement in the press on 30-12-1978 for filling up 8
posts of Assistant Engineers (Civil) by direct recruitment. Pursuant to the
interviews held in this behalf a list of selected candidates out of Graduate
Junior Engineers was prepared and approved on 2.5.1979. The list was pending
final decision about the appointment of the direct recruits selected for these
8 posts. By its office order dated 10.4.1978 the first respondent entrusted 6
diploma holders Junior Engineers with current duty charge of the posts of
Assistant Engineers and by office order dated 21.6.1979 promoted two diploma
holder Junior Engineers as Assistant Engineers on current duty charge. Feeling
that the proposed direct recruitment would be detrimental to their interest,
the petitioners, who were diploma holder Junior Engineers of the first
respondent, filed writ petition No. 221 of 1979 under Art. 32 of the
Constitution, praying for directions to be issued to the first respondent to
restrain the first respondent from recruiting Assistant Engineers directly; to
give effect to the recommendations of the Third Pay Commission regarding the
rules and policy of promotion etc; to reckon the seniority of the petitioners
with their length of service and not to affect in any manner all those holding
adhoc charge and current duty charge. The petitioners also prayed for quashing
the seniority list dated 2.9.1978 (Annexure G in writ petition 1194 of 1979),
The petitioners contended that the first respondent should have suspended the
direct recruitment of Assistant Engineers and that the rule prescribing a quota
of 50 per cent by promotion and 50 per cent by direct recruitment laid down in
the recruitment regulations dated 27.6.1970 should not be followed. The petitioners
submitted that the first respondent Corporation had been following the pattern
of functioning current in the Central Public Works Department (C.P.W.D.) in all
matters of recruitment, promotion and other conditions. The C.P.W.D. had
decided in August, 373 1975 to suspend direct recruitment in Central
Engineering Service w.e.f. 1.4.1972. The first respondent had taken a decision
by passing resolutions in 1970 and 1971 to the effect that all fundamental
rules and supplementary rules including amendments and orders issued by the
Central Government shall be treated as rules etc. issued by respondent I. The
Central Government had power of general superintendence over the first
respondent and it had informed the first respondent by letter dated 23.2.1976
that consequent upon recommendations of the Third Pay Commission direct
recruitment may be banned by respondent I as had been done by the C.P.W.D. The
27th respondent in writ petition 1194 of 1979 contended that since there were
only 60 posts of Civil Engineers when the Recruitment Regulations dated
27.6.1970 were made those Regulations could apply only to 60 posts of Assistant
Engineers and direct recruits would be entitled to only 30 posts and they were
not entitled to further posts by direct recruitment now as they had already
been given 36 posts.
The graduate Junior Engineers whose names
were on the select list, along with others, filed writ petition No. 1194 of
1979 under Art. 32 of the Constitution praying for directions to be issued to
the first respondent to fill up 8 posts of Assistant Engineers from amongst
those in the Select Panel; to fill up the remaining posts of Assistant
Engineers in the direct recruitment quota from amongst the empanelled
petitioners; to grant revised pay scale of Rs. 550-900 to the petitioners and
other Graduate Junior Engineers w.e.f. the date it was made applicable in the
C.P.W.D.; to revise special pay from Rs. 40 to Rs. 75 per mensem w.e.f.
1.1.1979. The petitioners also prayed for quashing office orders dated
10.4.1978 and 21.6.1979;
declaring the Graduate Junior Engineers as a
separate category and giving them equal quota under the departmental promotee
quota in the posts of Assistant Engineers; and also declaring that the Graduate
Junior Engineers in the service of respondent I are entitled to be put on par
with their counterparts in other Government Departments. The petitioners urged
that even though a statutory duty was cast on the first respondent to fill up
the posts of Assistant Engineers on 50:50 basis, 26 posts of Assistant
Engineers in the direct recruitment quota were kept unfilled and only 8 posts
were advertised. The respondent I had not filled up even those 8 posts with
candidates from the select list but had in violation of the rights of the
petitioners guaranteed under Art. 16 of the Constitution promoted Junior
Engineers with diploma on current duty charge. Under the Central Civil Service
Rules, 1973 and on the basis of the Third Pay Commission's report the
petitioners who were graduate Junior Engineers were entitled to the pay scale
of Rs. 550-900. The petitioners submitted that since they were similarly
circumstanced with those other graduate Engineers in class 3 service in other
Government departments there was no just or valid reason to discriminate the petitioners
qua the other graduate Junior Engineers in class 3 service in other Government
departments.
Dismissing writ petition 221 and partly
allowing writ petition 1194,
HELD: There is nothing wrong in the
respondent 1- Corporation proceeding to appoint Assistant Engineers (Civil) by
direct recruitment as per the Recruitment Regulations or in fixing the 50:50
quota [and working it out or in the selection of the petitioners in Writ
Petition 1194 of 1979 as Assistant 374 Engineers pursuant to the decision to
appoint 8 Assistant Engineers (Civil) by direct recruitment. [403 D-H] The
Municipal Corporation of Delhi which is a statutory authority is not
automatically bound by any decision that may be taken by the C.P.W.D. in regard
to direct recruitment of Assistant Engineers and it is open to the Corporation
to adopt any policy of the C.P.W.D. by a resolution when alone that policy will
become binding on the Corporation. No provision in the Third Pay Commission's
Report has been brought to the notice of the Court. On the other hand it is
admitted that there is no resolution of the Delhi Municipal Corporation banning
or suspending direct recruitment of Assistant Engineers for 7 years or any
period from any date whatsoever. The Central Government's letter dated 23.2.1976
does not contain any direction which could be issued by the Central Government
under sec. 487 of the Act and is not binding on respondent I. The 50:50 quota
fixed in the Recruitment Regulations approved on 27.6.1970 has not been altered
but has been approved by the Corporation in its Resolution No. 348 dated
10.7.1978. [400 C-F] A.K. Subbaraman & Ors. v. Union of India, (1975) 2
S.C.R. 979 referred to.
Respondent I is admittedly bound by the
Recruitment Regulations made with the approval of the Central Government as
required by sec. 480(2) of the Delhi Municipal Corporation Act and it shall
fill the remaining posts of Assistant Engineers in the direct recruitment quota
which are kept vacant in the seniority list dated 2.9.1978 and any further posts
which might have become available thereafter or become available in view of the
decision in these two Writ Petitions or otherwise in accordance with those
Recruitment Regulations. [403 H, 404 A-B] The quota fixed in the Recruitment
Regulations cannot be restricted to only 60 posts of Assistant Engineers which
were in existence on the date of their approval. The Recruitment Regulations
themselves do not say that they are retrospective in operation from 1958. Prima
facie those Regulations would apply to all future recruitments and promotions.
That is how they have been understood by the authorities of respondent I
Corporation when they decided to have 8 posts of Assistant Engineers filled up
by direct recruitment though at that time there were 36 directly recruited
Assistant Engineers holding more than 50 per cent of 60 such posts. [400 H, 401
A-B] The seniority list dated 2.9.1978 (Annexure G in Writ Petition 1194 of
1979) which was prepared after hearing all concerned does not appear to have
been objected to before or after it was finalised except in Writ Petition 221
of 1979.
In that seniority list 130 posts of Assistant
Engineers are mentioned by placing one promotee and one direct recruit
alternatively according to their seniority. The petitioners in Writ Petition
221 of 1979 are only Junior Engineers whereas the seniority list relates to
Assistant Engineers.
It is not the case of the petitioners in Writ
Petition 221 of 1979 that their seniority as Junior Engineers has not been
fixed properly. They are only Junior Engi- 375 neers and consequently they
cannot question the correctness of the seniority list dated 2.9.1978 relating
to Assistant Engineers. As they have not yet been regularly appointed or
promoted as Assistant Engineers they cannot have any grievance about their
names not being mentioned in that seniority list. Therefore, there is no need
to quash the seniority list dated 2-9-1978 or to give any direction to
respondent I to reckon the seniority of the petitioners with the length of
their services. [401 C-E, 410 H, 411 A-B] Continuing Current Duty Charge and
Adhoc appointments for period exceeding the period of one year mentioned in the
memorandum dated 30.12.1976 of the Government of India is irregular though that
Memorandum could not be stated to be automatically binding on respondent I.
What is totally wrong is that appointment of Junior Engineers on Current Duty
Charge as Assistant Engineers has been made by the impugned order dated
21.6.1979 even after the approval of the select list prepared for the
appointment of 8 Assistant Engineers without issuing orders for appointment
even to 8 out of those persons who are in the select list. The appointment of 6
Diploma Holder Junior Engineers by the order dated 10.4.1978 (Annexure I) and
of 2 such Junior Engineers by the order 21.6.1979 (Annexure M) as Junior
Engineers on Current Duty Charge for periods which are proved to be too long is
irregular and the same is quashed. Respondent I shall issue orders of
appointment to 8 Degree holder Junior Engineers out of those in the select list
approved on 2.5.1979 within one month from this date and complete the
appointment of Assistant Engineers for the remaining posts on regular basis in
accordance with the quota fixed in the Recruitment Regulations within six months
from this date until which time the Current Duty Charge holder and Adhoc
appointees according to seniority will continue to man the remaining posts.
Respondent I shall not make Current Duty Charge/Adhoc appointments and
promotions except strictly and truly in accordance with the instructions and
Regulations and other instructions, if any, issued in that regard. [408 H, 409
A- E] Declaring the petitioners Graduate Engineers as a separate category
amongst Junior Engineers and giving them equal quota like the Diploma holder
Junior Engineers out of the 50 per cent for promotion as Assistant Engineers,
cannot be done except by carving out two classes in the same category of Junior
Engineers on the basis merely of their qualification which is not permissible in
law though the creation of selection grade in the same category on the basis of
merit and seniority is well known and permissible.
The Junior Engineers do the same kind of work
and bear the same responsibilities whatever their qualification, whether they
are degree holders or diploma holders. [411 C-E] S. B. Patwardhan v.
Maharashtra, (1977) 3 SCR 775 referred to.
The petitioners in Writ Petition 1194 of 1979
cannot be allowed to blow hot and cold. In regard to the policy of suspension
of direct recruitment of Assistant Engineers (for 7 years w.e.f. 1.4.1972)
their contention is that the policy of the C.P.W.D. cannot apply automatically
to the Corporation until it is adopted by a resolution. Now in regard to the
planning allowance they 376 cannot be heard to say that the revision should be
made automatically from 1.1.1979 following the C.P.W.D. pattern.
Evidently, the Corporation has resolved to
grant the upward revision only from 19.5.80. The petitioners are not entitled
to claim the revision from 1.1.1979 itself and they have to be satisfied with
the revision effected from 19.5.80. [410 C-E]
ORIGINAL JURISDICTION: Writ Petition Nos. 221
& 1194 of 1979.
Under article 32 of the Constitution of
India.
(In WP. 221/79):
Mrs. Shyamla Pappu and A. Minocha for the
Petitioner.
U.R. Lalit, B.P. Maheswari, Suresh Sethi and
Miss Asha Rani Jain, for the Respondents Nos. 1-2.
R.P. Sharma for the Respondents 9, 13 and 28.
G.L. Sanghi, Miss Kamini Jaiswal and Miss
Nishi Puri for Mrs Urmila Kapur for the Respondents Nos. 3,4,6,10,12,13,20,38,44
and 45.
(In WP. No. 1194/79):
V.M. Tarkunde, Miss Kamini Jaiswal and Miss
Nishi Puri for the Petitioners 1 to 10.
G.L. Sanghi, Miss Kamini Jaiswal and Miss
Nishi Puri for the Petitioners 11-21.
U.R. Lalit, B.P. Maheshwari and Suresh Sethi
for Respondents 1 and 2.
S.C. Gupta and Ramesh Chand for Respondents
Nos. 13,25 and 27.
The Judgment of the Court was delivered by
VARADARAJAN, J. The petitioners in these two Writ Petitions, filed under
Article 32 of the Constitution, are Junior Engineers of the first respondent,
Municipal Corporation of Delhi. W.P: No. 221 of 1979 has been filed by
Diploma-holders amongst the Junior 377 Engineers for the issue of Writ of
mandamus or other appropriate writ to:
(1) Restrain respondent 1 from recruiting
Assistant Engineers directly and filling up the posts of Assistant Engineers;
(2) Direct respondent 1 to give effect to the
recommendations of the Third Pay Commission regarding the rules and policy of
promotion etc;
(3) Quash the seniority list (Annexure G)
prepared by respondent 1;
(4) Direct respondent 1 to reckon the
seniority of the petitioners with their length of service; and (5) Direct
respondent 1 not to affect in any manner all those holding adhoc charge and
current duty charge.
W.P. No. 1194 of 1979 has been filed by
Graduate Junior Engineers as well as Graduate Junior Engineers selected for
appointment directly as Assistant Engineers for the issue of a writ of
mandamus, certiorari or any other appropriate writ to:
(1) Direct respondent 1 to fill up eight
posts of Assistant Engineers amongst those in the Select Panel;
(2) Quash Office Order dated 10.4.1978
(Annexure I) entrusting Junior Engineers with current duty charge of the posts
of Assistant Engineers and the Office Order dated 21.6.1979 (Annexure M)
promoting two Junior Engineers as Assistant Engineers on current duty charge on
their own pay scale;
(3) Direct respondent 1 to fill up the
remaining posts of Assistant Engineers in the direct recruitment quota from
amongst the empanelled petitioners who are Graduate Junior Engineers;
(4) Declare the petitioners-Graduate Junior
Engineers as a separate category and give them equal quota 378 under the
departmental promotee quota in the posts of Assistant Engineers;
(5) Restrain respondent 1 from giving adhoc
promotions to current duty charge holders amongst Junior Engineers;
(6) Declare that the petitioners Graduate
Junior Engineers in the service of respondent 1 are entitled to be put on par
with their counter-parts in other government departments;
(7) Direct respondent 1 to grant revised pay
scales of Rs. 550-900 to the petitioners and other Graduate Junior Engineers as
in the case of Graduate Engineers in Class III service in other government
departments with effect from the date it is made applicable in the Central
Public Works Department in view of the decision in Ram Kumar and Ors. vs. Union
of India; and (8) Direct respondent 1 to revise special pay from Rs. 40 to Rs.
75 per mensem to the petitioners and other Graduate Junior Engineers entitled
thereto from 1.1.1979.
The case of the petitioners in W.P. 221 of
1979 (Diploma-holders Junior Engineers) is that they are holding the posts of
Junior Engineers in the service of respondent 1 for 16 to 18 years having
joined service as Junior Engineers during 1967 to 1970 while respondents 3 to
46 are those who have been directly recruited as Assistant Engineers during
1974-78 in contravention of the declared policy of the Government barring
direct recruitment. The next promotional posts to the petitioners are Assistant
Engineers. The first respondent has been resorting to direct recruitment to the
posts of Assistant Engineers to the extent of 50 per cent resulting in
stagnation of the petitioners in the grade of Junior Engineers. It has been
following the pattern of functioning current in the Central Public Works
Department, hereinafter referred to as 'CPWD' in all matters of recruitment,
promotion and other conditions of service. The CPWD had decided to suspend
direct recruitment to the Central Engineering Service because no promotional
chances were available to the Central Engineering/Electrical Engineering
Service (Class II). That decision.
379 taken in August 1975 became effective
from 1.4.1972 (Annexure 'B'). The first respondent has taken a decision by
Resolutions Nos. 416 and 78 dated 27.7.1970 and 21.2.1971 to the effect that
all fundamental rules and supplementary rules including amendments and orders
issued by the Central Government shall be treated as rules etc. of the first
respondent Corporation. Similarly, the Central Services Conduct Rules as
applicable to Central Government and the general fundamental rules including
amendments and orders issued by the Central Government have been made
applicable to the first respondent Corporation. As soon as the petitioners
learnt that there is suspension of direct recruitment in the CPWD the
petitioners invited the attention of the first respondent to that fact in
November 1975 and requested for banning of direct recruitment of Assistant
Engineers and were given an assurance that their rights will not be
over-looked. The petitioners made several representations including the last
one dated 24.1:1979 (Annexure 'E'). The then Commissioner of the first
respondent assured the petitioners orally that the practice adopted by the CPWD
will be followed by the first respondent, but he however, wrote to the
petitioners saying that the matter was under consideration. The petitioners met
the Deputy Commissioner of the first respondent on 23.1.1979 and protested
against the advertisement made in the Press to fill up eight posts of Assistant
Engineers by direct recruitment, and as he accepted the suggestion of the
petitioners they expected that the advertisement will be withdrawn. Respondent 1
is, however, bent upon going ahead with the direct recruitment though more than
275 out of 400 Junior Engineers aspiring for promotion as Asst. Engineers are
eligible for consideration. The Central Government has power of general
superintendence over the first respondent and it has informed the first
respondent by letter dated 23.2.1976 (Annexure 'F') that consequent on the
recommendation of the Third Pay Commission the first respondent may ban direct
recruitment as has been done by the CPWD. The Director in the Office of the
Director-General of Works, Government of India informed the Assistant
Commissioner (Establishment) of the first respondent by letter dated 16.2.1978
(Annexure 'F1') that direct recruitment to CES/CEES Group B was still under
suspension.
Though no specific reference has been made in
the Third Pay Commission's Report to Junior Engineers of the first respondent
Corporation, its recommendations have been followed by the first respondent,
and its employees are treated in the same manner as employees of the Central
Government are treated by the Government, their pay scales and service
conditions being the same. The proposed direct recruitment 380 to eight posts
of Assistant Engineers is detrimental to the interests of the petitioners in
the light of the Central Government's memorandum of the year 1959 relating to
seniority. The first respondent should, therefore, be directed to follow the
same policy as is being followed by the Engineering Department of the Central
Government.
The details of the appointments of
respondents 3 to 46 who have been directly recruited as Assistant Engineers
during the years 1974-78, given in Annexure A-1, would show that the direct
recruits of the year 1974 rank higher and above the petitioners who are
recruited much earlier. Of the 400 Junior Engineers in the service of
respondent 1, 36 are holding current duty charge as Assistant Engineers from
1978 and several others are holding charge as Assistant Engineers on adhoc
basis. Those Junior Engineers who are officiating as Assistant Engineers ought
to be treated as regularly appointed Assistant Engineers. However, their names
are not shown in the seniority list (Annexure 'G' circulated on 2.9.1978. That
seniority list has been prepared on the basis of the memorandum issued by the
Central Government in December 1979 which is similar to the seniority rules
which has been struck down by this Court in the case of S.B. Patwardhan and
Ors. etc. v. State of Mahrashtra & Ors.(1) Respondent 1 is drawing the
seniority list without any authority of law by putting one promotee and one
direct recruit thereafter and so on in accordance with the instructions of the
Central Government, according to which those confirmed earlier would rank
senior to those confirmed later. The conferment of artificial seniority by
respondent 1 deprives the petitioners of their actual seniority and is
destructive of the fundamental right to equality.
The first respondent-Corporation has filed
counter- affidavit contending that the Corporation has to be guided by its own
rules relating to its Engineering Service though the conditions of service
under it could not be less attractive than those prevailing in the CPWD in
order that it may attract proper engineering talents. All appointments in the
Corporation carrying a minimum salary of less than Rs. 700 per mensem could be
made by the Commissioner of the Corporation since 10.1.1975 in accordance with
the recruitment rules which have been framed in consultation with the Union
Public Service Commission though prior to that date consultation with Union
Public Service Commission was essential in the matter of 381 appointment to
posts carrying a minimum salary of Rs. 350 and above per mensem. After from
Executive Engineers and Superintending Engineers, the Engineering Service
(Civil) in the first respondent-Corporation consists of: (1) 450 Junior
Engineers in the pay scale of Rs. 425-700, of which 80 per cent is filled by
direct recruitment with the minimum qualification of Diploma in Civil
Engineering and 20 percent is filled by promotion from amongst Works Assistants
already in the service of the Corporation with Diploma in Civil Engineering and
minimum experience of two years; (2) 13 Selection Grade Junior Engineers in the
pay scale of Rs. 550-900 to be filled by promotion of Junior Engineers on
completion of 12 years of service on the basis of seniority and (3) 99
Assistant Engineers in the pay scale of Rs. 650- 1200, of which 50 per cent is
to be filled by promotion and 50 per cent by direct recruitment. A Degree in
Civil Engineering and two years of professional experience are essential for
direct recruits while for promotees from the cadre of Junior Engineers a
minimum experience of three years of service for Degree-holders and five years
of service for Diploma-holders in the grade of Junior Engineers are essential.
Higher posts of Executive Engineers and Superintending Engineers were primarily
filled up by promotion of Assistant Engineers and Executive Engineers
respectively. These higher posts require better qualifications and experience.
For that purpose 50 per cent of posts of Assistant Engineers are reserved for
direct recruitment for which a Degree in Civil Engineering and two years of
professional experience are essential qualifications.
All posts to be filled by direct recruitment
have to be advertised and the candidates have to be called for interview and
the selection made has to be approved by the Corporation. Even for promotion, a
Departmental Promotion Committee with a member of the Union Public Service
Commission has to be constituted and a list of eligible candidates has to be
prepared and they have to be screened before the selection is made. All this
takes time and the work of the Corporation cannot remain unattended in the
meanwhile. Therefore, senior personnel from the immediate lower category of
officers are drafted to the vacant posts on adhoc basis with pay and other
emoluments due to the posts held under current duty charge, but without any
right to that post which has to be filled by either promotion or direct
recruitment as per the rules. The recruitment to higher grades of Executive
Engineers and Superintending Engineers being primarily by promotion from
Assistant Engineers and Executive Engineers respectively, the only avenue 382
to have engineers with better qualifications is by direct recruitment of
Assistant Engineers to the extent of 50 per cent. If that avenue of direct
recruitment is closed, there will be no source from which better qualified
Engineers with higher Degree qualifications will become available. The
Corporation considered the question of suspending direct recruitment of
Assistant Engineers on several occasions, but it came to the conclusion that it
is neither feasible nor desirable to do so in the interests of the Engineering
Department. The Writ Petition has not disclosed any violation of any right much
less a fundamental right of the petitioners. The petitioners have no right to
force the first respondent-Corporation, a statutory body, to exercise its
discretion in particular manner which is against the rules.
The Municipal Corporation, Delhi is a
statutory authority, which is no doubt controlled by the Central Government to
the extent mentioned in s. 487 of the Delhi Municipal Corporation Act, 1957.
The Recruitment Regulations for the posts of Assistant Engineers(Civil) were
notified in the Official Gazette on 27.6.1970 (Annexure 'R1'). They provide for
recruitment of Assistant Engineers to the extent of 50 per cent by promotion of
Junior Engineers and to the extent of 50 per cent by direct recruitment. The
CPWD had decided to suspend direct recruitment to the Central Engineering
Service Class II for seven years from 1972. The first respondent has resolved
by Resolution No. 50 dated 20.7.1964 to adopt the CPWD patten of work with
regard to execution of works alone and not with regard to the mode of
recruitment and other service matters. The Central Government rules are made
applicable to the employees of respondent-1 only on their adoption and approval
by the Corporation; otherwise its employees are governed by the rules and
regulations framed by the Corporation itself under s. 98 of the Delhi Municipal
Corporation Act, 1957. The representations received from time to time for
suspension of direct recruitment of Assistant Engineers were duly considered
but it was found that there is no justification to comply with the request, and
a decision in that regard was taken by the Council of the Corporation on
19.4.1978 (Annexure 'R2'). Out of 401 Junior Engineers, one is unqualified, 343
are Diploma-holders and only 57 are Graduates in Civil Engineering. The
decision to fill up eight posts of Assistant Engineers by direct recruit was
taken in view of the short-fall in the direct recruitment quota compared to the
promotion quota in accordance with Recruitment Regulations which provide for
filling up 50 per 383 cent by promotion and 50 per cent by direct recruitment
of Assistant Engineers though sufficient number of Junior Engineers amongst
Diploma-holders had become eligible for the posts of Assistant Engineers. The
practice of suspending direct recruitment followed by other departments of the
Central Government cannot, therefore, be followed by respondent 1. Section 47
of the Delhi Municipal Corporation Act provides for directions being given by
the Central Government. But the Central Government's letter dated 23.2.1976 to
the effect that consequent on the recommendations of the Third Pay Commission,
respondent 1 may ban direct recruitment as has been done by the CPWD was not
written in accordance with power conferred by Section 47 of the Delhi Municipal
Corporation Act and it cannot, therefore, be taken as a directive from the
Central Government.
The relative seniority of direct recruits and
promotees has been determined in accordance with the instructions contained in
the Ministry of Home Affairs' Office Memorandum No. 9/11/55-RPS dated
22.12.1959. Out of 401 Junior Engineers, 36 persons are holding the posts of
Assistant Engineers on adhoc basis in the Junior Engineer's pay scale and they
are liable to be reverted as Junior Engineers as and when the posts are filled
up on a regular basis in accordance with the Recruitment Regulations. The
officers appointed on adhoc basis and current charge basis cannot be treated as
regular appointees in the absence of appointments in accordance with the
Recruitment Regulations, and, therefore, their names have been rightly not
included in the seniority list. The persons confirmed earlier are ranked as
seniors to persons who are officiating in the grade in accordance with para 3
of the Home Ministry's Office Memorandum dated 22.12.1959 and there is no
infringement of any fundamental right of the petitioners.
Respondents 3 to 10 and 12 to 15 have filed
counter- affidavit contending that prayers Nos. 1, 2 and 4 in W.P. No. 221 of
1979 are in direct violation of the Recruitment Regulations relating to
Assistant Engineers. Respondents 3 to 7 appeared before the Union Public
Service Commission and were duly selected as Assistant Engineers on 2.1.1974 as
mentioned in the Office order dated 4.6.1975 of the Assistant Commissioner
(Establishment) of the first respondent (Annexure 'RA-1'). Respondents 8 to 18
of whom respondent 11 had died a few years ago also were appointed as Assistant
Engineers with effect from 2.1.1974 in the direct recruitment quota.
Respondents 19 to 46 also were appointed as Assistant Engineers on various 384
dates after 2.1.1974 in the direct recruitment quota.
Therefore, it is not open to the petitioners
to question the seniority of respondents 3 to 46 fixed long ago in according
with statutory rules. Respondents 3 to 10 and 12 to 17 are working as Executive
Engineers on adhoc basis for over four years.
The promotional policy of respondent 1 is in
accordance with the statutory rules approved in 1970 in consultation with the
Union Public Service Commission and are neither arbitrary nor without authority
of law. There has been no ban on direct recruitment to 50 per cent of the posts
of Assistant Engineers as per the Recruitment Regulations.
Respondents 3 to 46 are Graduates in Civil
Engineering and more qualified than the petitioners who are only Diploma
holders. The petitioners are eligible to promotion as Assistant Engineers in
the 50 per cent promotion quota. The first respondent is not following the
pattern of the current functioning of the CPWD in the matter of recruitment and
other service conditions but has its own Recruitment Regulations which have
been approved by the Union Public Service Commission and duly notified on
27.6.1970. The CPWD has suspended direct recruitment of Assistant Engineers in
Class II temporarily for seven years from 1.4.1972. Direct recruitment of
Assistant Engineers is resorted to by respondent 1 for having highly qualified
and talented Engineers and maintaining standards and efficiency. The
petitioners cannot have any grievance against direct recruits of 1974 ranking
higher in seniority in accordance with Recruitment Regulations. The final
seniority list of Assistant Engineers circulated on 30.1.1975 (Annexure 'RA
III') was finalised after considering the objections and is in accordance with
the Home Affairs Ministry's Office Memorandum dated 22.12.1959 which lays down
that the relative seniority of direct recruits and promotees shall be
determined according to the rotation of vacancies between direct recruits and
promoters which shall be based on the quota reserved in the Recruitment
Regulations. It cannot be challenged after a long period of five years. The
petitioners are, therefore, not entitled to any relief.
The petitioners in W.P. No. 1194 of 1979 are
Graduate Junior Engineers. Their case is that the first respondent has been
denying for the last six or seven years to them and other Graduate Junior
Engineers their rightful quota of appointment as Assistant Engineers in
accordance with the Rules while following the pattern of the CPWD even though a
statutory duty is cast on the first respondent to fill up the posts of
Assistant Engineers on 50 : 50 basis.
385 Consequently, 26 posts of Assistant
Engineers in the direct recruitment quota are kept unfilled as is evident from
the final seniority list of Assistant Engineers dated 2.9.1978 (Annexure 'G')
though there are 50 Graduate Junior Engineers who are eligible to compete for
those posts. Though 26 posts of Assistant Engineers were available for being
filled up as an 20.12.1978 only 8 posts were advertised (Annexure 'A') and the
names of petitioners 1 to 21 appeared in the duly prepared selection list. The
first respondent has not filled up even those 8 posts with the candidates in
that selection list but has filled up 6 posts by putting up Junior Engineers
with Diploma as respondents 5 to 41 on current duty charge under the order
dated 10.4.1978 forming Annexure 'I' in violation of Rules and the petitioners 'right
guaranteed under Article 16 of the Constitution of India. In all 37 posts of
Assistant Engineers including some in the quota of direct recruits have been
filled up by Junior Engineers holding only Diplomas on current duty charge with
the object of favouring Diploma-holders who have got great political influence
by the Office order dated 21.6.1979 (Annexure 'M'). The Assistant Commissioner
(Engineering) has taken an absolutely new stand in his reply (Annexure 'P')
received on 6.9.1979 by saying that implementation of the approved panel was
not feasible on account of ban imposed by the Commissioner on 10.8.1979 on new
recruitment. The Diploma-holders posted as Assistant Engineers on the current
duty charge have been further promoted as adhoc appointees by Office order
dated 10.8.1979 (Annexure 'R'). The effect of this adhoc appointment is that
the adhoc appointees draw pay in the higher scale of Assistant Engineers while
in the current duty charge they were entitled to draw only their pay in the
lower grade of Junior Engineers. The petitioners have, therefore, prayed for
quashing the orders dated 10.4.1978 and 21.6.1979 (Annexures 'I' & 'M').
The chances of Graduate Junior Engineers
becoming Assistant Engineers are very bleak. Justice can be done of both Diploma-holders
and Graduates amongst the Junior Engineers by providing a reasonable quota for
both categories in the 50 per cent quota reserved for promotees in the matter
of appointment of Assistant Engineers as is done in the Delhi Electric Supply
Undertaking so that Graduates and Diploma-holders amongst the Junior Engineers
may get equal chances of promotion.
The petitioners, who are Graduate Junior
Engineers, form a category with distinguishing features separate from Junior
Engineers 386 who are Diploma-holders. The Supreme Court has held that separate
category within the same category on the basis of educational qualifications is
clearly permissible and not violative of Article 14 of the Constitution of
India. But the first respondent is treating the two categories as equal. The
Graduate Engineers suggested to the Deputy Commissioners (Engineering) that a
separate cadre of Graduate Junior Engineers in the pay scale of Rs. 550-900 may
be created and designated as Design Assistants. The Assistant Commissioner
(Engineering) has replied by his letter dated 27.3.1979 (Annexure 'K') that the
Municipal Chief Accountant has not accepted the suggestion. Under the Central
Civil Service Rules, 1979 and on the basis of the Third Pay Commission's Report
the petitioners who are Graduate Junior Engineers are entitled to the pay scale
of Rs. 550-900 which is the revised pay scale of Junior Engineers in Class III
service in other government departments. The petitioners are similarly
circumstanced with those other Graduate Junior Engineers, and there is no just
or valid reason to discriminate the petitioners qua the other Graduate Junior
Engineers in Class III service in other Government departments.
The first respondent-Corporation has not
revised the special pay (planning allowance) from the date from which the
petitioners as Graduate Junior Engineers are legally entitled thereto. The
planning allowance has been revised in the CPWD from Rs. 40 to 75 per mensem
with effect from 1.1.1979 by the order dated 1.1.1979 (Annexure 'ZA'). The
Corporation has by Resolution No. 184 dated 21.6.1971 sanctioned special pay to
Section Officers now known as Junior Engineers working in the Planning Circle
at Rs. 40 per mensem in the case of Graduates and Rs. 25 per mensem in the case
of Diploma-holders with effect from 1.4.1971 on the pattern of the CPWD. The
Planning allowance has been increased from Rs. 40 to Rs.75 per mensem in the
CPWD with effect from 1.1.1979 by letter No. 28017 (17) 78 EW-1 dated 1.1.1979
(Annexure 'ZA') of the Ministry of Works and Housing Government of India.
Though the Commissioner has recommended revision from Rs. 40 to Rs. 75 in his
letter, the revision has not been effected on the ground that the approval of
the Municipal Council is not forthcoming. The Delhi Administration's
Notification dated 19.9.1972 circulated by respondent 1 on 30.9.1972 (Annexure
'ZC') shows that the General Financial Rules including amendments and orders
issued by the Central Government are applicable to respondent 1 in every
manner, be it pay or general allowance. Therefore, the stand of the first
respondent 387 that revision of the planning allowance will be effective only
from the date of approval by the Municipal Council is baseless, mala-fide and
illegal.
The petitioners have prayed for the aforesaid
reliefs in these circumstances.
The first respondent has filed a
counter-affidavit contending that the qualification prescribed in the
Recruitment Regulations notified on 27.6.1970 is Diploma in Civil Engineering
or any higher qualification, and since all the Junior Engineers either with
Degree or with Diploma are performing the same duties, no separate category can
be allowed to Graduate Junior Engineers. Those Recruitment Regulations provide
for 50 per cent of posts of Assistant Engineers being filled by promotion
amongst Junior Engineers and 50 per cent by direct recruitments. For direct
recruitment a Degree in Civil Engineering and two years of professional
experience are the minimum qualifications required while for promotees five years
of professional experience as Junior Engineers in the case of Diploma- holders
and three years of professional experience in the case of Graduate Junior
Engineers are the minimum qualifications required. The suggestion of the
petitioner to treat the Graduate Junior Engineers as a separate category is not
acceptable to the first respondent.
The select list for direct recruitment to the
posts of Assistant Engineers out of Graduate Junior Engineers was approved by
the competent authority on 2.5.1979 and the matter of appointment being still
under consideration only two appointments on current duty basis were made out
of the senior-most Junior Engineers by the order dated 21.6.1979 (Annexure
'M'). After the notification of the Recruitment Regulations in 1970, 36
Graduate Engineers in the direct recruitment quota and 10 promotees from
amongst Graduates were appointed as Assistant Engineers. The criteria for
promotion of Junior Engineers as Assistant Engineers is
selection-cum-seniority. The rules for promotion applicable to the first
respondent-Corporation are quite different from those of the CPWD and it is not
incumbent on the first respondent to follow the CPWD rules. The eligibility of
the petitioners and their selection to the posts of Assistant Engineers are not
denied by the first respondent. The petitioners' names appear in the select
list which has been approved by the Competent Authority on 2.5.1979 and is
pending final decision about the appointment of the direct recruits selected
for the 8 posts advertised in December 1978. The current duty charge
arrangement 388 mentioned in Annexure 'M' had to be made as a stop gap
arrangement to meet the immediate requirements of the Department and not to
favour any Diploma-holders, and it does not amount to any violation of Article
16 of the Constitution of India. It is not admitted that 26 vacancies of
Assistant Engineers still exist for being filled by direct recruitment. The
appointment under the promotion quota is no doubt in excess of the prescribed
percentage as some of the promotees had been adjusted against short-term
vacancies.
The demand of the Graduate Junior Engineers'
Union for the creation of a separate cadre in the pay scale of Rs. 550-900 for
Graduate Engineers was objected to by the Finance Department of the first
respondent-Corporation and found to be not feasible in view of the financial
implications involved.
The matter of revising planning allowance of
Rs. 40 and Rs. 25 paid to Graduate Junior Engineers and Junior Engineers
holding Diploma is under consideration.
The 27th respondent has filed a
counter-affidavit in the Petition for Stay filed in W.P. 1194 of 1979. Though
he has sought leave in that counter-affidavit to file a detailed
counter-affidavit in the main Writ Petition, no such counter-affidavit has been
filed. In the course of arguments before us reference was made by the learned
counsel for the parties to what is stated in the above counter-affidavit.
Therefore, we would like to mention briefly the contentions put forward by the
27th respondent in that counter-affidavit.
The seniority list published on 11.10.1979
shows that the quota of the promotee Assistant Engineers is deficient, in that
21 posts out of the quota for promotees are still unfilled whereas the entire
quota for direct recruits has been filled up already. That seniority list has
been issued with the approval of the Commissioner, vide office Order No. 2(90)/ECI/ENGG/ESTT/1574
dated 11.10.1979, and shows that no post is available for being filled up by
direct recruitment.
The Selection Board was not constituted as
per the proper procedure. A minimum of two Deputy Commissioners are required to
be on the Selection Board whereas in the case of the selection of Graduate
Junior Engineers for appointment as Assistant Engineers 389 there was not even
a single Deputy Commissioner on the Selection Board. When this illegality in
the constitution of the Selection Board was realised, the Corporation
authorities, at the behest of interested persons, had interpolated the name of
the Deputy Commissioner (E) and obtained his signature sometime after the
deliberations of the Selection Board had been completed and the minutes had
already been signed by the members. Page 180C of the proceedings of the
Selection Board (Annexure RIII to this counter-affidavit) shows that Har
Mohinder Singh (sl. No. 15) was absent for the interview. Yet he has been
awarded a total of 34 marks, including four marks at the interview and his name
is sought to be placed at No. 14 in the Select Panel. The order communicating
the constitution of the Selection Board shows that there were only four members
including the Municipal Engineer who was designated as the Chairman. But the
final minutes are signed by 5 members including the Deputy Commissioner (E).
The Corporation was formed on 7.4.1958. Since
then a total of 95 Assistant Engineers have been appointed by direct
recruitment whereas amongst the Junior Engineers and lower categories only 78
have been appointed as Assistant Engineers. Thirty-six respondents who are
holding Current Charge as Assistant Engineers since various dates falling
between 10.4.1978 and 21.6.1979 had joined service as Junior Engineers about 18
to 20 years ago, i.e., between 14.10.1959 and 24.8.1961. and they have become
eligible for promotion as Assistant Engineers on a regular basis according to
the rules of the Corporation long ago. Therefore, there is nothing wrong in
promoting them on Current Charge basis as Assistant Engineers.
The Recruitment Regulations deal with and
apply expressly to only 63 posts of Assistant Engineers. The direct recruits
are, therefore, entitled to only 30 posts on 50 : 50 basis, but they have been
admittedly given 36 posts.
Therefore, there is no further post of
Assistant Engineer to be given to them on any of the respondents holding
Current Charge being reverted as Junior Engineers. According to the procedure
and rules of the Corporation, Current Duty Charge holders are to be given adhoc
appointments as soon as possible, and as per the preamble to the Commissioner's
letter No. 34 C&C dated 11.9.1979 adhoc status is required to be conferred
with effect from the date of commencement of Current Duty Charge.
The panel prepared by the Selection Board,
which has yet not been issued, is supposed to contain 37 names. Though under
the 390 Rules for the 8 posts of Assistant Engineers advertised to be filled. By
direct recruitment only 8 plus 20% thereof have to be selected it is
interesting to note that the number of Junior Engineers holding Current Duty
Charge is also 37.
We have re-arranged the order of the prayers
in the Writ Petitions filed for the issue of Writs of Mandamus or other
appropriate Writs and would mention them here once again for the sake of
convenient reference. They are:
Writ Petition No. 221 of 1979:
(1) to restrain respondent 1 from recruiting
Assistant Engineers directly and filling up the posts of Assistant Engineers;
(2) to direct respondent 1 to give effect to
the recommendations of the Third Pay Commission regarding the rules and policy
of promotion etc;
(3) to quash the seniority list (Annexure G)
prepared by respondent 1;
(4) to direct respondent 1 to reckon the
seniority of the petitioners with the length of their service;
and (5) to direct respondent 1 not to affect
in any manner all Junior Engineers holding current duty charge and adhoc
appointments as Assistant Engineers.
Writ Petition No. 1194 of 1979:
(1) to direct respondent 1 to fill up the 8
posts of Assistant Engineers by direct recruitment from amongst the Graduate
Junior Engineers in the select panel;
(2) to quash the Office Order dated 10.4.1978
(Annexure 1) entrusting Junior Engineers with current duty charge of the posts
of Assistant Engineers and the Office Order dated 21.6.1979 (Annexure M)
promoting Junior Engineers as Assistant Engineers on current duty charge;
391 (3) to direct respondent 1 to fill up the
remaining posts of Assistant Engineers in the direct recruitment quota from
amongst the empanelled petitioners who are Graduate Junior Engineers;
(4) to declare the petitioners Graduate
Junior Engineers as a separate category amongst Junior Engineers and give them
equal quota like the Diploma holders Junior Engineers out of the departmental
quota in the posts of Assistant Engineers;
(5) to restrain respondent 1 from giving
adhoc promotions to current duty charge holders amongst Junior Engineers;
(6) to declare that the petitioners Graduate
Junior Engineers in the service of respondent 1 are entitled to be put on par
with their counterparts in other Government departments;
(7) to direct respondent 1 to grant revised
pay scale of Rs. 550-900 to the petitioners and other Graduate Junior Engineers
as in the case of Graduate Junior Engineers in Class (III) service in other
Government departments with effect from the date on which it is made applicable
in the CPWD; and (8) to direct respondent 1 to revise the special pay from Rs.
40 to Rs. 75 per mensem to the petitioners and other Graduate Junior Engineers
entitled thereto from 1.1.1979.
We shall consider prayers 1 and 2 in Writ
Petition No. 221 of 1979 and prayer I in Writ Petition No. 1194 of 1979 all of
which relate to direct recruitment to 8 posts of Assistant Engineers. According
to the counter-affidavit filed on behalf of respondent 1, apart from Executive
Engineers, Superintending Engineers and Municipal Engineer who is at the top,
the Engineering Service (Civil) of respondent 1 consists of:
(1) 450 Junior Engineers in the pay scale of
Rs. 425- 700 of which 80% is filled by direct recruitment with the 392 minimum
qualification of Diploma in Civil Engineering and 20% is filled by promotion
from amongst Works Assistants already in the service of respondent 1 with
Diploma in Civil Engineering and minimum experience of 2 years;
(2) 13 Selection Grade Junior Engineers in the
pay scale of Rs. 550-900 to be filled by promotion of Junior Engineers on
completion of 12 years of service on the basis of seniority; and (3) 99
Assistant Engineers in the pay scale of Rs. 650-1200 of which 50% is to be
filled by promotion of Junior Engineers and 50% is to be filled by direct
recruitment. A Degree in Civil Engineering and 2 years of professional
experience are essential for direct recruitment as Assistant Engineers while
for promotion as Assistant Engineers from the cadre of Junior Engineers a
minimum of 3 years of service for Degree holders and 5 years of service for
Diploma holders in the Grade of Junior Engineers are essential. All other
higher posts of Executive Engineers, Superintending Engineers and Municipal
Engineers are primarily filled by promotion of Assistant Engineers, Executive
Engineers and Superintending Engineers respectively. All the appointments in
the respondent 1 - Corporation carrying a minimum salary of less than Rs. 700
per mensem could be made by the Commissioner of the Corporation since 10.1.1975
in accordance with the recruitment rules which are framed in consultation with
the Union Public Service Commission though prior to that date consultation with
the Union Public Service Commission was essential in the matter of appointment
to posts carrying a minimum salary of Rs. 350 per mensem and above. Direct
recruitment is to be made on the recommendation of the Selection Board to be
constituted for the purpose from time to time. Similarly, promotions are to be
made on the recommendation of the Departmental Promotion Committee to be
constituted for the purpose from time to time. The quota of 50% for 393
promotees amongst Junior Engineers and 50% for direct recruitment from amongst
outsiders as well as Graduate Junior Engineers for appointment to posts of
Assistant Engineers which are selection posts was fixed by the Recruitment
Regulation dated 27.6.1970 made by the first respondent under S. 98 of the
Delhi Municipal Corporation Act, 1957, vide resolution No. 97 dated 4 5.1970 in
connection with the recruitment for the posts of Assistant Engineers (Civil)
and approved by the Lt. Governor, Delhi under section 480 (2) of the said Act
read with the Government of India, Ministry of Home Affairs' Notification dated
19.10.1966. The cause of the Graduate Junior Engineers is espoused by the
Graduate Junior Engineers Union while the cause of the Diploma holders Junior
Engineers is espoused by the Municipal Corporation of Delhi Assistant Engineers
(ORG) (Regd.). There is no dispute about these facts except in regard to the
quota of 50% for promotee Junior Engineers and 50% for directly recruited
Graduate Engineers including Graduate Junior Engineers.
According to the petitioners in Writ Petition
221 of 1979 who are Diploma holders Junior Engineers respondent 1 has been
following the pattern of functioning current in the CPWD in all matters of
recruitment, promotion and other conditions of service. The CPWD has decided to
suspend direct recruitment in the Central Engineering Service because no
promotional chances were available to the Central Engineering
Service/Electrical Engineering Service Class (II). The said decision taken in
August 1975 became effective from 1.4.1972. The first respondent has taken a
decision by Resolution Nos. 416 and 78 dated 27.10.1970 and 21.2.1971
respectively to the effect that all fundamental rules and supplementary rules
including amendments and orders issued by the Central Government shall be
treated as rules etc. by respondent 1. The Central Services Conduct Rules and
General Fundamental Rules including amendments and orders issued by the Central
Government have been made applicable to respondent 1. As soon as the
petitioners learnt that there is suspension of direct recruitment in the CPWD
they invited the attention of respondent 1 to that fact in November 1975 and
requested 394 for banning direct recruitment of Assistant Engineers and were
given an assurance that their rights will not be over- looked. The petitioners
made several representations including the last one dated 24.1.1979. The then
Commissioner of respondent 1 gave an oral assurance to the petitioners that the
practice adopted by the CPWD will be followed by respondent 1, and later wrote
to the petitioners saying that the matter was under consideration. The
petitioners met the Deputy Commissioner of respondent 1 on 23.1.1979 and
protested against the notification made in the press on 30.12.1978 for filling
up 8 posts of Assistant Engineers by direct recruitment and they expected that
the notification would be withdrawn as the Deputy Commissioner accepted their
suggestion. But respondent 1 is, however, bent upon going ahead with the direct
recruitment though more than 275 Junior Engineers out of 400 Junior Engineers
aspiring for promotion as Assistant Engineers are eligible for consideration.
The Central Government has power of general superintendence over the first
respondent and it has informed the first respondent by letter dated 22.3.1976
that consequent on the recommendations of the Third Pay Commission direct
recruitment may be banned by respondent 1 as has been done by the CPWD. The
Director in the Office of the Director-General of Works, Government of India
has informed the first respondent's Assistant Commissioner (Establishment) by
letter dated 16.2.1978 that direct recruitment to the Central Engineering
Service and Central Electrical Engineering Service (Group B) was still under
suspension. Though no specific reference has been made in the Third Pay
Commission's Report to Junior Engineers of the first respondent its
recommendations have been followed by the first respondent and its employees
are treated in the same manner as the employees of the Central Government. The
pay scales and service conditions of the employees of the first respondent and
the Central Government are the same.
The proposed direct recruitment to 8 posts of
Assistant Engineers is detrimental to the interest of the petitioners.
The first respondent should, therefore, be
asked to follow the same policy as the one adopted by the CPWD and be
restrained from appointing 8 Assistant Engineers by direct recruitment. This is
how the petitioners in Writ Petition 221 of 1979 seek the relief covered by the
first prayer.
This is also the stand as defence in regard
to the first prayer in Writ Petition 1194 of 1979 which is for a direction
being given to respondent 1 to fill up the 8 posts of Assistant Engineers by
direct recruitment from amongst those in the select list.
395 The 27th respondent has contended in his
counter- affidavit that since the formation of the first respondent-
Corporation on 7.4.1958 as many as 95 Assistant Engineers have been appointed
by direct recruitment whereas amongst Junior Engineers only 78 have been
appointed as Assistant Engineers by way of promotion. There were only 60 posts
of Civil Engineers when the Recruitment Regulations dated 27.6.1970 were made
and those Regulations could apply only to 60 posts of Assistant Engineers and
direct recruits would be entitled to only 30 posts and they are not entitled to
further posts by direct recruitment now as they have already been given 36
posts. The 27th respondent has attacked the selection of the panel of 37
persons by the Selection Board constituted pursuant to the decision to fill up
8 posts of Assistant Engineers by direct recruitment on the ground that the
Selection Board had not been properly constituted and there are certain other
irregularities. This is how the 27th respondent is challenging the decision to
appoint 8 Assistant Engineers by direct recruitment and the validity of the
select panel prepared by the Selection Board.
The first respondent's contention is that the
Delhi Municipal Corporation is a statutory authority which is no doubt
controlled by the Central Government but only to the extent mentioned in S, 487
of the Delhi Municipal Corporation Act, 1957. The Corporation has resolved by
Resolution No. 50 dated 20.7.1964 to adopt the CPWD pattern with regard to the
execution of works alone and not with regard to the mode of recruitment and other
service matters.
The Central Government Rules are made
applicable to the employees of respondent 1 only on their adoption and approval
by the Corporation, and otherwise its employees are governed by the Rules and
Regulations framed by the Corporation itself under section 98 of the said Act.
The representations made from time to time for suspension of direct recruitment
of Assistant Engineers were duly considered, but it was found that there was no
justification to comply with that request and a decision to that effect was
taken by the Council of the Corporation on 19.4.1978 in the interest of the
Corporation. Section 47 of the Delhi Municipal Corporation Act provides for
directions being given to the Corporation by the Central Government, but the
Central Government's letter dated 23.2.1976 to the effect that consequent on
the Third Pay Commission's recommendations respondent 1 may ban direct
recruitment as has been done by the CPWD is not a direction given under that
section and is, therefore, not binding on respondent 1.
The Recruitment 396 Regulations dated
27.6.1970 framed under section 98 of the Delhi Municipal Corporation Act
provide for 50% of the posts of Assistant Engineers being filled by direct
recruitment and 50% by promotion of Junior Engineers. The decision to fill up 8
posts of Assistant Engineers by direct recruitment was taken in view of the
shortfall in the direct recruitment quota compared to the promotion quota.
Respondents 3 to 10 and 12 to 15 in Writ
Petition 221 of 1979 have contended in their counter-affidavit that the prayers
1,2 and 4 in that Writ Petition are in the direct violation of the Recruitment
Regulation dated 27.6.1970.
They have further contended that respondent 1
is not following the pattern of the current functioning of the CPWD in the
matter of recruitment and other service conditions but is following its own
Recruitment Regulations which have been approved by the Union Public Service
Commission and duly notified on 27.6.1970. The direct recruitment is resorted
to by respondent 1 for having highly qualified and talented Engineers and
maintaining standards and efficiency.
The petitioners in Writ Petition 1194 of 1979
contend that a statutory duty is cast on respondent 1 to fill up the posts of
Assistant Engineers on 50:50 basis. Though there were 26 posts of Assistant
Engineers to be filled on that basis by direct recruitment, only 8 posts were
notified on 30.12.1978 to be filled by direct recruitment. The first respondent
has however not filled up even those 8 posts but has filled up some posts of
Assistant Engineers thereafter on adhoc basis with Junior Engineers even though
the select list has been approved on 2.5.1979 pursuant to the interviews held
on the 6th and 7th March, 1979 in connection with the decision to fill up 8
posts of Assistant Engineers by direct recruitment.
The first respondent has contended in its
counter- affidavit in Writ petition 1194 of 1979 that the select list for
direct recruitment to the posts of Assistant Engineers out of Graduate Junior Engineers
was approved by the competent authority on 2.5.1979 and the matter of
appointment of 8 Assistant Engineers is under consideration.
The petitioners' names are in the select list
and their eligibility and selection to the posts of Assistant Engineers is not
denied and their appointment as Assistant Engineers by direct recruitment is
under consideration.
We may state here that Mr. U. R. Lalit,
Senior Advocate, appearing for respondents 1 and 2 has stated before us on
29.7.1981 397 that the total number of vacancies of Assistant Engineers would
be ascertained within 2-1/2 months and thereafter in another 2-1/2 months
orders of appointment of Assistant Engineers by direct recruitment will be
issued by respondent 1.
Mrs. Shyamla Pappu, Senior Advocate appearing
for the petitioners in Writ petition 221 of 1979 drew our attention to certain
documents and submitted that direct recruitment of Assistant Engineers should
have been suspended by respondent 1 following the decision taken by the CPWD to
suspend direct recruitment of Assistant Engineers for 7 years from 1.4.1972.
She also submitted that the 50:50 quota rule in the Recruitment Regulations
approved on 27.6.1970 should not be followed. If her submission is that the
quota rule should not be followed altogether it is not consistent with the
stand taken by the 27th respondent in his counter- affidavit and also by Mr.
S.C. Gupta, learned counsel appearing for respondents 13, 25 and 27 in Writ
petition 1194 of 1979. The contention of the 27th respondent referred to above
is that the quota rule can apply only to 60 posts of Assistant Engineers which
were in existence on the date on which the Recruitment Regulations were
approved, viz.
27.6.1970 and since there were 36 directly
recruited Assistant Engineers when Writ petition 1194 of 1979 was filed which
was more than 50% of the 60 posts there are no more posts of Assistant
Engineers to be filled by direct recruitment. There can be no difficulty in
holding that this contention of the 27th respondent is totally unacceptable.
It is true that when the Recruitment
Regulations were approved on 27.6.1970 there were only 60 posts of Assistant
Engineers (Civil) in respondent 1-Corporation. The number was 99 when Writ
petition 1194 of 1979 was filed and 115 when it was heard in this Court. The
contention that the 50:50 quota rule can apply only to 60 posts which were in
existence when the Recruitment Regulations were approved and will not apply to
posts which are in excess of that number is totally unreasonable and unsustainable
and consequently rejected.
We will now refer to the documents relied
upon by Mrs. Shyamla Pappu. The Under Secretary, Government of India, Ministry
of Works and Housing, drew the attention of the Commissioner of respondent 1 by
his letter dated 23.2.1976 to the CPWD banning recruitment of Class II
Engineers for 7 years from 1972 consequent on the recommendations of the Third
pay Commission in order to avoid stagnation in respect of promotion of Junior
Engineers and stated that it will be appreciated if the Commissioner could 398
consider the possibility of following that policy in the Corporation which will
go a long way in reducing the stagnation in respect of promotion of Junior
Engineers in the Corporation. Admittedly, there is no direct reference to
Junior Engineers of respondent 1-Corporation in the Third pay Commission's
Report. The decision of the CPWD to suspend direct recruitment to CEC Class II
for 7 years w.e.f 1.4.1972 is found at pages 20 and 21 of the CPWD Manual
Volume I 1975 Edition. The Delhi Municipal Corporation is a statutory authority
governed by the Delhi Municipal Corporation Act, 1957. The Central Government
can give directions to the Corporation only under Section 487 of that Act.
According to that section the Central Government may direct the Corporation or
the Municipal Authority concerned to make arrangements to its satisfaction for
the proper performance of the duty or as the case may be to make financial
provision to its satisfaction for the performance of the duty if, whether on
receipt of any information or report obtained under Section 485 or Section 486
or otherwise the Central Government is of the opinion:
(a) that any duty imposed on the Corporation
or any Municipal Authority by or under that Act has not been performed or has
been performed in an imperfect, insufficient or unsuitable manner; or (b) that
adequate financial provision has not been made for the performance of any such
duty.
Sub-section (2) of Section 487 relates to
directions to Municipal Authorities in relation to the Delhi Electric Supply
Undertaking or the Delhi Water Supply and Sewage Disposal Undertaking with
which we are not concerned in these two Writ Petitions. As rightly contended by
Mr. V.M. Tarkunde, Senior Advocate appearing for the petitioners in Writ
Petition 1194 of 1979 the letter dated 23.2.1976 referred to above does not
contain any direction which could be issued by the Central Government under
Section 487 of the Act and is not binding on respondent 1.
The President of the Delhi Municipal
Corporation Assistant Engineers (ORG) (Regd.) has stated in his letter dated
13.4.1978 addressed to the Commissioner of respondent 1 that respondent 1 has
agreed to adopt the practice of the CPWD for filling up posts of Assistant
Engineers. No record has been produced to show what 399 exactly are the terms
of that agreement. It is not possible for us to infer from this letter that the
Commissioner has agreed to suspend direct recruitment of Assistant Engineers.
The Secretary of the Delhi Municipal Corporation
Assistant Engineers (ORG) (Regd.) has by his letter dated 24.1.1979 requested
the Deputy Commissioner of respondent 1 to cancel the Notification published on
30.12.1978 for direct recruitment of Assistant Engineers. The Commissioner of
respondent 1 has stated in his letter No. 5504 C&C dated 20.8.1979 that the
Corporation generally follows the pattern prevailing in the CPWD. The Standing
Committee of the Corporation had resolved to recommend to the Corporation that
"in view of the widespread stagnation amongst Junior Engineers (Civil)
direct recruitment to posts of Assistant Engineers (Civil) may be
banned/suspended for a period of 7 years under the civil body also in
conformity with the recommendations of the Third Pay Commission as adopted by the
civil body" and that "as recruitment to the posts of Assistant
Engineers (Civil) has already been made by the Corporation in violation of the
aforesaid ban of the Government of India during the period 1.4.1972 to
31.12.1978 the proposed suspension of recruitment to the said posts may be
operative for 7 years from the 1st January, 1979". But in his note dated
19.4.1978 against stopping direct recruitment of Assistant Engineers the
Commissioner has stated that it would not be in the larger interests of the Corporation
to stop direct recruitment and not to induct fresh Engineers with higher
qualifications. In that note the Commissioner had directed the formation of
panels for the promotional and direct recruitment quotas and the issue of
notification in the press for direct recruitment of Assistant Engineers.
Regarding the proceedings of the Appointment,
Promotion, Disciplinary and Allied Matters Committee dated 5.4.1978 in respect
of a Municipal Councillor's notice of resolution about amendment of the existing
recruitment and promotional rules for the posts of Assistant Engineers the
Commissioner of respondent 1 has stated thus in his note:
"In the Municipal Corporation of Delhi
it is only at the level of Assistant Engineers that direct recruitment of
Degree holders in provided which too is limited to 50% posts only. Since
sufficient number of highly qualified Engineers are not presently available
with the Corporation and whereas all the higher posts right upto the posts of
Municipal Engineer have to be filled up from the cadre of Assistant Engineers
the cadre must 400 have sufficient number of officers of high calibre. It is,
therefore, not considered in the interests of the Corporation to stop direct
recruitment to the posts of the Assistant Engineers. Moreover, the amended
Recruitment Regulations for the posts of Assistant Engineers (Civil/Elect.)
have since been approved by the Corporation recently, vide their Resolution No.
348 dated 10.7.1978 wherein there is no change in the existing mode of
recruitment, i.e., 50% by direct recruitment. Obviously, there is no
justification to stop direct recruitment against the allocation of 50% posts
earmarked for direct recruitment as per approved Recruitment Regulations framed
in consultation with the UPSC".
It would appear from what has been stated
above that the Municipal Corporation of Delhi which is a statutory authority is
not automatically bound by any decision that may be taken by the CPWD in regard
to direct recruitment of Assistant Engineers and that it is open to the
Corporation to adopt any policy of the CPWD by a resolution when alone that
policy will become binding on the Corporation. No provision in the Third Pay
Commission's Report has been brought to our notice. Mrs. Shyamla Pappu has, on
the other hand, admitted that there is no resolution of the Delhi Municipal
Corporation banning or suspending direct recruitment of Assistant Engineers for
7 years or any period from any date whatsoever. The 50:50 quota fixed in the
Recruitment Regulations approved on 27.6.1970 has not been altered but has been
approved by the Corporation in its Resolution No. 348 dated 10.7.1978.
Therefore, there is no substance in the contention of the petitioners in Writ
Petition 221 of 1979 or the contesting private respondents in Writ Petition
1194 of 1979 that respondent 1 should have suspended the direct recruitment of
Assistant Engineers and that the quota rule laid down in the Recruitment
Regulations should not be followed.
Coming now to the contention urged by Mr.
S.C. Gupta, learned counsel appearing for respondents 13, 25 and 27 in Writ
Petition 1194 of 1979, regarding the quota fixed in the Recruitment Regulations
we have already held that it cannot be restricted to only 60 posts of Assistant
Engineers which were in existence on the date of their approval. The
Recruitment Regulations themselves do not say that they are retrospective in
operation from 1958. Prime facie those Regulations would apply to all future
recruitments and 401 promotions. That is how they have been understood by the
authorities of respondent 1-Corporation when they decided to have 8 posts of
Assistant Engineers filled up by direct recruitment though at that time there
were 36 directly recruited Assistant Engineers holding more than 50% of 60 such
posts.
Mr. S.C. Gupta invited out attention to the
counter- affidavit of the 27th respondent where it is stated that the seniority
list dated 11.10.1979 purporting to have been issued with the approval of the
Commissioner of respondent 1 subject to the final decision of the Delhi High
Court in Writ Petitions 327 of 1971 and 1631 of 1976 shows a large deficiency
in the quota of promotees in the category of Assistant Engineers. But he
admitted that seniority list was withdrawn soon afterwards and that a
subsequent seniority list prepared by respondent 1 was quashed by the Delhi
High Court in Writ Petition 742 of 1971 on 11.2.1981 and the matter is pending
in this Court in a special leave petition.
The seniority list dated 2.9.1978 (Annexure G
in Writ Petition 1194 of 1979) which was prepared after hearing all concerned
does not appear to have been objected to before or after it was finalised
except in Writ Petition 221 of 1979.
In that seniority list 130 posts of Assistant
Engineers are mentioned by placing one promotee and one direct recruit
alternatively according to their seniority. Thus we find that there is no merit
in the contention of respondents 13, 25 and 27 in Writ Petition 1194 of 1979 as
regards the decision to fill up 8 posts of Assistant Engineers by direct
recruitment and the quota fixed in the Recruitment Regulations, 1970.
Mr. S.C. Gupta did not advance any argument
in regard to the plea of the 27th respondent about the constitution of the
Selection Board and the alleged irregularity in the preparation of the select
list for appointment of Assistant Engineers by direct recruitment. Our
attention has not been drawn to any rule or provision requiring two Deputy
Commissioners of respondent 1 to be present on the Selection Board. The 27th
respondent has not produced any record to show that the name of the Deputy
Commissioner (Establishment) has been interpolated in the records of the
Selection Board at a later stage or that Mohinder Singh who is stated to have
been marked as absent for the interview was really absent and the award of 34
marks to him including 4 marks at the interview is irregular. The 27th
respondent has not substantiated any of the disputed questions of fact urged by
him in his counter-affidavit in regard to the selection 402 of the persons who
are now in the select panel of Assistant Engineers.
Mr. V.M. Tarkunde submitted that in spite of
the Commissioner having approved the selection made on 6th and 7th March, 1979
by the Selection Board constituted for direct recruitment of Assistant Engineers
the petitioners in Writ petition 1194 of 1979 who have been selected for
appointment as Assistant Engineers have not been appointed and that on the
other hand on 21.6.1979 under orders of the Deputy Commissioner dated 19.6.1979
two Junior Engineers have been posted as Assistant Engineers (Civil) on Current
Charge basis with immediate effect and that by the order dated 5.6.1979
pursuant to the Commissioner's order dated 2.6.1979 Sukhbir Singh, one of the
petitioners, against whom some departmental proceedings appear to have been
pending, had been promoted as Assistant Engineer (Civil) w.e.f. 2.1.1975 and
ordered to continue in the post in which he was working on adhoc basis though
the final seniority list dated 2.9.1979 (Annexure G) shows that 26 posts of
Assistant Engineers to be filled by direct recruitment are kept vacant right
from 1971. The learned counsel also pointed out that in the meeting of the
Commissioner and other officers of respondent 1 on the one hand and the General
Secretary of the Graduate Junior Engineers Union on the other, held on
12.3.1979 it was decided that the appointment/promotion to posts of Assistant
Engineers (Civil) should be made strictly and truly as per the Recruitment
Regulations and no Diploma holder should be promoted till the direct
recruitment quota is filled up, and that the Deputy Commissioner stated in that
meeting that appointments/promotions to the posts of Assistant Engineers
(Civil) were being made only according to the Recruitment Rules. It was pointed
out rightly by Mr.
V.M. Tarkunde that the following particulars
given in paragraph 14 of Writ petition 1194 of 1979 showing that 33
appointments of Junior Engineers as Assistant Engineers have been made between
1972 and 1978 irregularly is admitted in the counter-affidavit filed on behalf
of respondents 1 and 2.
Appointments made after the Recruitment
Regulations, 1970 fixed 50% for promotees and 50% for direct recruits:
Promotees Direct Recruits 1972 Regular - 47
1974 - Regular 18 1975 Regular - 13 1976 - Regular 3 1979 Regular - 1
1977-78-Regular 13 Adhoc - 3 1978-Regular 2 Current Duty Charge 39 ----- ----
Total 103 36 403 In the counter-affidavit of respondents 1 and 2 it is stated
that appointment of Assistant Engineers in the promotion quota is of course in
excess of the prescribed limit and that the question of direct recruitment to
posts of Assistant Engineers (Civil) is under consideration and the eligibility
of the petitioners in Writ petition 1194 of 1979 and their selection to the
posts of Assistant Engineers by direct recruitment are not denied by
respondents 1 and 2.
This Court has observed in A.K. Subbaraman
& ors, v. Union of India(1) thus:
"When recruitment is from two or several
sources it should be observed that there is no inherent invalidity in
introduction of quota system and to work it out by the rule of rotation. The
existence of a quota and rotational rule by itself will not violate Art. 14 or
Art. 16 of the Constitution." For all the reasons stated above we find
that there is nothing wrong in the respondent 1-Corporation proceeding to
appoint Assistant Engineers (Civil) by direct recruitment as per the
Recruitment Regulations or in fixing the 50:50 quota and working it out or in
the selection of the petitioners in Writ petition 1194 of 1979 as Assistant
Engineers pursuant to the decisions to appoint 8 Assistant Engineers (Civil) by
direct recruitment in the interviews held for that purpose on 6th and 7th
March, 1979 and that respondent 1 and 2 should issue orders of appointment to
those posts to 8 of the petitioners in Writ petition 1194 of 1979 who are in
the select list within six weeks from this date if not already issued as
undertaken by Mr. U.R. Lalit on 29.7.1981 within five months from that date.
Prayer No. 3 in Writ petition 1194 of 1979 is
to direct respondent 1 to fill up the remaining posts of Assistant Engineers in
the direct recruitment quota from amongst the empanelled petitioners who are
Graduate Junior Engineers No further discussion is necessary to record a
finding on this question after what has been stated above in regard to prayers.
1 and 2 in writ petition 221 of 1979 and prayer 1 in Writ petition 1194 of
1979. Respondent 1 is admittedly bound by the Recruitment Regulations made with
the approval of the Central Government as required by section 480(2) of the Act
404 and it shall fill the remaining posts of Assistant Engineers in the direct
recruitment quota which are kept vacant in the seniority list dated 2.9.1978
(Annexure G in Writ petition 1194 of 1979) and any further posts which might
have become available thereafter or become available in view of our decisions
in these two Writ petitions or otherwise in accordance with those Recruitment
Regulations within six months from today or from the date on which further vacancy
to the posts of Assistant Engineers in the direct recruitment quota arises as
the case may be, if permissible from out of the select list approved on
2.5.1979.
Next we will consider prayers Nos. 2 and 5 in
Writ petition 221 of 1979 and Prayer No.2 in Writ petition 1194 of 1179 which
relate to Current Duty Charge appointment and Adhoc appointment of Junior
Engineers as Assistant Engineers. As stated earlier the allegation in paragraph
14 of Writ petition 1194 of 1979 that there are 39 Junior Engineers working as
Assistant Engineers on Current Duty Charge and 3 Junior Engineers working as
Assistant Engineers on Adhoc basis is admitted in the counter affidavit filed
on behalf of respondents 1 and 2. The 27th respondent has admitted in his
counter-affidavit that there are 37 Junior Engineers holding Current Duty
Charge as Assistant Engineers. In another portion of Writ petition 1194 of 1979
it is alleged that in all 37 posts of Assistant Engineers including some in the
quota of direct recruits have been filled up by Junior Engineers holding only
Diplomas on Current Duty Charge including 2 appointed by the office order dated
21.6.1979 (Annexure M) with the object of favouring Diploma holders without
appointing 8 Graduate Junior Engineers as Assistant Engineers though their
selection has been approved by the competent authority on 2.5.1979 and that
earlier 6 posts of assistant Engineers have been filled up by putting Junior
Engineers with Diplomas on Current Duty Charge by the office Order dated
10.4.1971 (Annexure I) in violation of the rules and the petitioners' rights
guaranteed under Article 16 of the Constitution. It is further alleged in the
Writ petition that the effect of Adhoc appointments is that the Adhoc
appointees draw the higher scale of pay of Assistant Engineers though when they
hold Current Duty Charge they are entitled to draw only their own pay in the
lower grade of Junior Engineers. The petitioners have, therefore, prayed for
quashing those two office orders dated 10.4.1978 and 21.6.1979.
The defence of respondent 1 in the
counter-affidavit is that the Current Duty Charge arrangement made in the
office order 405 dated 21.6.1979 had to be made as a stop gap arrangement in
order to meet the minimum requirements of the department and not to favour any
Diploma holder and that it does not amount to violation of Article 16 of the
Constitution. The 27th respondent has contended that according to the procedure
and rules of the Corporation Current Duty Charge holders are to be given Adhoc
appointments as soon as possible and that according to the preamble to the
Commissioner's letter No. 346/C&C dated 11.9.1979 Adhoc status is required
to be conferred with effect from the date of commencement of the Current Duty
Charge. The petitioners in Writ Petition 221 of 1979 contend that 26 Junior
Engineers out of the total number of Junior Engineers in the service of
respondent 1 are holding Current Duty Charge from 1978 and several others are
holding charge as Assistant Engineers on adhoc basis and that all those Junior
Engineers who are officiating as Assistant Engineers are to be treated as
regularly appointed Assistant Engineers. In the counter-affidavit filed in Writ
Petition 221 of 1979 respondent I has contended that all posts to be filled by
direct recruitment have to be advertised and the candidates have to be called
for interview and the selection made has to be approved by the Corporation and
that even for promotion a Departmental Promotion Committee with a member of the
Union Public Service Commission on it has to be constituted and a list of
eligible candidates has to be prepared and they have to be screened before the
selection is made. It is further contended that all these procedures take time
and the work of the Corporation cannot remain unattended and, therefore, senior
personnel from the immediate lower category of officers are drafted to fill up
the vacant posts of Assistant Engineers on adhoc basis without any right to
those posts which have to be filled by either promotion or direct recruitment as
per the rules.
Mrs. Shyamla Pappu appearing for the
petitioners in Writ Petition 221 of 1979, Mr G. L. Sanghi, Senior Advocate
appearing for respondents 3, 4, 6, 10, 12, 20, 38 and 44 and Mr. R.P. Sharma,
Advocate appearing for respondents 9 to 13 and 28 in that petition and Mr. S.C.
Gupta appearing for respondents 13, 25 and 27 in Writ Petition 1194 of 1979 did
not advance any argument regarding the Current Duty Charge and Adhoc
appointment of Junior Engineers as Assistant Engineers which is impugned in
Writ Petition 1194 of 1979.
Mr. V.M. Tarkunde submitted that there is no
specific provision for respondent 1 making adhoc appointments as Assistant
Engineers and he pointed out that the revised seniority 406 list dated 2.9.1978
(Annexure G in Writ Petition 1194 of 1979) shows that adhoc appointments are
being made from 22.6.1962 though according to the Office Memorandum No. 22011/6/75
Estt. (D) dated 30.12.1976 of the Government of India, Cabinet Secretariat,
Department of Personnel and Administrative Reforms in exceptional circumstances
and under exigencies of public service it may be necessary to make adhoc
appointments without following the prescribed procedure and such appointments
should be subject to the following instructions, viz:
(a) Purely short-term vacancies caused by
leave, short-term deputation, training etc. may be filled by adhoc appointments
if the posting of the person next in the panel will be administratively
difficult or if he is not interested in such short-term promotion. Such appointment
can be made also when the panel is exhausted or has expired and if there is no
time to convene a Departmental Promotion Committee meeting and prepare a fresh
panel. Adhoc appointments made to fill in short- term vacancies should be only
by promotion of departmental candidates and not by direct recruitment.
(b) In the case of regular vacancies due to
death, retirement, resignation, promotion and deputation for period exceeding
one year the vacancies should be filled by regular method and not by adhoc
appointments. However, if the panel is exhausted and delay is anticipated in
preparing a fresh panel and if the exigencies of public interest required the
filling of the vacancy immediately adhoc appointments can be made without
following the prescribed procedure.
But regarding Current Duty Charge
appointments there is a Circular dated 14.12.1973 of respondent 1 and it lays
down the following norms for making Current Duty Charge appointments for higher
posts viz:
(1) Current Duty Charge appointments should
be made only in the order of seniority subject to the condition that the
officer is otherwise fit with reference to 407 service, character rolls and
clearance reports from the DOV/DOI;
(2) Current Charge arrangements should not be
made if otherwise suitable person senior to the incumbent is available except
where the Current Charge arrangement is for such a short period that it will
not be in administrative interest to disturb the eligible person from his
existing assignment;
(3) Current Charge arrangement should cease
forthwith when an officer becomes eligible for adhoc/regular appointment to the
post. Cases of adhoc/regular appointments are to be initiated simultaneously
with making Current Charge arrangements.
The Commissioner of respondent 1 has issued
an Office Order dated 10.8.1979 approving the adhoc arrangement to the post of
Assistant Engineers (Elect.) in the pay scale of Rs.
650-1200 plus the usual allowances in respect
of 5 Assistant Engineers (Elect.) who were presently working on Current Duty
Charge from the dates of their taking over charge or entrustment of Current
Duty Charge as noted against their names for the period ending 29.2.1980 or
until the posts are filled on a regular basis. Out of these 5 persons one each
was on Current Duty Charge from 1974 and 1976 and 3 were on Current Duty Charge
from 1978. Thus it is seen that on the electrical side respondent 1 has been
keeping persons on Current Duty Charge from 1974, 1976 and 1978 until 29.2.1980
though as per the Circular dated 14.12.1973 mentioned above cases for
adhoc/regular appointments should be initiated simultaneously while making
Current Charge arrangements.
Mr. V.M. Tarkunde pointed out that in all 55
Current Charge appointments have been made from 15.6.1970 inclusive of 2 made
on 15.6.1970, 22 made in 1978, 15 made in 1979, 6 made in 1980 and 10 made in
1981 and that they were all continuing even on 22.7.1981. It is not disputed
that Junior Engineers working on Current Duty Charge receive emoluments based
only on their own pay scale as Junior Engineers and that on their adhoc
appointment as Assistant Engineers they receive emoluments on the basis of the
higher pay scale of Assistant Engineers right from the date on which they were
put on Current Duty Charge. It is evident that Junior 408 Engineers would be
anxious to be put on Current Duty Charge as they are sure that if they are
subsequently appointed on adhoc basis they would become entitled to emoluments
on the higher pay scale right from the date on which they were put on Current
Duty Charge.
All that Mr. U.R. Lalit did before us in
connection with this question was to invite our attention to the aforesaid
Circular dated 14.12.1973 and to a Memorandum presented to respondent I by the
Graduate Junior Engineers Union where the following decision taken by the
Establishment Board on 17.8.1974 is extracted, viz:
"In the meeting of the Establishment
Board held on 17.8.1974 it is explained and recommended by the M.E. (Municipal
Engineer) that under the direct recruitment quota only qualified persons having
Degree in Engineering are eligible. It was, therefore, decided that selection
be made out of the departmental Junior Engineers having Degrees in Engineering
after looking into their CRs and after assessing their merits by the Establishment
Board. They will be appointed on Current Duty Charge/Adhoc basis in the first
instance and will be replaced as soon as the persons selected by the UPSC are
available." Mr. U.R. Lalit did not dispute the facts mentioned by Mr. V.M.
Tarkunde about the Current Duty Charge appointments having been made from 1974
to 1981 of which 2 were made by the impugned order dated 21.6.1979 even after
the select list of 37 persons prepared for appointment to 8 posts of Assistant
Engineers by direct recruitment was approved by the competent authority on
2.5.1979 Mr. U.R. Lalit did not dispute the factual statement made by Mr.
Tarkunde that only Junior Engineers holding Diplomas have been put on Current
Duty Charge and appointed on adhoc basis as Assistant Engineers and that not
even a single Degree holder Junior Engineer has been chosen for such
appointment notwithstanding the above decision taken by the Establishment Board
in the meeting held on 17.8.1974 to choose only suitable Junior Engineers with
Degree qualification for such appointments. Continuing Current Duty Charge and
Adhoc appointments for such a long period exceeding the period of one year
mentioned in the said Memorandum dated 30.12.1976 of the Government of India is
irregular though that Memorandum could not be stated to be automatically
binding on respondent 1, 409 What is totally wrong is that appointment of
Junior Engineers on Current Duty Charge as Assistant Engineers has been made by
the impugned order dated 21.6.1979 even after the approval of the select list
prepared for the appointment of 8 Assistant Engineers without issuing orders
for appointment even to 8 out of those persons who are in the select list. In
these circumstances we hold that the appointment of 6 Diploma holders Junior
Engineers by the order dated 10.4.1978 (Annexure I) and of 2 such Junior
Engineers by the order dated 21.6.1979 (Annexure M) as Junior Engineers on
Current Duty Charge for periods which are proved to be too long is irregular
and we quash the same.
Respondent 1 shall issue orders of
appointment to 8 Degree holders Junior Engineers out of those in the select
list approved on 2.5.1979 within one month from this date and complete the
appointment of Assistant Engineers for the remaining posts on regular basis in
accordance with the quota fixed in the Recruitment Regulations within six
months from this date until which time the Current Duty charge holders and
Adhoc appointees according to seniority will continue to man the remaining
posts. Respondent 1 shall not make Current Duty Charge/Adhoc appointments and
promotions except strictly and truly in accordance with the instructions and
Regulations referred to above and other instructions, if any, issued in that
regard.
The only other prayer about which Mr. V.M.
Tarkunde advanced argument is Prayer No. 8 in Writ Petition 1194 of 1979 which
is to revise the special pay or planning allowance of Rs. 40 per mensem to Rs.
75 per mensem from 1.1.1979 to Graduate Junior Engineers working in the
planning circle. The planning allowance has been revised in the CPWD from Rs.
40 to 75 per mensem in the case of Graduate Junior Engineers w.e.f. 1.1.1979
pursuant to the letter No. 28017 (17)-EWI dated 1.1.1979 of the Ministry of
Works and Housing (Works Division) addressed to the Director-General of Works,
CPWD (Annexure ZA). The Commissioner of respondent 1 has stated in his letter
dated 20.8.1979 (Annexure ZB) that the Corporation has resolved on 21.6.1971 to
sanction special pay to Junior Engineers working in the planning circle at Rs.
40 per mensem in the case of Degree holders and Rs. 25 per mensem in the case
of Diploma holders w.e.f. 1.4.1971 and that he had recommended it may be
increased from Rs. 40 to Rs. 75 per mensem as had been done by the CPWD w.e.f.
1.1.1979, observing that the Corporation 410 generally follows the pattern
prevailing in the CPWD and the original planning allowance itself was
sanctioned following that pattern. In Writ Petition 1194 of 1979 it is alleged
that arbitrary and illegal treatment is meted out to Graduate Junior Engineers
by respondent 1 as borne out by the fact that the planning allowance is not
revised from the date from which the Graduate Junior Engineers are entitled to
enhancement. In the counter-affidavit respondent 1 has stated that the issue
regarding revision of the planning allowance to Junior Engineers is still under
consideration.
Mr. V.M. Tarkunde admitted before us that the
revision has since been effected w.e.f. 19.5.1980 whereas the claim of the
petitioners in Writ Petition 1194 of 1979 is that it should be revised w.e.f.
1.1.1979. The petitioners in Writ Petition 1194 of 1979 cannot be allowed to
blow hot and cold. In regard to the policy of suspension of direct recruitment
of Assistant Engineers for 7 years w.e.f.
1.4.1972 their contention is that the policy
of the CPWD cannot apply automatically to the Corporation until it is adopted
by a resolution. Now in regard to the planning allowance they cannot be heard
to say that the revision should be made automatically from 1.1.1979 following the
CPWD pattern. Evidently, the Corporation has resolved to grant the upward
revision only from 19.5.1980. The petitioners are not entitled to claim the
revision from 1.1.1979 itself and they have to be satisfied with the revision
effected from 19.5.1980.
We shall next consider prayers 3 and 4 in
Writ Petition 221 of 1979 which are to quash the seniority list dated 2.9.1978
(Annexure G in Writ Petition 1194 of 1979) and to direct respondent 1 to reckon
the seniority of the petitioners with the length of their services. Mrs.
Shyamla Pappu stated that the names of the petitioners in Writ Petition 221 of
1979 are not found in that seniority list and that the question of their
seniority may be left open.
This request was opposed by Mr. G.L. Sanghi
who stated that the question itself does not arise for consideration in Writ
Petition 221 of 1979. The contention of respondent 1 in its counter-affidavit
is that the names of Junior Engineers working as Assistant Engineers on Current
Duty Charge and Adhoc basis are not mentioned in that seniority list as they
are only Junior Engineers who have not been regularly appointed as Assistant
Engineers. This contention is correct and has to be upheld. The petitioners in
Writ Petition 221 of 1979 are only Junior Engineers whereas the seniority list
dated 2.9.1978 relates to Assistant Engineers. It is not the case of the
petitioners in writ Petition 221 of 1979 that their seniority as Junior
Engineers has not been fixed 411 properly. They are only Junior Engineers and
consequently they cannot question the correctness of the seniority list dated
2.9.1978 relating to Assistant Engineers. As they have not yet been regularly
appointed or promoted as Assistant Engineers they cannot have any grievance
about their names not being mentioned in that seniority list. Therefore, there
is no need to quash the seniority list dated 2.9.1978 or to give any direction
to respondent 1 as prayed for by the petitioners in Writ Petition 221 of 1979
in regard to seniority.
Now we are left only with prayers 4, 6 and 7
in Writ Petition 1194 of 1979 about which rightly no argument was advanced by
Mr. V.M. Tarkunde. Prayer No. 4 is to declare the petitioners Graduate
Engineers as a separate category amongst Junior Engineers and give them equal
quota like the Diploma holders Junior Engineers out of the 50% quota for
promotion as Assistant Engineers. This cannot be done except by carrying out
two classes in the same category of Junior Engineers on the basis merely of
their qualification which is not permissible in law though the creation of
selection grade in the same category on the basis of merit and or seniority is
well known and permissible. The Junior Engineers do the same kind of work and
bear the same responsibilities whatever their qualification, whether they are
Degree holders or Diploma holders. In this connection it will be useful to note
what this Court has observed in S.B. Patwardhan v. Maharashtra. (1) viz;
"Though drawn from two different sources
the direct recruits and promotees constitute in the instant case a single
integrated cadre. They discharge identical functions, bear similar
responsibilities and acquire an equal amount of experience in the respective
assignments. And yet clause (iii) of Rule 8 provides that probationers
recruited during any year shall in a bunch be treated as seniors to the
promotees confirmed in that year... This formula gives to the direct recruit
even the benefit of his one year's period of training and another year's period
of probation for the purposes of seniority and denies to promotees the benefit
of their long and valuable experience. If there was some intelligible ground
for this differentiation bearing nexus with efficiency in 412 public services
it might perhaps have been possible to sustain such a classification.
We think that the ratio of this observation
applies to the facts of this case in regard to prayer No. 4 and that the
petitioners in Writ Petition 1194 of 1979 are not entitled to be treated as a
separate class of Junior Engineers.
Prayer No. 6 is to declare that the
petitioners Graduate Junior Engineers in the service of respondent 1 are
entitled to be put on par with their counterparts in other Government
departments, and prayer No. 7 is to direct respondent 1 to grant revised pay
scale of Rs. 550-900 to the petitioners in Writ Petition 1194 of 1979 and other
Graduate Junior Engineers as in the case of Graduate Junior Engineers in Class
III service in other Government Departments. This scale of Rs. 550-900 is of
the selection grade of Junior Engineers. There are 13 selection grade posts in
the Engineering Service (Civil) of respondent 1. We think that the petitioners
are not entitled to these two reliefs also.
The result is that Writ Petition 221 of 1979
fails and is dismissed with costs of the contesting private respondents and
Writ Petition 1194 of 1979 is allowed in part in regard to prayers 1, 2, 3 and
5 as indicated above and is otherwise dismissed. The contesting respondents in
Writ Petition 1194 of 1979 shall pay the petitioners' costs.
There will be one set of Advocates' fees in
both the Writ Petitions.
H.S.K. W.P. No. 221 partly allowed and W.P.
No. 1194 dismissed.
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