Dr. Anuradha
Bodi & Ors Vs. Municipal Corporation of Delhi & Ors [1998] INSC 285 (8 May 1998)
S.C.
Agrawal, M. Srinivasan Srinivasan, J.
ACT:
HEAD NOTE:
There
are nine petitioners in the earlier writ petition and one petitioner in the
later writ petition. They were appointed by the first respondent as General
Duty Medical Officer Grade II between 1982 and 1985. The first petitioner in
the Civil Writ Petition 60 of 1994 and petitioner in Writ Petition No. 8 of
1997 were appointed in 1982. Petitioners 2 and 3 in the earlier writ petition
were appointed din 1083.
Petitioners
4 and 5 were appointed in 1984 whereas petitioners 6 to 9 were appointed in
1985. It is not in dispute that all of them were appointed on purely ad hoc
basis on the same terms and conditions. In the appointment orders, Clause 1
stated that the appointment would be purely on an ad hoc basis as a stop gap
arrangement for a period of six months or till such time the posts were filled
up on regular basis through Union Public Service Commission (for short `UPSE')
or till further orders whichever was earlier.
Clause
2 provided that the ad hoc appointments could be terminated at any time by the
competent authority without assigning any reason whatsoever and without giving
any prior notice. According to Clause 3, the appointment will not confer any
right whatever on the appointee for regular/permanent appointment. Under Clause
9 the appointees were advised for regular appointment to pass the U.P.S.C. examination
in normal course in the direct competition.
2.
There is a specific averment in the counter-affidavit filed by the first
respondent that inspite of several opportunities available to the petitioners,
they preferred not to apply to the UPSC for direct competition entitling them
to be appointed on regular basis. The petitioners have not filed any rejoinder controverting
the same.
3. The
Recruitment Rules, called "The Delhi Municipal Corporation Health Service
Recruitment Regulation, 1982" (herein after referred to as `the Rules')
were made by the Municipal Corporation of Delhi under Section 98 of the Delhi
Municipal Corporation Act, 1957 and notified under Notification No.
R-9/38/82-LSG/5686 dated 6.8.82. As per the rules, the posts in question were
to be filled up through the U.P.S.C. Admittedly, the petitioners were not
selected through U.P.S.C. but according to the petitioners they were selected
by a high-profile Selection Committee consisting of Deputy Commissioner and
Director (Personnel) of M.C.D., Medical Superintendent of the hospital concerned
and two specialists in Clinical Medicine from two renowned hospitals.
4.
Though the appointments of the petitioners were initially for a period of six
months, they were being continued periodically by subsequent orders issued by
the first respondent. One such order has been filed as a sample by the
petitioners bearing dated 15.2.90. The preamble to the order reads as follows :
"The
Chief Secretary, Delhi Administration, exercising powers of the Corporation
under Section 490 (2)(b) of the D.M.C. Act, 1957 vide Decision No. 211/CW/Corp.
dated 2.2.1990 has approved the continued ad hoc appointment of following GDMOs
Grade II in the pay scale of Rs, 2200-4000 plus the usual allowances with
effect from 13.7.1989 for a period of one year or till such time the posts are
filled up on regular basis, whichever is earlier"
5. By
a similar order dated 24.7.1990 the services of the petitioners were extended
for a period of one year with effect from 13.7.1990. The petitioners were
making representations to regularise their services even without appearing
before the U.P.S.C. but in vain.
6.
They filled a writ petition in this Court under Article 32 of the Constitution
in Writ Petition (Civil) No. 47 of 1991 praying that their services should be
treated as regular from the respective dates of their induction into the
service and to consider them for promotion to Grade I, that their initial
appointment be treated as regular appointment with effect from the date of
their induction of their service and to grant them consequential seniority, to
declare that the Corporation should absorb them first before offering the
existing vacancies to the new recruits who might be selected in pursuance of
the combined Medical Service Examination 1991 and to restrain the respondents
from terminating the services of the petitioners pending the disposal of the
petition. The said petition was disposed of vide order dated 29.7.1991 in the
following terms :
"We
are informed that all the petitioners have been called for interview by Union
Public Service Commission. In view of this no further relief requires to be
granted in the petition. The petitioners certainly can not claim that they are
entitled to be regularised even though they are not selected. The Writ Petition
is dismissed as infructuous. If the petitioners have not been selected and they
have any grievance in that connection with the selection the remedy for them is
to file separate proceedings"
7.
Thereafter, the petitioners appeared before the U.P.S.C. and were selected.
Consequently, the first respondent passed an order on 17.8.1992 appointing the
petitioners on regular basis to the grade of G.D.M.O. II with effect from
27.6.91, the date when the U.P.S.C. recommended the appointment of the
petitioners.
8. The
petitioners are aggrieved by the date from which they are appointed on regular
basis namely, 27.6.91.
According
to the petitioners they should have been appointed on regular basis with effect
from the initial dates of appointment respectively. Hence they have filed the
present writ petition with prayers for declaration that the respondents should
treat them as holding their respective posts regularly from the respective
dates of their initial appointments which stand now regularised by U.P.S.C. and
grant them their due seniority with consequential benefits such as promotion to
higher grade notwithstanding the order dated 17.8.92 which may be suitably
amended, declaration that the action of the respondents in not treating them as
regular employees of the Corporation since the date of their initial
appointment is unwarranted, arbitrary and violative of Articles 14 and 16 of
the Constitution and for declaration that the petitioners are entitled to be
treated as having been appointed on regular basis as G.D.M.Os from the date of
respective initial appointment as has been done in the case of other employees
vide order dated 31.12.86.
9. A
preliminary objection was raised by the learned counsel for first the
respondent that the writ petition is not maintainable in as much as the claim
for regularisation has been negatived by this Court in Writ Petition (Civil)
No. 47 of 1991 the order in which has already been extracted by us. Though the
prayers in the two writ petitions are almost the same and the petitioners are
seeking once again to claim that their initial appointments should be
considered to be on regular basis. This writ petition has to be considered in
so far as it relates to question of seniority. In view of the order dated
27.9.91 in Writ Petition 47 of 1991 the petitioners cannot claim that they are
entitled to be treated as having been regularly appointed with effect from the
date of their initial appointment. But the petitioners are placing reliance on
the judgment of the Constitution Bench of this Court in Direct Recruit Class II
Engineering Officers' Association Versus State of Maharashtra & Ors . (1990)
2 S.C.C. 715 and are contending that their services from the dates of initial
appointment till the date of regularisation have to be taken into consideration
for purposes of fixing their seniority.
In
fact on an earlier occasion when this case was heard on 27.10.94 the Court took
note of the said contention and directed the impleadment of persons who were
regularly appointed after selection by the U.P.S.C. and were in service during the
period 1982 to 1991. Thus the regular appointees have been impleaded as
respondents in the present case. Hence, the question which has to be considered
is whether the petitioners are entitled to get any benefit on the basis of the
decision rendered by the Constitution Bench in the Direct Recruit case (supra).
10.
The propositions laid down by the Constitution Bench in the aforesaid case are
set out in Paragraph 47 of the judgment. We are concerned with only Conclusions
(A) and (B) which read as follows :
(A)
Once an incumbent is appointed to a post according to rule, his seniority has
to be counted from the date of his appointment and not according to the date of
his confirmation. The corollary of the above rule is that where the initial
appointment is only ad hoc and not according to rules and made as a stop gap
arrangement, the officiation in such posts cannot be taken into account for
considering the seniority.
(B) If
the initial appointment is not made by following the procedure laid down by the
rules but appointed continues in the post uninterruptedly till the regularisation
of his service in accordance with the rules, the period of officiating service
will be counted".
11.
These two clauses have been explained in a subsequent judgment in State of West Bengal and others etc. etc. versus Aghore Nath
Dey and others etc. etc. (1993) 3 S.C.C. 371 The relevant passages in the said
judgment read as follows :
"21.
We shall now deal with conclusions (A) and (B) of the constitution bench in the
Maharashtra Engineers case quoted above.
22.
There can be no doubt that these two conclusions have to be read harmoniously,
and conclusion (B) cannot cover cases which are expressly excluded by
conclusion (A). We may, therefore, first refer to conclusion from the date of initial
appointment and not according to the date of confirmation, the incumbent of the
post has to be initially appointed `according to rules'. The corollary set out
in conclusion (A), then is, that `where the initial appointment is only ad hoc
and not according to rules and made as a stopgap arrangement, the officiation
in such posts cannot betaken into account for considering the seniority'. Thus,
the corollary in conclusion (A) expressly excludes the category of cases where
the initial appointment is only ad hoc and not according to rules, being made
only as a stopgap arrangement.
The
case of the writ petitioners squarely falls within this corollary in conclusion
(A), which says that the officiation in such posts cannot be taken into account
for counting the seniority.
23.
This being the obvious inference from conclusion (A), the question is whether
the present case can also fall within conclusion (B) which deals with cases in
which period of officiating service will be counted for seniority. We have no doubt
that conclusion (B) cannot include, within its ambit, those cases which are
expressly covered by the corollary in conclusion (A), since the two conclusions
cannot be read in conflict with each other.
24.
The question, therefore, is of the category which would be covered by
conclusion (B) excluding therefrom the cases covered by the corollary in
conclusion (A).
25. In
out opinion, the conclusion (B) was added to cover a different kind of
situation, wherein the appointments are otherwise regular, except for the
deficiency of certain procedural requirements laid down by the rules. This is
clear from the opening words of the conclusion (B), namely, `if the initial
appointment is not made by following the procedure laid down by the `rules' and
the latter expression `till the regularisation of his service in accordance
with the rules'. We read conclusion (BH), and it must be so read to reconcile
with conclusion (A), to cover the cases where the initial appointment is made
against an existing vacancy, not limited to a fixed period of time or purpose
by the appointment order itself, and is made subject to the deficiency in the
procedural requirements prescribed by the rules for adjudging suitability of
the appointment on the date of initial appointment in such cases. Decision
about the nature of the appointment, for determining whether it falls in this
category, has to be made on the basis of the terms of the initial appointment
itself and the provisions in the rules. In such cases, the deficiency in the
procedural requirements laid down by the rules has to be cured at the first
available opportunity, without any default of the employee, and the appointee
must continue in the post uninterruptedly till the regularisation of his
service, in accordance with the rules. In such cases, the appointee is not to
blame for the deficiency in the procedural requirements under the rules at the
time of his initial appointment, and the appointment not being limited to a
fixed remaining procedural requirements of the rules being fulfilled at the
earliest. In such cases all appointee is not to blame for the initial
appointment, and the appointment not being limited to a fixed period of time is
intended to be regular appointment, subject to the remaining procedural
requirements of the rules being fulfilled at the earliest. In such cases also,
if there be any delay in curing the defects on account of any fault of the
appointee, the appointee would not get the full benefit of the earlier period
on account of his default, the benefit being confined only to the period for
which he is not to blame. This category of cases is different from those
covered by the corollary in conclusion (A) which relates to appointment only on
ad hoc basis as a stopgap arrangement and not according to rules".
12. If
the facts of these two cases are analysed in the light of the aforesaid
decisions, there can be no doubt whatever that the petitioners fall within the
corollary in Conclusion (A). The orders of appointment issued to the
petitioners are very specific in their terms. Though the Recruitment Rules came
into force on 6.8.82, the appointments were not made in accordance therewith.
They were ad hoc and made as a stop gap arrangement. The orders themselves
indicated that for the purpose of regular appointment the petitioners were
bound to pass the U.P.S.C. examination in normal course in the direct
competition.
Hence
the petitioners will not fail under the main part of Conclusion (A) or
Conclusion (B) as contended by the learned counsel for the petitioners.
13. A
strange contention has been urged by the learned counsel for the petitioners by
referring to Section 96 of the Delhi Municipal Corporation Act. Under that
Section no appointment to any category A post shall be made except after
consultation with the U.P.S.C. but under the proviso no such consultation shall
be necessary in regard to the selection for appointment to any acting or
temporary posts for a period not exceeding one year. According to learned
counsel for the petitioners, the appointment of the petitioners was for a
period of six months only and there was no necessity to consult the Commission.
Consequently, according to her the appointments were in accordance with the
statutory provisions. There is no merit in this contention. If this contention
is accepted the main provision contained in Section 96 prohibiting any
appointment without consulting the Commission can be easily defeated.
Appointments can be made for periods lesser than one year and after continuing
such appointments for some years, the appointees could be made permanent. That
will only lead to nepotism and anarchy. The Statute has not provided for any
such situation. In fact a note of warning has been issued by this Court in Dr.
M.A. Haque and others Versus Union of India & Ors. (1993) 2 S.C.C. 213 in
the following words :
"As
against this, however, we cannot lose sight of the fact that the recruitment
rules made under Article 309 of the Constitution have to be followed strictly
and not in breach. If a disregard of the rules and the by-passing of the Public
Service Commission's are permitted, it will open a back door for illegal
recruitment without limit." With respect, we adopt that reasoning and
reject the contention of the learned counsel for the petitioners.
14.
Learned counsel attempted to contend that the posts of GDMOs Grade II were in
category B within the meaning of Section 90 of the Delhi Municipal Corporation
Act and they did not fall within the ambit of U.P.S.C. There is no such plea in
the writ petition. In the absence of any specific pleading in that regard we
cannot permit the petitioner's counsel to raise such a contention at the stage
of arguments. However, it must be pointed out that in the writ petition there
is an averment by the petitioners in Paragraph 12 that since the petitioners
have been in service for periods ranging between 5 to 9 years, it is to be
presumed that consultation with the approval of U.P.S.C. was obtained for their
continued appointment. That averment is on the footing that the posts fell
within the ambit of U.P.S.C.. Hence, it is not open to the petitioners to
contend to the contrary.
15.
The next contention of the petitioners' counsel is that they have been in
service for such a long time enjoying the benefits of revised pay scales as
well as allowances periodically and have been prevented from carrying on
private practice of any kind whatsoever and therefore they should be treated as
regular appointees from the inception.
Support
is sought from the judgment of this Court in Jacob M. Puthuparambil and others
etc. etc. versus Kerala Water Authority and others (1991) 1 S.C.C. 28 in which
this Court on an interpretation of the relevant rules held that long continuous
service of temporary appointees should not be terminated but should be regularised
by the authority concerned. The ruling has no application in the present case.
Our attention is also drawn to the judgment in I.K. Sukhija and others versus
Union of India and others (1997) 6 S.C.C. 406. The contention put forward by
the counsel in that case was that the appellants were governed by the corollary
of Conclusion A in the Direct Recruit case (supra). The Court found on the
facts that the appellants' promotions were not contrary to any statutory
recruitment rules, they were duly considered by the D.P.C. and promotions were
made according to their placement in t he merit list. It was also found that
the only reason for ad hoc promotion instead of regular promotion was that the
draft rules had not been finalised. In that situation, the Court held that the
appellants fell within the scope of Conclusion B in Direct Recruit case (supra)
and were entitled to the benefit of the period of officiating service. That
ruling will not apply in the present case.
16.
The next contention of the learned counsel is that by an order dated 31.12.86
the Corporation regularised the services of several appointees on the
recommendation of the Union Public Service Commission with effect from 27th
December 1980 or the date of appointment whichever was later. According to the
learned counsel hostile discrimination is made against the petitioners who were
in a similar situation. There is no merit in this contention.
In the
counter-affidavit it has been clearly stated by the respondents that those
persons were appointed prior to 20.6.78 during the period of strike of
Municipal doctors and non-availability of the recommended doctors from the
U.P.S.C. and there was an agreement between the representatives of those
doctors pursuant to which they were regularised and such regularisation was
with effect from 27.12.80 i.e. the date of recommendation by the U.P.S.C. It
should be noted that those appointments were long prior to the passing of the
recruitment rules and the petitioners cannot claim that they are on the same
platform as those appointees.
17.
The petitioners have been regularised with effect from 27.6.91 the date on
which the U.P.S.C. recommended their appointments. Hence there is nothing
illegal or arbitrary in the office order dated 17.8.92 appointing the
petitioners on regular basis with effect from 27.6.91. The said regularisation
is in accordance with the rules.
18. We
hold that the order of regularisation made by the first respondent on 17.8.92
with reference to petitioners is valid and not arbitrary. The petitioners
cannot have any grievance against the same. Consequently the writ petitions
have to fail and they are hereby dismissed. There will be no order as to costs.
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