M.L. Arora And Ors. vs Municipal Corporation Of Delhi ...
1991 Latest Caselaw 352 Del

JUDGMENT

Dalveer Bhandari, J.

(1) This writ petition under Article 226 of the Constitution of India questions the legality of circular No, 1|19|89|WSU|Seniority|4308 dated 24-1-1989 whereunder Additional Deputy Commissioner, Water Supply and Sewage Disposal Undertaking, Municipal Corporation of Delhi has issued a provisional seniority list. (hereinafter to be referred to as Circular). It is alleged in the petition that by the said circular, final combined seniority lists of Assistant Engineers (Civil) issued by respondent No. 2 as far back as on 17-7-1976 and two additional lists dated 4-11-1981 and 18-1-1984 have been cancelled. Petitioners 1 to 8 were appointed as Assistant Engineers (Civil) between 1974 and 1977. Petitioners have completed regular service of 12 to 15 years as Assistant Engineers (Civii).

(2) There were no statutory rules regulating the service of the petitioners. They were governed by the regulations framed by the Municipal Corporation under Section 98 of the Municipal Corporation of Delhi Act, 1957 vide resolution No. 452 dated 5-12-1967 (hereinafter to be referred to as resolution). Alt appointments from 1967 onwards were made both by direct recruitment and promotion in Verms' of the said resolution.

(3) On 17-7-1976 final seniority list of Assistant Engineers (Civil) was issued on the basis of quota-rota in the ratio 1 : 1. Second combined seniority list of remaining 48 Assistant Engineers (Civil) was issued on 4-11-1981. Like the previous seniority list of 1976, this list also included both direct recruits and departmental promotees in the ratio 1 : 1. On 18-1-1984 third final seniority list was issued as an additional list of first two final seniority lists. Third seniority list was no replacement of first and second lists but was in continuation of the same. All these seniority lists were prepared after considering all the objections. One D. K. Gupta filed one writ petition No. 472 of 1977 before this High Court but even in this writ petition first combined seniority list of 17-7-1976 was, not challenged. The division bench of this court by a detailed judgment dated February 2, 1978 dismissed the said writ petition.

(4) On 24-1-1989 Additional Deputy Commissioner, Water Supply and Sewage Disposal Undertaking has issued a provisional seniority list of Assistant Engineers ( Civil ) containing names of all those who have been appointed during the period 1962 to 31-3-1982. According to petitioners this seniority list has totally upset earlier seniority lists which were prepared after considering the objections from all. The reasons provided for revision as mentioned in the circular letter covering the said revised seniority list dated 24-1-1984 is Supreme Court order dated 28-8-1988 delivered in the case of Delhi Water Supply & Sewage Disposal Undertaking & others v. R. K. Kashyap and others It is necessary to give the brief facts of the said case in order to determine whether the said case has any application to the facts of the present case. This case related to Executive Engineers working in the Undertaking of Municipal Corporation, Delhi. The case of the petitioners, was that, inter-se seniority in the cadre of Executive Engineers after their regularisation should reflect the corresponding ranking in the feeding cadre of Assistant Engineers. But the contesting respondents who are also Executive Engineers contended to the contrary. Their case is that the continuous officiation on the post till regularisation should be the basis for determining the seniority. These rival contentions were required to be decided in the case before the Supreme Court. Two significant features of the Supreme Court judgment have to be appreciated in proper prespective. First, the principle laid down in that case cannot be made applicable to the present case because the post of Executive Engineers is required to be filled 100 per cent by promotion without any direct recrument, while the post of Assistant Engineers (Civil) is required to be filled up both by direct recruitment and departmental promotees in the ratio 1 : 1, and seniority list on the basis of quota-rota were prepared on three earlier occasions i.e. 17-7-1976. 4-ll-1981 and 18-1-1984. Therefore, the said judgment of the Supreme Court has no relevance to the facts of the present case. The other important conclusion of the said case is that in absence of any rule or order, the length of service should be the basis to determine the seniority. In the instant case, though there were no statutory rules but the entire seniority has been determined by the impugned resolution. Court's observations in paragraph 26 of the said judgment are relevant and same are set out as under:- "So much as regards to general principle governing seniority in service jurisprudence. There is, however. one other important and fundamental principle which should not be forgotten in any case. The principle of counting service in favor of one should not be violative of equality of opportunity enshrined in Articles 14 and 16 of the Constitution. If ad hoc appointment or temporary appointment is made without considering the claims of seniors in the cadre. the service rendered in such appointment should not be counted for seniority in the cadre. The length of service in ad hoc appointment or stop-gap arrangement, made in the exigencies of service, without considering the claims of all the eligible and suitable persons in the cadre ought not be reckoned for the purpose of determining the seniority in the promotional cadre. To give the benefit of such service to a favored few, would be contrary to the equality of opportunity enshrined in Arts. 14 and 16 of the Constitution. But if the claims of ail eligible candidates were considered at the time of ad hoc appointments and such appointments continued uninterruptedly till the regularisation to services by the Departmental Promotion Committee or the Public Service Commission there is no reason to exclude such service for determining the seniority. Of course, if any statutory rule or executive order provides to the contrary the rule or order will have supremacy. In the absence of any rule or order the length of service should be the basis to determine the seniority." The significant ration of this case is that in the absence of any rule or order the length of service should be the basis to determine the seniority. The ratio of this Supreme Court case cannot be made applicable to the facts of the present case. Though, there were no statutory rules but services were governed by the impugned executive resolution. The seniority list prepared on 17-7-1976 on the basis of said resolution remained in force unchallenged for a period over twelve years.

(5) One Shri O. P. Tyagi challenged the earlier seniority lists for the first time in May, 1988. In this writ petition present petitioners though were directly affected by the decision of the court were not imp leaded as parties and the said writ petition was decided behind their back. Moreover, correct facts, having direct bearing were not brought to the notice of the Court when 'he said writ petition was disposed of by a division beach of this court on February 16, 1989 at admission stage with following observations: "It is pointed out by the respondents that consequent to the judgment of the Supreme Court of India delivered on 28th October. 1988 in the appeal case pertaining to order of Delhi High Court, that in the absence of any statutory rules or orders, the seniority will relate back to the date of initial appointment, a revised tentative seniority list has been circulated in the circular dated 24th January, 1989. The seniority list of Assistant Engineers (Civil) appointed up to 30th March, 1982 has been revised, on the basis of the date of initial appointment as Assistant Engineers (Civil). This is what is claimed in the present writ petition, that the seniority of the petitioners should be based on the criteria of tenth of service. The validity of the rule has been upheld by a Division Bench of this Court. In these circumstances the show cause notice is discharged. C.W. is disposed of." On the basis of the said order of this Court, Delhi Water Supply and Sewage Disposal Undertaking, Municipal Corporation of Delhi issued impugned circular dated 24-1-1989 by which earlier seniority lists dated 17-7-1976, 4-11-1981 and 18-1-19814 were cancelled.

(6) Petitioners aggrieved by the said impugned circular approached the Supreme Court by Sling a writ petition under Article 32 of the Constitution of India, The said writ petition came up for preliminary hearing before the Supreme Court on 17-3-1989 when the court passed the following order: "The petitioners are permitted to withdraw the writ petition with liberty to file the writ petition before the High Court." Thereafter, present petitioners had approached this Court by way of the present writ petition on 10-4-1989. Notice was issued and after hearing learned counsel for the parties the court directed that : "In the meanwhile, the respondents may finalise the tentative seniority list issued in the circular dated January 24, 1989 after considering the objections filed against the tentative seniority list but effect shall not be given to the final seniority list till further orders " In the present petition Rule was issued on 10th December 1989 and present writ petition was set down for final disposal.

(7) Shri S. C. Gupta, learned Senior Counsel submitted on behalf of the petitioners that the final seniority lists dated 17-7-1976. 4-8-1981 and 18-1-1984 were prepared on the basis of impugned resolution and were duly approved by the Lt. Governor of Delhi as required under Section 480(2) of the said' Act. All appointments from 1967 were made both by direct recruitment and departmental promotion in terms of the said service regulations. The first, second, and third seniority lists were prepared after considering the objections and were not challenged until May, 1988. The seniority list of 1976 cannot be challenged after an inordinate delay of more than 12 years. In support of his submissions on the ground of delay and laches Shri Gupta cited the case of H. C. Sharma v. Municipal Corporation of Delhi, reported in 1983(2) Service Law Reports 706. (2) The Supreme Court in this case observed : "That the petitioners have challenged after a long period of live years and therefore, the petitioners are not entitled to any relief." Shri Gupta has also drawn our attention to the case of K. R. Mudgal and others v. R. P. Singh reported in 1986(2) Scale 565. (3) In the said case Supreme Court dismissed the writ petition only on the preliminary ground of laches of 18 years. The court observed: "That petitioners cannot be allowed to question seniority after a lapse of 18 years." In the said judgment Supreme Court placed reliance on its earlier leading case R. S. Makashi and others v. I. M. Menon . In. this case Supreme Court observed as under :- "In these circumstances we consider that the High Court was wrong in over-ruling the preliminary objection raised by the respondents before it, that the writ petition should be dismissed on the preliminary ground of delay and laches, in as much as it seeks to disrupt the vested rights regarding the seniority, rank and promotions which had accrued to a large number of respondents, during the period of eight years that had intervened between the passing of the impugned Resolution and the institution of the writ petition. We would accordingly hold that the challenge raised by the petitioners against the seniority principles laid down in the Government Resolution of March, 22, 1968 ought to have been rejected by the High Court on the ground of delay and laches, and the writ petition in so far as it related to the prayer for quashing the said Government Resolution should. have been dismissed." In another celebrated case Rabindra Nath Bose and others v. Union of India the identical question: came up before Supreme Court for consideration. Sikri J., speaking for and on behalf of the Constitution Bench said this.: "But in so far as the attack is based on the 1952 Seniority rules, it must fail on another grounds. The ground being that this petition under Art. 32 of the Constitution has been brought about 15 year's after the 1952 Rules were promulgated and. effect given to them in the Seniority List prepared on August I, 1953. Learned Counsel for the petitioners say that this Court has no discretion and cannot dismiss the petition under Art. 32 on the ground that it has. been brought after inordinate delay. We are unable to accept this contention." Therefore, according to the petitioners only on the ground of laches and inordinate delay the circular No. 1|19|89|WSU| Seniority|4308 dated 24-1-1989 has to be quashed.

(8) Another important submission of Shri Gupta is that the impugned Circular has been issued on the basis of order of this court dated 16th February, 1989 delivered in O. P. Tyagi's case. The said order of the Court is based en R. K. Kashyap case. According to Shri Gupta, Supreme Court judgment has no application to the facts of the present case because facts are entirely different. Supreme Court had decided the case of Executive Engineers. Promotion to the post of Executive Engineers is determined by seniority alone. Therefore, length of service for fixation of seniority is perfectly understandable, as it does not involve quota-rota basis of recruitment from two different sources. The post of Assistant Engineers (Civil) is required to be filled by both direct recruitment and promotion in the ratio 1 : 1 and seniority is required to be finalised on the basis of quota-rota. Therefore, the facts of this case are entirely different from the facts of the case decided by the Supreme Court.

(9) Shri Gupta also made serious grievance that the petitioners in this writ petition, though were directly affected by the decision were not imp leaded as parties in O. P. Tyagi's case. Therefore, correct facts, were not brought to the notice of the court.

(10) Another submission of Shri Gupta is that even in the said case of Executive Engineers, Supreme Court had mentioned that length of service should be the basis to determine the seniority in the absence of any rule or order. In the present case though there were no statutory rules but petitioners' services were regulated by impugned resolution which is proper, justified and legal. Shri Gupta has drawn our attention to a constitutional bench judgment of the Supreme Court in Sant Ram Sharma v. State of Rajasthan & others in support of this submission. In para-7 of the said judgment the constitutional bench has come to the conclusion: "It is true that Government cannot amend of supersede statutory Rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed." The learned counsel has also cited the leading case of Ashok Gulati & other's v. B. S. Jam and ethers . In this case the court has given references of Narinder Chadha's case and G P. Doval 's case . These cases were decided on the principle of length of continuous service whether temporary of permanent in a particular cadre or post which should be the criterion for determining the seniority. These cases were decided on the facts of those cases. In the case of Ashok Gulati (Supra) Supreme Court in para 24 of its judgment mentioned that these cases do not lay down any rule of universal application. Mr. Gupta has also drawn our attention to another Supreme Court case: Sonal Sihimaopa v. State of Karnataka Air 1987 S.C. 2359. (10) In para-19 of the said Judgment the court has evolved the principle of determining the seniority between direct recruits and departmental promotees. The relevant portion is set out as under:- "In a precedent-bound judicial system, binding authorities have got to be respected and the procedure for developing the law has to be one of evolution. It is not necessary for disposal of these matters before us to go into that aspect except noticing the existence of distortion in the field. The rationalisation of the view in a way known to law is perhaps to be attempted some day in future, in the present batch of cases, the law being clear and particularly the mandate in the rule being that when recruitment takes place the promotee has to make room for the direct recruit, every promotee in such a situation would not be entitled to claim any further benefit than the advantage of being in a promotional post not due to him, but yet filled by him in the absence of a direct recruit. One aspect which we consider relevant to bear in mind is that the promoted officer has got the advantage of having been promoted before it became his due and is not being made to lose his promotional position. The dispute Is confined to one of seniority only. The advantage received by the promotee before his forfeiture of claim to seniority. If the matter is looked at from that angle there would be no scope for heart-burning or at any rate dissatisfaction is expected to be reduced so far as the promotees are concerned."

(11) Shri R. K. Anand, learned senior counsel appearing on behalf of respondents 1 to 3 has pointed out that there was great anomaly in the seniority lists of 17-7-1976, 4-11-1981 and 18-1-1984, and therefore, it became imperative for the respondent No. 1 to issue Circular No. 4308 dated 24-1-1989 to remove anomaly existing in earlier seniority lists. This submission has no merit in the light of the facts and circumstances of this case.

(12) Shri Anand has submitted that the said circular is based on the judgment of the Supreme Court in Delhi Water Supply & Sewage Disposal Undertaking's (Supra) and respondent Municipal Corporation was totally justified in following the same in preparation of the impugned circular. This submission is also devoid of any merit because said judgment of Supreme Court has no application to the facts of The present case.

(13) Shri Anand learned counsel had drawn out attention to the case A. Janardhana v. Union of India for the proposition that it was not necessary to implead the petitioners in the O. P. Tyagi's case. Janardhana's case has no application on the facts of the present case. In the instant case petitioners were directly affected by the orders passed in 0. P. Tyagi's case and according to the principles of natural justice, petitioners ought to have been imp leaded as respondents in the writ petition filed by O. P. Tyagi. Orders passed in the said case cannot be of any avail particularly when neither directly affected petitioners were imp leaded nor correct facts were brought to the notice of the court.

(14) Shri Anand further submitted that in absence of rules or orders, the seniority should be determined, on the basis of continuous officiating on the post as laid down by the Supreme Court in number of cases. This submission of Shri Anand is sustainable as a pure legal proposition but on the facts of this case this principle has no application whatsoever. The earlier seniority lists were prepared on the basis of executive order which received approval from the Lt. Governer, therefore, length of service cannot be accepted as a criterion for determining the seniority in the instant case.

(15) Shri P. K. Jaitley, learned counsel appearing on behalf of respondents 4 to 41 has opposed grant of any relief in the writ petitions filed by the petitioners. According to Shri Jaitley in. absence of any statutory rules, the seniority relates back to the date of initial appointment. Shri Jaitley also submitted that in absence of any quota-rota rules, appointments made on that basis were void. Shri Jaitley further submitted that draft resolution was not gazetted and until it is gazetted it has no legal sanctity. Shri Jaitley also argued that earlier seniority lists were issued by Municipal Corporation of Delhi and they had the right to issue revised seniority list if they realised that some errors have crept in the earlier seniority lists. On careful consideration we do not find any merit in the submissions of Shri Jaitley in the light of the facts of this case.

(16) We have analysed the rival contentions of the counsel appearing on behalf of the petitioner as well as by respondents. We are not impressed by submissions advanced on behalf of the respondents in these proceedings.

(17) We find considerable force in the contentions and submissions made on behalf of the petitioners. Seniority lists prepared on 17-7-1976, 4-11-1981 and 18-1-1984, after considering all the objections, and, prepared on the principle of quota-rota in the ratio 1: 1, based on service regulation (framed by the Corporation under Section 98 of the M.CD. Act, 1957 vide resolution 452 dated 5-12-1967) and duly approved by Lt. Governor of Delhi cannot be challenged after a lapse of several years. This would mean that no seniority list can ever acquire any finality and employees can never be sure of their, future.

(18) In case final seniority lists prepared after consideration of all the objections are allowed to be cancelled in such light hearted manner, then this is bound to create intense heart burning and utter chaos in the service. It would be unjust to deprive petitioners to the rights which have accrued to them. Constitution bench of the Supreme Court laid down in M/s. Trilok Chand v. H. B. Munshi 1969(2) (SC) 824(12) that each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set aside after lapse of many years. This principle is just, fair and equitable. Petitioners are entitled to succeed on their threshold submissions.

(19) The Supreme Court case if properly analysed and appreciated really helps petitioners. In the ins' ant case the seniority lists prepared on the basis of executive order are perfectly proper, legal and in consonance with the Supreme Court judgment. According to the said judgment length of service becomes basis of determining seniority in absence of rules or orders. In the present case seniority lists were prepared on the basis of executive order, cannot be said to be inconsistant with the said judgment of the Supreme Court Petitioners are entitled to succeed on this count also.

(20) In the said judgment Supreme Court was dealing with the case of Executive Engineers whose posts are required to be filled 100 per cent by promotion without any direct recruitent. Instant case concerns Assistant Engineers (Civil). These posts are required to be filled up by direct recruitment and promotion in the ratio 1 : 1 on the principle of quota-rota. Since on facts, the case of Supreme Court is entirely different, therefore, the principle decided in that case cannot be made applicable to the facts of the present case. Petitioners' grievance that Supreme Court case has erroneously been applied to the facts of their case is quite justified.

(21) In the light of our conclusions writ petition succeeds. We quash the Circular No. 1|19|89|WSU|Seniority|4308 dated 24-1-1989. The writ petition is allowed. On the facts and circumstances of the case, we leave the parties to bear their own costs.