K.R. Sunda vs B.S. Mehta And Ors.
1991 Latest Caselaw 657 Del

JUDGMENT

Sat Pal, J.

(1) This appeal is directed against the judgment of the learned Single Judge dated 24th May, 1974 in Civil Writ Petition No. 1544/73 whereby the writ petition filed by respondent No. 1. was allowed and he was declared senior to both the appellants and the orders reverting him from the post of Assistant Director (Employment Exchanges) to the post of Sub-Regional Employment Officer were quashed.

(2) The facts giving rise to the writ petition briefly stated are that respondent No. I, who was petitioner in the writ petition was selected for the post of Sub-Regional Employment Officer in 1950 in the Directorate General Resettlement & Employment, Ministry of Labour as a direct recruit by the Federal Public Service Commission (now Union Public Service Commission). He was reverted to the post of Assistant Employment Officer in 1951 and was re-appointed to the post of Sub-Regional Employment Officer with effect from 11th July, 1952.

(3) In October, 1956 the employment service was decentralised and its day-to-day administration was passed on to the State Governments. Respondent No. I was allocated to the State of Uttar Pradesh where he was working as Sub-Regional Employment Officer at the time of decentralisation. It will be relevant to mention here that at that time there was no cadre of Sub-Regional Employment Officer existing in the employment services under the Delhi Administration. These posts were being manned by officers of equal status drawn from various States on deputation basis.

(4) Respondent No. I was confirmed as Employment Officer with effect from 1st April, 1958 in the State Employment Service, Government of Uttar Pradesh. He came on deputation to the Directorate General Employment Training and Technical Education, Ministry of Labour & Employment and worked there till 28th April, 1961 when his services were placed at the disposal of Delhi Administration on deputation basis with the concurrence of the Government of Uttar Pradesh. Thereafter, respondent No. I was appointed with effect from 6th August, 1969 in a substantive capacity against the permanent post of Regional Employment Officer in the Employment Wing of the Directorate of Employment Training and Technical Education, New Delhi along with one Shri P.C. Malhotra, who was also earlier on deputation with Delhi Administration.

(5) In the year 1964 Delhi Administration advertised two permanent posts of Sub Regional Employment Officers and both the appellants were selected by the Union Public Service Commission and were appointed to these posts on II.5.1964 and 22.7.1964 respectively by the Delhi Administration. The appellants were confirmed on their respective posts in the year 1970 with retrospective effect from the date of their joining i.e. 15.5.1964 and 22.7.1964 respectively. Since the appellant were confirmed prior to the confirmation of respondent No. I, they were made senior to respondent No. I against the post of Sub-Regional Employment Officer and consequently respondent No. I who was working as Assistant Director (Employment Exchanges) in the Directorate of Employment Training and Technical Education, on ad hoc basis was reverted to his substantive post of Sub-Regional Employment Officer by the Delhi Administration vides orders dated 13,9.1973. Aggrieved by the said order respondent No. I filed writ petition No. 1544/73 in this Court.

(6) In the first affidavit filed on behalf of Delhi Administration, it was stated that respondent No. I was absorbed in the Delhi Administration Services and confirmed from 6th August, 1966 on the post of Sub-Regional Employment Officer whereas the appellants were confirmed against these posts with retrospective effect from the date of their joining i.e. 11.5.1964 and 22.7. 1964 and as such respondent No. I was junior to the appellants under the statutory rules. It was further stated in this affidavit that respondent No. I was promoted as Assistant Director (Employment Exchanges) on temporary basis on 16th March, 969 as till that time the seniority of the Sub-Regional Employment Officers in the Delhi Administration had not been drawn and after the finalisation of the seniority list, the reversion of respondent No. I from the post of Assistant Director (Employment Exchanges) to the post of Sub-Regional Employment Officer was perfectly legal and valid.

(7) During the pendency of the writ petition a supplementary affidavit dated 19th March, 1974 was filed on behalf of Delhi Administration. In this affidavit it was stated that the appellants (respondents 6 and 7 in the writ petition) were appointed as Sub Regional Employment Officers on 11-5-1964 and 22-7-1964 respectively. It was further stated that due to inadvertance or a bona fide mistake they were appointed against Dhani Civil Service Posts, actually no permanent ex-cadre posts of Sub-Regional Employment Officers were available at that time. It was also stated therein that two permanent posts of Sub-Regional Employment Officers were next available in the year 1966 and against these posts Shri P.C. Malhotra and Shri B.S. Mehta (petitioners in the writ petition) were appointed in the year 1966. Relying on the averments made in the supplementary affidavit filed by the Delhi Administration, the learned Single Judge held that though the appointments of the appellants were purported to be made against permanent posts and no probation, no permanent ex-cadre post of Sub-Regional Employment Officer existed at all in 1964 when the appellants were recruited. It was, therefore, held by the learned Single Judge that respondent No. I became senior to the appellants in 1966 when he alone was confirmed and when the appellants were not legally either put on probation against a permanent post substantively vacant in a grade prior to the enforcement of the 1965 rules. The relevant part of the judgment of the learned Single Judge is reproduced herein below: "BUT the position of the Respondents 6 and 7 is vulnerable for the following reasons: Firstly, though their appointments were purported to be made against permanent posts and on probation, according to the Delhi Administration affidavit of 19th March, 1974, no permanent ex- cadre posts of Sub Regional Employment Officers existed at all in 1964 when the Respondents 6 and 7 were recruited. It cannot be said, therefore, that in the eye of law, they were appointed on probation to permanent posts substantively vacant in a grade prior to the enforcement of the 1965 rules within the meaning of explanation to rule 3. Secondly, the Delhi Administration affidavit says that the retrospective confirmation of Respondents 6 and / was also made to the posts included in the Dhani Civil Service. The 1965 rules do not apply to the posts in Dhani Civil Service. The respondents 6 and 7 cannot, therefore, claim the benefit of part (a) of the explanation to rule 3. The purported retrospective confirmation does not, therefore, help them to get seniority over the petitioner. The result of reading the explanation and rule 4 together, therefore is this: Though the Respondents 6 and 7 became senior to the petitioner on the commencement of the 1965 rules, the petitioner became senior to them in 1966 when he alone was confirmed and when respondents 6 and 7 were not legally either put on probation against a permanent post substantively vacant in a grade prior to the enforcement of the rules or when the retrospective confirmation 1970 also did not amount to confirmation in posts governed by the 1965 rules.

The next relevant rule is rule 8 (2) which is as follows : "WHERE such transfers are effected against specific quotes in the recruitment rules therefore the relatives seniority of such transfers vis-a-vis direct recruits and promotees shall be determined according to rotation of vacancies which shall be based on the quotas reserved for transfer direct recruitment and promotion respectively in the recruitment rules."

Rule 8 (2) clearly decides the seniority of persons governed by the 1965 rules. The test is that the vacancies had to be filled according to rotation, 75 per cent of the vacancies are reserved for transfer/deputation and only 25 per cent for promotion and direct recruitment. According to the affidavit of the Delhi Administration dated March 19, 1974, paragraph I, the first two posts of S R.E.OS, are in the Dhani Civil Service, The next two posts were given to Mr. Malhotra and the petitioner in 1966. There were, therefore, no posts available to be given to the Respondents 6 and 7. This is why the petitioner has sworn an affidavit on March 5, 1974 and repeated the averment on May 15, 1974 on affidavit that the Deputy Secretary (Services) Delhi Administration communicated to the Deputy Secretary. Ministry of Home Affairs on September 3, 1969 that the petitioner and one Shri Malhotra had been confirmed against the two posts of S.R.E 0s. declared permanent in 1966 and they were, therefore, senior to Respondent No. 6 and that a third post of S.R.E.O. had been made permanent with effect from 27-8-1968 reserved for Scheduled Castes and that Respondent No. 6 was considered for confirmation against that post. This was also the reason why in the seniority list the petitioner was shown senior to Respondents 6 and 7 till then."

(8) Along with the appeal an application being C.M. No. 956/74 was filed for seeking permission of the Court to produce two letters of Delhi Administration dated 18-9-1965, copies of which were also annexed with this application. It was alleged in this application that these letters clearly show that the averments made on behalf of the Delhi Administration in the additional affidavit dated 19th March. 1974 were incorrect. A reply to this application was filed on behalf of the Delhi Administration wherein it was stated that the affidavit dated 19th March, 1974 was filed by the Delhi Administration on the basis of the relevant records which were before the Court and were available for inspection all along during the pendency of the writ petition. On this application this Court passed orders on 26th November, 1974 that it would be appropriate to decide this application at the time when the main appeal is taken up for hearing.

(9) Mr. Gupta, the learned Counsel for the appellants has challenged the findings of the learned Single Judge contained in the portion of the judgment reproduced hereinabove. He contended that the learned Single Judge had given this finding relying on the additional affidavit dated 19th March, 1974 filed on behalf of the Delhi Administration but the facts stated in this affidavit are incorrect. He relied on two letters dated 18-9-1963 and 17-8-1965. copies of which were filed by the appellants along with C.M. No. 956/74. These two letters have been addressed by the then Director of Employment Training & Technical Education, Delhi Administration, Delhi to the Officer on Special Duty, Delhi administration. As noticed earlier a reply to this application being C.M. 956/74 was filed on behalf of Delhi Administration and it was reiterated therein that the facts stated in the additional affidavit dated 19th March, 1974 were true, correct and based on the relevant records. In view of these clear and candid averments, certain facts mentioned in these letters cannot be relied upon in isolation. We are, therefore, of the opinion that the findings of the learned Single Judge reproduced above were correctly based on the facts stated in the additional affidavit filed on behalf of the Delhi Administration.

(10) Even otherwise, according to the principle of equity and fairness, it has to be held that respondent No. I was senior to the appellants as Sub Regional Employment Officer after selection by the Federal Public Service Commission (now Union Public Service Commission) in the year 1950. We also cannot ignore a material fact that in the year 1956 when the employment service was decentralised and respondent No. 1 was allocated to the State of Uttar Pradesh, there was no separate cadre of Employment Officers in the Union Territory of Delhi and posts used to be filled by the deputationists from other States. Admittedly the appellants were appointed as Sub Regional Employment Officers in the year 1964 i.e. after a period of about 14 years from the date of appointment of respondent No. 1. It was in these circumstances that respondent No. I did not apply for one of the posts of Sub-Regional Employment Officers which were advertised by the Delhi Administration in the year 1964. The impugned judgment does not suffer from any infirmity.

(11) The appeal is accordingly dismissed but in the facts and circumstances of the case, we make no order as to costs. Accordingly dismissed.