B.B. Mahajan vs Commissioner, Municipal ...
1997 Latest Caselaw 435 Del

JUDGMENT

Devinder Gupta, J.

(1) The grievance made by the petitioner in this petition preferred under Article 226 of the Constitution of India on 28.10.1987 is against the final seniority list circulated on 20.8.1986 through circular Annexure Xiv that he should have been placed below serial No.46 and above serial No.47 instead of being placed at serial No.62. Consequential directions sought are for assigning him correct seniority in the list of Assistant Engineers w.e.f. the date of recommendations of the Departmental Promotion Committee, namely, 28/29.6.1971 and to issue further directions to consider his case for further promotions to the post of Superintending Engineer w.e.f. 7.8.1987 when respondents 3 & 4, his juniors were promoted and to grant all other consequential benefits.

(2) The undisputed facts in brief are that the petitioner possessing qualification "Inter Overseer Certificate" which is equivalent to Diploma in Civil Engineering, joined the Municipal service in the cadre of Junior Engineer (Civil) on 4.8.1959. The next promotional post is of Assistant Engineer. The Recruitment Regulations for the post of Assistant Engineer were framed in consultation with the Upsc in 1970. Under Section 98 of Delhi Municipal Corporation Act, Recruitment Regulations can be made only after consultation with the Commission. The regulations were framed in consultation with Upsc by the Corporation on 4.5.1970 and were approved by Lt. Governor vide notification of Delhi Administration dated 27.6.1970. However, the said Regulations were published in the Gazette dated 30.8.1979 in the Delhi Gazette.

(3) The petitioner was given current duty charge of Assistant Engineer in January, 1971. Along with others he was given ad-hoc appointment to the post of Assistant Engineer (Civil) through resolution No.286 (Annexure-II) dated 19.7.1991 and was given officiating promotion and was appointed to the post of Assistant Engineer (Civil) on regular basis w.e.f. 25.10.1971 through office order dated 10.4.1973. This office order appointing the petitioner to the post of Assistant Engineer (Civil) on regular basis was passed on the basis of recommendations made by the Departmental Promotion Committee on 28/29.6.1971 as approved by the Union Public Service Commission (for short 'UPSC') through its recommendation dated 25.10.1971. The petitioner was shown at serial No.9 in the merit list of approved panel of Engineers. Though the petitioner earlier had also made some grievance claiming seniority over Mr. C.M. Vij and Mr. D.D. Nayyar, who were shown at serial Nos. 15 and 19 in the said merit list but a statement was made by the learned counsel for the petitioner during the course of arguments that the petitioner now does not press his claim and no challenge is being made to the seniority list vis-a-vis the promotees, including Mr. C.M. Vij and Mr. D.D. Nayyar. On 2.1.1974, Mr. J.P. Khurana, respondent No.8, and Mr. B.S. Solanki, respondent No.10, applied for direct recruitment when the posts of Assistant Engineers was advertised by UPSC. They were selected against the direct recruitment quota and along with them 18 others were also selected and appointed by direct recruitment. Petitioner's grievance is that they were wrongly shown senior to him in the impugned seniority list. This action is under challenge by the petitioner. It is also the petitioner's case that on 2.1.1975 Upsc recommended regular promotion of 10 Junior Engineers to the post of Assistant Engineers against the promotion quota. Some of them were earlier considered by the Departmental Promotion Committee in 1971 but were not recommended. These persons were appointed as Assistant Engineers on regular basis w.e.f. 2.1.1975 and are also shown as senior to the petitioner.

(4) As noticed above, in view of the statement of learned counsel for the petitioner that the petitioner does not press and makes any challenge to the seniority list vis-a-vis the promotees in so far as promotion of 10 Junior Engineers is concerned, we need not go into that question at all. On 30.1.1975 a final seniority list of Assistant Engineers, which was to form the basis of seniority for the purposes of promotion to the next higher post of Executive Engineers was prepared. On 2.9.1978 another modified seniority list was prepared on the basis of Government of India circular dated 22.12.1959. It is the petitioner's case that correctness of the seniority list was challenged before this Court by Ram Lal Malik and I.C. Gupta (in Cw 742/79) and by Lashkar Singh. It is alleged that the writ petition filed by Ram Lal Malik was allowed on 11.2.1981 and the final modified seniority list of 1979 was quashed by the learned single Judge. It was also held that the Circular of Government of India of 1959 issued under Civil Service Regulations had no application to the employees of the Municipal Corporation or to the erstwhile employees of respective Municipal Departments as the Circular stood separately adopted only when Service Regulations of 1959 were amended and the amendment became effective on 5.10.1972. As such anterior to that date the seniority could not be determined on the basis of 1959 circular of Government of India. It is also alleged that a Letters Patent Appeal was preferred against the said decision, which was allowed but on appeal the order of the High Court was set aside by the Supreme Court. The writ petition was remanded for fresh decision on merits in accordance with law. After remand at the time of re-hearing the writ petitioner sought leave of the Court to withdraw the petition, which was allowed to be withdrawn. It is the petitioner's case that during pendency of Lpa in Ram Lal Malik's case a working seniority list was prepared by the department, ignoring 1959 circular, for appointments made upto 5.10.1972, the date when regulation of 1959 were gazetted. In the said list the petitioner was shown at serial No.32 on the basis of the date of his regular appointment and respondents 6 to 10 were all placed below the petitioner. The seniority lists of 1975 and of 1979 were quashed by this Court in the case of M.C.D. V. K.K. Bhatia (LPA 159/77); Lashkar Singh and others v. M.C.D. (LPA 55/78); and B.C. Gupta and others v. M.C.D. (CW 327/71) all decided on 12.7.1985. It is alleged that in all cases the Court held that where persons are appointed/promoted on ad-hoc basis initially, who thereafter were appointed on regular basis pursuant to their selection by D.P.C. constituted in accordance with Upsc (Consultation by D.P.C.) Regulation 1959, are entitled to their seniority with effect from the date of the initial appointment on ad-hoc basis. The Court took note of the fact that in all these cases long delay not attributable to the officers was occasioned between ad-hoc promotion and the regular promotion and reaffirmed the principles laid down in Ishwar Chand Sanger v. D.E.S.U. (LPA C 110/69 decided on 28.5.1970) laying down the principle that upon regularisation or regular appointment by promotion the seniority relates back to the date of initial appointment. Thus, seniority of officers was directed to be determined with reference to their date of initial ad-hoc appointment once their services were regularised by UPSC. It is the petitioner's case that on 20.8.1986 the impugned seniority list of Assistant Engineers was circulated. Petitioner was placed at serial No.62. In this final seniority list in so far as ad-hoc appointment made up to 29.10.1969 is concerned, the ranking has been done strictly according to the date of ad-hoc appointment. The next batch is of ad-hoc appointees who were appointed made w.e.f. 19.7.1971. Some of them like the petitioner were those who were approved by Dpc in the year 1971 itself for regular appointment. Some were similarly recommended in 1975. A few were held to be unfit for regular appointment both in 1971 and 1975. The ranking in the impugned seniority list has been done on the basis of the date of initial ad-hoc appointment irrespective of the fact that whether these ad-hoc appointees were duly recommended for regular appointment or not by a duly constituted DPC. This was done ignoring the case of persons like the petitioner who were regularly appointed w.e.f. 19th July, 1971 and had been working prior thereto on ad-hoc basis. It is also the petitioner's case that the respondent Corporation has interspersed the direct recruits of 1974 and promotees of 1971 in the manner that one ad-hoc appointee of 1971 is followed one direct recruit appointee on 2.1.1974 followed by another appointee of 1971 and then by direct recruit on 2.1.1974 and so on. Respondents 3 to 10 are shown in the seniority list at serial Nos. 47, 49, 51, 53, 55, 57, 59 and 61. Petitioner is at serial No.62. Persons at serial numbers 48, 50, 52, 54, 56, 58 and 60 are the promotees. It is the respondent's case that after notification of the recruitment regulations for the post of Assistant Engineer (Civil) the Corporation initiated the matter relating to fixation of seniority in the cadre of Assistant Engineer (Civil) but the same could not be done due to multifarious litigations pending at that time in the High Court or in the Supreme Court. Seniority of the petitioner was fixed in the cadre of Assistant Engineer (Civil) with effect from the date of ad-hoc appointment in the light of judicial pronouncements. The final seniority list in the cadre of Assistant Engineer (Civil) was circulated on 20.8.1986, after considering the objections received from the respective officials within the cadre. It is also the case of the respondents that petitioner's grievance for fixation of seniority in the cadre of Assistant Engineer with effect from the date of recommendation of Dpc is devoid of any force since benefit has already been granted to him by assigning seniority in the cadre of Assistant Engineer with effect from the initial appointment on ad-hoc basis.

(5) Counsel for the parties were heard, who took us through the entire record. In so far as the petitioner's case for being placed above serial No.47 and below serial No.46 in the impugned seniority list is concerned, the same, in view of the statement made by learned counsel that challenge to the seniority list vis-a-vis the promotees is given up, will have to be taken as given up. In other words, the dispute will only survive as to the direction sought by the petitioner against the respondents for correcting the impugned seniority list by showing all appointed on 19.7.1971 above the direct recruits, i.e., by placing the petitioner who is at serial No.62 above the direct recruits, who are shown at serial Nos. 47, 49, 51, 53, 55, 57, 59 and 61 but below the persons mentioned at serial Nos. 48, 50, 52, 54, 56, 58 and 60. In other words, the petitioner will have to rank below Sushil Kumar shown at serial No.60 in the impugned seniority list. It is not in dispute that upto serial No.46, seniority list was prepared according to aforementioned judicial pronouncements but after serial No.46 the respondents have resorted to rotation of the posts between direct recruits and promotees, namely, one promotee followed by one direct recruit and then again one promotee followed by one recruit. It is the petitioner's case and rightly so that till the impugned seniority list was circulated on 20th August, 1986, there was no working of the quota earmarked for direct recruits. Recruitment Rules were framed on 4.5.1970, which were approved on 27.6.1970 but were gazetted on 30.8.1979 and as per the provisions of Section 480 of the Delhi Municipal Act, regulations made by the Corporation under the Act can have effect only when the same are approved by the Central Government and are published in the official gazette. Since there has been no official gaze ting of these regulations till 30.8.1979, same cannot authorise the respondent Corporation to make rotation of the post as has been done in the impugned seniority list. Promotees were regularised with effect from 19th July, 1971 as 1959 Regulations became operative only with effect from 5.10.1972. Thus, on the ratio of the decision of the Supreme Court in the Direct Recruit Class Ii Engineering Officer's Association and others v. State of Maharashtra and others, and State of Bihar v. Sri Akhouri Sachindra Nath & Others, , the petitioner deserves to be assigned due seniority. In The Direct Recruit Class Ii Engineering Officer's Associations's case (supra), referring to various other decisions on the point vis-a-vis the seniority between direct recruits and promotees, the position till then was summarised in para 44 of the report. To the facts and circumstances of the instant case clause (e) of the conclusions arrived at by the Supreme Court is fully applicable, which says that where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the Rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in service at a later date. In Akhouri Sachindra Nath's case it was held that no person can be promoted with retrospective effect from a date when he was not born in the cadre so as to adversely affect others and amongst members of the same grade, seniority is reckoned from the date of their initial entry into service.

(6) There is no doubt that respondents 3 to 10 shown at serial Nos. 47, 49, 51, 53, 55, 57, 59 and 61 were not born on the cadre on the day when the petitioner was ordered to be promoted on regular basis to the post of Assistant Engineer (Civil). In case the petitioner, who was given current duty charge on 27.3.1971 and was promoted on ad-hoc basis from 27.8.1971 and on the basis of the recommendations of a duly constituted Dpc dated 28/29.6.1971, which was duly approved by Upsc he was regularised against the said post with effect from 19th July, 1971, the petitioner must rank senior to respondents 3 to 10 and must get all benefits, which his juniors got on and from the date when his juniors got the benefits. In K.K. Bhatia's case (supra), the Division Bench of this Court also held that an ad-hoc appointment continued from year to year is to get seniority in the absence of any specific rule, from the date of initial appointment and not from the date of regularisation and that the ad-hoc appointment continued for a long time is a step towards regular appointment. In Lashkar Singh's case (supra) also date of seniority in the case of each of officers was directed to be taken as to the date of initial appointment. Initial appointment of the petitioner in the instant case was 21.1.1971 on which date he was given current duty charge, which was followed without any break by ad-hoc appointment made on 27.8.1971, which was duly regularised later on with effect from 25.10.1971.

(7) In view of the above, the writ petition is allowed. Respondents are directed to correctly place and treat the petitioner senior and above respondents 3 to 10 in the seniority list of Assistant Engineer and to consider the case of the petitioner for further promotions and for grant of other benefits to the higher posts on that basis with effect from the dates when, respondents 3 to 4, his juniors, were promoted. Respondents are also directed to grant all consequential benefits as regards promotion, pay etc.