Dr. Sat Pal vs Municipal Corporation Of Delhi ...
1998 Latest Caselaw 662 Del

JUDGMENT

K. Ramamoorthy, J.

1. The writ petitioner was working in General Duty Department, MCD. On the 1 11th of August, 1986, a circular was issued by the MCD inviting applications for tilling up the posts of GDO-I(Public Health). Pursuant to this circular, on the 15th of September, 1986 the petitioner applied for being appointed on transfer to GDMO-I(Public Health). On the 21st of December, 1988, an office order was issued by the MCD appointing the petitioner with effect from 18.3.1987 in the pay scale of Rs.3000-4500 in Public Health. By oversight, the post was mentioned as GDO-II(PH) instead of General Duty, Grade-1 (Public Health) in the sale of Rs.3000-4500. It is not disputed that as on that date the pay scale of Rs.3000-4500 was applicable only to General Duty Grade-I(Public Health).

2. Clarifying this position, an office order was issued by the Municipal Corporation of Delhi on the 11th of July, 1989. The same reads as under:-

"On the recommendations of the UPSC vide their letter No.F.3/30(7)/86-AU1V dated 18 March 1987, the corporation vide its resolution No.825 dated 28 November, 1988 has approved the appointment of the following medical officers to the post of General Duly Grade-1(Public Health) in the pay scale of Rs.3000-4500 on regular basis by transfer in the order stated with effect from 18 March 1987 in probation for a period of two years:-

1.Dr.Sal Pal

2. Dr.N.K.Yadav

3. Dr.K.N.Tewari

4. Dr.Kuldeep Dogra

2. The above officers appointed on transfer shall have to exercise option within one year i.e. by 20 December 1989 whether they want to serve in the Public Health Cadre or to go back to the General Duty Cadre. In case no option is filed within the stipulated period, the officers concerned shall be deemed to have opted for the Public Health Cadre automatically."

3. On the 12th of July, 1989, the petitioner wrote to the Director (Personnel), MCD in the following terms:-

"With reference to your office order No.F.5(5)/CFD(MO)86/90/19372-87 dt. 11.7.89 on the subject mentioned above I hereby give my acceptance for the post of General Duty Officer Grade-I (Public Health). I have already given my acceptance to Corporation for Public Health and for

posting in the same department. Even on 7.7.89 vide letter No.6790, T have requested D.C.(H) for my proper posting. Here I will like to mention that I am already working in the pay scale of Rs.3700-5000 w.e.f. Aug.1987, i.e., I would request you to post me in Public Health cadre at suitable place. My name stands at Sl.No.1 of the seniority list of the said order. I would request to authorities for suitable posting in Public Health as early as possible."

He had accepted the appointment w.e.f. 18.3.1987. What he had mentioned was that he had already been working in the pay scale of Rs.3700-5000 w.e.f.August, 1987. He wanted a suitable placement consistent with the pay scale he was on as on that date.

4. On the 24th of July, 1989, the petitioner was transferred to Public Health sub-cadre and posted as Zonal Health Officer. On the 28th of July, 1989, he was working in Najafgarh Zone. The petitioner applied to the MCD for changing the cadre from Public Health Cadre to General Duty Cadre by his applications dated 8.2.1990, 22.6.1990 and 2.7.1990. According to the petitioner, he could have made such an option within one year from the date of his appointment and, according to him, that date has to be reckoned from 11.7.1989. An office order was issued clarifying the order issued on the 11th of July, 1989, which had already been referred to. Though in the order dated 11.7.1989 the MCD had given time for exercise of option by the 20th of December, 1989, according to the petitioner, he exercised his option within one year from the 11th of July, 1989 as per the note in the Recruitment Regulations for the post of General Duty Officer Grade-I (Public Health). There is one note in column No.11 in the aforesaid Recruitment Regulations prescribing the qualifications for the post of General Duty Officer, Grade-I(Public Health). The note reads as under:-

"The officers appointed on transfer shall have to exercise option within one year from the date of appointment whether he/she wants to serve in the Public Health Cadre or to go back to the General Duty Cadre. In case no option is filed within the stipulated period, the officers concerned shall be deemed to have opted from the Public Health Cadre automatically."

Therefore, according to the petitioner, as per the note he could exercise his option within one year from the date of the order dated 11.7.1989.

5. The MCD had not responded to the offer made by the petitioner. The petitioner also did not take any action. On the 23rd of December, 1991, the MCD issued provisional seniority list in the Public Health Cadre. The petitioner sent his objection on the 3rd of January, 1992 stating that his name shall be deleted and appropriate orders may he issued fixing his seniority in the General Duty Cadre. He again sent representations on 5.2.1992 and 19.2.1992.

6. On the 6th of July, 1992, final seniority list was issued in the Public Health Cadre. On the 12th of November, 1992, the petitioner again made representation objecting to the final seniority list. On the 15th of September, 1993, he sent another representation. On the 11th of April, 1994, the officers junior to the petitioner were promoted. The petitioner had been hoping that the MCD would pass orders on the representations made by him.

7. The petitioner had approached this Court in 1996 claiming the following reliefs:-

"In the forgoing premises it is respectfully prayed that this Hon'ble Court may be pleased to:

a) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to accept the option of the petitioner to be treated as a part of the General Duty Cadre which he exercised, on June, 1990;

b) Issue writ of mandamus or any other appropriate writ order or direction to the respondents to reslore refix the seniority of the petitioner in the General Duly Cadre including SG-II General Duty Cadre.

c) Issue an appropriate writ order or direction quashing the promotion list of the NFSG and SAG Grades in the General Duty Cadre as recommended by the DPCs held in May/June, 1995 and on 14.12.1995, minutes of which have been confirmed on 12.1.96 and approval to which is being accorded and orders of promotion are being issued;

d) Issue an appropriate writ order or direction to the respondents to consider the petitioner for promotion to the NFSG and SAG Grades w.e.f. 11.12.89 and 1.12.92 respectively in the General Duty Cadre in respect of which the petitioner is eligible in all respects and direct the respondents to promote the petitioner to the said grades.

e) Direct the respondents to pay arrears and all other consequential benefits to the petitioner on his promotion to the aforesaid NFSG and SAG Grades respectively in the General Duty Cadre;

f) Award costs to the petitioner."

8. Pending the writ petition, as per the directions issued by this Court, the petitioner was promoted to a higher cadre in the Public Health Cadre and he is occupying fairly a high position.

9. Mr. B.T. Kaul, the learned counsel for the petitioner, submitted that if the option made by him to come to the General Duty Cadre had been accepted in 1990, his position in the MCD would be entirely different and the MCD in not passing any orders on the representations, had deprived him of his due place in the General Duty Cadre. According to the learned counsel for the petitioner, Mr. B.T. Kaul, the MCD had acted contrary to the note in the Recruitment Regulations for Medical & Public Health post in MCD, and according to the learned counsel, the regulations being statutory, the MCD, when the matter is governed by a statutory regulation, cannot impose condition and that is not valid, which runs counter to the statutory regulations.

10. Ms. Madhu Tewatia, the learned counsel for the MCD, submitted that the petitioner had accepted the order issued by the MCD on the 21st of December, 1988 which was given effect to from the 18th of March, 1987 and, the petitioner had the benefit of the order and the MCD issued an order on the 11th of July, 1989 to correct the obvious error which had crept in, in the earlier order dated 21.12.1988. In the order dated 11.7.1989, having regard to the order issued on the 21st of December, 1988, the petitioner was specifically apprised of the position that if he wanted to have a change to go to the General Duty Cadre, he could do so on or before the 20th of December, 1989. Admittedly, according to the learned counsel, no such option was made by the petitioner on or before the 20th of December, 1989. Therefore, according to the learned counsel for the MCD, Ms. Madhu Tewatia, it was not open to the petitioner to agitate the matter on the basis of the request made by him after 20th of December, 1989. The learned counsel for MCD, Ms. Madhu Tewatia, further submitted that the petitioner is guilty of latches inasmuch as the provisional seniority list was issued on the 23rd of December, 1991 and the final seniority list was issued on the 6th of July, 1992, he filed the writ petition on the 24th of January, 1996. The learned counsel for the MCD, Ms. Madhu Tewatia referred to the judgments of the Supreme Court in "State of Haryana and Ors. v. Ajay Walia (Ms)", and in "Prafulla Kumar Swain v. Prakash Chandra Misra and Ors.", 1993 Supp.(3) SCC 181.

11. The learned counsel for the petitioner, Mr. B.T. Kaul, submitted that the petitioner had exercised his option to go to General Duty Cadre within one year from the date of his appointment. When a fresh order had been issued on the 11th of July, 1989 superseding the order dated the 21st of December, 1988, the MCD was not within its power in fixing an outer limit for the exercise of option by 20th of December, 1989.

12. I am not able to accept the submission made on behalf of the petitioner by Mr. B.T. Kaul. The order was passed on the 21st of December, 1988 giving the benefit of appointment w.e.f.18.3.1987. It is only for the benefit of the petitioner that the second order was passed on the 11th of July, 1989 after issuing a corrigendum on the 6th of January, 1989. The appointment was w.e.f.18.3.1987. If the note relied on by the petitioner is applied, then the petitioner cannot exercise his option as one year period would have expired by the 18th of March, 1988. It was only to confer a benefit on the petitioner and time was given to the petitioner up to the 20th of December, 1989. It is not his case that his pay was not protected and that is not an issue here at all. The only argument is that the petitioner had exercised the option within one year from the date of his appointment. That is absolutely erroneous. In my view, the petitioner did not exercise his option as stipulated in the order dated 11.7.1989 and it would not be open to the petitioner to make a grievance of it.

13. The petitioner had not taken any steps to challenge before this Court the provisional seniority list issued on the 23rd of December, 1991 and the final seniority list issued on the 6th of July, 1992 on the premise that the MCD had not passed any orders on his representations. The learned counsel for the MCD, Ms. Madhu Tewatia, submitted, on the strength of the judgment of the Supreme Court in "State of Haryana and Ors. v. Ajay Walia (Ms)", , that sending representations would not furnish fresh cause of action to any employee. According to the learned counsel for the MCD, once there was no order by the MCD, the petitioner must have presumed that his representations had been rejected. According to the learned counsel for MCD, there was an implied rejection of the representations made by the petitioner and the petitioner must have swung into action and approached this Court.

14. The learned counsel for the petitioner, Mr. B.T. Kaul, relying upon the judgment of the Supreme Court in "Ram Chand and Ors. v. Union of India and Ors." , submitted that the MCD having failed to dispose of the representations, cannot seek to non-suit the petitioner on the ground of latches. The learned counsel for the petitioner, Mr. B.T. Kaul, placed reliance on the observation of the Supreme Court in paragraph 16 of the judmgment. That paragraph reads as under:-

"On behalf of the respondents, it was pointed out that the petitioners have approached this Court only after making of the awards, or when awards were to be made, having waited for more than fourteen years, without invoking the jurisdiction of the High Court under Article 226 or of this Court under Article 32. It is true that this Court has taken note of delay on the part of this Court for quashing the land acquisition proceedings on the ground that the proceedings for acquisition of the lands in question have remained pending for more than a decade, in the cases of Aflatoon v. Lt. Governor of Delhi and Ramjas Foundation v. Union of India. According to us, the question of delay in invoking the writ jurisdiction of the High Court under the inaction on the part of the authorities, who had to perform their statutory duties. Can the statutory authority take a plea that although it has not performed its duty within a reasonable time, but it is of no consequence not invoked the jurisdiction of the high Court or of this Court for a suitable circumstances? The authorities are enjoined by the statute concerned to perform their duties within a reasonable time, and as such they are answerable to the Court why such duties have not been performed by them, which has caused injury to claimants. By not questioning, the validity of the acquisition proceedings for a long time since the declarations were made under Section 6, the relief of quashing the acquisition proceedings has become inappropriate, because in the meantime, the lands notified have been developed and put to public use. The lands are being utilised to provide a must in the present set-up. The outweighing public interest has to be given the landholders, seeking quashing of the acquisition proceedings on ground of delay in completion of such proceedings. But, can the respondents be not directed to compensate the petitioners, who were small cultivators holding lands within the ceiling limit in and around Delhi, for the injury caused to them, not by the provisions of the Act, but because of the non-exercise of the power by the authorities under the Act within a reasonable time?"

15. Having regard to the facts and circumstances of this case, I find considerable force in the submission made by the learned counsel for the MCD. The petitioner ought to have taken steps to agitate his rights before the appropriate forum. The learned counsel for the petitioner, Mr. B.T. Kaul, submitted that as per the scheme formulated by the Government of India and settlement signed by the Joint Action Council of Doctors on the 21st of August, 1989, package benefits were given to the doctors and by virtue of those benefits, the petitioner would have reached the highest scale very much earlier if his option had been accepted. On the 27th of February, 1991 the Commissioner, Municipal Corporation of Delhi had written a letter to the Municipal Secretary, Municipal Corporation of Delhi. The relevant paragraphs read as under:-

"As provided in the package of 1987, there will be a Non-Functional-Selection 'Grade in the pay scale of Rs.4500-5700 in General Duty, DMS/RMS, Public Health and Dental Cadre and strength of this grade will be 15% of total posts in the GDMO-I and Supertime Grade-II. The officers in the grade of Supertime Grade-II(Rs.3700-5000) with two years of regular service will be placed in the Non-Functional-Selection Grade of Rs.4500-5700 on the basis of seniority-cum-fitness.

In terms of the package of Government of India in to create 12% posts in the scale of Rs.5900-6700 fpr a;; tje medical cadre including the teaching cadre, pending comprehensive review by the Government of India. It is gathered that the Ministry has not created the new posts in the grade so far and has only upgraded the existing posts of CMO's in the Non-Functional Selection Grade of Rs.4500-5700 to SAG (Rs.5900-6700), where such CMO's in the non-functional Selection grade of Rs.4500-5700 gave put in more than 17 years regular service in Group 'a' and were eligible for promotion to the Senior Administrative Grade (Rs.5900-6700) in terms of R.Rs.

On view of the implementation of the above clause, it is proposed that a posts of Supertime Grade-II(GD)(Rs.3700-5000) may be upgraded to the level of Supertime Grade-I(GD)(5900-6700) as a measure of interim relief. However, these posts will be filled up after making necessary amendments in the existing Recruitment Regulations. Similarly 8 posts of GDMO-I(GD)(Rs.3000-4500)may be upgraded to the level of Supertime Grade-II(GD)(Rs.3700-5000) in order to maintain the existing number of posts at the Supertime Grade-II(GD) level. Likewise, upgradation of 4 posts at the Supertime Grade-I(Rs.4500-5700) to supertime Grade-I(Clinical) Rs.5900-6700) may be allowed. Allocation, of these posts in health cadre shall be decided by the . Health Department and these upgradadons are subject to final cadre review."

16. The petitioner is now working on a fairly high level in the hierarchy in the Public Health Cadre. The learned counsel for the MCD, Ms. Madhu Tewatia, submitted that the petitioner's services are recognised and the position now occupied by him would remain undisturbed and MCD has been treating him as belonging to Public Health Cadre.

17. In view of the above circumstances, I am of the view that the petitioner has not made out any case for the issuance of the writ as prayed for by him in the writ petition. Accordingly, the writ petition is dismissed.

18. There shall be no orders as to costs.