S.K. Bhasin vs Municipal Corporation Of Delhi ...
1998 Latest Caselaw 447 Del

JUDGMENT

M.K. Sharma, J.

1. Challenge is made in this writ petition to the seniority list dated 25.8.1992 published by respondent .No. 2 showing the petitioner at serial No. 8 and also showing respondents 3,4,5 & 6 against serial Nos. 3,4,5 & 6 respeetively. The petitioner seeks for quashing of the seniority list particularly the action of respondent No. 2 in showing the name of the petitioner at serial No. 8 i.e. below the names of respondents 3 to 6, although according to the petitioner he is senior to said respondents. In the alternative the petitioner has also sought for, in the writ petition, a declaration that regulation 3(8) of the Service Regulations of 1985 to be ultravires and inconsistent with regulations 3(3), 3(4) and 3(5).

2. The petitioner was appointed as Junior Engineer against a permanent post on 26.11.1968 and he was confirmed in the said post on 26.11.1969. The petitioner was promoted to the post of Assistant Engineer on ad hoc basis on 1.5.1971, whereas the respondent No. 3 was promoted on 1.5.1971, respondents No. 4 & 5 were promoted on 1.5.1.972 and respondent No. 6 on 23.11.1975 on ad hoc basis. The petitioner has also staled that all the respondents except for respondent No. 6 were confirmed as Assistant Engineers w.e.f. 10.1.1975. It is also stated that the respondent No. 6 was also confirmed in the post of Assistant Engineer. A final seniority list of the post of Assistant Engineers was published on 6.10.1987 wherein the name of the petitioner was shown at serial No. 12, respondent No. 3 against serial No. 13, respondent No. 4 at serial No. 14, respondent No. 5 at serial No. 15 and respondent No,6 against serial No. 22. The petitioner was thereafter promoted to the post of Executive Engineer on ad hoc basis on 3.3.1982 whereas respondents No. 3, 4 & 5 were promoted to the said post of Executive Engineer on 17.2.1983 and respondent No. 6 was promoted on 20.2.1984.

3. The Recruitment Rules for Engineering (E & M) cadre were first notified on 22.10.1982 and later on fresh Recruitment Regulations were notified in the year 1985. The case for regularisation of officers who had been working on ad hoc basis as Executive Engineers were referred to UPSC in view of the Service Regulations of 1985. The aforesaid reference was made in the year 1990. While forwarding the ease to UPSC for regularisation the seniority list Containing the name of the petitioner as also the lour respondents published on 6.10.1987 was also forwarded. The said Recruitment Regulations of Electrical and Mechanical Cadres of Engineers including the petitioner and the respondents 3 to 6 were notified on 17.12.1985 and as per the provisions of the said regulations all the officers who had been working prior to the notification of the said regulations as Executive Engineers on ad hoc basis are to be given regular appointment after considering their suitability from the date they had been appointed to the post on ad hoc basis or on the date they had completed the requisite experience as per Recruitment Regulations whichever was later. The Departmental Promotion Committee constituted by the UPSC took up for consideration the matter of regularisation of services of the officers in the post of Executive Engineers (E & M) and assessed the performance of Engineer Officers including the cases of the petitioner as also the respondents No. 3 to 6 for appointment under regulation 3(3) of 1985. During the course of such consideration the Departmental Promotion Committee held that the vacancies would be deemed to have occurred in the year in which the same were filled up on ad hoc basis. On consideration of the records and the performance of the petitioner and the respondents 3 to 6 the Departmental Promotion Committee recommended the appointment of the petitioner and the respondents at the initial constitution under Rule 3(3) of the Regulations against the vacancies mentioned in their recommendations. The said recommendation was in order of performance of the officers and the petitioner was placed at serial No. 15 in the order of performance as against respondent No. 3 being shown at serial No. 9, respondent No. 4 at serial No. 10. respondent No. 5 at serial No. 11 and respondent No. > against serial No. 12. They were however, shown to have been appointed as Executive Engineers (E&M) from the dale recommended by it which is 6.3.1982 so far the petitioner is concerned and 17.2.1983 so far respondents 3,4 & 5 were concerned and 20.2.1984 so far respondent No. 6 is concerned.

4. Incidently it may be mentioned here that the petitioner was appointed on ad hoc basis to. the post of Executive Engineer w.e.f. 6.3.1982, respondents 3 to 5 w.e.f. 17.2.1983 and respondent No. 6 w.e.f. 20.2.1984. Therefore, while recommending their names in order of performance their services were regularised from the date they were appointed to the said post on ad hoc basis in view of the fact that the vacancies had occurred on those dates and on which they were appointed on ad hoc basis. On the basis thereof an order was passed by respondent No. 2 on 2.7.1990 regularising the services of the petitioner and the respondents in the posts of Executive Engineer maintaining the aforesaid order of performance but from the dates w.e.f. which their services had been regularised. The petitioner submitted a representation as against the aforesaid order dated 2.7.1990. The said representation of the petitioner was considered by the respondents and the same was rejected holding that all the regularization appointments to the post of Executive Engineer had been done on the recommendation of the UPSC and the cases were considered in accordance with the provisions of the Recruitment Regulations of 1985. It was held that there was no force in the representation and accordingly the same was dismissed.

5. A tentative seniority list of Executive Engineers as per their placement given in the select panel of the UPSC and duly approved by the competent authority was published on 13.3.1991 of respondent No. 3 in which the name of the petitioner was shown against serial No. 8 whereas the names of respondents 3 to 6 were shown against serial No. 3,4,5 & 6. The petitioner submitted objections as against ascribing higher positions to the said respondents in the said tentative list issued of the post of Executive Engineers. The said objection filed by the petitioner was considered by respondents 1 & 2 and by order dated 25.8.1992 a final seniority list was published after consideration of the objections filed as against the tentative seniority list and the same was circulated where the petitioner was retained at serial No. 8 whereas respondents 3 to 6 were retained at serial No. 3,4,5 & 6 respectively and hence the present petition.

6. Mr. Rajiv Nayyar, appearing lor the petitioner submitted that since the petitioner was appointed and regularised in the post of Executive Engineer w.e.f. 6.3.1982 he should have been shown senior to the other respondents who were appointed and regularised in the post of Executive Engineer w.e.f. a subsequent date namely 17.2.1983 so far respondents 3,4 & 5 are concerned and 20.2.1984 so far respondent No. 6 is concerned. According to the learned counsel length of service rendered by an employee is an important criteria for determining the seniority and therefore, in the present case length of service rendered by petitioner in the post of Executive Engineer should have been the guiding factor and on that basis the petitioner should have been shown senior to respondents 3 to 6. It is further stated that the petitioner is senior to the said respondents all along and even in the feeder post i.e. post of Assistant Engineer and therefore, the said seniority position should have been retained by respondents 1 & 2 in the cadre of Executive Engineer also. He further submitted that the Departmental Promotion Committee having found the petitioner to be fit for promo-lion and having considered the petitioner for regularization under regulation 3(3) of 1985 Regulations and having regularised him in the post of Executive Engineer w.e.f. 6.3.1982 the petitioner could not have been placed below respondents 3 to 6 in the seniority list.

7. Ms. Madhu Tewatia, appearing for respondents 1 & 2 however, submitted that the seniority position in the final seniority list for the post of Executive Engineer has been ascribed on the basis of recommendation of the UPSC in terms of the existing provisions that all regularizations appointments to the post of Executive Engineers should be done in consultation with the UPSC. She also submitted that the tentative as also the final seniority list of the Executive Engineers was prepared on the basis of their position in the Select Panel of the UPSC and the placements have been made on the (sic) of their performance while regularising the said services of the Executive Enginears. Counsel further submitted that the seniority list is prepared in accordance with the provisions of the Regulations and therefore, there can be no grievance of the petitioners as against the seniority list and the seniority position ascribed to the respective Executive Engineers.

8. In order to appreciate the contention of the learned counsel appearing for the petitioner it would be necessary to have a look at the provisions of the Service Regulations which were notified on 17.11.1985. The said regulations came into force on 17.11.1985, the date on which it was published in the Official Gazette. The provisions regarding appointment to the posts at the initial constitution is provided for under Regulation 3. For our purposes regulation 3(1), 3(3), 3(5), 3(8) and 3(10) are relevant and therefore, are extracted below: -

3. Appointment to the post at the initial constitution to posts in the Electrical and Mechanical Engineering Cadre of Officers including those on deputation from the Main Wing of the MCD working in the Delhi Water Supply and Sewage Disposal Undertaking on the date of commencement of these rules shall be regulated in the following manner:-

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(3) The Selection Committee shall determine the suitability of Assistant Engineers (E&M) covered by Sub Rule (1) above and prepare a list arranged in order of performance, of all officers considered suitable for appointment to the post of Executive Engineer (E&M) at the initial constitution. The officers found suitable shall be deemed to have been appointed on regular basis lo I he post of Ex.Engineer (E&M) w.e.f. the date of their appointment on ad hoc in the post or on the date they completed 8 years service as Assistant Engineer (E&M) from the date of their appointment in the grade, whichever is later;

(4) The Selection Committee shall determine the suitability of Executive Engineer (E&M) covered by Sub-rule (1) above and whose cases were recruited under Sub-rule (3) above, and prepare a list arranged in order of performance of all officers considered suitable for appointment to the post of Superintending Engineer (E&M) at all initial constitution. The officers found suitable shall be deemed to have been appointed on regular basis to the post of Superintending Engineer (E&M) w.e.f. the date of their appointment on ad hoc basis to the post on completion of 5 years service as Executive Engineer (E&M) from the date of their appointment to the post whichever is later.

(5) The Selection Committee shall determine the suitability of Superintending Engineer (E&M) covered by Sub-rule (1) above and whose cases were scrutinised under Sub-rule (4) above and prepare a list arranged in order of performance of all officers considered suitable for appointment to the post of Chief Engineer (E&M) at the initial constitution.

The officers found suitable shall be deemed to have been appointed on regular basis to the post of Chief Engineer (E&M) w.e.f. the date of their appointment on ad hoc basis in the post on completion of 5 years service as Superintending Engineer (E&M) from the date of appointment to the post, whichever is later.

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(8) The seniority inter se of persons appointed under Sub-rule (3), (4) and (5) shall be in the order in which they are recommended by the Selection Committee. The Selection Committee shall submit the lists of officers prepared under Sub-rules (3),(4),5) and (6) to the Commission. On receipt of the said list, the Commission shall forward its recommendations for appointment of officers found suitable to the respective grades in the (E&M) Engineer Cadre of the Delhi Water Supply and Sewage Disposal Undertaking to the Commissioner, MCD.

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(10) The regular continuous service of officers mentioned in Sub-rules (1), (3), (4) & (5) prior to their appointment to the (E&M) cadre of the Delhi Water Supply and Sewage Disposal Undertaking shall count for the purpose of probation period qualifying service for promotion, confirmation and pension.

9. Admittedly, the post of Executive Engineer is a selection post. The procedure for appointment to the said post at the initial constitution is set out in regulation 3 according to which reference is to be made to the UPSC for selecting the names. The UPSC has also been empowered to constitute a Selection Committee to determine the suitability of Assistant Engineers and to prepare a list arranged in order of performance, of all officers considered suitable for the post of Executive Engineers at the initial constitution. Regulation 3(3) provides that the officers found suitable after such selection could be deemed to have been appointed on regular basis to the post of Executive Engineer with effect from the date of their ad hoc appointment in the post or on the date they completed 8 years of service as Assistant Engineers (E&M). Regulation 3(8) further provides that the seniority inter se of persons appointed under Sub-rules (3),(4) & (5) shall be in the order in which they are recommended by the Selection Committee, whereas regulation 3(10) provides that the regular continuous service of officers mentioned in Sub-rule (1),(3),(4) & (5) prior to their appointment shall account for the purpose of probation period qualifying service for promotion. Irma lion and pension.

10. In the present case it is the case of both the parties that Recruitment Regulations of 1985 govern the case of appointment regularization as also seniority at the initial constitution to posts of the Electrical and Mechanical Engineering Cadre officers. Although in the writ petition challenge was made to the validity of regulation 3(8) of the Regulations, counsel for the petitioner chose not to argue on the aforesaid aspect and therefore, I am not called upon in this writ petition to adjudicate upon as to whether the said regulation 3(8) is valid or not.

The respondents No. 1 & 2 referred the entire matter to the UPSC for taking steps and recommending names in accordance with the provisions of regulation 3 for appointment/ regularisation of their services as Executive Engineers and on consideration thereof determine the suitability of the eligible Assistant Engineers and prepare a list arranged in order of performance. In the said list the name of the petitioner was included and arranged in order of performance at serial No. 8 whereas the names of respondents 3 to 6 were included at serial No. 3, 4, 5 and 6 respectively. The said recommendation of the Departmental Promotion Committee after approval by the UPSC was sent back to respondents 1 & 2, who after receipt of the same passed the order dated 2.7.1990 regularising the services of the petitioner and respondents .3 to 6 in accordance with the recommendations. Representation filed by the petitioner against the said order was also rejected on 13.3.1991. In terms of regulation 3(8) seniority inter se. of persons appointed under Sub-rule (3) shall have to be in order in which they are recommended by the UPSC. The Selection Committee recommended the names of respondents 3,4,5 & 6 higher in order on the basis of their performance than the petitioner and in terms thereof the seniority position in the list of Executive Engineers was fixed giving higher position to respondents 3 to 6 than the petitioner who was shown at serial No. 7. It is of course an accepted principle of law that where there was ad hoc appointment followed by regularisation of service such persons should get the. benefit of their services in the ad hoc appointment for the purpose determining seniority. The said principle is however, applicable only in absence of any specific rule to the contrary. Reference in this regard can be made to a decision in Delhi Water Supply & Sewage Disposal. Committee and Ors. v. R.K.Kashyap and Ors., . The Supreme Court in the said case held that if the claims of all eligible candidates were considered at the time of appoint.ment and such arrangement continued uninterruptedly till the regularisation of services by the Departmental Promotion Committee or the Public Service Commission there is no reason to exclude such service for determining the seniority. The Supreme Court however, added that of course, if any statutory rule or executive order provides to the contrary, the rule or order will have supremacy and in the absence of any rule or order the length of service should be the basis to determine the seniority.

Therefore, in absence of regulation 3(8) of Regulations of 1985 the petitioner Could definitely have a very strong case for giving him higher seniority position than that of respondents 3,4,5 & 6. However, in view of inculcation 3(3) read with 3(8) of the Regulations, length of service could not be the criteria and basis to determine the seniority because a statutory rule providing to the contrary has to have supremacy over the said general principle. Reference may be made to a decision of the Supreme Court in Dr. Satyabrata D.Choudhury v. State of Assam, . In that case the appellants and respondents 4 to 6 were initially appointed as Assistant Professors under regulation 3(e) of the Assam Public Service Commission (Limitation of Functions) Regulations, 1951, on officiating basis. It was obligatory in terms of that regulation to consult the Public Service Commission as soon as possible. Their services were admittedly regularised by the Service Commission in one batch, and their inter se seniority was fixed on the recommendation of the Commission. The Commission recommended that it should be fixed as per the instructions of the Government under notification dated 5.4.1964. That notification provided amongst others that if the appointments of a number of persons arc regularised in one batch then the inter se seniority of those persons should be according to the merit list of the Service Commission. Even if the Service Commission does not give any merit list the appointing authority should request the Service Commission to indicate the order of preference of those persons. Accordingly, the inter se seniority of the persons was fixed after consulting the Commission and in accordance with the rankings assigned to them in the merit list of the Commission. The High Court said that the seniority list was correctly prepared. The Supreme Court dismissed the appeal against the judgment of the High Court. In the course of the judgments, the Supreme Court observed thus "It is not in dispute that the appellants and respondents 4,5 and 6 were initially appointed Assistant Professors under Regulation 3(e) of the Regulations, on an officiating basis, to avoid delay, and it was obligatory, in terms of that regulation, to consult the Service Commission as soon as possible. The appointments were thus defeasible, and could not give rise to any legal right in favour of the parties. It is therefore, futile to contend that as the appellants joined as Assistant Professors on an earlier date, they were entitled to rank senior to respondents 4,5 & 6 irrespective of the result of the final recruitment through the Service Commission."

11. The aforesaid decisions rendered by the Supreme Court, in my considered opinion, apply with full force to the facts of the present case. In the present case also the services of the petitioner and the respondents 3,4,5 & 6 were regularised by the UPSC in one batch and their inter se seniority list was fixed on the basis of the recommendation of the Commission, delermined on the basis of performance as required under Regulation 3(3) read with 3(8) of Regulations of 1985. Regulation 3(8) provides that the inter se seniority between the persons recommended for regularization would he determined in accordance with the position in their select list determined on the basis of performance. Therefore, the aforesaid inter se seniority of the persons was fixed in accordance with the positions assigned to them in the merit list of the Commission and therefore, the seniority list giving higher positions to respondents 3,4,5 & 6 was correctly prepared and the petitioner can have no grievance. After noticing Dr. S.D.Choudhury's case (supra) the Supreme Court in Delhi Water Supply and Sewage Disposal Committee's case (supra), observed that the Supreme Court could not have taken into consideration the officiating service of a person therein in view of the Government of India's notification dated 5.2.1974 which specifically provided the principles for determining the seniority of persons whose services were regularised by the Service Commission. It was further observed that since all of them were regularised in one batch after reference to the Service Commission their inter se seniority will have lo be determined according to the merit list of the Commission. Therefore, in Delhi Water Supply and Sewage Disposal Committee's Case (supra) the Supreme Court approved its earlier decision and specifically held that when the persons are regularised in one batch after reference to the Service Commission their inter se seniority had to be determined according to the merit list of the Commission. In the present case the respondents 1 & 2 have exactly done the same while giving higher positions to respondents 3,4,5 & 6 on the basis of their merit position, determined on the basis of performance and therefore, the grievance of the petitioner in respect of the same is misplaced.

12.The writ petition, therefore, has no merit and is dismissed, but with no costs.