Radhey Shyam Gupta vs Municipal Corporation Of Delhi ...
2000 Latest Caselaw 158 Del

ORDER

A.K. Sikri, J.

1. Petitioner has challenged the promotion of respondent Nos. 3 to 16 to the posts of Asstt. Engineers (Civil) and has also challenged the impugned note dated 1st May, 1976 and impugned order dated 20th May, 1976 reverting the petitioner from the post of Asstt. Engineer (Civil) w.e.f. 1st May, 1976.

2.Petitioner was appointed as senior most Overseer in the erstwhile Delhi State Electricity Board now Delhi Vidyut Board (hereinafter referred to as DVB. for short) on 1st March, 1968 at that time petitioner's qualification was Intermediate Science and higher grade certificate and Civil Engineering awarded by Government of Madras. Said Board was taken over by Municipal Corporation of Delhi (hereinafter referred to as MCD for short) in the year 1958 and petitioner became employee of the MCD. In the year 1968 Delhi Electric Supply Committee (hereinafter referred to as Committee for short) started exercise of framing Recruiting Regulations for the post of Asstt. Engineer (Civil). By office order dated 26th March, 1968 issued by General Manager (E), it was stipulated that in respect of the new post for which provision exist in Board service regulations or for which no recruitment and promotion regulation could be framed by the Corporation, action to fill vacancies on temporary basis may be taken in accordance with the draft recruitment regulations. The post of Asstt. Engineer (Civil) was thus covered under the said office order dt. 26.8.1968 which reads as follows : -

"without prejudice to the claim of their seniority and promotionas per rules, the following overseers, with immediate effect willlook after the work of Asstt. Engineer (Civil) on ad-hoc basistill further orders against their posting in the division will bedecided by Chief Engineer in selection consultation with the S.E. (Civil)".

3.The case of the petitioner is that he became full fledged A.E. vide said order yet the language of the order was such that it may appear that it was not a case of promotion. General Manager (E) vide his letter dt. 2.1.1969 submitted the case of ad-hoc appointment of the petitioner alongwith others to the posts of A.E. (Civil) in the pay scale of Rs. 350-900 for approval of the Committee. It was mentioned therein that petitioner and others had been asked to look after the work of A.E. w.e.f. 26.8.1968 in anticipation of the approval of the Committee. Committee did not accept the proposal of General Manager (E) and referred back the matter vide its resolution No. 593 dt. 7.3.1969 for want of information.Thus the petitioner who was promoted to the post of A.E. and who had completely ceased to discharge the duty of Overseer was not yet paid full pay and allowance of the post. Petitioner made repeated representation for payment of pay and other allowances applicable to the post of A.E. (Civil) but he was repeatedly told that his case was under consideration. Petitioner made further representation to the respondents and pointed out that his case was a clear case of appointment to the post of A.E. by promotion and it was in accordance with draft R & P Regulation and therefore he was entitled to full pay allowances and benefits of the post of A.E. Ultimately, G.M. submitted proposal for promotion to the post of A.E. (Civil) on ad-hoc basis vide his letter dt. 20.5.71 but the name of the petitioner did not find mention in the proposed perspective promotees the ground given in the said proposal was that while drafting R & P Regulations for the post of A.E. for general wing of Corporation UPSC had not agreed for appointing of unqualified overseers and has opined that overseers must have passed the diploma in Engineering for holding the post of A.E. Aforesaid ground was not relevant because R & P Rules for the post of A.E. (Civil) had not by that time been submitted to UPSC. Moreover, General Manager had ignored the fact that petitioner was employed by the erstwhile Board and his condition of service was therefore protected by Section 11 of the Act. Service Regulation of the Board did not specify the qualification for the post of A.E. (Civil). Feeling aggrieved by the aforesaid proposals of the General Manager he filed a Civil Writ No. 695/71 in Delhi High Court and interim order was passed by Vacation Judge, restraining the respondents from reverting the petitioner from the post of A.E. (Civil). Later on Status quo ante-order was passed till the disposal of writ petition. It is submitted that draft R & P Regulations of the undertaking for the post of A.E. (Civil) provided 50 per cent post to be filled by promotion from departmental overseers. Out of which 25 per cent were reserved for overseers possessing degree in Civil Engineering, 15 per cent were reserved for the overseers possessing diploma in Civil Engineering with six years service and 10 per cent were reserved for overseers for only Matric qualification with 8 years service in the grade. During the pendency of the writ petition General Manager vide his letter dated 31.5.1973 put up a proposal for filling up number of posts of A.E., out of which 14 posts fell within the quota of promotion. 7 per cent out of them fell within the quota Graduate overseers 4 within the quota of diploma overseers and three within the quota of non-diploma overseers. Though the petitioner was senior most overseer who was treated as diploma holder overseer and though the draft R& P Regulation by that time was not submitted to UPSC yet the General Manager vide his letter dated 31.5.1971 proposed to fill up post only from among Graduates and diploma holders and name of the petitioner was not included in the category of diploma holder overseers. Three posts of unqualified overseers were proposed to be kept reserved in view of the status-quo order of this Court. Aforesaid proposal ws ultimately approved by the Committee vide resolution No. 836 and the persons whose name were proposed for promotion were ordered to be promoted. Later on General Manager vide his letter dated 17.8.1973 put up further proposal for filling up three newly created posts for A.E. (Civil) and this time also name of the petitioner was not considered. Said proposal was subsequently approved by the Committee vide resolution No. 255 dated 13.9.1973. Thereafter writ petition of the petitioner came for hearing and it was dismissed as withdrawn with liberty to the petitioner to file fresh petition vide order dated 4.12.1973. In the aforesaid order it was observed that it appears three posts have not been filled pending the decision of the said writ petition and it is hoped that if the petitioner is selected for appointment as an ad-hoc A.E. (Civil) the respondent will favourably consider the question of making his appointment w.e.f. same date as the other departmental appointments were made recently.

4.Thereafter General Manager put proposal vide his letterdated 28.5.1974 for promotion of the petitioner to the post of A.E. Said proposal was accepted by the Committee and petitioner was promoted as A.E. (Civil ) w.e.f. date he took over as A.E. In accordance with the said office order. Petitioner submits that aforesaid office order was not in compliance with the orders of this Court because the promotion of the petitioner was not given effect from the date when his juniors had been promoted during the pendency of the writ petition. Petitioner made representation in July 1974 for effecting his promotion from earlier date and he sent subsequent reminders on 8.10.1975 and 24.12.1975. Thereafter petitioner was served with note dated 1.5.1976 informing him that he has been reverted back as overseers and order was under issue. Petitioner made a detailed representation dated 5.5.1976 against the note. Thereafter he filed a Writ Petition No. 717/76 on 26.5.1976 challenging the threatening reversion under the note. Aforesaid writ petition was dismissed as premature mainly on the ground that no order of reversion has been passed. Thereafter petitioner has been served with the order of his revision thus he has filed the present writ petition.

5.Impugned note dated 1.5.1976 and reversion order dated 20.5.1976 are challenged on the ground that respondents have ignored the fact that petitioner joined the service under erstwhile Board as a qualified diploma holder overseers. After the transfer to the Corporation he is entitled to the protection of condition of service as available to him in the Board by virtue of Section 511 of the Act. Because even in the Corporation he was treated as a qualified diploma holder overseer and on that basis he was duly confirmed in 1962. Therefore he could not be legally treated as unqualified or non-diploma holder overseer. It is urged that under the aforesaid circumstances name of the petitioner was illegally and wrongfully excluded from consideration for promotion to the post of A.E. (Civil) while General Manager put up his proposal vide letter dated 20.5.1971. It is urged that General Manager has wrongly excluded petitioner from consideration for promotion to the post of A.E. (Civil) while General Manager putup his proposal vide letter dated 20.5.1971. It is also contended that when the petitioner as ultimately promoted against post filling in the quota of unqualified overseers, he was liable to be treated a Senior most A.E. (Civil) and his promotion was liable to be given effect from 1968 or the date when his juniors have been earlier promoted and this aspect was totally ignored by the Committee despite the fact that it was to be considered in view of the orders of this Court dated 4.12.1973. It is argued that in view of the said order respondents were liable to give effect to the promotion of the petitioner from 1968, more so because of the fact that the petitioner has been discharging duties as A.E. w.e.f. the date on which his juniors were promoted in June, 1973 then also he being senior most overseers is entitled to be treated as senior most A.E. and as such he could not have been reverted by the impugned note and order of reversion. It is also urged that promotion to the post of A.E. was done in accordance with the quota rule and petitioner has been promoted against the quota of the post of unqualified overseer reserved in June 1973, therefore the reversion if at all is to be done should be in accordance with the quota and only one of the unqualified overseers can be reverted. It is also pointed out that there are number of diploma holders Assistant Engineers working against the post which are beyond their quota therefore if at all anyone is to be reverted, person working beyond quota on the post of A.E. should be reverted.

6.The submissions made by counsel for the petitioner would show that following two contentions are advanced.

A. Petitioner was eligible for promotion to the post of AssistantEngineer as per qualifications at the material time i.e. in theyear 1968 and the subsequent withdrawal of recognition which wasdone only on 16.3.69 would not make the petitioner ineligible.

B. If the posts were abolished as per the quota prescribed forfilling up the post of Assistant Engineers which were 50% bydirect recruitment and 50% by promotion and in promotion quota 25% posts were to be filled from amongst overseers possessingdiploma in Civil Engineering with six years service and 10 % fromoverseers with only Matric qualification with at least 8 yearsservice in the grade, the same should have the effect of reducingthe post in each quota i.e. in promotion as well as direct recruitment quota.

7.On the other hand counsel for the respondent argued that after this court had passed order dated 14.12.1973 in Civil Writ filed earlier by the petitioner, the petitioner was promoted in the year 1974. He did not challenge this promotion order and claimed promotion w.e.f. 1973. He continued to work on promoted post till the year 1976. In 1976 he was reverted as a result of abolition of vacancies. It is this act of respondent which prompted him to file present petition and, therefore, he is estopped from claiming promotion w.e.f. 1973. According to learned counsel for the respondent the only aspect which is to be looked into, therefore, is as to whether the reversion of the petitioner in 1976 was proper or not. As far as reversion of the petitioner is concerned, it is submitted that the same is done in accordance with Regulation-8 of the Delhi Municipal Corporation (Seniority) Regulation and the Principle of first come last go has been followed. Since the petitioner was promoted to the post as a stop-gap arrangement he along with such similarly situated persons who were promoted as Assistant Engineer on stop-gap arrangement were reverted. They being junior most ad hoc promotees.

8.The sequence of the events mentioned above would show that when the petitioner was not promoted as Assistant Engineer on the ground that he was not eligible to be considered for promotion, petitioner filed Civil Writ Petition in this court which was disposed of by this Court on 14.12.1973 which reads as under :

"In view of the statement of the petitioner and his counsel onthe one hand and the learned counsel for the respondents on theother, this petition is dismissed as withdrawn with liberty tothe petitioner to file a fresh petition. Inasmuch as some ad hocpromotions have already been made to the posts of Asstt. Engineers (Civil) but it appears three posts have not been filledpending the decision of this writ petition it is hoped that If the petitioner is selected for appointment as an ad hoc AssistantEngineer (Civil) the respondents will favourably consider thequestion of making that appointment w.e.f. the some date as theother ad hoc promotions were made recently. In the circumstancesof the case I make no orders as to costs."

9.Thereafter General Manager of respondents put up proposal vide his letter dated 28.5.1974 for promotion of the petitioner to the post of Assistant Engineer (Civil). It was subsequently approved by the Committee and accordingly vide letter dated 10.9.1974 the petitioner was promoted as Assistant Engineer (Civil) w.e.f. the date the petitioner took over as Assistant Engineer (Civil) in accordance with the said Office Order. This Office Order reads as under :

"The Delhi Electricity Supply Committee have approved of thepromotion of the following non-diploma holders overseers (Civil)to the posts of Asstt. Engineers (Civil) in the scale of pay ofRs. 450-1000 on ad hoc basis for a period of one year or till such time the posts are filled up on regular basis in consultation with the UPSC which ever is earlier :_

1. Shri R.S. Gupta

2. Shri H.S. Minhas

3. Shri H.S. Sindhu

Accordingly, the above-mentioned Non-diploma holders Overseers(Civil) are promoted to the posts of A.E. (Civil) on ad hoc basisfor a period of one year or till such time the posts are filledon regular basis in consultation with the UPSC whichever isearlier."

10. Petitioner in fact accepted this promotion order and joined the post accordingly. Although it is stated by the petitioner in the present writ petition that this office Order was not in compliance with the orders dated 14.12.1973 passed by this Court in the writ petition filed by him, admittedly he did not take any steps in the matter by either filing any contempt petition or any application in the aforesaid writ petition or challenging this promotion order by filing substantive writ petition. Even if he may have made representation against this Office Order, the same would be of no consequence as no legal steps were taken by the petitioner at that time. He, therefore, acquiesced into this order of promotion promoting him from 1974 and perhaps, but for reversion, he would not have filed the present writ petition either. Therefore, I am quite convinced with the submissions of learned counsel for the respondents that only when the petitioner was sought to be reverted in the year 1976 that too for the reason that a decision was taken to abolish the posts that petitioner was prompted to file the instant petition. Therefore, the petitioner at this stage cannot be allowed to raise the issue of his non-promotion w.e.f. 1973 and the case has to be proceeded on the basis of his promotion in the year 1974. It is a matter of record that the petitioner was reverted in the year 1976 as a result of abolition of posts and he was again promoted to this post in the year 30.9.78. Even Review DPC was held in the year 1982 and the petitioner was promoted again as Assistant Engineer. The Review DPC proceeded on the basis that the petitioner was earlier promoted as Assistant Engineer on ad hoc basis in the year 1974. The petitioner was promoted as a result of this Review DPC. At this stage also the petitioner did not challenge the action of the respondents. He filed CM. 816/96 only in this petition that too after a gap of almost 14 years after the Review DPC filing seniority list dated 12.1.1984 and other documents and challenging his position in the said seniority list. Neither any writ petition was filed by the petitioner nor present writ petition was amended to bring the subsequent events on record nor is there any prayer challenging the position of the petitioner in the seniority list. Even this application, as noticed above, was filed 14 years after the review DPC and 12 years after the issuance of seniority list. For all these reasons, the question of petitioner's ad hoc promotion from the date prior to 1974 when he was given this promotion vide order dated 10.9.1974 cannot be gone into and petitioner has to accept the position that pursuant to the order dated 4.12.1973 passed in his writ petition and in compliance thereof petitioner was promoted as Assistant Engineer vide order dated 10.9.1974. The contention of the petitioner that he was given salary to the post of Assistant Engineer w.e.f. 1968 and, therefore, it should be treated that he was holding the post of Assistant Engineer continuously w.e.f. 1968 is of no consequence. Since petitioner had discharged the duties of Assistant Engineer w.e.f. 1968 he was given the salary for this period. Admittedly, after he was reverted from the post of Assistant Engineer and till he respromoted again he is not given the salary for the post of Assistant Engineer.

11. Insofar challenge of he petitioner to the reversion to the post of Assistant Engineer by order dated 20.5.1976 on the second ground is concerned, I find no merit in the argument of the petitioner. The recruitment rules for promotion to the post of Assistant Engineer are as under :-

"A. 50 % by direct recruitment.

B. 50% by promotion from departmental overseers as under :-

(i) 25% from amongst overseers possessing Degree in Civil Engineering with 3 years service in the Grade :

(ii) 15% from Overseers possessing Diploma in Civil Engineer with 6 years' service in the Grade;

(iii) 10% from Overseers with only Matric qualifications with at least 8 years service in the Grade.

In case the requisite number of candidates are not available from a particular category, the candidates from the next below category are to be considered."

12. It is an admitted case that petitioner was promoted to the post of Assistant Engineer on ad hoc basis and not on regular basis. The respondents took decision to abolish 8 posts of Assistant Engineer (Civil). It is not in dispute that if 8 junior most Assistant Engineer were to be reverted as a result of aforesaid abolition of posts, the petitioner was rightly reverted, as he was not only junior most but working only on ad hoc basis. However, the submission of the petitioner is that for purposes of reverting 8 Assistant Engineering (Civil) on account of alleged abolition of 8 posts of Assistant Engineers (Civil) the quota system should be followed in the same way as was followed while making the promotion/appointments. If that is done, 4 posts out of 8 posts have necessarily to be abolished out of the present 17 posts falling in the direct recruitment quota. The submission of the petitioners is that 4 posts out of 17 posts falling in the quota of promotees are abolished, then the remaining 13 posts have to be so divided that the prescribed quota of various categories are maintained in the manner laid down in the draft recruitment and promotion regulations. If that is done, out of 13 remaining posts 6 posts have to be allocated to the degree-holders, 4 posts to the Diploma holders overseers and 3 posts for unqualified overseers. Further petitioners submitted that at present 8 Diploma holder overseers are working as Assistant Engineers (Civil). According to the above submission of the petitioners 4 junior most Diploma holders have to be reverted. The said 4 juniormost Diploma holders are respondent nos. 10 to 13 who have been appointed in excess of the quota of Diploma Holders overseers.

13. On the other hand, as noticed above, the respondents argue that the petitioner was promoted as Assistant Engineer (Civil) on ad hoc basis till the regular incumbent joins. He was not senior to respondents 3 to 14 and following the principle an enumerated in Regulation 8 of the Delhi Municiplal Corporation (Seniority) Regulations, the petitioner was rightly reverted. The said Regulation 8 reads as under :-

"Until persons appointed on ad hoc basis to a grade are replacedby persons approved for regular appointment by direct recruitment, promotion or transfer, as the case may be, they will beshown in the order of their ad hoc appointment and below allpersons regularly appointed to the grade."

14. The petitioner who were given ad hoc promotion in the last were reverted.

15. Following the above rules and the principle of first come last go, the petitioners who were promoted to the post as a stop-gap arrangement, were reverted, they being the junior most ad hoc promotees.

16. The contention of the petitioner cannot be accepted for the simple reason that the quota system is not resorted to while reverting the persons, inasmuch as had that been done, the effect of the same would have been to continue persons like the petitioner who are ad hoc appointees and revert those who were regularly appointed in the grade and senior to the petitioners. The action of the respondents was inconsonance with Regulation 8 reproduced above. Since the petitioner was appointed later than respondents 3 to 14 and was junior to those respondents, the principle of last come first go was rightly adhered to . Respondents 3 to 14 were rightly promoted as per quota at relevant time as per the Recruitment Rules and on regular basis. The quota system would be adhered to while making the appointments and not when as a result of abolition of posts, the reversions are to take place in such a case and ad hoc appointee cannot steal march over a regular appointee and can be placed at a better post. Doing so would render the negation of equality clause. Order dated 20.5.1976 is, therefore, valid and proper. Accordingly, Rule is discharged. Writ petition fails and is hereby dismissed. No orders as to costs.