Satish Saini And Ors. vs Mcd And Anr. [Along With Wp(C) Nos. ...
2004 Latest Caselaw 406 Del

JUDGMENT

Pradeep Nandrajog, J.

1.Writ petitions in the 6 captioned petitions epitome a similar story and therefore must have a common epitaph. All writ petitioners hold Class IV posts under the Municipal Corporation of Delhi. In February 1999, the Municipal Corporation of Delhi (MCD) proposed to levy Toll Tax on all commercial vehicles entering the Municipal Limits of M.C.D. The proposal was implemented.

2. Persons were needed to collect the Toll Tax. Pending creation of permanent posts and thereafter filling the same on permanent basis, MCD resolved to divert some of its existing employees to carry out and perform various duties connected with levy and recovery of Toll Tax. From different departments of MCD persons were posted in the Toll Tax Department in 'diverted capacity'.

3. Petitioners who were working as Class IV employees in different departments of MCD were transferred and posted in the Toll Tax Department in diverted capacity and were designated as Toll Tax Collectors. In the orders, posting the petitioners in divert ed capacity as Toll Tax Collectors, following was stipulated:-

"Further these officials are hereby designated as Toll Tax Collector (TTC's) and will work on their own pay scales till the posts are filled up on regular basis by way of creation of posts and settlement of service conditions of Toll Tax Collectors."

4. Petitioners are all graduates or Senior Secondary Pass. Following duties were assigned to them:-

"1. To carry out the duties assigned to them by the officers and follow up the instructions/orders and procedure as prescribed from time to time under Delhi Toll Tax Rules & Delhi Municipal Corporation Act.

2. To prepare the Toll Tax Receipts/Monthly Passes.

3. To keep watch on peons that they perform the duty regularly and attentively and also see that they do not accept an illegal gratification or harass the transporter etc. (where the TTC is barrier in charge)

4. To maintain and keep various registers as prescribed for different purposes in proper order. (Where the TTC is barrier in charge).

5. To return all the papers received from Head Quarter after compliance within 3 days of the receipt and also send the copies of inspection notes of higher authorities in which some defects have been pointed. These papers should be sent to Head Qu arter duly signed by HC/TTI through the Dak Book maintained at the barrier. (Where the TTC is barrier in charge).

6. Any other duties that may be assigned to him by his senior officers.

7. To prepare daily challans of the Toll Tax Books in accordance with the procedure laid down and also to.

8. To take/hand over proper charge of cash and TT Books in good condition.

9. To ensure that all TTRs/Monthly passes as taken under his charge as used and blank ones are in serial order and that they are intact and no receipt is missing.

10. To ensure that no private individual is permitted to sit on the Municipal land near the TT Posts.

11. At the barrier where the TTCs are in charge of the barriers they will keep proper account of the TT receipt books, they will also discharge the duty of ensuring that all the property and registers maintained at the Posts are being properly kept/mai ntained.

12. They will see that the staff posted at the barrier working under them is in uniform."

5. Petitioners' claim that as Toll Tax Collectors they were performing duties which are performed by Class III employees i.e. Lower Division Clerks. Petitioners claim that they were assured that they would be regularized as Class III employees. Petition ers state that earlier on, M.C.D. was levying Terminal Tax on good entering the Union Territory of Delhi and work assigned to the petitioners as Toll Tax Collectors was similar to the work performed by Terminal Tax Collectors when Terminal Tax was being evied and collected. Pay scale of Terminal Tax Collectors was same as LDC. Petitioners, therefore, claimed same pay i.e. pay of LDC post.

6. Petitioners allege that on 1.12.2000, the Commission of the MCD granted approval to create 240 posts of LDC in the Toll Tax Department and simultaneously direct 240 Class IV employees from different departments and abolish 240 Class IV posts.

7. Petitioner states that on 13.3.2001 following resolution was passed by the MCD:

"Resolution No.21 :

Resolved that the following resolution moved by S/Shri Atma Ram Gupta, Radhey Shyam and Mukesh Goel and seconded by Shri Suresh Yadav be referred to Commissioner for report within one month :-

Resolution No.619

Whereas the Toll Department of Municipal Corporation of Delhi is a newly created Department and, therefore, the important function of TTC was given to the experienced and well-qualified employees after transferring them from other departments.

Whereas the educational qualifications, work experience and efficiency of these employees working on the post of TTC is not only equal to LDC in view of their technical and administrative competency but in some cases they are more competent to hold th se posts.

Whereas all these employees are working as class IV employees despite being equal to Lower Division Clerk in view of their educational qualification, service, tenure, work experience, efficiency and working competency.

Whereas most of these employees are in receipt of higher pay and allowance than the prescribed scale of Lower Division Clerk and on meeting the demand of these employees n the Municipal Corporation is not required to bear extra financial burden.

Whereas the promotion of these employees to the post of Lower Division Clerk ensures their future prospects and also encourage and motivate them in the direction of becoming efficient employees.

Therefore, this meeting of the Corporation resolves that the Legislative and justified demand of the employees working as TTC for promotion to the post of Lower Division Clerk, be accepted."

8. Petitioners state that on 22.1.2002 following resolution was passed by the MCD. "Resolved that the following resolution moved by S/Shri Ram Babu Sharma, Jagdish Pradhan, Bansi Lal. Radhey Shyam and Ajit Chaudhary and seconded by Sh.Atma Ram Gupta be referred to Commissioner for report:-

Resolution No.726

Whereas, Toll Tax Department is a newly created of Municipal Corporation of Delhi therefore after transferring the experienced employees from other department the important job of T.T.C. was entrusted to them.

Whereas the employees working against the post of TTC have educational qualifications, work experience and efficiency equal to that of Lower Division Clerk allowing to technical and administrative competency basis but in some cases they are even more cap ble.

Whereas all these employees even being equal or more to that of lower division clerk in view of educational qualification, period, work experience, work efficiency and working nature are still working as Class IV employees.

Whereas the demand has been raised for promotion by these employees to the Lower Division Clerk.

Whereas most of the employees working as Class IV category are drawing more pay than the prescribed pay scale of Lower Division Clerk and on accepting their demand by the Corporation there will be no extra financial burden be borne by the Corporation.

Whereas promotion of these employees to the post of lower division clerk will ensure their career and also encourage and motivate them to work as most dedicated employee.

Whereas this resolution was passed by the Corporation vide resolution no.21 in the meeting of the Corporation for discussing the revised budget estimates for the year 2000-2001 and budge estimated for the year 2001-2002, and even after elapse of one year period Corporation has not taken any action on this resolution.

Therefore this meeting of the Corporation resolves that reasonable and justified demand relating to regularization & promotion of employees working as TTCs to the post of lower division clerk in toll tax department be accepted immediately on priority bas s. This meeting of the Corporation feels to keep pending the demands relating to the employees for lower period affects adversely the working of the Corporation. Hence, prompt decisive action be taken."

9. Petitioners state that for post of L.D.C. as per the notified recruitment regulations, educational qualifications prescribed are Matriculation from a recognized University/Board or equivalent. Petitioners state that they are all qualified to be appoin ted as L.D.C. Petitioners state that they are eligible to be appointed as L.D.C. Petitioners state that they made representations to regularize them as LDCs but the MCD did not do so, in spite of the fact that their claim was recognized as legitimate.

10. Stating the facts aforesaid, petitioners pray that mandamus be issued to the MCD to regularize their services as Lower Division Clerks.

11. First of the aforesaid petition i.e. WP(C) No.5255/2002 was filed on 19.8.2002. WP(C) No. 6511/2002 was filed in October, 2002. It was followed by WP(C) No.7798/2002, filed on 3.12.2002 with complete identity of averments. WP(C) No.8257/2002 follow ed, being filed on 17.12.2002. The other two petitions were filed in the year 2003.

12. Toll Tax Scheme, introduced w.e.f. 21.1.2000 did not yield the necessary anticipated revenue. On 22.7.2002 MCD decided to privatize the collection of Toll Tax in Delhi. This fact has been brought out in the counter affidavit filed by the MCD and not denied in the rejoinder affidavits filed. It is stated by the MCD that petitioner being posted in diverted capacity as Terminal Tax Collectors have no lien on said posts. With privatization of collection of Toll Tax, services of petitioners are no lon er needed in said department. It is pleaded that as per notified recruitment regulations to the post of LDC, petitioners cannot claim right to be appointed merely because they fulfilll the educational norms.

13. At the hearing, counsel for the petitioners conceded that collection of Toll Tax has been privatized. Counsel argued that petitioners have a right to be regularized as LDC and posted anywhere in the MCD.

14. Counsels for the petitioners did not dispute that the MCD being a body corporate constituted under the Delhi Municipal Corporation Act 1957 was bound to function as per said Act.

15. Section 90 of the Delhi Municipal Corporation Act reads as under:-

90. Schedule of permanent posts and creation of temporary posts.

(1) The Commissioner shall from time to time prepare and lay before the Standing Committee two schedules of posts other than those specified in sub-section (1) of section 89 setting forth the designations and grades of municipal officers and other municip al employees who should be maintained permanently in the service of the Corporation indicating therein the salaries, fees and allowances which are proposed to be paid to such officers and other employees.

(2) Of the two schedules referred to in sub-section (1), the first schedule shall deal with category A posts and the second schedule with category B and category C posts.

(3) The Standing Committee shall lay the first schedule with its comments thereon before the Corporation for its consideration and approval and shall sanction the second either without modifications or with such modifications as it thinks fit and t hereafter may amend it either on its own motion after ascertaining the views of the Commissioner or at his instance.

(4) The Corporation shall after considering the comments of the Standing Committee, sanction of the first schedule either without modifications or with such modifications as it thinks fit and thereafter may amend it either on its own motion or af ter ascertaining the views of the Commissioner and the committee concerned or at the instance of the Commissioner or Committee.

(5) The Commissioner may create for a period not exceeding six months any category C post :

Provided that no such post shall be beyond the said period without the previous approval of the Standing committee.

(6) The Standing Committee may, on the recommendation of the Commissioner, create for a period not exceeding six months any category A or category B post :

Provided that no such post shall be continued beyond the said period without the previous approval of the Corporation."

16. Section 90 stipulates the manner in which permanent or temporary posts have to be created. Admittedly, the Corporation has not created any permanent posts of Toll Tax Collectors. Indeed, case of the petitioners is that they were posted on Toll Tax D epartment in diverted capacity. If that be the position, petitioners cannot claim issuance of any mandamus to the Corporation for their permanent absorption in the Toll Tax Department.

17. Even otherwise with the privatization of collection of Toll Tax, Toll Tax Collectors are not needed.

18. In , M. Ramanatha Pillai Vs. State of Kerala it was held that abolition of a post is an executive policy decision and discharge of an employee on account of abolition of the post does not attract Article 311 of the Constitution. It wa s held that when the post is abolished, the person holding the post does not even have a right to be offered alternative employment.

19. In the decision reported as , S.P. Bhandari Vs. Union of India it was observed that in case of abolition of post, management should revert the employee to the post from where he was promoted. In the decision reported as 1995 posts of Census Operations were created on a short term temporary basis and said posts having ceased to exist, it was held that persons who were temporarily promoted to the said posts cannot rais (6) SCC 589, Union of India Vs. Tara Chand Sharma noting that 21 any objection for their consequential reversion.

20. Petitioners admittedly were working on Class IV posts when they were posted in the Toll Tax Department in diverted capacity. While posting them in the Toll Tax Department, it was clearly indicated to them that they will work on their own pay scales t ill the posts are filled up on regular basis by way of creation of posts and settlement of service condition of Toll Tax Collectors. Posts of Toll Tax Collectors were never created on regular basis and no terms settling the service conditions came in ex stence. With the privatization of work of Collection of Toll Tax, inevitable consequence was that petitioner has to be posted back to the departments from where they were diverted. While re-posting them in their parent department, petitioners had to be placed on the post which they were holding.

21. Petitioners claim that since they have the necessary educational qualifications, they are entitled to be regularized as Lower Division Clerks.

22. Notified recruitment regulations to the post of Lower Division Clerks would reveal that it is a Class III post and is a selection post. Educational and other qualifications required are Matriculation from a recognized University/ Board or equivalent. In the case of appointment by direct recruitment, the incumbent has to clear the "Clerks Grade Examination". As per the recruitment regulations, 10% of the posts have to be filled by promotion on the basis of competitive examination held by the Munic pal Corporation of Delhi from amongst the Class-IV staff. 90% posts have to be filled by direct recruitment through the Clerks Grade Examination conducted by the Staff Selection Commission.

23. All Class-IV employees who have the requisite educational qualifications would be eligible to compete in the departmental examination for promotion to fill up 10% posts of Lower Division Clerks. Merely because the petitioners have the requisite educa tional qualifications would not entitle them to be regularized as Lower Division Clerks. In any case, it is not the case of the petitioners that there are vacant posts of Lower Division Clerks. Even if there were to be vacant posts of Lower Division Cl rks, same have to be filled up as per the recruitment regulations. Mandate of Article 16 of the Constitution of India that all persons would have equality of opportunity in seeking employment under the "State" would require that subject to eligibility, ll Class-IV employees working under the Municipal Corporation of Delhi would have an equal right to compete for promotion. 24. I find no merit in the writ petitions. The rule is discharged. Writ petitions are dismissed. No costs.