Raj Mohan Singh vs Mcd Thru Commissioner
2005 Latest Caselaw 286 Del

JUDGMENT

Vikramajit Sen, J.

1. In this petition the Office Order dated 29.10.2004 ''reverting'' the Petitioner to the previous post in which he was serving, has been assailed. The Office Order reads as follows:

Shri Raj Mohan Singh, Addl. Commissioner (General), MCD, Under Suspension in view of his involvement in RC DAI-2004-A-0042 dated 28.9.2004 u/s 13(2) r/w 1(I)(e) of PC Act 1988, as per provision of Regulation 5(2) of the DMC Services (Control and Appeal) Regulations, 1959, is hereby reverted to the post of Dy. Commissioner (Ad hoc) in the pay scale of Rs.14300-18300/- with immediate effect.

The challenge is predicated on the contention that the reversion is punitive in nature and is stigmatic in character and hence should mandatorily have been preceded by an Inquiry.

2. By Office Order dated 30.6.2003 the Petitioner had been promoted to the said post on ''ad hoc basis'' which after due cogitation, appears to me to be a contradiction in terms. The Order reads as follows:

MUNICIPAL CORPORATION OF DELHI (Central Establishment Department) Town Hall : Delhi-6.

No. F. 1 (14)/CED(II)/86 Dated:30.6.03/PT.II/85/11846-917

OFFICE ORDER

Shri Raj Mohan Singh, Dy. Commissioner on ad hoc basis and at present working as Director(Pry. Education) is hereby promoted to the post of Addl. Commissioner in the pay scale of Rs.18400-22400/- on ad hoc basis w.e.f. 1.7.2003 initially for a period of one year, or till such time the post is filled up on regular basis, which ever is earlier.

The above said ad hoc appointment shall be subject to the following terms and conditions:-

i) The appointment shall be purely on ad hoc basis, as a matter of stop gap arrangement and shall not entitle the officer to claim any benefit on account of the said promotion.

ii) The appointment is on ad hoc basis pending regular appointment in accordance with the Recruitment Regulations and will not confer any privilege or right on the officer for regular appointment to the said post.

iii) The period of ad hoc service will not be counted towards eligibility period for regular promotion for determination of seniority.

iv) The ad hoc appointment can be terminated at any time without assigning any reason and giving any prior notice.

v) The above said ad hoc appointment shall be further subject to the instructions/guidelines issued by the Govt. of India/Corporation from time to time in this regard.

This issues with the approval of the Commissioner, Chairman (Appointment Committee) and Hon'ble Mayor in anticipation of the approval of the Corporation.

Sd/-

(KRISHAN LAL) DIRECtor (PERSONNEL)

It needs to be immediately highlighted that whilst in the Order dated 3.6.2003 the Petitioner has been promoted to the post of Additional Commissioner on ad hoc basis, in the impugned Officer Order dated 29.10.2004 he has not been described as Additionl Commissioner (Ad hoc). It is certainly arguable that in the sixteen months that the Petitioner functioned as Additional Commissioner his services progressed from an `ad hoc' to a quasi permanent if not a substantive appointment as envisaged in Parshotam Lal Dhingra v. UOI, . This assumption appears to be fortified by the fact that the Petitioner has not been mentioned as `ad hoc' in the Office Order dated 30.9.2004 which reads as follows:

Under the orders of Competent Authority, Shri Raj Mohan Singh, Addl. Commissioner (General) MCD is herby placed under suspension with immediate effect in view of his involvement in RC DAI-2004-A-0042 dated 28.9.2004 u/s 13 (2) r/w 13(1)(e) of PC Act 1988, as per provision of Regulation 5(2) of the DMC Services (Control and Appeal) Regulations, 1959. He will, however, be paid subsistence allowance as per rules.

The Suspension Order is not under challenge in this petition. Further, reliance has been placed on the recommendations of the Commissioner as contained in his letter dated 25.10.2004 in which, after briefly dealing with the complaints against the Petitioner it has been stated that ''in view of the facts and circumstances, the matter is placed before the Corporation for approval regarding the suspension and reversion of Shri Raj Mohan Singh, Addl. Commissioner, MCD, Delhi.'' Again there is no mention of the ad hoc nature of the appointment.

3. The impugned order has been defended by Mr. Vinay Sabharwal, learned counsel appearing on behalf of Respondent, on the platform that no stigma attaches to the reversion and that this is especially so since the Petitioner has not acquired any lien to the post of Additional Commissioner (Genl.), MCD. These submissions are strenuously opposed by Mr. A.S. Chandhioke, learned Senior counsel for the Petitioner. It is his contention that the Petitioner has been visited with a major penalty as envisaged in Regulation 6 (iv) of Delhi Municipal Corporation Service (Control and Appeal) Regulations, 1959 (hereinafter referred to as the said Regulations) which speaks of ''reduction in rank including reduction to a lower post, or to a lower time scale or to lower stage in a time scale''. This is also the Constitutional compulsion crystallized in Article 311(2). In this regard reliance has been placed on Regulation 8 of the said Regulations which prescribes the procedure for imposing major penalties and mandates that no such penalty shall be imposed except after an Enquiry is held. Admittedly no Enquiry has been instituted prior to the alleged reversion or reduction in rank.

4. The first question to be answered is whether the Petitioner has acquired any lien to the post of Additional Commissioner. It has already been seen that the Petitioner had been ''promoted to the post of Additional Commissioner in the pay scale of Rs. 18,400-22,400/- on ad hoc basis with effect from 1.7.2003 initially for a period of one year, whichever is earlier'' (underlining added for emphasis). In normal parlance, if a person is only functioning as ad hoc the question of `promotion' stricto snso does not arise. Therefore this supposedly ad hoc promotion was probably in the nature of a promotion on probation although the terms are clearly not inter-changeable. In Black's Law Dictionary as well as a Dictionary of Modern Legal Usage by Bryanarner this term connotes - ''for this purpose''. Its closest cognate legal phrase being `work charged' or `officiating' or even `temporary'. In my understanding it cannot correctly be employed in the situation of a promotion, which can either be substantive/permanent or on probation. There is scarcely any compulsion to promote a person if all that he is required to do, because of exigencies, is to temporarily discharge the duties of even a higher post. Infact, this is what normally transpires. The Office Order further states that the ad hoc nature of the promotion shall initially be for a period of one year. Had the sentence been completed here it was conceivable that this ad hoc promotion, which I would prefer to read as promotion on probation, could have been extended because of the use of the word `initially'. It is now well entrenched in service jurisprudence that a probation period cannot be elastic or open ended in nature. Ordinarily it ought not to be extended except for good reasons, since the incumbent should have proved his capabilities one way or the other within the probationary period. It is legally anathematic to mechanically or tacitly assume an extension of probation; it should be explicitly expressed. The Office Order dated 30.6.2003, however, also contemplates that the post could be filled-up on regular basis, and most importantly, ends with the words `whichever is earlier'. The only meaning which can be given to the language of the said Order is that if the Petitioner were to be regularised before one year, the so called ad hoc nature of the promotion would come to an end and if not so, then the outer limit for continuing ad hoc would be one year after which he would be deemed to have been regularised. The Order, to far as its subsequent clauses are concerned, is indeed confusing and contradictory, but if the benefit of doubt is to be extended to one of the two parties, I would invariably favor the individual or the employee against the might and abounding resources of the Establishment/Management. The omission to describe the Petitioner as ad hoc Dy. Commissioner in the Office Orders dated 30.6.2003, 30.9.2003, 5.10.2004 and 29.10.2004 should be viewed to be deliberate. The contention of learned counsel for the Respondent that the appointment was purely ad hoc as a matter of a stop-gap arrangement, which would not entitle the Petitioner to claim any benefit on account of the said promotion, that it was ad hoc pending a regular appointment and did not confer the privileges or rights enjoyed by regular appointment, therefore, is not tenable. All the provisions, riders and restrictions of the promotion would have continued to apply until the expiry of one year or until regular appointment, whichever was earlier.

5. The question of whether the Petitioner had acquired a lien to the post of Additional Commissioner is, at the very least, a debatable one, and if the verdict hangs in balance, my preference is in his favor because of the imperfection in the language of the promotion order. This is especially so because of the alternative that the Petitioner's ad hoc appointment has continued for almost thirteen years in two posts which, in itself, is a contradiction. Permanency should be assumed after two years an must become a certainty at least after five years. Law cannot countenance such an arbitrary practice which permits impermanence even after a decade. The Respondents have obviously become accustomed and addicted to adhocism.

6. In my view the clear distinction between a regular and temporary employee should not be glossed over. Precedents pertaining to one do not per se or automatically apply to the other. The reliance of learned counsel for the Respondent on the decision in Haribans Misra v. Railway Board, and Radhey Shyam Gupta v. U.P. State Agro Industries Corporation and Anr., manifests the dangers that are fraught in a comparison between fundamentally disparate situations. In my opinion regular employee has already become an integral part of the work-force whereas an ad hoc or temporary employees has not; treating intrinsically different person in the same manner itself results in a violation of the equality rule. A reading of the entire judgment in Haribans case (supra) will reveal that it militates against the proposition sought to be propounded by learned counsel for the Respondents. The observation that ''a person appointed to a post on an ad hoc basis cannot have any lien on the post'' and that ''only when a person is appointed on a permanent basis, he can claim lien on the post'' must not be read in isolation of the specific finding of the Apex Court in favor of the Petitioners that they could not have been treated to have been appointed on ad hoc or temporary basis after having been promoted to the next higher post.

7. Mr. Sabharwal's contention that the present case is squarely covered by the decision in State of Orissa v. Dr. Pyari Mohar Misra, yet again underscores the need to differentiate between an ad hoc appointment and a promotion on probation, since the concerned officer had clearly been ''appointed'' in contradistinction to ''promoted'' as ad hoc Director of Fisheries. In the case in hand, if a pressing need had been perceived requiring some officer to discharge the duties of the Additional Commissioner(General) MCD because of some exigencies, any officer could have been temporarily posted to that position. There was no compulsion whatsoever to promote the incumbent in order for him to officiate in the higher post. In such a situation it is the vacant post that is of focal importance whereas when a promotion takes place it is the individual officer who is at the fulcrum of attention. A promotion is employee-centric, whereas a temporary or ad hoc or officiating or work-charged appointment is post-centric.

8. In the present writ petition a conclusion does not have to be reached on the question whether the appointment of the Petitioner as Additional Commissioner had fructified or matured into a substantive or permanent nature. This analysis is necessary for solving the conundrum of whether the Petitioner had been 'reduced in rank' by the impugned Order which firstly describes him as Additional Commissioner(General) MCD and then reverts him to Deputy Commissioner (Ad hoc). If the ratio in Haribans case (supra) is applied at least this much is beyond the pale of controversy that the Petitioner could no longer remain as an ad hoc Deputy Commissioner. This stance of the MCD reveals and manifest victimisation.

9. I am of the view that the Petitioner has, because of the intervening service metamorphosis, at least moved forward from the so-called ad hoc promotion, with the result that his 'reversion' (the term/word used by the Respondent in the impugned Order) partakes of the nature of reduction-in-rank. The essentials enshrined in Article 311(2), therefore, should have been complied with by the Respondents. In terms of Regulation 6 of the Delhi Municipal Corporation Service (Control and Appeal) Regulation, 195(sic) 'reduction in rank' is envisaged as a major penalty thereby mandating, as per Regulation 8, the holding of an enquiry as a precondition for its imposition. This has not been done and therefore the impugned Order transgresses the said Regulations as well as the Constitution of India.

10. The following passage from the oft quoted decision in State of Uttar Pradesh and Ors. v. Sughar Singh, also relied upon by learned counsel for the Respondents, infact lays down legal principles which run counter to their defense:

12. Confusion has arisen particularly in respect of cases where this Court has had to deal with orders of Government from the aspect of the motive underlying those orders. What is the weight to be given to motive in deciding whether a particular order is penal in character and therefore falling within the mischief of Article 311 of the Constitution or whether it has been passed for departmental considerations and in exigencies of public service? It is well recognised that very often the motive of a particular order of Government and the language and terms of the order itself are not in harmony. In many cases though Government take action under the terms of a contract of employment or under the specific service rules for the purpose of terminating the service or reducing the rank of an officer, the real motive or inducing factor which influences the Government to take action is different and is connected with some disqualification or inefficiency of the officer. In other words, Government, while pretending to act in terms of the contract of service or service rules, in reality wants to get rid of the officer concerned or to reduce him to a lower rank by way of punishment for his misconduct or inefficiency or disqualification. In such a case, the action taken by government is in an innocuous form but the real intent of it is penal. Such a situation was contemplated by Das, C.J., in Parshotam Lal Dhingra's case. He observed: (p.862)

It is true that the misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of contract of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service, the motive operating in the mind of the Government is, as Chagla, C.J., had said in Shrinivas Ganesh v. Union of India wholly irrelevant. In short, if the termination of service is founded on the right flowing from contract or the service rules, then, prima facie the termination is not a punishment and carries with it no evil consequences and so Article 311 is not attracted.

Following this enunciation of the principle this Court has in many later cases refused to give any weight to the motive operating in the mind of the authority which passes an order terminating the service of a temporary servant or reducing the servant in rank so long as the particular action taken was ''founded on the right flowing from contract or the service rules''.

13. Since we are concerned in this case with a case of reversion, we propose to confine our attention to the different circumstances in which an order of reversion may be made. An order of reversion is in its immediate effect bound always to be a reduction in rank. Even a reversion from a higher but temporary or officiating rank to a lower substantive rank is in a sense a reduction. But such orders of reversion are not always reduction in rank within the meaning of Article 311. If the officer is promote substantively to a higher post or rank, he gets a right to that particular post or rank and if he is afterwards reverted to the lower post or rank which he held before, it is a ''reduction in rank'' in the technical sense in which the expression is used in Article 311. The real test in all such cases is to ascertain if the officer concerned has a right to the post from which he is reverted. If he has a right to the post then a reversion is a punishment and cannot be ordered except in compliance with the provisions of Article 311. If, on the other hand, the officer concerned has no right to the post, he can be reverted without attracting the provisions of Article 311. But even in this case, he cannot be reverted in a manner which will show conclusively hat the intention was to punish him. The order itself may expressly state that the officer concerned is being reverted by way of punishment. In fact the order may in various other ways cast a stigma on the officer concerned. In all such cases, the order is to be taken as a punishment. Sometimes again, the order of reversion may bring upon the officer certain penal consequences like forfeiture of pay and allowances or loss of seniority in the subordinate rank or the stoppage or postponement of future chances of promotion : in such cases also the government servant must be regarded as having been punished and his reversion to the substantive rank must be treated as a reduction in rank. In such a case Article 311 will be attracted.

11. I have indeed struggled to locate the watershed between 'motive' and 'formulation' and have miserably failed to differentiate between the words in a manner which could be applied ubiquitously to every factual matrix. Considerably humbled as I have been in this pursuit and failed endeavor, I have found succor in the extracted observations of her Ladyship Ruma Pal contained in Pavanendra Narayan Verma v. Sanjay Gadhi PGI of Medical Sciences and Anr., in which a plethora of precedents has been digested:

19. Thus some courts have upheld an order of termination of a probationer's services on the ground that the enquiry held prior to the termination was preliminary and yet other courts have struck down as illegal a similarly worded termination order because an inquiry had been held. Courts continue to struggle with semantically indistinguishable concepts like ''motive'' and ''foundation''; and termination founded on a probationer's misconduct have been held to be illegal while terminations motivated by the probationer's misconduct have been upheld. The decisions are legion and it is an impossible task to find a clear path through the jungle of precedents.

25. In Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. Ltd. a full-scale inquiry was held into the allegations of bribery against a temporary employee. The Court set aside the termination because it found that the report submitted was not a preliminary inquiry report but it was in fact a final one which gave findings as to the guilt of the employee.

30. As was noted in Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences:

28. At the outset, we may state that in several cases and in particular in State of Orissa v. Ram Narayan Das it has been held that use of the word 'unsatisfactory work and conduct' in the termination order will not amount to a stigma.

31. Returning now to the facts of the case before us. The language used in the order of termination is that the appellant's ''work and conduct has not been found to be satisfactory''. These words are almost exactly those which have been quoted in Dipti Prakash Banerjee case as clearly falling within the class of non-stigmatic orders of termination. It is, therefore safe to conclude that the impugned order is not ex facie stigmatic.

12. The second flank of the argument of learned counsel for the Respondent is that although the reversion of the Petitioner that may have been motivated by the pending charges under the Prevention of Corruption Act, they were not founded on it. Reliance has been placed on Gupta's case (supra), and in particular to its following paragraphs:

33. It will be noticed from the above decisions that the termination of the services of a temporary servant or one on probation , on the basis of adverse entries or on the basis of an assessment that his work is not satisfactory will not be punitive inasmuch as the above facts are merely the motive and not the foundation. The reason why they are the motive is that the assessment is not done with the object of finding out any misconduct on the part of the officer, as stated by Shah, J. (as he then was) in Ram Narayan Das Case. It is done only with a view to decide whether he is to be retained or continued in service. The position is not different even if a preliminary enquiry is held because the purpose of a preliminary enquiry is to find out if there is prima facie evidence on material to initiate a regular departmental enquiry. It has been so decided in Champaklal case. The purpose of the preliminary enquiry is not to find out misconduct on the part of the officer and if a termination follows without giving an opportunity, it will not be bad. Even in a case where a regular departmental enquiry is started, a charge-memo issued, reply obtained, and an enquiry officer is appointed -- if at that point of time, the enquiry is dropped and a simple notice of termination is passed, the same will not be punitive because the enquiry officer has not recorded evidence nor given any findings on the charges. That is what is held in Sukh Raj Bahadur case and in Benjamin case. In the latter case, the departmental enquiry was stopped because the employer was not sure of establishing the guilt of the employee. In all these cases, the allegations against the employee merely raised a cloud on his conduct and as pointed by Krishna Iyer, J. in Gujarat Steel Tubes case the employer was entitled to say that he would not continue an employee against whom allegations were made the truth of which the employer was not interested to ascertain. In fact, the employer by opting to pass a simple order of termination as permitted by the terms of appointment or as permitted by the rules was conferring a benefit on the employee by passing a simple order of termination so that the employee would not suffer from any stigma which would attach to the rest of his career if a dismissal or other punitive order was passed. The above are all examples where the allegations whose truth has not been found, and were merely the motive.

34. But in cases where the termination is preceded by an enquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the officer and where on the basis of such a report, the termination order is issued, such an order will be violative of the principles of natural justice inasmuch as the purpose of the enquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for a future regular departmental enquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive. These are obviously not cases where the employer feels that there is a mere cloud against the employee's conduct but are cases where the employer has virtually accepted the definitive and clear findings of the enquiry officer, which are all arrived at behind the back of the employee -- even though such acceptance of findings is not recorded in the order of termination. That is why the misconduct is the foundation and not merely the motive in such cases.

13. My attention has also been drawn to the decision of the Apex Court in Union of India and Ors. v. R.S. Dhaba, which precedent appears to me to be the closest on facts to the present case. The impugned Order in respect of Dhaba read as follows:

''Establishment Gazetted Class II Income-Tax Officer - Reversion of - Shri R.S. Dhaba officiating Income-tax Officer, E-Ward, Ludhiana, having been found unsuitable after trial to hold the post of Income-tax Officer, Class II, is hereby reverted as officiating Inspector, Income-tax, with immediate effect''

No domestic enquiry was conducted nor were there any criminal charges registered against Shri Dhaba, although the Commissioner had received numerous complaints against him. The impugned Order dated 29.10.2004 has already been reproduced above; it specifically mentions the Petitioner's suspension in view of his involvement in the corruption case. This was wholly unnecessary if the intention of the Respondent was only to revert him to his previous position, assuming that this was legally possible. It will be recalled that one month earlier, by Orders dated 30.9.2004, the Petitioner had been placed under suspension. There was, therefore, no compulsion to pass the so-called reversion Order unless it was to create a stigma against the Petitioner. I see no impediment in the way of the Respondents to have appointed any other officer on ad hoc/officiating/work charge/temporary basis to discharge the duties of the Petitioner during his suspension or till the completion of the enquiry against him. This is the distinction which is clearly visible between the present case and Dhaba's case(supra), as can be discerned from the following extract from the latter case:

3. .....In the order of reversion dated May 22, 1964 there is nothing to show that a stigma was attached to the respondent. No reference is made to the imputation on the integrity of the respondent and the only reason given is that the respondent was found unsuitable to hold the post of Income-tax Officer, Class II. It is well-established that a Government servant who is officiating in a post has no right to hold it for all time and the Government servant who is given an officiating post holds it on the implied term that he will have to be reverted if his work was found unsuitable. In a case of this description a reversion on the ground of unsuitability is an action in accordance with the terms of which the officiating post is held and not a reduction in rank by way of punishment to which Article 311 of the Constitution could be attracted. It is of course well-settled that temporary Government servants are also entitled to the protection of Article 311(2) of the Constitution in the same manner as permanent Government servants if the government takes action against them meting out one of the three punishments, namely, dismissal, removal or reduction in rank. (See Parashotam Lal Dhingra v. Union of India. But this protection is only available where the dismissal, removal or reduction in rank is sought to be inflicted by way of punishment and not otherwise. As pointed out in Parashotam Lal Dhingra's case, (supra) the two tests applicable in a matter of this description re : (1) whether the Government servant has a right to the post or the rank or (2) whether he has been visited with evil consequences; and if either of the tests is satisfied, it must be held that the government servant had been punished. Further, even though misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the express or implied terms of the contract of employment or under the statutory rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service the motive operating on the mind of the Government is wholly irrelevant. The test for attracting Article 311 of the Constitution in such a case is whether the misconduct or negligence is a mere motiv for the order of reversion or termination of service or whether it is the very foundation of the order of termination of service of the temporary employee (see the decision of this Court in Chamapaklal Chimanlal Shah v. The Union of India. In the present case, however, the order of reversion does not contain any express words of stigma attributed to the conduct of the respondent and, therefore, it cannot be held that the order of reversion was made by way of punishment and the provisions of Article 311 of the Constitution are consequently attracted. This view is supported by the decision of this Court in The State of Bombay v. F.A. Abraham, in which the respondent who held the substantive post of Inspector of Police and had been officiating as the Deputy Superintendent of Police was reverted to his original rank of Inspector without being given any opportunity of being heard in respect of the reversion. His request to furnish him with reasons of his reversion was refused. Later a departmental enquiry was held behind his back in respect of certain allegations of misconduct made against him in a confidential communication from the District Superintendent of Police to the Deputy Inspector General of Police but these allegations were not proved at the enquiry. The Inspector General of Police thereafter wrote to the Government that the respondent's previous record was not satisfactory and that he had been promoted to officiate as Deputy Superintendent of Police in the expectation that he would turn a new lea but the complaint made in the confidential memorandum was a clear proof that the respondent was habitually dishonest and did not deserve promotion. As the order of reversion was maintained by the Government, the respondent filed a suit challenging the order. The suit was decreed by the Court of first instance and the decree was affirmed by the High Court on appeal. On further appeal to this Court it was held that the reversion of the respondent on the ground of unsuitability was an action in accordance with the terms on which the officiating post was being held and was not a reduction in rank by way of punishment to which Section 240 of the Government of India Act, 1935 would be attracted. The appeal of the Government was allowed and the suit of the respondent dismissed. A similar view was expressed by this Court in I.R. Saksema v. State of Madhya Pradesh, and Jasbir Singh Badi v. Union of India and Others.

14. If it was permissible for the Petitioner to be reverted, and if the reversion Order (which I see as in an effect as a reduction in rank} did not bear any reference to the involvement in the corruption case and to the Petitioner's suspension as a consequence thereof, I would not have found it relevant to peruse the Minutes of the Urgent Business No. 564. A perusal of the Minutes strengthens the view that there was an intention to cast a stigma on the Petitioner since the decision placed for the approval of the Corporation was to simultaneously suspend and revert the Petitioner. The two are, therefore, inescapably interlinked and intertwined making it impossible to view the so-called reversion as not being prompted or founded on the corruption charges.

15. In this analysis I am of the opinion that the Order of reversion is stigmatic towards the Petitioner and, therefore, required strict compliance with the provisions of Article 311 of the Constitution and Regulations 6 and 8 of the said Regulations which are quite obviously based on the constitutional provisions.

16. In these circumstances the Writ Petition is allowed and the impugned Order dated 29.10.2004 is quashed. This shall, however, have no impact on the Order of suspension and on any action proposed to be taken in connection therewith.

17. Despite finding no merit in the contentions made on behalf of the MCD, I do not consider this an appropriate case to award costs against it.