Dharam Pal Malik And Ors. vs Mcd And Anr. [Along With W.P.(C) ...
2005 Latest Caselaw 344 Del

JUDGMENT

Vikramajit Sen, J.

1. These Writ Petitions have brought to light yet another case of employees continuing to work on ad hoc or work-charged or temporary basis for almost one decade. In W.P.(C) 6335-45/2004 titled Anil Singh and Ors. versus N.D.M.C. decided on 11.2.2005 I had observed, not just with little anguish, that ad hocism has become the norm and not the exception.

2. Shri Nanak Chand, the Petitioner in WP(C) No. 3330/2001, was appointed as a Section Officer in 1986, consequent upon the death of his Father, that is, on compassionate ground. It is his contention that whilst his was a regular appointment, the other persons who had been promoted as Section Officers in 1983 on ad hoc basis could not be placed on the same footing as the Petitioner. Shri Nanak Chand had filed a Writ Petition No. 1853/1997 which was disposed of by Orders dated 9.5.1997 issuing directions to the MCD to consider the Petitioner for promotion to the post of Additional Director (Horticulture) along with other eligible candidates. Till date the Departmental Promotion Committee (DPC) for this purpose has not been constituted. Eleven Petitioners in CWP No. 7171/2002 and 3370-79/2005 have also ventilated their grievances that although they have been performing duties of Section Officers since 1983, they have not been promoted to the next stage, even after two decade or over twenty years. An alarming situation indeed!

3. During the pendency of these proceedings all the Petitioners in CWP No. 7171/2002 have been assigned Look After Charge of the post of Assistant Director (Horticulture). Since Shri Nanak Chand had not been similarly assigned duties of Assistant Direct or (Horticulture), he had filed an application before this Court. By Orders dated 19.1.2005 Shri Nanak Chand has also been assigned 'Look After Charge' of the post of Assistant Director (Horticulture). The question of the Petitioner being treated differently to the other Section Officers has, therefore, been temporarily redressed.

4. All the Petitioners, however, are aggrieved by the fact that they have not been considered for regular appointment to the post of Assistant Director (Horticulture). On 23.4.2003 in CWP No. 7171/2002 Hon'ble Mr. Justice Vijender Jain had noted that necessary amendments in the DMC Act had been proposed and had received the sanction of the Lieutenant Governor of Delhi and had been forwarded to the Central Government for necessary approval. Even prior thereto Hon'ble Mr. Justice S.K. Mahajan had made similar observations in his Order dated 20.1.2003 in the following terms:

I, accordingly, direct the Commissioner, Municipal Corporation of Delhi as well as the Chief Secretary of the Government of NCT of Delhi to take immediate steps to make necessary amendments in the D.M.C. Act in the coming Assembly session so that the petitioners who are working as ad-hoc employees for the last about 20 years are regularised in accordance with the decision already taken by the Municipal Corporation of Delhi in its Resolution dated 20th March, 2001. In case, effective steps are not taken in the coming session of the Delhi Legislative Assembly, the Commissioner, Municipal Corporation of Delhi is directed to be present in court on 23rd April, 2003 to inform the Court as to how the Corporation intends to deal with the matter. A copy of this order sent to the Chief Secretary of the Government of NCT of Delhi for necessary action at their end. Copy of the order be also handed over to counsel for the respondent.

5. The difficulty that was being faced, so far as the Petitioners in CWP Nos. 7171/2002 are concerned, was that they required a relaxation in age which had been recommended by the MCD but had been turned down by the UPSC. This was in the context of Section 98 of the DMC Act. Amendments have now been carried out in this Section whereby, so far as Class-III employees are concerned, (all the present petitioners fall in this category), instead of the approval of the UPSC it is now the Government of NCT of Delhi which has to be approached for this purpose.

6. It will be seen that in this interregnum not only was an amendment required to the DMC Act but it had to receive the assent of the President and an amendment to the Statute, that is, DMC Act. An amendment to Section 98(2) of the DMC Act was notified on 23.12.2004 Keeping all these stages in view, the delay is understandable. However, this delay should not be to the detriment of employees and should now be remedied post haste.

7. MCD has recommended to the Government of NCT of Delhi the case of the Petitioners in CWP No. 7171/2002 for age relaxation. Unfortunately, although this matter has been heard for over an hour, there is no representation on behalf of the NCT.

8. These Writ Petitions are disposed of with a direction that the Government of NCT of Delhi should take a decision on the question within a period of thirty days from today. It is further directed that within sixty days from the decision of the Government of NCT of Delhi a DPC shall be constituted by the MCD in respect of all the Petitioners in these Petitions for promotions to the post of Additional Director (Horticulture). Mr. Ranganathan states that one of the Petitioners will retire in June, 2005 and, therefore, there is some urgency in the matter. The Government of NCT f Delhi shall, undoubtedly, keep this in mind in taking expeditious action.

9. These directions should not be construed to indicate that the promotion of Shri Nanak Chand must be considered along with the other petitioners. In the event that the Govt. of NCT of Delhi declines to approve the recommendation for relaxation of the maximum age Shri Nanak Chand should be dealt with on a separate posting. The Respondents shall also not be precluded from immediately constituting a DPC for the said Shri Nanak Chand.

10. Needless to state the Petitioners shall have the right to challenge the Seniority List which is prepared by the MCD after the decision of the Government of NCT of Delhi. The Results of the DPC shall be declared within sixty days.

11. These Writ Petitions are disposed of in these terms.

12. All pending applications also stand disposed of accordingly.