Jainander Kumar Jain vs Municipal Corporation Of Delhi ...
2005 Latest Caselaw 1432 Del

JUDGMENT

S. Ravindra Bhat, J.

Page 1918

1. These proceedings under Article 226 of the Constitution of India were initiated in 1988. At that time the petitioner's claim was for a direction or writ in the nature of mandamus to the respondents (MCD) to promote him with ante dated seniority.

2. The brief facts are that the petitioner was appointed on 13.7.1963 as Peon by the MCD; he bettered his qualifications by passing in the matriculation examination in 1964. In 1963 the MCD had formulated rules for recruitment to the post of Lower Division Clerks (LDC) and Upper Division Clerks (UDC). In terms of these rules a provision was made for promotion of Class IV employees such as Peons, with five years service and the qualification prescribed namely, Matriculation, for promotion as LDCs; a quote was earmarked in that regard. The concerned candidates were required to qualify in a departmental test.

3. It is averred that the quota which initially earmarked for the purpose was 20% but was later reduced to 10%. The petitioner approached this Court claiming to be the seniormost departmental candidate entitled to be promoted as LDC but nevertheless over looked. It was also alleged that a test was held without declaring the number of vacancies.

4. When this matter was taken up for hearing, on 27.5.2004 the Court noted that due to intervening events the petitioner had moved few miscellaneous proceedings and brought subsequent events on record and in fact amended the petition. The said order records as follows :-

"As per the amended petition, petitionr has indicated the names of 12 persons, who, petitioner claims were promoted in the year 1972 and 1973. Whether record would be available after 31 years is not known.

Be that as it may, counsel for the petitioner states that he would press the petition only on one ground. Counsel states that he would stake the claim of the petitioner vis-a-vis the 12 persons in respect of whom petitioner claims that they being junior to him have been promoted, over looking the claim of the petitioner. The said 12 persons are the ones whose name finds Page 1919 mentioned in CM.4081/1993 filed by the petitioner. The said names are at page 198 of the paper book.

Counsel for the MCD shall file an affidavit indicating whether the said 12 persons were promoted as L.D.C. The affidavit would indicate, the date from which these persons were promoted. If these persons were promoted to a post other than the post of an L.D.C. it would be indicated what the said post was. It would also be indicated what the said post was. It would also be indicated as to why petitioner was not considered when the said 12 persons were promoted as L.D.C or to any other post.

Mr. G.D. Gupta states that he gives a challenge to the recruitment rules framed by the MCD and restricts the challenge on one ground as noted above.

Needful be done by the MCD within 6 weeks from today."

5. After the above order the matter was adjourned from time to time with the consent of both the parties.

6. The MCD filed its affidavit on 31.8.2004 The relevant part of that affidavit states that 12 persons, who were initially appointed as Peon were promoted as LDC, pursuant to a decision of the Central Establishment Board of the MCD on 22.5.1974. The relevant part of that affidavit reads as follows :-

"It is submitted that the names of the said 12 persons as referred in the order dated 27.05.2004 along with their date of initial appointment are as under :-

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Sl. No. Name Date of Initial Appointment

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1. Sh. Krishan Nand Sharma 06.08.1974

2. Sh. Ved Prakash 20.12.1977

3. Sh. Ashok Kumar 15.03.1975

4. Sh. Man Singh 08.08.1974

5. Sh. Dharam Vir Bhardwaj 27.01.1975

6. Sh. Om Prakash Bhardwaj 27.01.1975

7. Sh. Sri Chand 27.01.1975

8. Sh. Kuldeep Kumar 31.01.1974

9. Sh. Surender Singh 01.06.1974

10. Sh. Amjjad ali 01.06.1974

11. Sh. Pratap Singh Dabas 08.07.1974

12. Sh. Manik Lal Pant 14.04.1970

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It is submitted that out of the above mentioned 12 officials, the following 10 officials were initially appointed as Peon on compassionate grounds and in view of the decision dated 22.5.1974 of the Central Establishment Board deciding that "It was recommended that those officials who had been appointed on compassionate grounds on posts lower than LDCs but were educationally and otherwise qualified, should be given the benefit of appointment against the post for which they were qualified under the Recruitment Regulation. They should be allowed assumed seniority but their pay should be restricted under F.R.-17. All future cases should also be treated on the same lines" their Page 1920 appointment on compassionate grounds were converted to the post of LDC from the date of their initial appointment.

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Sl. No. Name Date of Initial appointment

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1. Sh. Krishan Nand Sharma 06.08.1974

2. Sh. Ashok Kumar 15.03.1975

3. Sh. Man Singh 08.08.1974

4. Sh. Dharam Vir Bhardwaj 27.01.1975

5. Sh. Om Prakash Bhardwaj 27.01.1975

6. Sh. Sri Chand 27.01.1975

7. Sh. Kuldeep Kumar 31.08.1974

8. Sh. Surender Singh 01.06.1974

9. Sh. Amjjad Ali 01.06.1974

10. Sh. Pratap Singh Dabad 08.07.1974

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"As regards to Sh. Ved Prakash it is submitted that he was also appointed on compassionate grounds as Peon and it was decided vide Commissioner's order dated 24.12.1979 that "persons who were appointed on compassionate grounds on class IV posts, although they possessed the educational qualifications of matriculation/higher secondary, may be appointed on the post of LDC without giving them any benefit of assumed seniority, i.e., from the date of their initial appointments" 7 Class IV officials including Sh. Ved Prakash appointed on compassionate grounds and having the Educational Qualification to the post of LDC were promoted as LDC w.e.f. 01.02.80.

As regards Sh. Manik Lal Pant, it is submitted that he was an ex-serviceman and was initially appointed to the post of Peon vide Office Order dated 14.04.1970. Subsequently, his appointment was also converted to that of LDC from the date of his initial appointment i.e. 14.04.1970 by the Competent Authority.

That the case of the petitioner is not similar to the above mentioned 12 persons as the petitioner was not appointed on compassionate ground. The case of the petitioner is also not similar or identical to the 12 persons as referred to above and, therefore, he cannot claim parity with them."

7. Mr. G.D. Gupta, learned senior counsel appearing for the petitioner submitted that there is no rationale for ignoring the petitioner's claim and granting promotion to the 12 persons who were admittedly junior to him. It was submitted that the sole basis for such promotion appears to have been that those persons were initially appointed as Peon, on compassionate grounds but the MCD was of the view that since they were eligible to hold the post of LDC as they possessed the qualification relateable to that post, they were promoted. It is submitted that such a ground cannot be the basis for ignoring the just claims of the petitioner who was not only of the cadre of Peon but was also holding the relevant qualifications from the year 1964 itself.

8. Ms. Amita Gupta, learned counsel for MCD submitted that the petitioenr himself had sought for promotion in the quota earmarked for limited departmental examination and appeared in the tests conducted for the Page 1921 purpose. However, he was not successful. Afar as the original case of the petitioner was concerned when other persons were promoted in 1973, the petitioner was at Sl. No. 189 whereas Class IV employees up to Sl. No. 140 only could be promoted. It was also submitted that the petitioner was allowed to appear in the tests held in 1979 and 1981 but he could not be promoted since he failed to qualify the test and did not acquire the necessary marks. He could not appear in the subsequent competitive exams as he had crossed the age bar prescribed for the purpose. Learaned counsel also submitted that the petitioner had superannuated from the service in the year 2001.

9. The additional affidavit of the respondent-MCD filed pursuant to orders of this Court discloses that persons who were junior to the petitioners in the cadre of Peon were promoted without recourse to the rules. The justification for this is that they had been initially appointed on compassionate basis but were found to be educationally and, otherwise, qualified to hold the post of LDC and, therefore, were given that post. They were also accorded seniority as if they had been appointed from the inception to the higher post of LDC.

10. I am of the considered opinion that there is considerable merit in the submission made on behalf of the petitioners that the rationale for ignoring his claim and placing at least 10 of his juniors in the cadre of Peons in the higher post, cannot be justified on the reasoning that they ought to have been granted such promotional post, because they possessed the requisite qualifications. It is not disputed that the petitioner had been working as Peon from 1963; he too had the necessary qualifications, rescribed for the post of LDC right from the year 1964. If the respondents were to take a decision and place persons, who were, otherwise, eligible and qualified to hold the post, they ought to have at least considered the case of the petitioner along with those of his juniors.

11. In my opinion, the only ground given by the MCD that the other 10 persons were initially appointed on compassionate basis but should have been given the higher post, cannot be a ground for discriminating the petitioner. It is settled law that compassionate appointment is by way of exception to the rule against discrimination on the ground of descent mandated by Article 16(2) of the Constitution. If the MCD was of the view that 10 persons were entitled to be appointed on compassionate basis to the post of Peon but much later wanted to confer a higher post to them on the basis that they had higher qualification, it ought not to have discriminated against the petitioner who was admittedly their senior in the feeder grade, and also had the prescribed qualification for the post of LDC.

12. In view of the above discussion I am of the opinion that the petitioner is entitled to relief. The respondent is, therefore, directed to promote the petitioner as LDC with effect from the date his immediate junior, from amongst list indicated in the additional affidavit of the respondent MCD dated 13.8.2004 was given the benefit of higher grade/promotion as LDC. However, the petitioner shall not be entitled to arrears of salary for the entire duration. The respondent shall fix the pay scales and carry out the necessary pay revisions, having regard to the recommendations of the Vth Pay Commission etc, and also grant notional increments. The arrears of salary shall be paid w.e.f. 1.9.1988. Page 1922 The terminal benefits shall also accordingly be re-calculated and arrears constituting the differential amounts shall be paid, to the petitioner. All these payments shall be released to the petitioner within three months from today.

Writ petition is allowed and Rule made absolute, in the above terms. No costs.