Municipal Corporation Of Delhi vs Anil Prakash
2007 Latest Caselaw 1661 Del

JUDGMENT

A.K. Sikri, J.

1. The respondent herein while working as Director-in-Chief (Sanitation) was relieved of his duties vide impugned order dated 5.1.2007 with the direction to report to Additional Commissioner (Slum and JJ Wing) for his posting as Chief Engineer. The respondent refused to accept this order as, according to him, it was not only mala fide exercise of power but also amounted to reversion/reduction in rank. The appellant/Municipal Corporation of Delhi (hereinafter referred to as the 'MCD') maintained that it was only a routine transfer order which did not affect him adversely. The respondent challenged the said order by filing writ petition under Article 226/227 of the Constitution of India. Plea of the respondent herein has been accepted and the learned Single Judge vide judgment dated 9.7.2007 has set aside the order dated 5.1.2007 along with all other orders passed pursuant to and in implementation of the aforesaid order. Direction has been given to the MCD to place the respondent on his previous post of Director-in-Chief (Sanitation), which position the respondent was holding with effect from 8.11.2005. Feeling aggrieved, present appeal is filed by the MCD.

2. Before we come to the ground on which the impugned judgment is challenged by the MCD, it would be apposite to take note of relevant facts in brief, the ground on which the order of transfer was challenged, the defense of the MCD to the said challenge and the manner in which the same is dealt with by the learned Single Judge.

3. The respondent was appointed to the post of Assistant Engineer (Civil) in the MCD in the year 1982 as a direct recruit. Vide orders dated 1.9.1994 he was promoted as Executive Engineer (Civil) on the recommendations of the Union Public Service Commission. Though initially he was given officiating promotion, later he was confirmed on this post. Vide letter dated 1.5.1996 the respondent was 'promoted' as Superintending Engineer (Civil), though the letter states that he was assigned 'look after charge'. However, when he was working as Superintending Engineer (Civil) in the manner mentioned above, he was given another higher post of Director (CSE) again on the basis of 'look after charge'. This post is equivalent to the post of Chief Engineer. As per the respondent's case in the writ petition, which was not denied by the MCD, whenever the Chief Engineer is posted in the Sanitation Department, he is designated as Director (CSE) and, therefore, the posts of Chief Engineer and the Director (CSE) are interchangeable. The next higher post in the hierarchy is that of Engineer-in- Chief. The Engineer-in-Chief when posted in the Sanitation Department, is given the nomenclature of Director-in-Chief (Sanitation) and thus, two posts being equivalent are also interchangeable.

4. According to the respondent, all the present Chief Engineers in the MCD are either on 'current duty charge', 'look after charge' or on 'ad hoc basis' and no Chief Engineer or Director (Sanitation) is working against a regular post. However, the incumbent is given 'look after charge' on the higher post after following the requisite procedure for promotions. Circular dated 14.12.1973 issued by the MCD states that the 'current duty' arrangement should be made only in order of seniority, subject to the condition that such an officer is otherwise fit with reference to service, character roll and clearance from the DDC/DOI. This circular also states that only those officers/officials will be considered for appointment on 'current duty charge' who have rendered two-third of his/her service as prescribed for regular appointment.

5. While the respondent was continuing as the Director-in-Chief (Sanitation) in the aforesaid manner, vide impugned order dated 5.1.2007 he was relieved with immediate effect from the said post and directed to report to the Additional Commissioner (Slum and JJ) as Chief Engineer for his further duties.

6. The respondent felt terribly upset and aggrieved by this order. He filed a writ petition being WP(C) No. 739/2007 in this Court challenging the legality of the aforesaid order dated 5.1.2007 on various grounds. The appellant/MCD contested the petition filing its counter affidavit. After hearing the matter, the learned Single Judge vide his detailed judgment dated 9.7.2007 set aside the said order dated 5.1.2007 terming it to be illegal and arbitrary, inter alia, accepting the following pleas of the respondent herein:

a) the posting of the petitioner (respondent herein) as Director-in-Chief (Sanitation) vide order dated 8.11.2005, though on 'look after charge' basis, was, in fact, promotion to the said post, which was equivalent to the post of Engineer-in-Chief and directing the petitioner to join as the Chief Engineer (Slum and JJ) amounts to his reversion.

b) the impugned order visits the petitioner (respondent herein) with civil and/or evil consequences and was passed without giving him an opportunity of being heard.

c) the impugned order was arbitrary and the respondent MCD (appellant herein) could not show that it was a routine transfer order in the exigency of service inasmuch as, no reasons or explanation was forthcoming for passing such an order.

d) the order was actuated with malafides.

e) directing the petitioner (respondent herein) to join as the Chief Engineer (Slum and JJ) amounted to change of his cadre from MCD to Slum and JJ Department, which was a separate department with its own independent status.

7. The contention of the MCD before the learned Single Judge to the effect that the respondent had no legal right to retain the post of Director-in-Chief (Sanitation), for which he was given only 'look after charge'; such an order could be revoked at any time by the Competent Authority without assigning any reason and without even prior notice; the order was not passed by way of punishment and did not amount to reversion; it was a routine transfer in the exigency of service; Slum and JJ Department was a part of MCD and, therefore, transfer could be made in the said department etc. did not find favor with the learned Single Judge and dealing with these contentions in detailed, he brushed aside the same.

8. Arguments before us, as advanced by the learned Counsel for the appellant, remain the same, which were canvassed before the learned Single Judge. We shall deal with these arguments hereafter. Before entering into the discussion on these arguments, however, we may point out that the outcome depends on the answer to the following questions:

(a) Whether posting of the respondent as Director-in-Chief (Sanitation) was merely a transfer from the post earlier post held by him, namely, the Director (CSE) or it was a 'promotion/posting' to a higher post.

(b) If that was in the nature of promotion/posting to a higher post, whether the respondent did not acquire any right to continue to hold the said post and could be sent back as the Director (CSE).

9. Obviously, the respondent would succeed only if answer to both the questions formulated above is in the affirmative and in his favor. Nature of the respondent's posting as Director-in-Chief (Sanitation):

10. The post of Director-in-Chief (Sanitation) was created by the MCD and decision was taken to promote one of the senior most Chief Engineers from the Engineering Department to the post of Director-in-Chief (Sanitation) for CSE Department. A meeting of the Special Selection Committee was convened, which considered the cases of all eligible Chief Engineers and recommended the name of the respondent for appointment to the said higher post of Director-in-Chief (Sanitation). This was approved by the Competent Authority and thus, vide office order dated 8.11.2005, the respondent was given the appointment to this post on 'look after charge' basis. Though this office order also mentioned that the respondent was posted for a period of one year, he continued even after the expiry of the said period on the basis of which, the respondent pleaded that the promotion was of a permanent nature, which was given after following the selection procedure. The respondent was the senior most Chief Engineer.

11. Admittedly, there are no rules framed for appointment to the post of Director-in-Chief (Sanitation). The appellant has not denied that this post is equivalent to that of Engineer-in-Chief. The post of Engineer-in-Chief is a post, which is higher in rank to the post of Chief Engineer as the post of Chief Engineer is the feeder post for promotion to the post of Engineer-in-Chief. The respondent, when working as the Director (CSE) in the Sanitation Department, which is equivalent to the post of Chief Engineer, was posted as Director-in- Chief (Sanitation). Neither it was a posting to the equivalent rank, nor by way of transfer. Indubitably, it was a posting to the higher post, which is next promotion post in the cadre. Again, there is no dispute that before office order dated 8.11.2005 was issued, the Special Selection Committee was constituted, which had considered the cases of all eligible Chief Engineers. The respondent was the senior most Chief Engineer. His case was recommended, which was duly approved by the Competent Authority. It is only thereafter that the order dated 8.11.2005 was issued. This order, thus, would clearly be in the nature of 'promotion' and to a higher post and not merely a posting order simplicitor. Therefore, when the respondent vide impugned order dated 5.1.2007 is relieved from this post and is given the duties as Chief Engineer, he is posted on a lower post. Normally, it would amount to reversion/reduction in rank.

12. The attempt of the appellant to justify such an order is predicated on the so-called nature of promotion, namely, the respondent was given 'look after charge' and, therefore, he had no right to hold that post. One could have digested this argument but for the fact that the modus operandi adopted by the MCD is to give the promotions to its officers by way of 'look after charge' generally, in the case of the respondent itself from the post of Executive Engineer he was promoted as Superintending Engineer (Civil) and was assigned 'look after charge'. Thereafter, he was promoted on the higher post of Director (CSE) again on 'look after charge' basis. If giving 'look after charge' was a stop-gap arrangement, we fail to understand how the MCD kept on giving further promotions to the respondent when in the lower post he was given only 'look after charge', which was not a promotion according to the MCD. If the contention of the appellant is accepted, then it would mean that the appellant has the right to even post the respondent as Executive Engineer (Civil), which is three ranks lower, as that is the only post which the respondent holds on substantive basis. One cannot lose sight of the fact that the contention of the respondent that promotions are given in this manner and all the present Chief Engineers in the MCD are either on 'current duty charge', 'look after charge' or on 'ad hoc basis' cannot be overlooked.

13. Learned Counsel for the appellant had relied upon the judgment of the Apex Court in the case of Ramakant Shripad Sinai Advalpalkar v. Union of India and Ors. 1991 Supp (2) SCC 733 to contend that if an officer, who substantively holds a lower post is merely asked to discharge the duties of a higher post, same cannot be treated as a promotion, and even if on such a higher post he had worked for a long period, it gives him no rights, equities or expectations for promotion to the higher post. The Court, in that case, further held that fixing him in the lower substantive post would not amount to arbitrary reduction in rank. However, that was a case where the Supreme Court found on the terms of the office order, vide which the appellant therein was asked to discharge the duties of a higher post, did not amount to promotion. The office order dated 30.8.1963 in the said case, whereby the incumbent was asked to perform the duties of Treasurer, was not a promotion order would be clear from the order itself. The office order, which is reproduced in the said judgment, reads as under:

Shri Ramakanta Sripada Sinai Advolpalcar, acting Grade 3 Officer of the Caixa Economica de Goa will perform the duties of the Treasurer of Caixa Economic de Gao, vice Shri Antonio Xavier Furtado, who died this morning. Shri Advolpalcar should assume the function of the post from today. Shri Advolpalcar will draw besides the monthly salary of his own post as acting Grade 3 Officer an allowance of Rs.100 p.m. which is payable to the post of treasurer under the existing rules....

14. Two things follow from the aforesaid judgment viz.: (a) his substantive designation is mentioned in the office order and it is stated that he "will perform the duties of Treasurer". This was done as an emergent measure, as the person, who was working as the Treasurer, had died that very morning and the appellant was asked to assume the function of that post. It was, thus, clearly a stop-gap arrangement without following any rules; and (b) the appellant in the aforesaid judgment was not even given the emoluments of higher post of Treasurer but only an allowance of Rs.100/- per month. The office order specifically stated that he would draw monthly salary of "his own post".

15. Another judgment on which reliance was placed by the learned Counsel for the appellant is State of Haryana v. S.M. Sharma and Ors. JT 1993 (3) SC 740. That was a case where the respondent was employed as Sub-Divisional Officer and vide orders dated 13.6.1991, he was "entrusted" with the current duty charge of the post of Executive Engineer. Later on, vide order dated 6.1.1992, current duty charge was withdrawn from him. The office order dated 13.6.1991, which is reproduced in the said judgment by the Supreme Court is to the following effect:

OFFICE ORDER

Sh. Surinder Mohan Sharma, SDO, HSAM, Board, Naraingarh is entrusted current duties charge of the post of the post of Executive Engineer, Kaithal in his own pay scale till further order.

These orders shall take immediate effect.

16. Here again, the incumbent was 'entrusted current duty charge'. He continued to draw his pay in the substantive post and the charge was given 'till further orders'. Such an order, obviously, could not be termed as promotion as held by the Supreme Court. The position in the present case, as amplified above, is diametrically opposite.

17. The impugned judgment of the learned Single Judge reveals that record of selection process was produced before him and on that basis, following comments were made by the learned Single Judge:

Perusal of the same shows that there are no recruitment rules for the said post of Director-in-Chief (Sanitation) and therefore, the rules which are applicable to the equivalent post of Engineer-in-Chief were made applicable for appointment to the said post. The post of Director-in-Chief (CSE) has been considered to be the most important and vital post in the MCD, as the incumbent of the post is required to coordinate, monitor and supervise the work of CSE Department. Special Selection Committee was constituted by the MCD for selecting the most suitable person to be appointed on the post of Director-in-Chief (Sanitation) amongst the Chief Engineer Directors, (CSE) working under the control and supervision of the MCD. The said Selection Committee after taking into consideration the ACRs of the Chief Engineers/Directors (CSE), had recommended the name of the petitioner as the most suitable officer for entrustment to `look after the charge' of the said post of Director-in-Chief (Sanitation). Pursuant to the recommendations made by the Special Selection Committee the present petitioner was appointed on the said post of the Director-in-Chief (Sanitation) in the pay scale of Rs.12,000-16,500/- on `look after charge' basis subject to the terms and conditions contained in the said Office Order dated 8.11.2005. Perusal of the record also shows that petitioner's selection was not made in a routine manner but after his passing through the process of selection after competing with the other eligible Chief-Engineers.

18. Not only there is a proper selection procedure adopted, but also cases of all eligible persons were considered; the respondent, who was otherwise senior most as well was recommended for the post of Director-in-Chief (Sanitation) and while giving him the said post, he was even placed in the higher pay scale attached to the said post.

19. From the aforesaid, we conclude that the posting of the respondent as the Director-in-Chief (Sanitation) as a 'look after charge' was not a mere routine order of posting, but an order of promotion, made after considering the case of the eligible candidates including that of the respondent, and after selecting the respondent on the basis of his comparative merit and seniority by a specially constituted Selection Committee. Re. WHETHER ORDER ARBITRARY:

20. Once the mist is wiped off and the nature of appointment to the post of Director-in-Chief (Sanitation) is appreciated in the manner aforesaid after glossing over the so-called 'look after charge', it cannot be said that the respondent had 'no right' whatsoever on the said post. What constitutes 'right' is explained by the Supreme Court in Mr. X v. Hospital 'Z' AIR 1999 SC 495 in the following words:

14. 'RIGHT' is an interest recognised and protected by moral or legal rules. It is an interest the violation of which would be a legal wrong. Respect for such interest would be a legal duty. That is how Salmond has defined the "Right". In order, therefore, that an interest becomes the subject of a legal right, it has to have not merely legal protection but also legal recognition. The "right" is vested in a person and is available against a person who is under a corresponding obligation and duty to respect that right and has to act or forbear from acting in a manner so as to prevent the violation of the right. If, therefore, there is a legal right vested in a person, the latter can seek its protection against a person who is bound by a corresponding duty not to violate that right.

21. Here, we may also usefully refer to the judgment of the Supreme Court in the case of O.P. Singla and Anr. v. Union of India and Ors. (1984) 4 SCC 450. Though that case related to the seniority of the judicial officers of Delhi Higher Judicial Service, the question which fell for consideration was as to whether for the purpose of reckoning the seniority 'promotions' given to such officers on ad hoc basis or stop-gap arrangement would count for seniority or not. The Court was of the opinion that such a service has to be counted for the purpose of seniority and the seniority should be fixed on the basis of continuous length of service as quota-rota system had broken down. For us, it is important to note the basis for arriving at the decision that service on ad hoc basis/as stop-gap arrangement is to be counted. This was explained in the following manner:

27. Thus, persons belonging to the Delhi Judicial Service who are appointed to temporary posts of Additional District and Sessions Judges on an ad hoc basis or for fortuitous reasons or by way of a stop-gap arrangement. constitute a class which is separate and distinct from those who are appointed to posts in the Service in strict conformity with the rules of recruitment. In view of this, the former class of promotees cannot be included in the list of seniority of officers belonging to the Service.

28. It is however difficult to appreciate how, in the matter of seniority, any distinction can be made between direct recruits who are appointed to substantive vacancies in the Service on the recommendation of the High Court under Rule 5(2) and the promotees who are appointed in consultation with the High Court to posts in the Service under Rules 16 and 17. Rule 16 provides for the appointment of promotees to temporary posts in the Service, while Rule 17 provides for appointment of promotees to substantive vacancies in the Service on a temporary basis. Promotees who are appointed to the Service under either of these two rules must be considered as belonging to the same class as direct recruits appointed under Rule 5(2). They perform similar functions, discharge identical duties and bear the same responsibilities as direct recruits. They are appointed on a regular basis to posts in the Service in the same manner as direct recruits are appointed, the only distinction being that whereas the latter are appointed on the recommendation of the High Court promotees are appointed in consultation with the High Court. There fore, no distinction can be made between direct recruits on one hand and promotees appointed to the Service on the other, in the matter of their placement in the seniority list. Exclusion from the seniority list of those promotees who are appointed to posts in the Service whether such appointment is to temporary posts or to substantive vacancies in a temporary capacity, will amount to a violation of the equality rule since, thereby, persons who are situated similarly shall have been treated dissimilarly in a matter which constitutes an important facet of their career.

22. Mukharji, J, who rendered dissenting opinion concurred on this aspect with the majority view in his following observations:

87. It may be appropriate here to note on the question whether the petitioners were appointed regularly that all the promotees were appointed to temporary posts in accordance with qualifications laid down under Rule 7(a), namely, by selection and after completion of a minimum of ten years judicial service, The selections were made by the Full Court of the High Court and appointments were made on merit-cum-seniority basis so much so that persons found not fit for promotions were ignored as in the case of Shri C.D. Vashist and Shri S.P. Singh Chowdhary.

23. As already noted above, in the present case proper Selection Committee considered the case of appointment of the petitioner to the post of Director-in- Chief (Sanitation) after following the rules and the respondent being the senior most person was commended for the appointment. Merely because the appellant had adopted the practice of giving appointment on 'look after charge' basis, would not mean that the appellant is permitted to exploit such situation, which is its own creation by first denying the legitimate due to the officials, denying them promotion on substantive basis and continue to follow the practice of 'look after charge' and then coming up with the plea that such a person has no right to the said post. This cannot be countenanced and has to be deprecated.

24. The minimum right, which the respondent acquired while getting hold over the said post through proper selection, was to know the reason as to why he was shunted out of the said post and decision so taken to revert him to the post of Chief Engineer/Director (CSE), which he was holding earlier. Except the epithet that it is a 'routine' transfer in the 'exigency of service', no reasons are forthcoming. No doubt, when an official is transferred from one place to another, or to a transferable job in equivalent rank, it is not necessary to give the reasons. While transferring a person, it is also not necessary to pass a speaking order. Therefore, we may not agree with the sweeping statement of the learned Single Judge to the effect that in all cases where look after charge or stop-gap arrangement is terminated, reasons must exist on the file. However, in the facts of the present case and influenced by the consideration that 'look after charge' was given by way of promotion after proper selection to a higher post, reasons were necessary. In this behalf, however, we approve the following observations of the learned Single Judge:

Surprisingly, no discernible reasons are visible for taking the said decision of relieving the petitioner from the said post of Director-in-Chief (Sanitation) with immediate effect. Only ex-post facto approval was sought by the A.C.(Estt.) by putting a note dated 09.01.2007 before the high-ups in the hierarchy including the Commissioner. It is quite strange that a person who was properly selected for the said post and who had already put in more than one year on the said post was abruptly relieved from the post without any rhyme or reason whatsoever. It is no doubt true that the relieving order may not necessarily incorporate the exact reasons resulting into passing such an order but some reasons at least must exist on the record of the file.

25. The circumstances in which the order was passed would further show that it was mala fide inasmuch as, the respondent's case was that the order dated 5.1.2007 was sent to him by fax at 7:30 p.m. on the same day as he had raised his voice against the allotment of maintenance contract of lavatories of 12 zones to one single contractor, and this opposition of the respondent was also highlighted by various national dailies on that very day, which was not liked by certain high ups in MCD and the concerned contractor. We, therefore, also agree with the following remarks made by the learned Single Judge, in this context:

When no reason exists on the file, then the allegations made by the petitioner that he has been victimized because of his not succumbing to the pressure for award of scavenging contract to one single contractor, have to be accepted. The copies of the press clippings placed by the petitioner on record highlighting the said tussle between the petitioner and other high-ups of the MCD are clear pointers to the discomfiture of these high-ups who had taken the decision to throw the petitioner out from the said assignment. These press clippings are of newspapers dated 6.1.2007, 7.1.2007 and 8.2.2007 and the petitioner was sent the said relieving order dated 5.1.2007 on the same evening by fax at 7.30 P.M. What was the tearing hurry to relieve such an officer who was given the post of Director-in-Chief (Sanitation) after he was found to be the most suitable person by the selection committee. Why an ex-post facto approval was required and if required then why reasons are missing for taking the said decision. These unanswered questions, clearly indicate, that the respondent/MCD is suppressing more than revealing. The action of the MCD in passing the said relieving order dated 5.1.2007, therefore, clearly smacks of arbitrariness.

26. In these circumstances, reliance by the learned Counsel for the appellant/MCD on the judgment of the Supreme Court in the case of M. Sankaranarayanan, IAS v. State of Karnataka AIR 1993 SC 763 would be of no avail.

27. Likewise, the case of Punjab State Electricity Board and Anr. v. Baldev Singh (1998) 5 SCC 450, is also distinguishable as the Court held in that case that when the person was given promotion only on ad hoc basis and reversion was not punitive, no necessity for show cause not arose.

28. We are conscious of the limited scope of powers of the Court to interfere with the cases of transfer of employees. The transfer of an employee is the prerogative of the authorities concerned and the Courts are not to interfere with the exercise of such a power. The exceptions, however, are: (a) when the transfer order is shown to be vitiated by malafides; (b) it is in violation of any statutory provision; (c) having been passed by an authority not competent to pass such an order (See State of UP and Ors. v. Gobhardhan Lal (2004) 11 SCC 402). Here, however, the respondent has made out the case calling for such an interference, as not only the impugned transfer, in the facts of this case, amounted to reversion, it is also successfully shown by the respondent that the same smacks of arbitrariness and malafides.

29. The foregoing discussion leads us to conclude that the impugned order dated 5.1.2007 is illegal and rightly set aside by the learned Single Judge. Therefore, we need not go into the other reasons given by the learned Single Judge, namely, whether the Slum and JJ Department and transfer of the respondent appointed in MCD to the said Department would amount to change of his cadre and is, therefore, impermissible. We leave that question open.

30. The appeal is, thus, dismissed with costs quantified at Rs.10,000/-.