Delhi High Court

Muncipal Corporation Of Delhi vs Sh.Subhash Chander Gupta & Ors. on 17 March, 2011

Author: Indermeet Kaur

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                  Judgment Reserved on: 10.3.2011
                  Judgment Delivered on: 17.3.2011


+      RSA No.191/2007 & CM Nos.9992/2007 & 23069/2010


MUNCIPAL CORPORATION OF DELHI          ...........Appellant
             Through: Mr.Rahul Kumar for Mr.Gaurang
                      Kanth, Advocate.

                   Versus

SH.SUBHASH CHANDER GUPTA & ORS.       ..........Respondents
             Through: Mr.Manoranjan, Advocate.


       CORAM:
       HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?              Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J.

1. Plaintiff Subhash Chand Gupta has filed the present suit

seeking declaration against the defendant/Municipal Corporation

of Delhi (MCD) that a decree of declaration be passed in his favour

declaring that he was entitled to promotion to the post of Assistant

Audit Officer w.e.f. 01.3.1982 with all consequential benefits.

2. Plaintiff was working as a Section Officer (Audit) in the

statutory Audit Department. He was illegally ignored by the

defendant. He was denied his promotion. This was because of the

corruption in the office of the defendant no1; defendants no.2 to 6

were beneficiaries. Plaintiff had made complaints and drew

attention of the defendant no.1 to the corruption in its office and

the breaches committed by the various officers of the defendant in

their day to day routine. This was the reason why he was

malafidely and arbitrarily ignored for his promotion. The persons

junior to the plaintiff were unjustly promoted. Plaintiff was denied

his dues which were legally due to him. Present suit had

accordingly been filed.

3. In the written statement of the defendant no.1 the allegations

were denied. It was denied that the promotion of the plaintiff

became due on 01.3.1984 in the grade of `650-1040/- as an

Assistant Audit Officer or that he was illegally ignored. It was

submitted that there were 20 posts of Assistant Audit Officer on

01.3.1984 and 20 persons senior to him as per the procedure had

been promoted. He had no right for promotion on that date. It

was submitted that he along with the other eligible officers was

considered for promotion under the requirements/ rules of the duly

constituted Departmental Committee (DPC) but was found unfit for

promotion. He was informed vide letter dated 09.12.2005.

4. In the replication the averments in the plaint were reiterated.

It was pointed out that as per Resolution No.426 dated 16.7.1984

of the defendant corporation 25 posts were available on 01.3.1984;

further in terms of this resolution six more posts were added.

Plaintiff was at serial no.22 but he was illegally denied his

promotion. There was no scope for reservation of any posts for

deputationist; this was in contravention of the instructions of the

Comptroller & Auditor General of India (CAG).

5. On the pleadings of the parties the following five issues were

framed.

1. Whether the action of the defendant is not promoting the plaintiff on 1.3.84 is illegal and without jurisdiction and mala fide? OPP

2. Whether the plaintiff is entitled for declaration and consequent relied prayed for? OPD

3. Whether the plaintiff is entitled for the damages if so to what extent? OPD

4. Whether the suit is barred Under Section 477/478 DMC Act?

5. Relief."

6. One witness was examined on behalf of the plaintiff and

correspondingly one DW-1 was examined on behalf of the

defendant.

7. Trial judge on the basis of the oral and documentary

evidence had dismissed the suit. Ex. PW-1/1 was resolution No.426

of the defendant corporation. Ex. PW-1/5 was also relied upon.

Trial judge was of the view that he was rightly as per the eligibility

criteria fixed by CAG not considered in the first and the second

DPC. He was considered in the third DPC which was held in

December 1985 but was found not fit. Suit of the plaintiff was

accordingly dismissed.

8. In appeal the impugned judgment had reversed this finding.

Ex. PW-1/1 i.e. the Resolution No.426 dated 16.7.1984 was re-

appreciated. It was noted that Ex. PW-1/1 was to be given effect to

in the financial year in which the resolution was passed i.e. in the

year 1984 itself. Resolution No.1556 dated 07.2.1985 (PW-1/5)

wherein reservation of 20% posts was made for deputationists was

a resolution of the Standing Committee and was without approval

of the Corporation; as such it could not have precedence over

Ex.PW-1/1. Decision No.80 dated 27.2.1990 (admitted document

filed before the appellate court) clearly evidenced that no

reservation was required to be made for the deputationists. First

appeal court concluded that on the date of the first DPC i.e. on

14.12.1984 there were 37 posts available on which 80% i.e. 30

posts were to be upgraded/promoted from Section Officer to the

Assistant Audit Officer. In terms of Ex.PW-1/5 there were 31 posts

and six additional posts were created by Ex.PW-1/1 and even after

reservation of 20% posts for deputationist (out of the 37 posts), 7

posts would be reserved and 30 posts would be available for the

purpose of promotion at the time of the first DPC. The appellant

was admittedly at serial No.22. He was however not promoted.

The impugned judgment had also noted that two Section Officer

namely Sh.D.K.Jain and Sh.Pehlad Singh were promoted to the post

of Assistant Audit Officer by a specially convened DPC in

November 1986 and had been promoted w.e.f. 01.3.1984. The

document evidencing this fact i.e. item No.1246 is an admitted

document; it has been placed on record before this Court.

Admittedly this document was not proved in the course of trial but

by orders of this court dated 07.8.2009 permission had been

granted to the respondent to file his reply which he had filed along

with the aforenoted document. On 20.10.2009 permission had

also been granted to the appellant to refer to documents i.e.

Annexures P-2, P-4, P-5, P-7, P-8, P-11, P-15 and P-19 although

these documents admittedly had not been proved before the trial

court. However being official documents, in the nature of public

documents, permission had been granted to him to make a

reference to the said documents during the course of arguments.

9. The impugned judgment had further noted that there was

mistake on the part of the defendant in not considering him for

promotion although he had fulfilled the criteria of completion of

three years service before the second DPC. A distinction between

three year service and a three year regular service in the previous

year had been pointed out. The impugned judgment was of the

considered view that the appellant had completed three years of

regular service as a Section Officer on 24.12.1984 i.e. on the date

of the first DPC and on the date of the second DPC which was held

on 18.7.1985, there was nothing adverse against him; yet he was

discriminated and illegally not considered. He was accordingly

entitled for promotion and his suit was decreed.

10. This is a second appeal. It has been admitted. After its

admission on 21.4.2010 the following substantial question of law

was formulated:

"Whether the findings of the Appellate Court are perverse on facts and law?

11. On behalf of the appellant, it has been urged that the

impugned judgment suffers from a gross perversity as Resolution

No.426 has not been correctly appreciated; the increase of six

additional posts had to take effect in the year 1985, the Resolution

No.426 had been passed on 16.7.1984 and a reading of this

resolution clearly shows that effect of it had to be given in the year

1984-85; it could not have a retrospective application. It is pointed

out that the plaintiff was rightly not considered for the first and the

second DPC as he did not fulfill the eligibility criteria as per the

instructions of the CAG. He was considered in the third DPC which

was held on 10.12.1965 but was rejected on merits. The impugned

judgment is liable to be reversed as it has not appreciated the

evidence both oral and documentary in its correct perspective.

The plaintiff had also failed to comply with the requirements of

Section 478 of the Delhi Municipal Corporation Act 1957

(hereinafter referred to as „the DMC Act‟); suit was also barred by

limitation. It is pointed out that admittedly the appellant had not

filed any cross objection; the persons whose rights would be

effected if this decree is enforced have not been made parties;

right of no person can adversely be affected without giving him a

right of hearing. For all the aforenoted reasons, the appeal is

liable to be allowed.

12. Arguments have been countered. It is pointed out that the

judgment suffers from no infirmity. It is a reasoned order and

scope of interference by the second appellate Court on findings of

fact is restricted; the said scope cannot be enlarged. No perversity

has been pointed out. It was after appreciation of evidence both

oral and documentary that the court has arrived at the aforenoted

finding decreeing the suit of the plaintiff.

13. Record has been perused.

14. Resolution No.426 dated 16.7.1984 is relevant. It clearly

stated that there is one vacant post for the post of Auditor for the

year 1984-95; further there is the need of up-gradation of six

posts to the post of Section Officer; further there were auditors

who were awaiting promotions and three other Section Officer who

are due to return from deputation on 30.6.1984 would be promoted

and adjusted under the service scheme; an expenditure of

Rs.26,000/- would be incurred in the current financial year. This

resolution had resolved as under:

"Resolved that as recommended by the Standing Committee vide its resolution No. 469 dated 10.5.84, the proposal of the Municipal Chief Auditor contained in his letter No. DCA/87/4 dated 19.4.1984 regarding revision of the scales of pay of the Statutory Audit Department w.e.f. 1.3.1984 as per details given in the aforesaid letter be approved."

This resolution further resolved:

Resolved further that as proposed by the Municipal Chief Auditor in the letter referred to above, upgradation of 6 posts of Auditor as Section Officer (Proposed to be re-designated as Asstt. Audit Officer/Section Officer) for the present financial year and upgradation of 24 posts to be filled in as and when Auditors pass the S.S.S.A. Examination in the ensuing year be approved."

This up-gradation of six posts of Auditor to Section Officer

were for the present financial year. This is the categorical

language of the resolution. The resolution was passed on

16.7.1984. A financial year is a year w.e.f. 1st April to 31st March.

These additional posts were for the financial year 1984-85; they

had to be given effect to in the year 1984 i.e. w.e.f. 01.3.1984. This

resolution has been proved as Ex.PW-1/1. No other inference can

be drawn from a plain reading of this document.

15. Ex.PW-1/5 i.e. item No.1157 dated 07.1.1985 was a

Resolution of the Standing Committee. It was not approved by the

Corporation. Even as per Ex.PW-1/5 there were 31 posts and six

additional posts had been created for the financial year 1984-85 in

terms of Ex.PW-1/1. 20% of these posts were to be filled in by

transfer on deputation. Ex.PW-1/5 had however failed to consider

the six additional posts which had been sanctioned vide Ex.PW-1/1

which were for the current year i.e. for the year 1984-85.

16. The first DPC was held on 24.12.1984. On this date there

were 37 posts available. Even presuming that 20% posts were to

be reserved for deputationists i.e 7 posts; 30 posts became

available in the 80% quota for promotion. The appellant was at

serial no.22. The alternate submission of the respondent is that

even if in terms of Ex. PW-1/5 only 31 posts are considered

available as on 1.3.1984, and 20% are served for deputationist 25

seats were available on 01.3.1984; respondent being at serial no.22

should have been considered.

17. At the time of the second DPC which was held in July 1985,

plaintiff was again arbitrarily ignored. He was eligible for

promotion as per the CAG instructions; he had completed three

years regular service on 24.12.1995; he thus became entitled to be

considered for promotion at the time of this second DPC. He was

however ignored. He was considered only for the third DPC when

he was found not fit. DW-1 in his deposition had stated that the

plaintiff was considered for promotion at the first DPC; this

deposition is contrary to the pleadings i.e. the defence in the

written statement wherein it was admitted that plaintiff was not

considered at the time of first DPC.

18. Ex. PW-1/1 prescribed six additional posts which are to be

added to the quota of 31. In Ex.PW-1/1 there is no reference of

reservation for the deputationists. Even assuming that Ex.PW-1/5

is to be read in conformity with Ex.PW-1/1 and 20% of the seats are

to be reserved for deputationists i.e out of 37 seats 7 are to be

reserved, 30 would fall for up-gradation/promotion. Plaintiff being

at serial no.22 had to be considered. Even if second line of

argument is adopted and the additional six posts are not

considered in the year 1984-85; out of the 31 seats, six would be

the reserved category for deputationists and 25 would fall in the

line of up-gradation/promotion. Even in this category appellant

being at serial no.22 should have been considered in the second

DPC held in July, 1985.

19. The discrimination qua the appellant appears to be writ

large. There was nothing adverse against the appellant at the time

of the second DPC on July 1985. He had fulfilled the eligibility

criteria. The eligibility criteria has prescribed a three years

service as per the CAG instructions. This CAG criteria was never

approved by the Corporation or by the Standing Committee. That

apart the respondent had completed three years of service before

this second DPC. Impugned judgment had noted that the word

"previous year" had been deliberately introduced in these

instructions to oust the appellant from the eligibility criteria.

Impugned judgment had noted that the orders of the CAG received

in February 1985 and July 1985 did not make any reference to the

word "previous year"; it had been introduced later on. The

respondent had in fact completed three years of regular service as

a Section Officer on 24.12.1984. The second DPC was held in July

1985. There was nothing adverse against the appellant at this

time. He should have been considered in the second DPC but he

was illegally ignored.

20. It has also been admitted by DW-1 K.K.Pathak that for the

candidate S.K.Mudgal the DPC was constituted in July 1985

whereas in normal course it was constituted once a year after the

month of October in a year. This candidate S.K.Mudal had also not

completed three years of regular service on 01.10.1984. The same

criteria had not been applied qua Mudgal and the appellant.

Mudgal was in the seniority line at serial no.21. Respondent was

immediately thereafter at serial no.22. Had the appellant also

been considered in the second DPC which was held in July 1985

considering the fact that there were seats available, the name of

the appellant would have figured. It was wrongly noted that the

appellant had not completed three years regular service till that

time.

21. It has also come on record that to Section Officer D.K.Jain

and Prehlad Singh were promoted to the post of Assistant Audit

Officer by a specially convened DPC in 1986 and they had been

promoted w.e.f. 01.3.1984. The document to the said effect has

noted as supra is on record.

22. Malafides on the part of the department is thus evident. The

impugned judgment suffers from no perversity on any count.

Impugned judgment had rightly appreciated the oral and

documentary evidence to draw a conclusion that the plaintiff was

entitled to the relief sought for by him.

23. Section 478 of the DMC is relevant; it reads as follows:

" 478. Notice to be given of suits. - (1) No suit shall be instituted against the Corporation or against any municipal authority or against any municipal officer or other municipal employee or against any person acting under the order or direction of any municipal authority or any municipal officer or other municipal employee, in respect of any act done, or purporting to have been done, in pursuance of this Act or any rule, regulation or bye-law made thereunder until the expiration of two months after notice in writing has been left at the municipal office and, in the case of such officer, employee or person, unless notice in writing has also been delivered to him or left at his office or place of residence, and unless such notice states explicitly the cause of action, the nature of the relief sought, the amount of compensation claimed, and the name and place of residence of the intending plaintiff, and unless the plaint contains a statement that such notice has been so left or delivered.

(2) No suit, such as is described in sub-section (1), shall unless it is a suit for the recovery of immovable property or for a declaration of title thereto, be instituted after the expiry of six months from the date on which the cause of action arises.

(3) Nothing in sub-section (1) shall be deemed to apply to a suit in which the only relief claimed is an injunction of which the

object would be defeated by the giving of the notice or the postponement of the institution of the suit."

24. The plaintiff had categorically in para 8 averred that notice

under Section 478 of the DMC Act Ex.PW-1/8 dated 21.4.1986 had

been served; registered A.D. Card had also been proved on record.

It had been averred that the cause of action had accrued on the

harassment meted out to the plaintiff and on the denial of

promotion to him.

25. Justice and fair play had been denied; reference had also

been made to his representation dated 08.3.1986; suit was filed on

07.7.1986 well within a period of six months.

The trial judge had returned a finding on issue no.4 against

the plaintiff. It was of the view that there has been no effective

compliance of Section 478 (2). In the first appeal Court in the