H. C. SHARMA AND OTHERS v. MUNICIPAL CORPORATION OF DELHI AND OTHERS

Citation: [1983] 3 S.C.R. 372

Court: Supreme Court of India

Bench: V.D. TULZAPURKAR, A. VARADARAJAN

Case summary

Engineers for the issue of Writ of mandamus or other appropriate writ to :

Judgment text

H. C. SHARMA AND OTHERS. v• . MUNICIPAL CORPORATION OF DELHI AND OTHERS July 13, 1983 . B V. D. TU,LZAPURKAR AND A. VARADARAJAN, JJ. ConstitutiOn ofIndia-Arts. 14 and 16-Scope of-Carving out two classes in· the sa1ne category on the ~asis nierely ofqualification- n~t perniissib! e. , . Deihl Municipal Corporation Act, 1957-Secs. 47 and 480(2)-sCope of- Delhi Municipal Corporatioit-A statutory authorUy-Not bound by policy of C. P. 1V. D. unless adopted by its resolution. Recruitment ·Regulations dated 27. 6. 19? 0 made with approval of Central_ Government under sec. 480(2) Applicable prospectively, Appointment" of Assistant Engineers (Civil)-Quota rule- 50 per cent by pro1notion and 50 per cent by direct recruittnent-Validity of. Appoint1nent ofJr. Engineers as Assistant Engineers on curre. nt duty charge basis for long periods. -:-lrregu/ar.

t TI1e first respondent, Municipal Corporation of Delhi, put up an ·advertisen1ent in the press on 30·12~1978 for filling up 8 posts of Assistant Engineers (Civil) by direct recruitment. PUrsuant to the interviews held in this \"Jehalf a list of selected candidate3 out of Graduate Junior Engineers was prepared and approved On 2. 5. 1979. The list was pending final decision about the appointment of the direct recruits selected for these 8 posts. By its office order dated 10. 4. 1978 the first respondent entrusted 6 diploma holders Junior. Engineers with current duty charge of the posts of Assistant Engine"ers and by office order dated 21. 6. 1979 pron1oted two diplon1a holder Junior . Engineers as Assistant Engineers on current duty charge. Feeling that the proposed direct recruitment would be detrimental to their interest, the petitioners, who were diploma holder Junior Engineers of the first respondent, filed writ petition No. 221 of 1979 under Art.

32 of the Constitution, praying for dfrections to be issued to the first respondent to restrain the first respondent from recruiting Assi~tant Engineers directly; to give effect to the recomn1endations of the. Third Pay Commission regarding the rules and policy of promotion etc; to reckon the seniority of the petitioners with their length of service and not to affect in any manner all those holding adhoc charge a:nd current duty cha"rge. The petitioners also_ prayed for quashing the seniority list dated 2. 9. 1978 (Annexure Gin writ petition 1194 of 1979), The petitioners contended that the first respondent should have suspended the direct recruitment of Assistant Engineers and that the rule prescribing a quota of 50 per cent by promotion and 50 per cent by direct recruitment laid down in the recruitment regulations dated 27. 6. 1970 should not be followed.

The petitioners submitted that the first respondent Corporation had been following the pattern of functioning current in the Centcal Public Works Department (C. P. W. D. ) in all matters of recruit· μientf ? roμiotion anQ - . . . their approval. The Recruitment Regulations themselves do not say that they are retrospectiv an direct recruitment as has been done by the CPWD was not written in a~cordance with power conferred by Section 47 of the Delhi Municipal Corporation Act and it cannot, therefore, be taken as a directive from the Central Government. The relative seniority of direct recruits and promotees has been determined in accordance with the instructions contained in the Ministry of Home Affairs' Office Memorandum No, 9/11/55-RPS dated 22. 12. 1959.

Out of 401 Junior Engineers, 36 persons are holding the posts of Assistant Engineers on adhoc · basis in the Junior Engineer's pay scale and they are liable to be reverted as Junior Engineers as and when the posts are filled up on a regular basis in accordance with the Recruitment Regulations. The officers appointed on adhoc basis and current charge basis cannot be treated as regular appointees in the absence of appointments in accordance with the Recruitment Regulations, and, therefore, their names have been rightly not included in the seniority list. The persons confirmed earlier are ranked as seniors to persons who are officiating in the grade in accordance with para 3 of the Home Ministry's Office Memorandum dated. 22. 12. 1959 and there is no infringement of any fundamental right of the petitioners. Respondents 3 to JO and 12 to 15 have filed counter-affidavit contending that prayers Nos. 1, 2 and 4 in W. P. No. 221 of 1979 .

are in direct violation of the Recruitment Regulations relating to Assistant Engineers. Respondents 3 to 7 appeared before the Union Public Service Commission and were duly selected as Assistant Engineers on 2. 1. 1974 as mentioned in the Office order dated 4. 6. 1975 of the Assistant Commissioner (Establishment) of the first ·respondent (Annexure 'RA-I'). Repondents 8 to 18 of whom respondent 11 I bad died a few years ago also were appointed as Assistant Engineers with effect from 2,J. 19. 74 in the direct recruitment quota. Respondents 19 to 46 also were appointed as Assistani Engineers on various dates after 2. l. 1974 in the direct recruitment quota.. Therefore, it is not open to the petitioners to question the seniority of respondents ' 3 to 4~ fixed long ago in according with statutory rules. Respondents 3 to 10 and I 2 to 17 are working as Executive Engineers on adhoc . basis for over four years.

The promotional policy of respondent l is in accordance with the statutory rules approved in 1970 in consultatiOn with· the Union Public Service Commission and are neither a;bitrary nor without . authority of Jaw. There has been no ban on direct recruitment to. 50 per cent of the posts of Assistant Engineers as. per the Recruitment Regulations. Respondents 3 to 46 are Graduates in Civil Engineering and more qualified than the petitioners who are only Diplomaholders. The petitioners are eligible to promotion as Assistant Engineers in the 50 per cent promotion quota. The first respondent . ' is not following the pattern of the current functioning of the;:'CPWD in the matter of recruitment and other service conditions but has its own Recruitment Regulations which have been approved by the Union Public Service Commission and duly notified on 27. 6. 1970. The CPWD has suspended direct recruitment of Assistant Engineers in Class II temporarily for seven years from 1. 4. 1972.

Direct recruit· ment of Assistant Engineers is resorted to by respondent 1 for having ~ighly qualified and talented Engineers and maintaining standards and efficiency. The petitioners cannot have any grievance against direct recruits ofT tant Engineers H. c. SHARMA v. MUNICIPAL COR. PN. (Varadarajan J. ) 389 there was not even: a sing! ~ Deputy Commissioner on the Selection Board. When ·this illegality in the constitution of the Selection Board. was realised, the Corporation ·authorities, at the behest of interested persons, bad interpolated the name of the Deputy 'commissioner (E) and obtained his signature sometime after. the deliberations of the Selection Board had been completed and the minutes had already been signed by the members. Page ! 80C of the pro- . ceedings of the S. election Board {Annexure Rl! I to· this counteraffidavii) shows that Har Mohinder Singh (sl. No. 15) was absent for the interview.

Yet he has been awarded a total of 34 marks, including four marks at the interview and his. name is sought to be placed at No. 14 in the Select Panel. The order communicating the constitution of the Selection Board shows that there were only four members including the Municipal Engineer ·who was designated as· the Cl:iairman. But the. final minutes are signed by 5 members including the Deputy Commissioner (E). The Corporation was formed on 7. 4. 1958. Since then a total , of 95 Assistant Engineers have been appainted by . direct recruitment whereas amongst the_ Junior Engineers and lower categories on. ly 78 have been ap. Pointed as Assistant Engineers. Thirty-six respondents who are holding Current Charge as Assistant Engineers since various dates falling between 10. 4. 1978. and ·21. 6. 1979 had joined service as Junior Engineers about 18 to 20 years ago, i. e. , between 14. 10. 1959 and 24. 8. 1961.

and they have' become eligible for promotion as Assistant Engineers on a regular basis according to the rules of the Corpoi:ation long ago. Therefore, there is nothing wrong in promoting them on Current Charge basis as Assistant Engineers.. The Recruitment Regulations deal with and apply expressly to only 63 posts of Assistant Engineers. The direct recruits are, therefore, entitled to only 30 posts on 50 _: 50 basis, but they have been admittedly given 36 posts. Therefore, there is no further post of Assistant Engineer to be given to them on any of the respondents holding Current Charge being reverted as Jliuior Engineers. According to the procedure and rules of the Corporation, Current Duty l Charge holders ·are to be given adhoc appointments as soon as possible, and as per the preamble to the Commissioner's letter No. . 34 Cl elf will not violate Art. 14 or Art. 16 of the Constitution.

" For all the reasons stated above we find that there is nothing wrong in the respondent I-Corporation proceeding to appoint Assistant Engineers (Civil) by direct recruitment as per the Recruit· ment Regulations or in fixing the 50:50 quota and working it out or in the selection of the petitioners in Writ petition 1194 of 1979 as Assistant Engineer~ pursuant to the decisions to appoint 8 Assistant Engineers (Civil) by direct recruitment in the interviews held for that purpose on 6th and 7th March, I979 and that respondent I and 2 should issue orders of appointment to those posts to 8 of the petitioners in Writ petition 1194 of 1979 who are in the select list within six weeks from this date if not already issued as undertaken by Mr. UR. Lalit on ;?. 9. 7. 1981 within five months from that date. Prayer No.

3 in Writ petition 1194 of 1979 is'to direct responden~ I to fill up the remaining posts of Assistant Engineers in the direct recruitment quota from amongst the empanelled petitioners who are Graduate Junior Engineers. No further discussion is necessary to record a finding on this question after what has. been stated ·above in regard to prayers 1 and 2 in Writ petiiion 221 of 1979 and prayer 1 in Writ petition ll94 of 1979. Respondent I is admittedly bound by the Recruitment Regulations made with the approval of the Central Governl]lent as required by ·section 480(2) of the Act (tl -11975) 2 sc. R. 919. 404 SUPREME-COURT REPORTS 11983] 3S,C. R, and it shall fill the remaining posts of Assistant Engineers in the - direct recruitment quota which are kept vacant in the seniority list dated 2. 9. 1978 (Annexure G.

in Writ petition 1194of1979) and any further posts whfoh might have become available thereafter or become available in view of our decisions In these two Writ petitions or otherwise in accordance with . those Recruitment Regulations. within six months from ioday or from the date on which further. vacancy to the posts of Assistant Engineers in the direct recruitment quota arises as the case may be, if permissible from out of the select list approved on 2 5. 1979. ' Next we will consider prayers Nos. 2 and 5 in Writ petition 221 of 1979 and Prayer No. 2 in Writ petition 1194 of ll79 which ' relate to Current Duty Charge appointment and Adhoc appointment of Junior Engineers' as Assistant Engineers. As stated earlier.

the allegation in paragraph 14 of Writ petition 1194 of 1979 that there are 39 Junior Engineers working as Assistant Engineers on Current Duty Charge and 3 Junior Engineers working as Assistant Engineers on Adhoc basis is admitted in the counter-affidavit filed on behalf of respondents I and 2. The 27th respondent has admitted in his · counter-affidavit that there are ·37 ) unior . Engineers holding Current Duty Charge as Assistant Engineers. In another. portion of Writ petition 1194 of 1979 it is alleged that in all 37 posts of Assistant Engineers including some in tli:e quota of drrect recruits have been filled up by Junior Engineers holding only Diplomas on Current Duty Charge including 2 appointed by the Office Order dated 21. 6. 1979 (Annexure M) with the object . of favouring Diploma holders without appointing 8 Graduate Junior Engineers as Assistant Engineers though their selection has been approved by the competent authority on 2. 5.

1979 and that earlier 6 posts of Assistant Engineers have been filled up by putting Junior Engineers with ·Diplomas on Current Duty Charge by the Office Order dated 10. 4. 1971 (Annexure I) in violation of the rules and, the petitioners' rights guaranteed under Article 16 of the Constitution. It is further alleged in the Writ petition that the effect of Adhoc a_ppointments is that the Adhoc: appointees draw the higher scale of pay of Assistant Engineers ' though when they hold Current Duty Charge they are entitled to draw only 'their own pay in the Jo. wer grade of Junior Engineers. The petitioners have, therefore, prayed for quashing those two Office Orders dated 10. 4. 1978 and 2l. 6. i979. The defence of respondent 1 in the counter-affidavit is that \he Current Duty Cbarge arrangement made in the Office Order H. C. SHARMA v. MUNICIPAL CORPN. (Varadarajan, J. ) 405 dated 21. 6.

1979 had to be made 'as a stop gap arrangement in order to meet the minimum requirements of the department and not to favour any Diploma holder and that it does not amount to violation of Article 16 of the Constitution. T! J. e 27th respondeni has con· tended that according to the procedure and rules of the Corporation Current Duty Charge holders are to be given Adhoc appointments as soon as possible and that according to the preamble to the Com· missioner's letter No. 346/C&C dated 11. 9. 1979 Adhoc status is required to be conferred with effect from the date of commencement of th;_e Curre(lt Duty Charge..

The petitioners in Writ Petition 2_21 of J979 contend that 26 Junior Engineers out of the total number of Junior Engineers in the service of respondent 1 are holding Current Duty Charge from 1978 and several others are holding charge as Assistant Engineers on adhoc basis and that all those Junior Engineers who are officiating as Assistant Engineers are to be treated as regularly appointed Assistant Engineers.

In thy counter· affidavit filed in Writ Petition 221 of 1979 respondent 1 has con· tended that all posts to be filled by direct recruitment have to be advertised and the candidates have to be called for interview and the selection made has to be approved by the Corporation and that even for promotion a Departmental Promotion Committee with a member of the Union Public Service Commission on it has to be constituted and a list of eligible candidates has to be prepared and they have to be screened before the selection is made: It is further contended that all these procedures take time and the work of the Corporation cannot remain unattended and, therefore, senior personnel from the immediate lower category of efficers are drafted to fill up the vacant posts of Assistant Engineets on adhoc basis without any right to those posts which have to be filled by either promotion . , or d! rect recruitment as per the rules. · Mrs.

Shyamla Pappu appearing for the petitioners in Writ Petition 221 of 1979, Mr. G. L. Sanghi, Senior Advocate appearing for respondents 3, 4, 6, 10, 12, 20, 38 and 44 and Mr. R. P. Sharma, Advocate appearing for respondents 9 to 13 and 28 in that petition and Mr. S. C. Gupta appearing for respondents 13, 25 and 27 in Writ Petition 1194 of 1979 did not advance any argument regarding the Current Duty Charge and Adhoc appointment of Junior Engineers as Assistant Engineers which is impugned in Writ Petition 1194 of 1979. Mr. V. M. Tarkunde submitted that there is no specific provision for respondent 1 making adhoc appointments as ·Assistant Engineers and he pointed out that the! revised seniority list dated 2. 9. 1978 (Annexure Gin Writ Petition 1194of1979) shows that adhoc appointments are being made from 22. 6. 1962 though according to the Office Memorandum No. 22011/6/75 Estt. (D) dated 30.

12~1976 of the Government of India, Cabinet Secretariate, Department of Personnel and Administrative Reforms in exceptional· circumstances and under exigencies of publir service it may be necessary to make adhoc appointments without following the prescribed procedure and such appointments should be s_ubject t the following instructions, viz : (a) Purely short-term vacancies caused by leave, shortterm deputation, training etc. may be filled by adhoc appointments i( the posting of the person next in the panel . will be administratively difficult or if he is not interested in such short-term promotion~ Such appointment can be made also when the panel is exhausted or has expired and if there is no time to convene a Departmental Promotion Committee meeting and prepare a fresh panel. Adhoc appointments made to fill in short-term vacancies should be only by promotion of departmental candidates and not by direct recruitment.

(b) In the case of regular vacancies due to death, retirement, resignation, promotion and deputation for period exceeding one year the vacancies should be fiJled by regular mcthocl and not by adhoc appointments. However, if the panel is exhausted and delay is ·anticipated in preparing a fesh panel and if the exigencies of pubiic interest required the filling of the vacancy immediately adhoc appointments can be made without following . the ·prescribed procedure. But regarding Current Duty Charge appointments there is a Circular dated 14. 12. 1973 of respondent I and it Jays down the · following norms for making Current Duty Charge appointments for higher posts viz : · , - ('! ) Current Duty Charge appointments should be made only in the order of seniority subject to the condition that the (officer is otherwise fit with reference to H. C•. SHARUA v. MUNICIPVL CORPN. (Varadarajan, J.

) 407 service, character rolls and clearance reports froni the DOV/DOI; (2) Current Charge arrangements should not be made if otherwise suitable person senior to the incumbent is 11vailable except where- the Current Charge. arrangement is for such a short period that it will not be in administrative interest to disturb the eligible person from his existing assignment; (3) Current Charge arrangement should cease forthwith when an officer becomes eligible for adhoc/regular appointment to the post. Cases of adhoc/regular. appointments arc to be initiated simultaneously with making Current Charge arrangements. The Commissioner of respondent 1 has issued an Office Order dated 10. 8. 1979 approving the adhoc arrangement to the post of Assistant Engineers (Elect. ) in the pay scale of Rs. 650-1200 . plus the usual allowances in respect of 5 Assistant ·Engineers (Elect.

) who were presently working on Current Duty Charge from the dates of their taking over charge or entrustment of Current Duty Charge as noted against their names for the period ending 29. 2. 1980 or until the posts are filled on a regular basis. Out of these 5 persons one each was on Current Duty Charge from 1974 and 1976 and 3 were on Current Duty Charge from . 1978. _Thus it is seen that on the electriCal side respondent . 1 has been keeping persons on Current Duty Charge from 1974, 1976 and 1978 until 29. 2. 1980 though as per the Circular dated 14. 12. 1973 mentioned above cases for adhoc/ regular appointments should be initiated simultaneously while making Current Charge arrangements. Mr. V. M. Tarkunde pointed out that in all 55 Current Charge appointments have been made from 15. 6. 1970 inclusive of 2 made .. ~ on 15. 6. 1970.. 22 made ill 1978, 15. made in 1979, 6 made in 1980 and 10 made in 1981 and that they were all contiquing even on 22. 7. 1981.

It is not disputed that Junior Engineers working on Current Duty Charge receive emolum~nts based only on their own pay scale as Junior Engineers and that on their adhoc appointment as Assistant Engineers they receive emoluments on the basis of the higher pay scale of Assistant Engineers right from the date on which they were put on Current Duty Charge. lt is nid uld not be state the benefit of his one year's period" of training and another year's period of probation for the purposes of seniority and denies to promotees the benefit of their long and valuable experience. If there was some intelligible groun'd for this differentiation bearing nexus with efficiency in. (I) [1977) 3 S. C. R. 775, 412 StiI'! UlMll COURT REPORTS [1983) ~ s. c.! l. public services it might perhaps have been possible to sustain such a classification. We think that the ratio of this observation applies to the facts of this, case in regard to prayer No.

4 and that the petitioners in Writ Petition 1194 of 1979 are not entitled to be treated as a separate class of Junior E. ngineers. Prayer No. 6 is to declare that the petitioners Graduate Junior Engineers in the service of respondent 1 are entitied to be put on par with their counterparts in other Gove. rnment departments, and prayer No. ' 7 is to direct respondent I to grant revised pay scale of Rs. 550- 900 to the petitioners in Writ Petition 1194 of 1979 and other Graduate ·Junior Engineers as in the case of Graduate Junior Engineers in Class Ill ser. vice in other Government Departments. This scale of Rs. 550-900 is of the selection grade of Junior Engineers There are 13 selection grade posts in the Engineering Service (Civil) of respondent !. We think that the petitioners are not entitled to these two reliefs also · The result is that Writ Petition 221 of 1979 fails and is \.

dismissed with costs of the contesting private respondents and Writ Petition 1194 of 1979 is allowed in part in regard to prayers 1, 2, 3 and 5 as indicated above and is otherwise dismissed. The contesting respondents in Writ Petition 1194 of 1979 shall pay the petitioners' costs. There will be one set of Advocates' fees in both· the Writ Petitions. ' H. S. K. W. P, No. 221 purify allowed and W. P. No. 1194 dismissed. "