ition Nos
221  1194 of 1979
Under article 32 of the Constitution of India
In WP
22179 Mrs Shyamla Pappu and A Minocha for the Petitioner
UR Lalit BP Maheswari Suresh Sethi and Miss Asha Rani Jain for the Respondents Nos 1 2
RP Sharma for the Respondents 9 13 and 28
GL Sanghi Miss Kamini Jaiswal and Miss Nishi Puri for Mrs Urmila Kapur for the Respondents Nos 346101213203844 and 45
In WP
No 119479 VM Tarkunde Miss Kamini Jaiswal and Miss Nishi Puri for the Petitioners 1 to 10
GL Sanghi Miss Kamini Jaiswal and Miss Nishi Puri for the Petitioners 11 21
UR Lalit BP Maheshwari and Suresh Sethi for Respondents 1 and 2
SC Gupta and Ramesh Chand for Respondents Nos
1325 and 27
The Judgment of the Court was delivered by VARADARAJAN J
The petitioners in these two Writ Petitions filed under Article 32 of the Constitution are Junior Engineers of the first respondent Municipal Corporation of Delhi
WP No 221 of 1979 has been filed by Diploma holders amongst the Junior 377 Engineers for the issue of Writ of mandamus or other appropriate writ to 1 Restrain respondent 1 from recruiting Assistant Engineers directly and filling up the posts of Assistant Engineers 2 Direct respondent 1 to give effect to the recommendations of the Third Pay Commission regarding the rules and policy of promotion etc 3 Quash the seniority list Annexure G prepared by respondent 1 4 Direct respondent 1 to reckon the seniority of the petitioners with their length of service and 5 Direct respondent 1 not to affect in any manner all those holding adhoc charge and current duty charge
WP No 1194 of 1979 has been filed by Graduate Junior Engineers as well as Graduate Junior Engineers selected for appointment directly as Assistant Engineers for the issue of a writ of mandamus certiorari or any other appropriate writ to 1 Direct respondent 1 to fill up eight posts of Assistant Engineers amongst those in the Select Panel 2 Quash Office Order dated 1041978 Annexure I entrusting Junior Engineers with current duty charge of the posts of Assistant Engineers and the Office Order dated 2161979 Annexure M promoting two Junior Engineers as Assistant Engineers on current duty charge on their own pay scale 3 Direct respondent 1 to fill up the remaining posts of Assistant Engineers in the direct recruitment quota from amongst the empanelled petitioners who are Graduate Junior Engineers 4 Declare the petitioners Graduate Junior Engineers as a separate category and give them equal quota 378 under the departmental promotee quota in the posts of Assistant Engineers 5 Restrain respondent 1 from giving adhoc promotions to current duty charge holders amongst Junior Engineers 6 Declare that the petitioners Graduate Junior Engineers in the service of respondent 1 are entitled to be put on par with their counter parts in other government departments 7 Direct respondent 1 to grant revised pay scales of Rs 550 900 to the petitioners and other Graduate Junior Engineers as in the case of Graduate Engineers in Class III service in other government departments with effect from the date it is made applicable in the Central Public Works Department in view of the decision in Ram Kumar and Ors
vs Union of India and 8 Direct respondent 1 to revise special pay from Rs 40 to Rs 75 per mensem to the petitioners and other Graduate Junior Engineers entitled thereto from 111979
The case of the petitioners in WP 221 of 1979 Diploma holders Junior Engineers is that they are holding the posts of Junior Engineers in the service of respondent 1 for 16 to 18 years having joined service as Junior Engineers during 1967 to 1970 while respondents 3 to 46 are those who have been directly recruited as Assistant Engineers during 1974 78 in contravention of the declared policy of the Government barring direct recruitment
The next promotional posts to the petitioners are Assistant Engineers
The first respondent has been resorting to direct recruitment to the posts of Assistant Engineers to the extent of 50 per cent resulting in stagnation of the petitioners in the grade of Junior Engineers
It has been following the pattern of functioning current in the Central Public Works Department hereinafter referred to as CPWD  in all matters of recruitment promotion and other conditions of service
The CPWD had decided to suspend direct recruitment to the Central Engineering Service because no promotional chances were available to the Central EngineeringElectrical Engineering Service Class II
That decision
379 taken in August 1975 became effective from 141972 Annexure B 
The first respondent has taken a decision by Resolutions Nos 416 and 78 dated 2771970 and 2121971 to the effect that all fundamental rules and supplementary rules including amendments and orders issued by the Central Government shall be treated as rules etc
of the first respondent Corporation
Similarly the Central Services Conduct Rules as applicable to Central Government and the general fundamental rules including amendments and orders issued by the Central Government have been made applicable to the first respondent Corporation
As soon as the petitioners learnt that there is suspension of direct recruitment in the CPWD the petitioners invited the attention of the first respondent to that fact in November 1975 and requested for banning of direct recruitment of Assistant Engineers and were given an assurance that their rights will not be over looked
The petitioners made several representations including the last one dated 2411979 Annexure E 
The then Commissioner of the first respondent assured the petitioners orally that the practice adopted by the CPWD will be followed by the first respondent but he however wrote to the petitioners saying that the matter was under consideration
The petitioners met the Deputy Commissioner of the first respondent on 2311979 and protested against the advertisement made in the Press to fill up eight posts of Assistant Engineers by direct recruitment and as he accepted the suggestion of the petitioners they expected that the advertisement will be withdrawn
Respondent 1 is however bent upon going ahead with the direct recruitment though more than 275 out of 400 Junior Engineers aspiring for promotion as Asst
Engineers are eligible for consideration
The Central Government has power of general superintendence over the first respondent and it has informed the first respondent by letter dated 2321976 Annexure F  that consequent on the recommendation of the Third Pay Commission the first respondent may ban direct recruitment as has been done by the CPWD
The Director in the Office of the Director General of Works Government of India informed the Assistant Commissioner Establishment of the first respondent by letter dated 1621978 Annexure F1  that direct recruitment to CESCEES Group B was still under suspension
Though no specific reference has been made in the Third Pay Commission s Report to Junior Engineers of the first respondent Corporation its recommendations have been followed by the first respondent and its employees are treated in the same manner as employees of the Central Government are treated by the Government their pay scales and service conditions being the same
The proposed direct recruitment 380 to eight posts of Assistant Engineers is detrimental to the interests of the petitioners in the light of the Central Government s memorandum of the year 1959 relating to seniority
The first respondent should therefore be directed to follow the same policy as is being followed by the Engineering Department of the Central Government
The details of the appointments of respondents 3 to 46 who have been directly recruited as Assistant Engineers during the years 1974 78 given in Annexure A 1 would show that the direct recruits of the year 1974 rank higher and above the petitioners who are recruited much earlier
Of the 400 Junior Engineers in the service of respondent 1 36 are holding current duty charge as Assistant Engineers from 1978 and several others are holding charge as Assistant Engineers on adhoc basis
Those Junior Engineers who are officiating as Assistant Engineers ought to be treated as regularly appointed Assistant Engineers
However their names are not shown in the seniority list Annexure G  circulated on 291978
That seniority list has been prepared on the basis of the memorandum issued by the Central Government in December 1979 which is similar to the seniority rules which has been struck down by this Court in the case of SB Patwardhan and Ors etc
vs State of Mahrashtra  Ors1 Respondent 1 is drawing the seniority list without any authority of law by putting one promotee and one direct recruit thereafter and so on in accordance with the instructions of the Central Government according to which those confirmed earlier would rank senior to those confirmed later
The conferment of artificial seniority by respondent 1 deprives the petitioners of their actual seniority and is destructive of the fundamental right to equality
The first respondent Corporation has filed counter affidavit contending that the Corporation has to be guided by its own rules relating to its Engineering Service though the conditions of service under it could not be less attractive than those prevailing in the CPWD in order that it may attract proper engineering talents
All appointments in the Corporation carrying a minimum salary of less than Rs 700 per mensem could be made by the Commissioner of the Corporation since 1011975 in accordance with the recruitment rules which have been framed in consultation with the Union Public Service Commission though prior to that date consultation with Union Public Service Commission was essential in the matter of 381 appointment to posts carrying a minimum salary of Rs 350 and above per mensem
After from Executive Engineers and Superintending Engineers the Engineering Service Civil in the first respondent Corporation consists of 1 450 Junior Engineers in the pay scale of Rs 425 700 of which 80 per cent is filled by direct recruitment with the minimum qualification of Diploma in Civil Engineering and 20 percent is filled by promotion from amongst Works Assistants already in the service of the Corporation with Diploma in Civil Engineering and minimum experience of two years 2 13 Selection Grade Junior Engineers in the pay scale of Rs 550 900 to be filled by promotion of Junior Engineers on completion of 12 years of service on the basis of seniority and 3 99 Assistant Engineers in the pay scale of Rs 650 1200 of which 50 per cent is to be filled by promotion and 50 per cent by direct recruitment
A Degree in Civil Engineering and two years of professional experience are essential for direct recruits while for promotees from the cadre of Junior Engineers a minimum experience of three years of service for Degree holders and five years of service for Diploma holders in the grade of Junior Engineers are essential
Higher posts of Executive Engineers and Superintending Engineers were primarily filled up by promotion of Assistant Engineers and Executive Engineers respectively
These higher posts require better qualifications and experience
For that purpose 50 per cent of posts of Assistant Engineers are reserved for direct recruitment for which a Degree in Civil Engineering and two years of professional experience are essential qualifications
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
Even for promotion a Departmental Promotion Committee with a member of the Union Public Service Commission 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
All this takes time and the work of the Corporation cannot remain unattended in the meanwhile
Therefore senior personnel from the immediate lower category of officers are drafted to the vacant posts on adhoc basis with pay and other emoluments due to the posts held under current duty charge but without any right to that post which has to be filled by either promotion or direct recruitment as per the rules
The recruitment to higher grades of Executive Engineers and Superintending Engineers being primarily by promotion from Assistant Engineers and Executive Engineers respectively the only avenue 382 to have engineers with better qualifications is by direct recruitment of Assistant Engineers to the extent of 50 per cent
If that avenue of direct recruitment is closed there will be no source from which better qualified Engineers with higher Degree qualifications will become available
The Corporation considered the question of suspending direct recruitment of Assistant Engineers on several occasions but it came to the conclusion that it is neither feasible nor desirable to do so in the interests of the Engineering Department
The Writ Petition has not disclosed any violation of any right much less a fundamental right of the petitioners
The petitioners have no right to force the first respondent Corporation a statutory body to exercise its discretion in particular manner which is against the rules
The Municipal Corporation Delhi is a statutory authority which is no doubt controlled by the Central Government to the extent mentioned in section 487 of the Delhi Municipal Corporation Act 1957
The Recruitment Regulations for the posts of Assistant EngineersCivil were notified in the Official Gazette on 2761970 Annexure R1 
They provide for recruitment of Assistant Engineers to the extent of 50 per cent by promotion of Junior Engineers and to the extent of 50 per cent by direct recruitment
The CPWD had decided to suspend direct recruitment to the Central Engineering Service Class II for seven years from 1972
The first respondent has resolved by Resolution No 50 dated 2071964 to adopt the CPWD patten of work with regard to execution of works alone and not with regard to the mode of recruitment and other service matters
The Central Government rules are made applicable to the employees of respondent 1 only on their adoption and approval by the Corporation otherwise its employees are governed by the rules and regulations framed by the Corporation itself under section 98 of the Delhi Municipal Corporation Act 1957
The representations received from time to time for suspension of direct recruitment of Assistant Engineers were duly considered but it was found that there is no justification to comply with the request and a decision in that regard was taken by the Council of the Corporation on 1941978 Annexure R2 
Out of 401 Junior Engineers one is unqualified 343 are Diploma holders and only 57 are Graduates in Civil Engineering
The decision to fill up eight posts of Assistant Engineers by direct recruit was taken in view of the short fall in the direct recruitment quota compared to the promotion quota in accordance with Recruitment Regulations which provide for filling up 50 per 383 cent by promotion and 50 per cent by direct recruitment of Assistant Engineers though sufficient number of Junior Engineers amongst Diploma holders had become eligible for the posts of Assistant Engineers
The practice of suspending direct recruitment followed by other departments of the Central Government cannot therefore be followed by respondent 1
Section 47 of the Delhi Municipal Corporation Act provides for directions being given by the Central Government
But the Central Government s letter dated 2321976 to the effect that consequent on the recommendations of the Third Pay Commission respondent 1 may ban direct recruitment as has been done by the CPWD was not written in accordance 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 91155 RPS dated 22121959
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 22121959 and there is no infringement of any fundamental right of the petitioners
Respondents 3 to 10 and 12 to 15 have filed counter affidavit contending that prayers Nos 1 2 and 4 in WP 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 211974 as mentioned in the Office order dated 461975 of the Assistant Commissioner Establishment of the first respondent Annexure RA 1 
Respondents 8 to 18 of whom respondent 11 had died a few years ago also were appointed as Assistant Engineers with effect from 211974 in the direct recruitment quota
Respondents 19 to 46 also were appointed as Assistant Engineers on various 384 dates after 211974 in the direct recruitment quota
Therefore it is not open to the petitioners to question the seniority of respondents 3 to 46 fixed long ago in according with statutory rules
Respondents 3 to 10 and 12 to 17 are working as Executive Engineers on adhoc basis for over four years
The promotional policy of respondent 1 is in accordance with the statutory rules approved in 1970 in consultation with the Union Public Service Commission and are neither arbitrary nor without authority of law
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 Diploma holders
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 2761970
The CPWD has suspended direct recruitment of Assistant Engineers in Class II temporarily for seven years from 141972
Direct recruitment of Assistant Engineers is resorted to by respondent 1 for having highly qualified and talented Engineers and maintaining standards and efficiency
The petitioners cannot have any grievance against direct recruits of 1974 ranking higher in seniority in accordance with Recruitment Regulations
The final seniority list of Assistant Engineers circulated on 3011975 Annexure RA III  was finalised after considering the objections and is in accordance with the Home Affairs Ministry s Office Memorandum dated 22121959 which lays down that the relative seniority of direct recruits and promotees shall be determined according to the rotation of vacancies between direct recruits and promoters which shall be based on the quota reserved in the Recruitment Regulations
It cannot be challenged after a long period of five years
The petitioners are therefore not entitled to any relief
The petitioners in WP No 1194 of 1979 are Graduate Junior Engineers
Their case is that the first respondent has been denying for the last six or seven years to them and other Graduate Junior Engineers their rightful quota of appointment as Assistant Engineers in accordance with the Rules while following the pattern of the CPWD even though a statutory duty is cast on the first respondent to fill up the posts of Assistant Engineers on 50  50 basis
385 Consequently 26 posts of Assistant Engineers in the direct recruitment quota are kept unfilled as is evident from the final seniority list of Assistant Engineers dated 291978 Annexure G  though there are 50 Graduate Junior Engineers who are eligible to compete for those posts
Though 26 posts of Assistant Engineers were available for being filled up as an 20121978 only 8 posts were advertised Annexure A  and the names of petitioners 1 to 21 appeared in the duly prepared selection list
The first respondent has not filled up even those 8 posts with the candidates in that selection list but has filled up 6 posts by putting up Junior Engineers with Diploma as respondents 5 to 41 on current duty charge under the order dated 1041978 forming Annexure I  in violation of Rules and the petitioners right guaranteed under Article 16 of the Constitution of India
In all 37 posts of Assistant Engineers including some in the quota of direct recruits have been filled up by Junior Engineers holding only Diplomas on current duty charge with the object of favouring Diploma holders who have got great political influence by the Office order dated 2161979 Annexure M 
The Assistant Commissioner Engineering has taken an absolutely new stand in his reply Annexure P  received on 691979 by saying that implementation of the approved panel was not feasible on account of ban imposed by the Commissioner on 1081979 on new recruitment
The Diploma holders posted as Assistant Engineers on the current duty charge have been further promoted as adhoc appointees by Office order dated 1081979 Annexure R 
The effect of this adhoc appointment is that the adhoc appointees draw pay in the higher scale of Assistant Engineers while in the current duty charge they were entitled to draw only their pay in the lower grade of Junior Engineers
The petitioners have therefore prayed for quashing the orders dated 1041978 and 2161979 Annexures I   M 
The chances of Graduate Junior Engineers becoming Assistant Engineers are very bleak
Justice can be done of both Diploma holders and Graduates amongst the Junior Engineers by providing a reasonable quota for both categories in the 50 per cent quota reserved for promotees in the matter of appointment of Assistant Engineers as is done in the Delhi Electric Supply Undertaking so that Graduates and Diploma holders amongst the Junior Engineers may get equal chances of promotion
The petitioners who are Graduate Junior Engineers form a category with distinguishing features separate from Junior Engineers 386 who are Diploma holders
The Supreme Court has held that separate category within the same category on the basis of educational qualifications is clearly permissible and not violative of Article 14 of the Constitution of India
But the first respondent is treating the two categories as equal
The Graduate Engineers suggested to the Deputy Commissioners Engineering that a separate cadre of Graduate Junior Engineers in the pay scale of Rs 550 900 may be created and designated as Design Assistants
The Assistant Commissioner Engineering has replied by his letter dated 2731979 Annexure K  that the Municipal Chief Accountant has not accepted the suggestion
Under the Central Civil Service Rules 1979 and on the basis of the Third Pay Commission s Report the petitioners who are Graduate Junior Engineers are entitled to the pay scale of Rs 550 900 which is the revised pay scale of Junior Engineers in Class III service in other government departments
The petitioners are similarly circumstanced with those other Graduate Junior Engineers and there is no just or valid reason to discriminate the petitioners qua the other Graduate Junior Engineers in Class III service in other Government departments
The first respondent Corporation has not revised the special pay planning allowance from the date from which the petitioners as Graduate Junior Engineers are legally entitled thereto
The planning allowance has been revised in the CPWD from Rs 40 to 75 per mensem with effect from 111979 by the order dated 111979 Annexure ZA 
The Corporation has by Resolution No 184 dated 2161971 sanctioned special pay to Section Officers now known as Junior Engineers working in the Planning Circle at Rs 40 per mensem in the case of Graduates and Rs 25 per mensem in the case of Diploma holders with effect from 141971 on the pattern of the CPWD
The Planning allowance has been increased from Rs 40 to Rs75 per mensem in the CPWD with effect from 111979 by letter No 28017 17 78 EW 1 dated 111979 Annexure ZA  of the Ministry of Works and Housing Government of India
Though the Commissioner has recommended revision from Rs 40 to Rs 75 in his letter the revision has not been effected on the ground that the approval of the Municipal Council is not forthcoming
The Delhi Administration s Notification dated 1991972 circulated by respondent 1 on 3091972 Annexure ZC  shows that the General Financial Rules including amendments and orders issued by the Central Government are applicable to respondent 1 in every manner be it pay or general allowance
Therefore the stand of the first respondent 387 that revision of the planning allowance will be effective only from the date of approval by the Municipal Council is baseless mala fide and illegal
The petitioners have prayed for the aforesaid reliefs in these circumstances
The first respondent has filed a counter affidavit contending that the qualification prescribed in the Recruitment Regulations notified on 2761970 is Diploma in Civil Engineering or any higher qualification and since all the Junior Engineers either with Degree or with Diploma are performing the same duties no separate category can be allowed to Graduate Junior Engineers
Those Recruitment Regulations provide for 50 per cent of posts of Assistant Engineers being filled by promotion amongst Junior Engineers and 50 per cent by direct recruitments
For direct recruitment a Degree in Civil Engineering and two years of professional experience are the minimum qualifications required while for promotees five years of professional experience as Junior Engineers in the case of Diploma holders and three years of professional experience in the case of Graduate Junior Engineers are the minimum qualifications required
The suggestion of the petitioner to treat the Graduate Junior Engineers as a separate category is not acceptable to the first respondent
The select list for direct recruitment to the posts of Assistant Engineers out of Graduate Junior Engineers was approved by the competent authority on 251979 and the matter of appointment being still under consideration only two appointments on current duty basis were made out of the senior most Junior Engineers by the order dated 2161979 Annexure M 
After the notification of the Recruitment Regulations in 1970 36 Graduate Engineers in the direct recruitment quota and 10 promotees from amongst Graduates were appointed as Assistant Engineers
The criteria for promotion of Junior Engineers as Assistant Engineers is selection cum seniority
The rules for promotion applicable to the first respondent Corporation are quite different from those of the CPWD and it is not incumbent on the first respondent to follow the CPWD rules
The eligibility of the petitioners and their selection to the posts of Assistant Engineers are not denied by the first respondent
The petitioners  names appear in the select list which has been approved by the Competent Authority on 251979 and is pending final decision about the appointment of the direct recruits selected for the 8 posts advertised in December 1978
The current duty charge arrangement 388 mentioned in Annexure M  had to be made as a stop gap arrangement to meet the immediate requirements of the Department and not to favour any Diploma holders and it does not amount to any violation of Article 16 of the Constitution of India
It is not admitted that 26 vacancies of Assistant Engineers still exist for being filled by direct recruitment
The appointment under the promotion quota is no doubt in excess of the prescribed percentage as some of the promotees had been adjusted against short term vacancies
The demand of the Graduate Junior Engineers  Union for the creation of a separate cadre in the pay scale of Rs 550 900 for Graduate Engineers was objected to by the Finance Department of the first respondent Corporation and found to be not feasible in view of the financial implications involved
The matter of revising planning allowance of Rs 40 and Rs 25 paid to Graduate Junior Engineers and Junior Engineers holding Diploma is under consideration
The 27th respondent has filed a counter affidavit in the Petition for Stay filed in WP 1194 of 1979
Though he has sought leave in that counter affidavit to file a detailed counter affidavit in the main Writ Petition no such counter affidavit has been filed
In the course of arguments before us reference was made by the learned counsel for the parties to what is stated in the above counter affidavit
Therefore we would like to mention briefly the contentions put forward by the 27th respondent in that counter affidavit
The seniority list published on 11101979 shows that the quota of the promotee Assistant Engineers is deficient in that 21 posts out of the quota for promotees are still unfilled whereas the entire quota for direct recruits has been filled up already
That seniority list has been issued with the approval of the Commissioner vide office Order No 290ECIENGGESTT1574 dated 11101979 and shows that no post is available for being filled up by direct recruitment
The Selection Board was not constituted as per the proper procedure
A minimum of two Deputy Commissioners are required to be on the Selection Board whereas in the case of the selection of Graduate Junior Engineers for appointment as Assistant Engineers 389 there was not even a single 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 had 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 180C of the proceedings of the Selection Board Annexure RIII to this counter affidavit 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 Chairman
But the final minutes are signed by 5 members including the Deputy Commissioner E
The Corporation was formed on 741958
Since then a total of 95 Assistant Engineers have been appointed by direct recruitment whereas amongst the Junior Engineers and lower categories only 78 have been appointed as Assistant Engineers
Thirty six respondents who are holding Current Charge as Assistant Engineers since various dates falling between 1041978 and 2161979 had joined service as Junior Engineers about 18 to 20 years ago ie between 14101959 and 2481961
and they have become eligible for promotion as Assistant Engineers on a regular basis according to the rules of the Corporation 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 Junior Engineers
According to the procedure and rules of the Corporation Current Duty Charge holders are to be given adhoc appointments as soon as possible and as per the preamble to the Commissioner s letter No 34 CC dated 1191979 adhoc status is required to be conferred with effect from the date of commencement of Current Duty Charge
The panel prepared by the Selection Board which has yet not been issued is supposed to contain 37 names
Though under the 390 Rules for the 8 posts of Assistant Engineers advertised to be filled
by direct recruitment only 8 plus 20 thereof have to be selected it is interesting to note that the number of Junior Engineers holding Current Duty Charge is also 37
We have re arranged the order of the prayers in the Writ Petitions filed for the issue of Writs of Mandamus or other appropriate Writs and would mention them here once again for the sake of convenient reference
They are Writ Petition No 221 of 1979 1 to restrain respondent 1 from recruiting Assistant Engineers directly and filling up the posts of Assistant Engineers 2 to direct respondent 1 to give effect to the recommendations of the Third Pay Commission regarding the rules and policy of promotion etc 3 to quash the seniority list Annexure G prepared by respondent 1 4 to direct respondent 1 to reckon the seniority of the petitioners with the length of their service and 5 to direct respondent 1 not to affect in any manner all Junior Engineers holding current duty charge and adhoc appointments as Assistant Engineers
Writ Petition No 1194 of 1979 1 to direct respondent 1 to fill up the 8 posts of Assistant Engineers by direct recruitment from amongst the Graduate Junior Engineers in the select panel 2 to quash the Office Order dated 1041978 Annexure 1 entrusting Junior Engineers with current duty charge of the posts of Assistant Engineers and the Office Order dated 2161979 Annexure M promoting Junior Engineers as Assistant Engineers on current duty charge 391 3 to direct respondent 1 to fill up the remaining posts of Assistant Engineers in the direct recruitment quota from amongst the empanelled petitioners who are Graduate Junior Engineers 4 to declare the petitioners Graduate Junior Engineers as a separate category amongst Junior Engineers and give them equal quota like the Diploma holders Junior Engineers out of the departmental quota in the posts of Assistant Engineers 5 to restrain respondent 1 from giving adhoc promotions to current duty charge holders amongst Junior Engineers 6 to declare that the petitioners Graduate Junior Engineers in the service of respondent 1 are entitled to be put on par with their counterparts in other Government departments 7 to direct respondent 1 to grant revised pay scale of Rs 550 900 to the petitioners and other Graduate Junior Engineers as in the case of Graduate Junior Engineers in Class III service in other Government departments with effect from the date on which it is made applicable in the CPWD and 8 to direct respondent 1 to revise the special pay from Rs 40 to Rs 75 per mensem to the petitioners and other Graduate Junior Engineers entitled thereto from 111979
We shall consider prayers 1 and 2 in Writ Petition No 221 of 1979 and prayer I in Writ Petition No 1194 of 1979 all of which relate to direct recruitment to 8 posts of Assistant Engineers
According to the counter affidavit filed on behalf of respondent 1 apart from Executive Engineers Superintending Engineers and Municipal Engineer who is at the top the Engineering Service Civil of respondent 1 consists of 1 450 Junior Engineers in the pay scale of Rs 425 700 of which 80 is filled by direct recruitment with the 392 minimum qualification of Diploma in Civil Engineering and 20 is filled by promotion from amongst Works Assistants already in the service of respondent 1 with Diploma in Civil Engineering and minimum experience of 2 years 2 13 Selection Grade Junior Engineers in the pay scale of Rs 550 900 to be filled by promotion of Junior Engineers on completion of 12 years of service on the basis of seniority and 3 99 Assistant Engineers in the pay scale of Rs 650 1200 of which 50 is to be filled by promotion of Junior Engineers and 50 is to be filled by direct recruitment
A Degree in Civil Engineering and 2 years of professional experience are essential for direct recruitment as Assistant Engineers while for promotion as Assistant Engineers from the cadre of Junior Engineers a minimum of 3 years of service for Degree holders and 5 years of service for Diploma holders in the Grade of Junior Engineers are essential
All other higher posts of Executive Engineers Superintending Engineers and Municipal Engineers are primarily filled by promotion of Assistant Engineers Executive Engineers and Superintending Engineers respectively
All the appointments in the respondent 1 Corporation carrying a minimum salary of less than Rs 700 per mensem could be made by the Commissioner of the Corporation since 1011975 in accordance with the recruitment rules which are framed in consultation with the Union Public Service Commission though prior to that date consultation with the Union Public Service Commission was essential in the matter of appointment to posts carrying a minimum salary of Rs 350 per mensem and above
Direct recruitment is to be made on the recommendation of the Selection Board to be constituted for the purpose from time to time
Similarly promotions are to be made on the recommendation of the Departmental Promotion Committee to be constituted for the purpose from time to time
The quota of 50 for 393 promotees amongst Junior Engineers and 50 for direct recruitment from amongst outsiders as well as Graduate Junior Engineers for appointment to posts of Assistant Engineers which are selection posts was fixed by the Recruitment Regulation dated 2761970 made by the first respondent under section 98 of the Delhi Municipal Corporation Act 1957 vide resolution No 97 dated 4 51970 in connection with the recruitment for the posts of Assistant Engineers Civil and approved by the Lt Governor Delhi under section 480 2 of the said Act read with the Government of India Ministry of Home Affairs  Notification dated 19101966
The cause of the Graduate Junior Engineers is espoused by the Graduate Junior Engineers Union while the cause of the Diploma holders Junior Engineers is espoused by the Municipal Corporation of Delhi Assistant Engineers ORG Regd
There is no dispute about these facts except in regard to the quota of 50 for promotee Junior Engineers and 50 for directly recruited Graduate Engineers including Graduate Junior Engineers
According to the petitioners in Writ Petition 221 of 1979 who are Diploma holders Junior Engineers respondent 1 has been following the pattern of functioning current in the CPWD in all matters of recruitment promotion and other conditions of service
The CPWD has decided to suspend direct recruitment in the Central Engineering Service because no promotional chances were available to the Central Engineering ServiceElectrical Engineering Service Class II
The said decision taken in August 1975 became effective from 141972
The first respondent has taken a decision by Resolution Nos 416 and 78 dated 27101970 and 2121971 respectively to the effect that all fundamental rules and supplementary rules including amendments and orders issued by the Central Government shall be treated as rules etc
by respondent 1
The Central Services Conduct Rules and General Fundamental Rules including amendments and orders issued by the Central Government have been made applicable to respondent 1
As soon as the petitioners learnt that there is suspension of direct recruitment in the CPWD they invited the attention of respondent 1 to that fact in November 1975 and requested 394 for banning direct recruitment of Assistant Engineers and were given an assurance that their rights will not be over looked
The petitioners made several representations including the last one dated 2411979
The then Commissioner of respondent 1 gave an oral assurance to the petitioners that the practice adopted by the CPWD will be followed by respondent 1 and later wrote to the petitioners saying that the matter was under consideration
The petitioners met the Deputy Commissioner of respondent 1 on 2311979 and protested against the notification made in the press on 30121978 for filling up 8 posts of Assistant Engineers by direct recruitment and they expected that the notification would be with drawn as the Deputy Commissioner accepted their suggestion
But respondent 1 is however bent upon going ahead with the direct recruitment though more than 275 Junior Engineers out of 400 Junior Engineers aspiring for promotion as Assistant Engineers are eligible for consideration
The Central Government has power of general superintendence over the first respondent and it has informed the first respondent by letter dated 2231976 that consequent on the recommendations of the Third Pay Commission direct recruitment may be banned by respondent 1 as has been done by the CPWD
The Director in the Office of the Director General of Works Government of India has informed the first respondent s Assistant Commissioner Establishment by letter dated 1621978 that direct recruitment to the Central Engineering Service and Central Electrical Engineering Service Group B was still under suspension
Though no specific reference has been made in the Third Pay Commission s Report to Junior Engineers of the first respondent its recommendations have been followed by the first respondent and its employees are treated in the same manner as the employees of the Central Government
The pay scales and service conditions of the employees of the first respondent and the Central Government are the same
The proposed direct recruitment to 8 posts of Assistant Engineers is detrimental to the interest of the petitioners
The first respondent should therefore be asked to follow the same policy as the one adopted by the CPWD and be restrained from appointing 8 Assistant Engineers by direct recruitment
This is how the petitioners in Writ Petition 221 of 1979 seek the relief covered by the first prayer
This is also the stand as defence in regard to the first prayer in Writ Petition 1194 of 1979 which is for a direction being given to respondent 1 to fill up the 8 posts of Assistant Engineers by direct recruitment from amongst those in the select list
395 The 27th respondent has contended in his counter affidavit that since the formation of the first respondent Corporation on 741958 as many as 95 Assistant Engineers have been appointed by direct recruitment whereas amongst Junior Engineers only 78 have been appointed as Assistant Engineers by way of promotion
There were only 60 posts of Civil Engineers when the Recruitment Regulations dated 2761970 were made and those Regulations could apply only to 60 posts of Assistant Engineers and direct recruits would be entitled to only 30 posts and they are not entitled to further posts by direct recruitment now as they have already been given 36 posts
The 27th respondent has attacked the selection of the panel of 37 persons by the Selection Board constituted pursuant to the decision to fill up 8 posts of Assistant Engineers by direct recruitment on the ground that the Selection Board had not been properly constituted and there are certain other irregularities
This is how the 27th respondent is challenging the decision to appoint 8 Assistant Engineers by direct recruitment and the validity of the select panel prepared by the Selection Board
The first respondent s contention is that the Delhi Municipal Corporation is a statutory authority which is no doubt controlled by the Central Government but only to the extent mentioned in S 487 of the Delhi Municipal Corporation Act 1957
The Corporation has resolved by Resolution No 50 dated 2071964 to adopt the CPWD pattern with regard to the execution of works alone and not with regard to the mode of recruitment and other service matters
The Central Government Rules are made applicable to the employees of respondent 1 only on their adoption and approval by the Corporation and otherwise its employees are governed by the Rules and Regulations framed by the Corporation itself under section 98 of the said Act
The representations made from time to time for suspension of direct recruitment of Assistant Engineers were duly considered but it was found that there was no justification to comply with that request and a decision to that effect was taken by the Council of the Corporation on 1941978 in the interest of the Corporation
Section 47 of the Delhi Municipal Corporation Act provides for directions being given to the Corporation by the Central Government but the Central Government s letter dated 2321976 to the effect that consequent on the Third Pay Commission s recommendations respondent 1 may ban direct recruitment as has been done by the CPWD is not a direction given under that section and is therefore not binding on respondent 1
The Recruitment 396 Regulations dated 2761970 framed under section 98 of the Delhi Municipal Corporation Act provide for 50 of the posts of Assistant Engineers being filled by direct recruitment and 50 by promotion of Junior Engineers
The decision to fill up 8 posts of Assistant Engineers by direct recruitment was taken in view of the shortfall in the direct recruitment quota compared to the promotion quota
Respondents 3 to 10 and 12 to 15 in Writ Petition 221 of 1979 have contended in their counter affidavit that the prayers 12 and 4 in that Writ Petition are in the direct violation of the Recruitment Regulation dated 2761970
They have further contended that respondent 1 is not following the pattern of the current functioning of the CPWD in the matter of recruitment and other service conditions but is following its own Recruitment Regulations which have been approved by the Union Public Service Commission and duly notified on 2761970
The direct recruitment is resorted to by respondent 1 for having highly qualified and talented Engineers and maintaining standards and efficiency
The petitioners in Writ Petition 1194 of 1979 contend that a statutory duty is cast on respondent 1 to fill up the posts of Assistant Engineers on 5050 basis
Though there were 26 posts of Assistant Engineers to be filled on that basis by direct recruitment only 8 posts were notified on 30121978 to be filled by direct recruitment
The first respondent has however not filled up even those 8 posts but has filled up some posts of Assistant Engineers thereafter on adhoc basis with Junior Engineers even though the select list has been approved on 251979 pursuant to the interviews held on the 6th and 7th March 1979 in connection with the decision to fill up 8 posts of Assistant Engineers by direct recruitment
The first respondent has contended in its counter affidavit in Writ petition 1194 of 1979 that the select list for direct recruitment to the posts of Assistant Engineers out of Graduate Junior Engineers was approved by the competent authority on 251979 and the matter of appointment of 8 Assistant Engineers is under consideration
The petitioners  names are in the select list and their eligibility and selection to the posts of Assistant Engineers is not denied and their appointment as Assistant Engineers by direct recruitment is under consideration
We may state here that Mr U R Lalit Senior Advocate appearing for respondents 1 and 2 has stated before us on 2971981 397 that the total number of vacancies of Assistant Engineers would be ascertained within 2 12 months and thereafter in another 2 12 months orders of appointment of Assistant Engineers by direct recruitment will be issued by respondent 1
Mrs Shyamla Pappu Senior Advocate appearing for the petitioners in Writ petition 221 of 1979 drew our attention to certain documents and submitted that direct recruitment of Assistant Engineers should have been suspended by respondent 1 following the decision taken by the CPWD to suspend direct recruitment of Assistant Engineers for 7 years from 141972
She also submitted that the 5050 quota rule in the Recruitment Regulations approved on 2761970 should not be followed
If her submission is that the quota rule should not be followed altogether it is not consistent with the stand taken by the 27th respondent in his counter affidavit and also by Mr SC Gupta learned counsel appearing for respondents 13 25 and 27 in Writ petition 1194 of 1979
The contention of the 27th respondent referred to above is that the quota rule can apply only to 60 posts of Assistant Engineers which were in existence on the date on which the Recruitment Regulations were approved viz 2761970 and since there were 36 directly recruited Assistant Engineers when Writ petition 1194 of 1979 was filed which was more than 50 of the 60 posts there are no more posts of Assistant Engineers to be filled by direct recruitment
There can be no difficulty in holding that this contention of the 27th respondent is totally unacceptable
It is true that when the Recruitment Regulations were approved on 2761970 there were only 60 posts of Assistant Engineers Civil in respondent 1 Corporation
The number was 99 when Writ petition 1194 of 1979 was filed and 115 when it was heard in this Court
The contention that the 5050 quota rule can apply only to 60 posts which were in existence when the Recruitment Regulations were approved and will not apply to posts which are in excess of that number is totally unreasonable and unsustainable and consequently rejected
We will now refer to the documents relied upon by Mrs Shyamla Pappu
The Under Secretary Government of India Ministry of Works and Housing drew the attention of the Commissioner of respondent 1 by his letter dated 2321976 to the CPWD banning recruitment of Class II Engineers for 7 years from 1972 consequent on the recommendations of the Third pay Commission in order to avoid stagnation in respect of promotion of Junior Engineers and stated that it will be appreciated if the Commissioner could 398 consider the possibility of following that policy in the Corporation which will go a long way in reducing the stagnation in respect of promotion of Junior Engineers in the Corporation
Admittedly there is no direct reference to Junior Engineers of respondent 1 Corporation in the Third pay Commission s Report
The decision of the CPWD to suspend direct recruitment to CEC Class II for 7 years wef 141972 is found at pages 20 and 21 of the CPWD Manual Volume I 1975 Edition
The Delhi Municipal Corporation is a statutory authority governed by the Delhi Municipal Corporation Act 1957
The Central Government can give directions to the Corporation only under Section 487 of that Act
According to that section the Central Government may direct the Corporation or the Municipal Authority concerned to make arrangements to its satisfaction for the proper performance of the duty or as the case may be to make financial provision to its satisfaction for the performance of the duty if whether on receipt of any information or report obtained under Section 485 or Section 486 or otherwise the Central Government is of the opinion a that any duty imposed on the Corporation or any Municipal Authority by or under that Act has not been performed or has been performed in an imperfect insufficient or unsuitable manner or b that adequate financial provision has not been made for the performance of any such duty
Sub section 2 of Section 487 relates to directions to Municipal Authorities in relation to the Delhi Electric Supply Undertaking or the Delhi Water Supply and Sewage Disposal Undertaking with which we are not concerned in these two Writ Petitions
As rightly contended by Mr VM Tarkunde Senior Advocate appearing for the petitioners in Writ Petition 1194 of 1979 the letter dated 2321976 referred to above does not contain any direction which could be issued by the Central Government under Section 487 of the Act and is not binding on respondent 1
The President of the Delhi Municipal Corporation Assistant Engineers ORG Regd has stated in his letter dated 1341978 addressed to the Commissioner of respondent 1 that respondent 1 has agreed to adopt the practice of the CPWD for filling up posts of Assistant Engineers
No record has been produced to show what 399 exactly are the terms of that agreement
It is not possible for us to infer from this letter that the Commissioner has agreed to suspend direct recruitment of Assistant Engineers
The Secretary of the Delhi Municipal Corporation Assistant Engineers ORG Regd has by his letter dated 2411979 requested the Deputy Commissioner of respondent 1 to cancel the Notification published on 30121978 for direct recruitment of Assistant Engineers
The Commissioner of respondent 1 has stated in his letter No 5504 CC dated 2081979 that the Corporation generally follows the pattern prevailing in the CPWD
The Standing Committee of the Corporation had resolved to recommend to the Corporation that in view of the widespread stagnation amongst Junior Engineers Civil direct recruitment to posts of Assistant Engineers Civil may be bannedsuspended for a period of 7 years under the civil body also in conformity with the recommendations of the Third Pay Commission as adopted by the civil body and that as recruitment to the posts of Assistant Engineers Civil has already been made by the Corporation in violation of the aforesaid ban of the Government of India during the period 141972 to 31121978 the proposed suspension of recruitment to the said posts may be operative for 7 years from the 1st January 1979
But in his note dated 1941978 against stopping direct recruitment of Assistant Engineers the Commissioner has stated that it would not be in the larger interests of the Corporation to stop direct recruitment and not to induct fresh Engineers with higher qualifications
In that note the Commissioner had directed the formation of panels for the promotional and direct recruitment quotas and the issue of notification in the press for direct recruitment of Assistant Engineers
Regarding the proceedings of the Appointment Promotion Disciplinary and Allied Matters Committee dated 541978 in respect of a Municipal Councillor s notice of resolution about amendment of the existing recruitment and promotional rules for the posts of Assistant Engineers the Commissioner of respondent 1 has stated thus in his note In the Municipal Corporation of Delhi it is only at the level of Assistant Engineers that direct recruitment of Degree holders in provided which too is limited to 50 posts only
Since sufficient number of highly qualified Engineers are not presently available with the Corporation and whereas all the higher posts right upto the posts of Municipal Engineer have to be filled up from the cadre of Assistant Engineers the cadre must 400 have sufficient number of officers of high calibre
It is therefore not considered in the interests of the Corporation to stop direct recruitment to the posts of the Assistant Engineers
Moreover the amended Recruitment Regulations for the posts of Assistant Engineers CivilElect have since been approved by the Corporation recently vide their Resolution No 348 dated 1071978 wherein there is no change in the existing mode of recruitment ie 50 by direct recruitment
Obviously there is no justification to stop direct recruitment against the allocation of 50 posts earmarked for direct recruitment as per approved Recruitment Regulations framed in consultation with the UPSC
It would appear from what has been stated above that the Municipal Corporation of Delhi which is a statutory authority is not automatically bound by any decision that may be taken by the CPWD in regard to direct recruitment of Assistant Engineers and that it is open to the Corporation to adopt any policy of the CPWD by a resolution when alone that policy will become binding on the Corporation
No provision in the Third Pay Commission s Report has been brought to our notice
Mrs Shyamla Pappu has on the other hand admitted that there is no resolution of the Delhi Municipal Corporation banning or suspending direct recruitment of Assistant Engineers for 7 years or any period from any date whatsoever
The 5050 quota fixed in the Recruitment Regulations approved on 2761970 has not been altered but has been approved by the Corporation in its Resolution No 348 dated 1071978
Therefore there is no substance in the contention of the petitioners in Writ Petition 221 of 1979 or the contesting private respondents in Writ Petition 1194 of 1979 that respondent 1 should have suspended the direct recruitment of Assistant Engineers and that the quota rule laid down in the Recruitment Regulations should not be followed
Coming now to the contention urged by Mr SC Gupta learned counsel appearing for respondents 13 25 and 27 in Writ Petition 1194 of 1979 regarding the quota fixed in the Recruitment Regulations we have already held that it cannot be restricted to only 60 posts of Assistant Engineers which were in existence on the date of their approval
The Recruitment Regulations themselves do not say that they are retrospective in operation from 1958
Prime facie those Regulations would apply to all future recruitments and 401 promotions
That is how they have been understood by the authorities of respondent 1 Corporation when they decided to have 8 posts of Assistant Engineers filled up by direct recruitment though at that time there were 36 directly recruited Assistant Engineers holding more than 50 of 60 such posts
Mr SC Gupta invited out attention to the counter affidavit of the 27th respondent where it is stated that the seniority list dated 11101979 purporting to have been issued with the approval of the Commissioner of respondent 1 subject to the final decision of the Delhi High Court in Writ Petitions 327 of 1971 and 1631 of 1976 shows a large deficiency in the quota of promotees in the category of Assistant Engineers
But he admitted that seniority list was withdrawn soon afterwards and that a subsequent seniority list prepared by respondent 1 was quashed by the Delhi High Court in Writ Petition 742 of 1971 on 1121981 and the matter is pending in this Court in a special leave petition
The seniority list dated 291978 Annexure G in Writ Petition 1194 of 1979 which was prepared after hearing all concerned does not appear to have been objected to before or after it was finalised except in Writ Petition 221 of 1979
In that seniority list 130 posts of Assistant Engineers are mentioned by placing one promotee and one direct recruit alternatively according to their seniority
Thus we find that there is no merit in the contention of respondents 13 25 and 27 in Writ Petition 1194 of 1979 as regards the decision to fill up 8 posts of Assistant Engineers by direct recruitment and the quota fixed in the Recruitment Regulations 1970
Mr SC Gupta did not advance any argument in regard to the plea of the 27th respondent about the constitution of the Selection Board and the alleged irregularity in the preparation of the select list for appointment of Assistant Engineers by direct recruitment
Our attention has not been drawn to any rule or provision requiring two Deputy Commissioners of respondent 1 to be present on the Selection Board
The 27th respondent has not produced any record to show that the name of the Deputy Commissioner Establishment has been interpolated in the records of the Selection Board at a later stage or that Mohinder Singh who is stated to have been marked as absent for the interview was really absent and the award of 34 marks to him including 4 marks at the interview is irregular
The 27th respondent has not substantiated any of the disputed questions of fact urged by him in his counter affidavit in regard to the selection 402 of the persons who are now in the select panel of Assistant Engineers
Mr VM Tarkunde submitted that in spite of the Commissioner having approved the selection made on 6th and 7th March 1979 by the Selection Board constituted for direct recruitment of Assistant Engineers the petitioners in Writ petition 1194 of 1979 who have been selected for appointment as Assistant Engineers have not been appointed and that on the other hand on 2161979 under orders of the Deputy Commissioner dated 1961979 two Junior Engineers have been posted as Assistant Engineers Civil on Current Charge basis with immediate effect and that by the order dated 561979 pursuant to the Commissioner s order dated 261979 Sukhbir Singh one of the petitioners against whom some departmental proceedings appear to have been pending had been promoted as Assistant Engineer Civil wef 211975 and ordered to continue in the post in which he was working on adhoc basis though the final seniority list dated 291979 Annexure G shows that 26 posts of Assistant Engineers to be filled by direct recruitment are kept vacant right from 1971
The learned counsel also pointed out that in the meeting of the Commissioner and other officers of respondent 1 on the one hand and the General Secretary of the Graduate Junior Engineers Union on the other held on 1231979 it was decided that the appointmentpromotion to posts of Assistant Engineers Civil should be made strictly and truly as per the Recruitment Regulations and no Diploma holder should be promoted till the direct recruitment quota is filled up and that the Deputy Commissioner stated in that meeting that appointmentspromotions to the posts of Assistant Engineers Civil were being made only according to the Recruitment Rules
It was pointed out rightly by Mr VM Tarkunde that the following particulars given in paragraph 14 of Writ petition 1194 of 1979 showing that 33 appointments of Junior Engineers as Assistant Engineers have been made between 1972 and 1978 irregularly is admitted in the counter affidavit filed on behalf of respondents 1 and 2
Appointments made after the Recruitment Regulations 1970 fixed 50 for promotees and 50 for direct recruits Promotees Direct Recruits 1972 Regular 47 1974 Regular 18 1975 Regular 13 1976 Regular 3 1979 Regular 1 1977 78 Regular 13 Adhoc 3 1978 Regular 2 Current Duty Charge 39 Total 103 36 403 In the counter affidavit of respondents 1 and 2 it is stated that appointment of Assistant Engineers in the promotion quota is of course in excess of the prescribed limit and that the question of direct recruitment to posts of Assistant Engineers Civil is under consideration and the eligibility of the petitioners in Writ petition 1194 of 1979 and their selection to the posts of Assistant Engineers by direct recruitment are not denied by respondents 1 and 2
This Court has observed in AK Subbaraman  ors vs Union of India1 thus When recruitment is from two or several sources it should be observed that there is no inherent invalidity in introduction of quota system and to work it out by the rule of rotation
The existence of a quota and rotational rule by itself will not violate article 14 or article 16 of the Constitution For all the reasons stated above we find that there is nothing wrong in the respondent 1 Corporation proceeding to appoint Assistant Engineers Civil by direct recruitment as per the Recruitment Regulations or in fixing the 5050 quota and working it out or in the selection of the petitioners in Writ petition 1194 of 1979 as Assistant Engineers 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 1979 and that respondent 1 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 2971981 within five months from that date
Prayer No 3 in Writ petition 1194 of 1979 is to direct respondent 1 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 petition 221 of 1979 and prayer 1 in Writ petition 1194 of 1979
Respondent 1 is admittedly bound by the Recruitment Regulations made with the approval of the Central Government as required by section 4802 of the Act 404 and it shall fill the remaining posts of Assistant Engineers in the direct recruitment quota which are kept vacant in the seniority list dated 291978 Annexure G in Writ petition 1194 of 1979 and any further posts which 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 today 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 251979
Next we will consider prayers Nos 2 and 5 in Writ petition 221 of 1979 and Prayer No2 in Writ petition 1194 of 1179 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 1 and 2
The 27th respondent has admitted in his counter affidavit that there are 37 Junior 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 the quota of direct recruits have been filled up by Junior Engineers holding only Diplomas on Current Duty Charge including 2 appointed by the office order dated 2161979 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 251979 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 1041971 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 appointments 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 lower grade of Junior Engineers
The petitioners have therefore prayed for quashing those two office orders dated 1041978 and 2161979
The defence of respondent 1 in the counter affidavit is that the Current Duty Charge arrangement made in the office order 405 dated 2161979 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
The 27th respondent has contended 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 Commissioner s letter No 346CC dated 1191979 Adhoc status is required to be conferred with effect from the date of commencement of the Current Duty Charge
The petitioners in Writ Petition 221 of 1979 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 the counter affidavit filed in Writ Petition 221 of 1979 respondent I has contended 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 officers are drafted to fill up the vacant posts of Assistant Engineers on adhoc basis without any right to those posts which have to be filled by either promotion or direct 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 RP Sharma Advocate appearing for respondents 9 to 13 and 28 in that petition and Mr SC 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 VM 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 406 list dated 291978 Annexure G in Writ Petition 1194 of 1979 shows that adhoc appointments are being made from 2261962 though according to the Office Memorandum No 22011675 Estt
D dated 30121976 of the Government of India Cabinet Secretariat Department of Personnel and Administrative Reforms in exceptional circumstances and under exigencies of public service it may be necessary to make adhoc appointments without following the prescribed procedure and such appointments should be subject to the following instructions viz a Purely short term vacancies caused by leave short term deputation training etc
may be filled by adhoc appointments if 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 filled by regular method and not by adhoc appointments
However if the panel is exhausted and delay is anticipated in preparing a fresh panel and if the exigencies of public 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 14121973 of respondent 1 and it lays down the following norms for making Current Duty Charge appointments for higher posts viz 1 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 407 service character rolls and clearance reports from the DOVDOI 2 Current Charge arrangements should not be made if otherwise suitable person senior to the incumbent is available 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 adhocregular appointment to the post
Cases of adhocregular appointments are to be initiated simultaneously with making Current Charge arrangements
The Commissioner of respondent 1 has issued an Office Order dated 1081979 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 2921980 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 2921980 though as per the Circular dated 14121973 mentioned above cases for adhocregular appointments should be initiated simultaneously while making Current Charge arrangements
Mr VM Tarkunde pointed out that in all 55 Current Charge appointments have been made from 1561970 inclusive of 2 made on 1561970 22 made in 1978 15 made in 1979 6 made in 1980 and 10 made in 1981 and that they were all continuing even on 2271981
It is not disputed that Junior Engineers working on Current Duty Charge receive emoluments 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
It is evident that Junior 408 Engineers would be anxious to be put on Current Duty Charge as they are sure that if they are subsequently appointed on adhoc basis they would become entitled to emoluments on the higher pay scale right from the date on which they were put on Current Duty Charge
All that Mr UR Lalit did before us in connection with this question was to invite our attention to the aforesaid Circular dated 14121973 and to a Memorandum presented to respondent I by the Graduate Junior Engineers Union where the following decision taken by the Establishment Board on 1781974 is extracted viz In the meeting of the Establishment Board held on 1781974 it is explained and recommended by the ME Municipal Engineer that under the direct recruitment quota only qualified persons having Degree in Engineering are eligible
It was therefore decided that selection be made out of the departmental Junior Engineers having Degrees in Engineering after looking into their CRs and after assessing their merits by the Establishment Board
They will be appointed on Current Duty ChargeAdhoc basis in the first instance and will be replaced as soon as the persons selected by the UPSC are available Mr UR Lalit did not dispute the facts mentioned by Mr VM Tarkunde about the Current Duty Charge appointments having been made from 1974 to 1981 of which 2 were made by the impugned order dated 2161979 even after the select list of 37 persons prepared for appointment to 8 posts of Assistant Engineers by direct recruitment was approved by the competent authority on 251979 Mr UR Lalit did not dispute the factual statement made by Mr Tarkunde that only Junior Engineers holding Diplomas have been put on Current Duty Charge and appointed on adhoc basis as Assistant Engineers and that not even a single Degree holder Junior Engineer has been chosen for such appointment notwithstanding the above decision taken by the Establishment Board in the meeting held on 1781974 to choose only suitable Junior Engineers with Degree qualification for such appointments
Continuing Current Duty Charge and Adhoc appointments for such a long period exceeding the period of one year mentioned in the said Memorandum dated 30121976 of the Government of India is irregular though that Memorandum could not be stated to be automatically binding on respondent 1 409 What is totally wrong is that appointment of Junior Engineers on Current Duty Charge as Assistant Engineers has been made by the impugned order dated 2161979 even after the approval of the select list prepared for the appointment of 8 Assistant Engineers without issuing orders for appointment even to 8 out of those persons who are in the select list
In these circumstances we hold that the appointment of 6 Diploma holders Junior Engineers by the order dated 1041978 Annexure I and of 2 such Junior Engineers by the order dated 2161979 Annexure M as Junior Engineers on Current Duty Charge for periods which are proved to be too long is irregular and we quash the same
Respondent 1 shall issue orders of appointment to 8 Degree holders Junior Engineers out of those in the select list approved on 251979 within one month from this date and complete the appointment of Assistant Engineers for the remaining posts on regular basis in accordance with the quota fixed in the Recruitment Regulations within six months from this date until which time the Current Duty charge holders and Adhoc appointees according to seniority will continue to man the remaining posts
Respondent 1 shall not make Current Duty ChargeAdhoc appointments and promotions except strictly and truly in accordance with the instructions and Regulations referred to above and other instructions if any issued in that regard
The only other prayer about which Mr VM Tarkunde advanced argument is Prayer No 8 in Writ Petition 1194 of 1979 which is to revise the special pay or planning allowance of Rs 40 per mensem to Rs 75 per mensem from 111979 to Graduate Junior Engineers working in the planning circle
The planning allowance has been revised in the CPWD from Rs 40 to 75 per mensem in the case of Graduate Junior Engineers wef 111979 pursuant to the letter No 28017 17 EWI dated 111979 of the Ministry of Works and Housing Works Division addressed to the Director General of Works CPWD Annexure ZA
The Commissioner of respondent 1 has stated in his letter dated 2081979 Annexure ZB that the Corporation has resolved on 2161971 to sanction special pay to Junior Engineers working in the planning circle at Rs 40 per mensem in the case of Degree holders and Rs 25 per mensem in the case of Diploma holders wef
141971 and that he had recommended it may be increased from Rs 40 to Rs 75 per mensem as had been done by the CPWD wef 111979 observing that the Corporation 410 generally follows the pattern prevailing in the CPWD and the original planning allowance itself was sanctioned following that pattern
In Writ Petition 1194 of 1979 it is alleged that arbitrary and illegal treatment is meted out to Graduate Junior Engineers by respondent 1 as borne out by the fact that the planning allowance is not revised from the date from which the Graduate Junior Engineers are entitled to enhancement
In the counter affidavit respondent 1 has stated that the issue regarding revision of the planning allowance to Junior Engineers is still under consideration
Mr VM Tarkunde admitted before us that the revision has since been effected wef 1951980 whereas the claim of the petitioners in Writ Petition 1194 of 1979 is that it should be revised wef 111979
The petitioners in Writ Petition 1194 of 1979 cannot be allowed to blow hot and cold
In regard to the policy of suspension of direct recruitment of Assistant Engineers for 7 years wef
141972 their contention is that the policy of the CPWD cannot apply automatically to the Corporation until it is adopted by a resolution
Now in regard to the planning allowance they cannot be heard to say that the revision should be made automatically from 111979 following the CPWD pattern
Evidently the Corporation has resolved to grant the upward revision only from 1951980
The petitioners are not entitled to claim the revision from 111979 itself and they have to be satisfied with the revision effected from 1951980
We shall next consider prayers 3 and 4 in Writ Petition 221 of 1979 which are to quash the seniority list dated 291978 Annexure G in Writ Petition 1194 of 1979 and to direct respondent 1 to reckon the seniority of the petitioners with the length of their services
Mrs Shyamla Pappu stated that the names of the petitioners in Writ Petition 221 of 1979 are not found in that seniority list and that the question of their seniority may be left open
This request was opposed by Mr GL Sanghi who stated that the question itself does not arise for consideration in Writ Petition 221 of 1979
The contention of respondent 1 in its counter affidavit is that the names of Junior Engineers working as Assistant Engineers on Current Duty Charge and Adhoc basis are not mentioned in that seniority list as they are only Junior Engineers who have not been regularly appointed as Assistant Engineers
This contention is correct and has to be upheld
The petitioners in Writ Petition 221 of 1979 are only Junior Engineers whereas the seniority list dated 291978 relates to Assistant Engineers
It is not the case of the petitioners in writ Petition 221 of 1979 that their seniority as Junior Engineers has not been fixed 411 properly
They are only Junior Engineers and consequently they cannot question the correctness of the seniority list dated 291978 relating to Assistant Engineers
As they have not yet been regularly appointed or promoted as Assistant Engineers they cannot have any grievance about their names not being mentioned in that seniority list
Therefore there is no need to quash the seniority list dated 291978 or to give any direction to respondent 1 as prayed for by the petitioners in Writ Petition 221 of 1979 in regard to seniority
Now we are left only with prayers 4 6 and 7 in Writ Petition 1194 of 1979 about which rightly no argument was advanced by Mr VM Tarkunde
Prayer No 4 is to declare the petitioners Graduate Engineers as a separate category amongst Junior Engineers and give them equal quota like the Diploma holders Junior Engineers out of the 50 quota for promotion as Assistant Engineers
This cannot be done except by carrying out two classes in the same category of Junior Engineers on the basis merely of their qualification which is not permissible in law though the creation of selection grade in the same category on the basis of merit and or seniority is well known and permissible
The Junior Engineers do the same kind of work and bear the same responsibilities whatever their qualification whether they are Degree holders or Diploma holders
In this connection it will be useful to note what this Court has observed in SB Patwardhan vs Maharashtra
1 viz Though drawn from two different sources the direct recruits and promotees constitute in the instant case a single integrated cadre
They discharge identical functions bear similar responsibilities and acquire an equal amount of experience in the respective assignments
And yet clause iii of Rule 8 provides that probationers recruited during any year shall in a bunch be treated as seniors to the promotees confirmed in that year
This formula gives to the direct recruit even 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 ground for this differentiation bearing nexus with efficiency in 412 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 Engineers
Prayer No 6 is to declare that the petitioners Graduate Junior Engineers in the service of respondent 1 are entitled to be put on par with their counterparts in other Government departments and prayer No 7 is to direct respondent 1 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 III service 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 1
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
HSK WP No 221 partly allowed and WP No 1194 dismissed


Summary:
The first respondent Municipal Corporation of Delhi put up an advertisement 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 behalf a list of selected candidates out of Graduate Junior Engineers was prepared and approved on 251979
The list was pending final decision about the appointment of the direct recruits selected for these 8 posts
By its office order dated 1041978 the first respondent entrusted 6 diploma holders Junior Engineers with current duty charge of the posts of Assistant Engineers and by office order dated 2161979 promoted two diploma 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 article 32 of the Constitution praying for directions to be issued to the first respondent to restrain the first respondent from recruiting Assistant Engineers directly to give effect to the recommendations 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 and current duty charge
The petitioners also prayed for quashing the seniority list dated 291978 Annexure G in 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 2761970 should not be followed
The petitioners submitted that the first respondent Corporation had been following the pattern of functioning current in the Central Public Works Department CPWD in all matters of recruitment promotion and other conditions
The CPWD had decided in August 373 1975 to suspend direct recruitment in Central Engineering Service wef 141972
The first respondent had taken a decision by passing resolutions in 1970 and 1971 to the effect that all fundamental rules and supplementary rules including amendments and orders issued by the Central Government shall be treated as rules etc
issued by respondent I The Central Government had power of general superintendence over the first respondent and it had informed the first respondent by letter dated 2321976 that consequent upon recommendations of the Third Pay Commission direct recruitment may be banned by respondent I as had been done by the CPWD
The 27th respondent in writ petition 1194 of 1979 contended that since there were only 60 posts of Civil Engineers when the Recruitment Regulations dated 2761970 were made those Regulations could apply only to 60 posts of Assistant Engineers and direct recruits would be entitled to only 30 posts and they were not entitled to further posts by direct recruitment now as they had already been given 36 posts
The graduate Junior Engineers whose names were on the select list along with others filed writ petition No 1194 of 1979 under article 32 of the Constitution praying for directions to be issued to the first respondent to fill up 8 posts of Assistant Engineers from amongst those in the Select Panel to fill up the remaining posts of Assistant Engineers in the direct recruitment quota from amongst the empanelled petitioners to grant revised pay scale of Rs 550 900 to the petitioners and other Graduate Junior Engineers wef
the date it was made applicable in the CPWD to revise special pay from Rs 40 to Rs 75 per mensem wef 111979
The petitioners also prayed for quashing office orders dated 1041978 and 2161979 declaring the Graduate Junior Engineers as a separate category and giving them equal quota under the departmental promotee quota in the posts of Assistant Engineers and also declaring that the Graduate Junior Engineers in the service of respondent I are entitled to be put on par with their counterparts in other Government Departments
The petitioners urged that even though a statutory duty was cast on the first respondent to fill up the posts of Assistant Engineers on 5050 basis 26 posts of Assistant Engineers in the direct recruitment quota were kept unfilled and only 8 posts were advertised
The respondent I had not filled up even those 8 posts with candidates from the select list but had in violation of the rights of the petitioners guaranteed under article 16 of the Constitution promoted Junior Engineers with diploma on current duty charge
Under the Central Civil Service Rules 1973 and on the basis of the Third Pay Commission s report the petitioners who were graduate Junior Engineers were entitled to the pay scale of Rs 550 900
The petitioners submitted that since they were similarly circumstanced with those other graduate Engineers in class 3 service in other Government departments there was no just or valid reason to discriminate the petitioners qua the other graduate Junior Engineers in class 3 service in other Government departments
Dismissing writ petition 221 and partly allowing writ petition 1194  HELD There is nothing wrong in the respondent 1 Corporation proceeding to appoint Assistant Engineers Civil by direct recruitment as per the Recruitment Regulations or in fixing the 5050 quota and working it out or in the selection of the petitioners in Writ Petition 1194 of 1979 as Assistant 374 Engineers pursuant to the decision to appoint 8 Assistant Engineers Civil by direct recruitment
403 D H The Municipal Corporation of Delhi which is a statutory authority is not automatically bound by any decision that may be taken by the CPWD in regard to direct recruitment of Assistant Engineers and it is open to the Corporation to adopt any policy of the CPWD by a resolution when alone that policy will become binding on the Corporation
No provision in the Third Pay Commission s Report has been brought to the notice of the Court
On the other hand it is admitted that there is no resolution of the Delhi Municipal Corporation banning or suspending direct recruitment of Assistant Engineers for 7 years or any period from any date whatsoever
The Central Government s letter dated 2321976 does not contain any direction which could be issued by the Central Government under sec
487 of the Act and is not binding on respondent I
The 5050 quota fixed in the Recruitment Regulations approved on 2761970 has not been altered but has been approved by the Corporation in its Resolution No 348 dated 1071978
400 C F AK Subbaraman  Ors
vs Union of India 1975 2 SCR 979 referred to
Respondent I is admittedly bound by the Recruitment Regulations made with the approval of the Central Government as required by sec
4802 of the Delhi Municipal Corporation Act and it shall fill the remaining posts of Assistant Engineers in the direct recruitment quota which are kept vacant in the seniority list dated 291978 and any further posts which might have become available thereafter or become available in view of the decision in these two Writ Petitions or otherwise in accordance with those Recruitment Regulations
403 H 404 A B The quota fixed in the Recruitment Regulations cannot be restricted to only 60 posts of Assistant Engineers which were in existence on the date of their approval
The Recruitment Regulations themselves do not say that they are retrospective in operation from 1958
Prima facie those Regulations would apply to all future recruitments and promotions
That is how they have been understood by the authorities of respondent I Corporation when they decided to have 8 posts of Assistant Engineers filled up by direct recruitment though at that time there were 36 directly recruited Assistant Engineers holding more than 50 per cent of 60 such posts
400 H 401 A B The seniority list dated 291978 Annexure G in Writ Petition 1194 of 1979 which was prepared after hearing all concerned does not appear to have been objected to before or after it was finalised except in Writ Petition 221 of 1979
In that seniority list 130 posts of Assistant Engineers are mentioned by placing one promotee and one direct recruit alternatively according to their seniority
The petitioners in Writ Petition 221 of 1979 are only Junior Engineers whereas the seniority list relates to Assistant Engineers
It is not the case of the petitioners in Writ Petition 221 of 1979 that their seniority as Junior Engineers has not been fixed properly
They are only Junior Engi 375 neers and consequently they cannot question the correctness of the seniority list dated 291978 relating to Assistant Engineers
As they have not yet been regularly appointed or promoted as Assistant Engineers they cannot have any grievance about their names not being mentioned in that seniority list
Therefore there is no need to quash the seniority list dated 2 9 1978 or to give any direction to respondent I to reckon the seniority of the petitioners with the length of their services
401 C E 410 H 411 A B Continuing Current Duty Charge and Adhoc appointments for period exceeding the period of one year mentioned in the memorandum dated 30121976 of the Government of India is irregular though that Memorandum could not be stated to be automatically binding on respondent I
What is totally wrong is that appointment of Junior Engineers on Current Duty Charge as Assistant Engineers has been made by the impugned order dated 2161979 even after the approval of the select list prepared for the appointment of 8 Assistant Engineers without issuing orders for appointment even to 8 out of those persons who are in the select list
The appointment of 6 Diploma Holder Junior Engineers by the order dated 1041978 Annexure I and of 2 such Junior Engineers by the order 2161979 Annexure M as Junior Engineers on Current Duty Charge for periods which are proved to be too long is irregular and the same is quashed
Respondent I shall issue orders of appointment to 8 Degree holder Junior Engineers out of those in the select list approved on 251979 within one month from this date and complete the appointment of Assistant Engineers for the remaining posts on regular basis in accordance with the quota fixed in the Recruitment Regulations within six months from this date until which time the Current Duty Charge holder and Adhoc appointees according to seniority will continue to man the remaining posts
Respondent I shall not make Current Duty ChargeAdhoc appointments and promotions except strictly and truly in accordance with the instructions and Regulations and other instructions if any issued in that regard
408 H 409 A E Declaring the petitioners Graduate Engineers as a separate category amongst Junior Engineers and giving them equal quota like the Diploma holder Junior Engineers out of the 50 per cent for promotion as Assistant Engineers cannot be done except by carving out two classes in the same category of Junior Engineers on the basis merely of their qualification which is not permissible in law though the creation of selection grade in the same category on the basis of merit and seniority is well known and permissible
The Junior Engineers do the same kind of work and bear the same responsibilities whatever their qualification whether they are degree holders or diploma holders
411 C E section B Patwardhan vs Maharashtra  referred to
The petitioners in Writ Petition 1194 of 1979 cannot be allowed to blow hot and cold
In regard to the policy of suspension of direct recruitment of Assistant Engineers for 7 years wef 141972 their contention is that the policy of the CPWD cannot apply automatically to the Corporation until it is adopted by a resolution
Now in regard to the planning allowance they 376 cannot be heard to say that the revision should be made automatically from 111979 following the CPWD pattern
Evidently the Corporation has resolved to grant the upward revision only from 19580
The petitioners are not entitled to claim the revision from 111979 itself and they have to be satisfied with the revision effected from 19580
410 C E