Case: H. C. Sharma And Others Vs. Municipal Corporation Of Delhi And Others


Decision:
0[ds]37. 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 Commissions 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 seven years or any period from any date whatsoever. The 50 : 50 quota fixed in the Recruitment Regulations approved on June 27, 1970 has not been altered but has been approved by the Corporation in its Resolution No. 348 dated July 10, 1978. Therefore, there is no substance in the contention of the petitioners in Writ Petition No. 221 of 1979 or the contesting private respondents in Writ Petition No. 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.The only other prayer about which Mr. V. M. Tarkunde advanced argument is prayer (8) in Writ Petition No. 1194 of 1979 which is to revise the special pay or planning allowance of Rs. 40 per mensem to Rs. 75 per mensem from January 1, 1979 to graduate Junior Engineers working in the planning circle. The planning allowance has been revised in the CPWD from Rs. 40 to Rs. 75 per mensem in the case of graduate Junior Engineers w.e.f. January 1, 1979 pursuant to the letter No. 28017(17)-EWI dated January 1, 1979 of the Ministry of Works and Housing (Works Division) addressed to the Director-General of Works, CPWD (Annexure Z-A). The Commissioner of respondent 1 has stated in his letter dated August 20, 1979 (Annexure Z-B) that the Corporation has resolved on June 21, 1971 to sanction special pay to Junior Engineers working in the planning circle at Rs. 40 per mensem in the case of diploma-holders w.e.f. April 1, 1971 and that he had recommended it may be increased from Rs. 40 to Rs. 75 per mensem as had been done by the CPWD w.e.f. January 1, 1979, observing that the Corporation generally follows the pattern prevailing in the CPWD and the original planning allowance itself was sanctioned following that pattern. In Writ Petition No. 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. V. M. Tarkunde admitted before us that the revision has since been effected w.e.f. May 19, 1980 whereas the claim of the petitioners in Writ Petition No. 1194 of 1979 is that it should be revised w.e.f. January 1, 1979. The petitioners in Writ Petition No. 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 seven years w.e.f. April 1, 1972 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 January 1, 1979 following the CPWD pattern. Evidently, the Corporation has resolved to grant the upward revision only from May 19, 1980. The petitioners are not entitled to claim the revision from January 1, 1979 itself and they have to be satisfied with the revision effected from May 19, 1980.55. We shall next consider prayers (3) and (4) in Writ Petition No. 221 of 1979 which are to quash the seniority list dated September 2, 1978 (Annexure G in Writ Petition No. 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 hat the names of the petitioners in Writ Petition No. 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. G. L. Sanghi who stated that the question itself does not arise for consideration in Writ Petition No. 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 ad hoc 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 No. 221 of 1979 are only Junior Engineers whereas the seniority list dated September 2, 1978 relates to Assistant Engineers. It is not the case of the petitioners in Writ Petition No. 221 of 1979 that their seniority as Junior Engineers has not been fixed properly. They are only Junior Engineers and consequently they cannot question the correctness of the seniority list dated September 2, 1978 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 September 2, 1978 or to give any direction to respondent 1 as prayed for by the petitioners in Writ Petition No. 221 of 1979 in regard to seniority.56. Now we are left only with prayers (4), (6) and (7) in Writ Petition No. 1194 of 1979 about which rightly no argument was advanced by Mr. V. M. Tarkunde. Prayer (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 per cent quota for promotion as Assistant Engineers. This 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 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 S. B. Patwardhan v. State of Maharashtra, (supra).We think that the ratio of this observation applies to the facts of this case in regard to prayer (4) and that the petitioners in Writ Petition No. 1194 of 1979 are not entitled to be treated as a separate class of Junior Engineers.58. Prayer (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 counterpart in other government departments, and prayer (7) is to direct respondent 1 to grant revised pay scale of Rs. 550-900 to the petitioners in Writ Petition No. 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 Engineer. 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.