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

2. The case of the petitioners in W.P. 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 1st 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 chases were available to the Central Engineering/Electrical Engineering Service (Class II). That decision taken in August 1975 became effective from April 1, 1972 (Annexure B). The 1st respondent has taken a decision by resolutions Nos. 416 and 78 dated July 27, 1970 and February 21, 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., of the 1st 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 1st 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 1st 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 overlooked. The petitioners made several representations including the last one dated January 24, 1979 (Annexure E). The then Commissioner of the 1st respondent assured the petitioners orally that the practice adopted by the CPWD will be followed by the 1st respondent, but he, however, wrote to the petitioners saying that the matter was under consideration. The petitioners met the Deputy Commissioner of the 1st respondent on January 23, 1979 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 272 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 1st respondent and it has informed the 1st respondent by letter dated February 23, 1976 (Annexure F) that consequent on the re-commendation of the Third Pay Commission the 1st 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 1st respondent by letter dated February 16, 1978 (Annexure F-1) that direct recruitment to CES/CEES Group B was still under suspension. Though no specific reference has been made in the Third Pay Commissions Report to Junior Engineers of the 1st respondent Corporation, its recommendations have been followed by the 1st respondent, and its employees are the 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 to eight posts of Assistant Engineers is detrimental to the interests of the petitioners in the light of the Central Government memorandum of the year 1959 relating to seniority. The 1st respondent should, therefore, be directed to follow the same policy as is being followed by the Engineering Department of the Central Government.3. 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 ad hoc 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 September 2, 1978. That seniority list has been prepared on the basis of the memorandum issued by the Central Government in December 1978 which is similar to the seniority rule which has been struck down by this court in the case of S. B. Patwardhan v. State of Maharashtra (1977)3 S.C.C. 399. Respondent 1 is drawing the seniority list without any authority of law by putting one promotee and one direct recruit thereafter and son 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.4. The 1st respondent-Corporation has filed counter-affidavit contending that the Corporation has to be guided by its own rules relating to it 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 January 10, 1975 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 appointment to posts carrying a minimum salary of Rs. 350 and above per mensem. Apart from Executive Engineers and Superintending Engineers, the Engineering Service (Civil) in the 1st 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 per cent is filled by promotion from amongst Works Assistant 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 profession experience are essential for direct recruits while for promotes 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 poses required 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.5. 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 had 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 offices are drafted to the vacant posts on ad hoc basis with pay and other emoluments due to the poses 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 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 qualification will become available. The Corporation considered there 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 1st respondent-Corporation, a statutory body, to exercise its discretion in particular manner which is against the rules.6. The Municipal Corporation, Delhi is a statutory authority, which is no doubt controlled by the Central Government to the extent mentioned in S.487 ofthe Delhi Municipal Corporation Act, 1957. The Recruitment Regulations for the posts of Assistant Engineers (Civil) were notified in the Official Gazette on June 27, 1970 (Annexure R-I). 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 1st respondent has resolved by Resolution No. 50 dated July 20, 1964 to adopt the CPWD pattern of work with regard to execution of works alone 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 S.98 ofthe 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 April 19, 1978 (Annexure R-2). 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 recruitment was taken in view of the shortfall in the direct recruitment quota compared to the promotion quota in accordance with Recruitment Regulations which provide for filling up 50 per cent by promotion and 50 per cent by direct recruitment of Assistant Engineers though sufficient number of Junior 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. Section487 of the Delhi Municipal Corporation Act provides for direction being given by the Central Government. But the Central Governments letter dated February 23, 1976 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 S.487 of the Delhi Municipal Corporation Act and it cannot therefore, be taken as a directive from the Central Government.7. The relative seniority of direct recruits and promotees has been determined in accordance with instructions contained in the Ministry of Home Affairs Office Memorandum No. 9/11/55-RPS dated December 22, 1959. Out of 401 Junior Engineers, 36 persons are holding the posts of Assistant Engineers on ad hoc basis in the Junior Engineers pay scale and they are liable to be reverted as Junior Engineers as and when there posts are filled up on a regular basis in accordance with the Recruitment Regulations. The officers appointed on ad hoc 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 Ministrys Office Memorandum dated December 22, 1959 and there is no infringement of any fundamental right of the petitioners.8. Respondents 3 to 10 and 12 to 15 have filed counter-affidavit contending that prayers (1), (2) and (4) in W.P. No. 221 of 1979 are in direct violation of the Recruitment Regulations relating to Assistant Engineers. Respondents 3 to 7 appeared before the Union Public Service Commission and were duly selected as Assistant Engineers on January 2, 1974 as mentioned in the Office Order dated June 4, 1975 of the Assistant Commissioner (Establishment) of the 1st 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 January 2, 1974 in the direct recruitment quota. Respondents 19 to 46 also were appointed as Assistant Engineers on various dates after January 2, 1974 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 accordance with statutory rules. Respondent 3 to 10 and 12 to 17 are working as executive Engineers on ad hoc basis for over four years.9. 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 1st 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 June 27, 1970. The CPWD has suspended direct recruitment of Assistant Engineers in Class II temporarily for seven years from April 1, 1972. 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 in seniority in accordance with Recruitment Regulations. The final seniority list of Assistant Engineers circulated on January 30, 1975 (Annexure RA-III) was finalised after considering the objections and is in accordance with the Home Affairs Ministrys Office Memorandum dated December 22, 1959, which lays down that the relative seniority of direct recruits and promotes shall be determined according to the rotation of vacancies between direct recruits and promotees shall be determined according to the rotation of vacancies between direct recruits and promotees 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.10. The petitioners in W.P. No. 1194 are graduate Junior Engineers. Their case is that the 1st 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 statuary duty is cast on the 1st respondent to fill up the posts of Assistant Engineers on 50 : 50 basis. 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 September 2, 1978 (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 on December 20, 1978 only eight posts were advertised (Annexure H) and the names of petitioners 1 to 21 appeared in the duly prepared selection list. The 1st respondent has not filled up even those eight posts with the candidates in that selection list but has filled up six posts by putting up Junior Engineers with diploma as respondents 5 to 41 on current duty charge under the order dated April 10, 1978 forming Annexure I in violation of Rules and the petitioner; right guaranteed under Art. 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 diploma as on current duty charge with the object of favouring diploma-holders who have got great political influence by the Office Order dated June 21, 1979 (Annexure M). The Assistant Commissioner (Engineering) has taken an absolutely new stand in his reply (Annexure P) received on September 6, 1979 by saying that implementation of the approved panel was not feasible on account of ban imposed by the Commissioner on August 10, 1979 on new recruitment. The diploma-holders posted as Assistant Engineers on the current duty charge have been further promoted as ad hoc appointees by Office Order dated August 10, 1979 (Annexure R). The effect of this ad hoc appointment is that the ad hoc 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 April 10, 1978 and June 21, 1979 (Annexures I and M).11. The chances of graduate Junior Engineers becoming Assistant Engineers are very bleak. Justice can be done to 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 promotion.12. The petitioners, who are graduate Junior Engineers, form a category with distinguishing features separate from Junior Engineers who are diploma-holders. The Supreme Court has held that separate category with the same category on the basis of educational qualifications is clearly permissible and not violative of Art. 14 of the Constitution of India. But the 1st respondent is treating the two categories as equal. The graduate Engineers suggest to the Deputy Commissioner (Engineering) that a separate cadre of graduate Junior Engineers in there pay scale of Rs. 550-900 may be created and designated as Design Assistant. The Assistant Commissioner (Engineering) has replied by his letter dated March 27, 1979 (Annexure K) that the Municipal Chief Accountant has not accepted the suggestion. Under the Central Civil Service Rules., 1973 and on the basis of the Third Pay Commissions Report the petitioners who are graduate who are graduate Junior Engineers are entitled to the pay scale of graduate 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.13. The 1st 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 Rs. 75 per mensem with effect from January 1, 1979 by the Order dated January 1, 1979 (Annexure ZA). The Corporation has by Resolution No. 184 dated June 21, 1971 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 both effect from April 1, 1971 on the pattern of the CPWD. The planning allowance has been increased from Rs. 40 to Rs. 75 per mensem in the CPWD with effect from January 1, 1979 by letter No. 28017(17)/78/EW-1 dated January 1, 1979 (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 Municipal Council is not forthcoming. The Delhi Administrations Notification dated September 19, 1972 circulated by respondent 1 on September 30, 1972 (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 1st respondent 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.14. The petitioners have prayed for the aforesaid reliefs in these circumstances.

Reasoning:
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.