Delhi High Court
D.K. Jain And Anr. vs Delhi Jal Board And Ors. [Along With ... on 6 July, 2005
Equivalent citations: 121(2005)DLT401, 2005(85)DRJ456
Author: Vikramajit Sen
Bench: Vikramajit Sen
JUDGMENT Vikramajit Sen, J.
1. At the fulcrum of the present dispute is a seniority wrangle between graduate and diploma-holder engineers in the Delhi Jal Board. The Petitioners maintain that they are senior to those graduate officers who, in terms of the Order dated 19.9.1988, have been allowed to hold the post of Assistant Engineer (Civil) on current duty charge basis with immediate effect. Their appointment on current duty charge basis as Assistant Engineers (Civil) is stated not confer any title or claim to the post being purely a stop-gap arrangement. These petitions also bring to the surface two important and intriguing facets of service law which have become extremely critical and the fountainhead of bludgeoning litigation.
2. Firstly, failure to constitute a Departmental Promotion Committee (DPC) and complete the promotion process is no longer the exception and has become the rule. The effect of not dealing with promotions, the incidence and occurrence of which are known years in advance, inexorably leads to litigation. Such disputes undermine proper administrative functioning as it causes heartburn and rivalry between members in the cadre/post leading to the dissipation of energies of the incumbents concerned in the Court Room instead of in the Office.
3. Secondly, it brings into limelight the logic or the absence of it behind imposing a lifelong disadvantage on officers predicated on their educational qualifications whilst excluding or disregarding altogether their experience in the job. There can be no gainsaying that a freshly licensed doctor or lawyer is no match to someone who has already spent a decade in the profession. The purpose of education is to impart knowledge, which is invariably a derivation of mankind's experience, to the students in a organized and regulated manner. It is of relevance, therefore, at the initial stage of embarking on a career. Thereafter, the person gains knowledge through hands-on experience. A graduate would ordinarily have a greater store of knowledge than a diploma holder because of the prescribed curriculum. Therefore, there is a rationale in granting an initial advantage to the graduate vis-a-vis the diploma holder. However, once they have functioned and served with equal diligence and competence in the same posthere appears to me to be no justification for maintaining a disparity between them in respect of future advancement in their respective careers. Indubitably, a compounder or apothecary cannot be substituted for a doctor or a surgeon. But that is not merely because a qualitative difference in educational qualifications but also because they have different work- functions. So long as graduates and diploma holders perform the sa me functions and duties a perpetual partiality for the former, in my present opinion, would be an illegal discrimination. Einstein's genius thrived while he was employed as a Clerk in a Patent Office and his comparative modesty in formal education proved not to be any impediment for advancing esoteric and complex theories in Physics and Mathematics.
4. In the Office Order No. 153 dated 19.9.1988 S/Shri J.R. Bansal and V.K. Gupta were at Serial No.4 and 5, whereas S/Shri R.K. Mittal, A.K. Phull, M.P. Singh and Prahlad Singh did not find mention in the "final seniority list of Assistant Engineers (Civil) from 1992-2000". The Petitioners hold the following positions : Shri D.K. Jain, No.9, Shri V.K. Gupta, Sl. No.16, Shri J.R. Bansal, No.15, whereas Respondents hold the following positions : Shri R.K. Mittal, No.27, Shri A.K. Phull, No.35, Shri M.P. Singh, No.43, Shri Prahlad Singh, No.46.
5. The Order that has been impugned reads as follows:
Consequent upon the retirement of Sh. N.R. Jaswani EO to Member (WS) on 31.12.02, Sh. Gyan Chand EO to CE (C) II on 30.04.03, entrustment of current duty charge to Sh. Jagmohan Gupta EE(C) to the post of SE (C) on 30.12.02 and entrustment of c-d-c to the post of SE (C) to Sh. Madan Mohan EE (C) on 7.05.03, Sh. R.K. Mittal, Sh. A.K. Phull, Sh. M.P. Singh and Sh. Prahlad Singh, AE's are hereby entrusted current duty charge for a period of three months to the post of Executive Engineer (Civil) as a stop gas arrangement with immediate effect subject to usual terms and conditions in this regard :-
1. The entrustment of current duty charge will be in his own pay scale of the post he is holding.
2. It will not confer any right on the officer to claim for ad-hoc/regular promotion to the post or any other service benefit.
3. The period of service rendered on c-d-c- will not count on officiation in the higher grade for any purpose.
4. The interim arrangement can be terminated at any time by the Competent Authority without assigning any reason and giving any prior notice.
5. Other conditions of service will be governed by the relevant rules and orders that may be in force from time to time.
6. This temporary arrangement is made without prejudice to any court case, if any.
7. However, the above order will be subject to the outcome in the court case captioned as S.C. Dass Gupta V/s Delhi Jal Board, No.7407/2001.
Further, Sh. R.K. Mittal, Sh. A.K. Phull, Sh. M.P. Singh and Sh. Prahlad Singh are directed to report to Dir. (A and P) for further posting.
(This issues with the approval of the Competent Authority)
6. It is the contention of the Petitioners that the eligibility criteria for promotion to the post of Executive Engineer (Civil) from the post of Assistant Engineer (Civil) as per the Recruitment Rules is ten years service in the grade which requirement the Petitioners fulfilll. It is further pleaded that the Petitioners had been requesting the Delhi Jal Board to constitute a DPC but their entreaties have been ignored even though vacancies in the post of Executive Engineer (C) have existed since 2002. The Petitioners challenge the appointment, even by way of stop-gap arrangement, of the Respondents who are junior to them in the Seniority List mentioned above. It is also an uncontroverter assertion that the Petitioners whilst they were in the substantive post of Junior Engineers (Civil) had with effect from 13.4.1992 been working as Assistant Engineers (Civil) on current duty charge basis at the time of their promotion to the post of Assistant Engineer (Civil) on adhoc basis for a period of one year in the first instance.
7. By Notification dated 8.8.1973 the Recruitment Rules applicable to the post of Executive Engineer (Civil) reads thus:
5. Whether Selection post or : Selection non-selection post.....
7. Educational and Other Qualifications : Essential : required for direct recruits 1. Degree in Civil Engineering of a recognised University or equivalent.
2. Above 7 years practice experience of Engg. works in a responsible position in Govt. Service or in a Semi Govt. or Local Body or in any firm of repute including experience of planning and execution of Water Supply and Sewage andDrainage Disposal.
(Qualification relaxable at Commission's discretion in case of candidates otherwise well qualified).
NOTE: Officers on deputation will not be eligible for promotion.
8. Whether age and educational qualifications prescribed for direct recruits will apply in the case of promotees. NO. ....
10. Method of rectt. whether by By promotion failing which direct recruitment or by by transfer/deputation and promotion or transfer and failing both by direct percentage of the vacancies recruitment to be filled by various methods.
11. In case of recruitment by Promotion/ Promotions Transfer, grade from which Promotion/ Assistant Engineer (Graduate deputation proposed to be made. with 5 Years Service in the grade and Diploma holders with 10 years service in the grade). Transfer/Deputation: Suitable Officers holding analogous post in Central Public Works Deptt. or any other Central Government Deptt. (Period of deputation ordinarily not exceeding 3 years).
8. In opposition to the Petitioners it has been contended on behalf of the Respondents that the Petitioners have no right to claim an appointment to the post of Executive Engineer (Civil) on current duty charge; that the promotion for regular appointment (sic. to the post of Executive Engineer [Civil]) requires involvement of the UPSC and since the process is extremely time-consuming, current duty charge is a stop gap arrangement which automatically culminates in the appointments being made according to the Recruitment Rules; the promotional quota provides that the degree holders should have five years service, whereas diploma holders should have ten years regular service in the grade (refer to the Counter-Affidavit). It must be immediately noted that the word regular has not been employed in Clause-11 of the Recruitment Rules which speak only of 5/10 years service in the grade. The introduction of the word regular, therefore, marks the watershed between the two claims of the rival camps. The Respondents submit that all the officers were appointed/promoted in the post of Assistant Engineer only from September, 1997. Therefore, the graduate would be entitled for consideration for promotion after five years, that is, in 2002, whilst the diploma holders (Petitioners), would be so entitled after ten years, that is, in 2007.
9. Attention has been drawn by learned counsel for the Respondent to the State of Haryana vs. S.M. Sharma and Others, 1993 Supp. (3) SCC 252 in which it had been observed that GGthe High Court extended its extraordinary jurisdiction under Article 226 of the Constitution of India to frivolity. No one has a right to ask for or stick to a current-duty charge. The impugned order did not cause any financial loss or prejudice of any kind to Sharma. He had no cause of action whatsoever to invoke the writ jurisdiction of the High Court. It was a patent misuse of the process of the CourtG(tm)G. This decision, however, does not enunciate that a current duty charge can be given to any officer, disregarding seniority and experience, according to the whims and caprice of the administration. The factual matrix in Hari Nandan Sharan Bhatnagar vs. S.N. Dixit and Another, 1969(2) SCC 245 were altogether different. The dispute revolved around the appointment of a Superintendent, the feeder cadre of which included the Upper Division Assistants who had put in the minimum period of ten years service. The Apex Court held that the Speaker of U.P. Legislative Assembly had to take into consideration the claim of Senior Upper Division Assistants but under Rule 7 his choice was no limited to them and he was free to consider the claims of other persons who were in the same grade, enjoying the same scales of pay and thereafter pick out the persons considered by him to be best qualified in all respects to perform the duties of the Superintendent. If the contention of the Petitioners to the effect that they have put in ten years of service in the grade is accepted, then the reference to and reliance on this decision is rendered otiose. It must be immediately noted that the effort must be to fill up the post of Executive Engineer (Civil)- firstly by promotion and thereafter by transfer/deputation and failing both, by direct recruitment. The use of the word appointment would be appropriate where direct recruitment takes place.
10. It is the contention of the Petitioners that they have been continuously working on the post of Assistant Engineer (Civil) for well over ten years as follows:
1. Shri D.K. Jain with effect from 1.1.1991
2. S/Shri J.R. Bansal and V.K. Gupta since 1992
11. Attention has been drawn to the decision of the Apex Court in K. Madhavan and Another vs. Union of India and Others, (1987) 4 SCC 566. The enunciation of the law was that the period of probation would be included in the requirement of eight years service in the grade. This decision also clarifies that the eligibility of eight years service in the grade on a regular basis would exclude engagement of adhoc, stop-gap or purely temporary basis because of the absence of an explanation of that expression It needs to be reiterated that the words "on regular basis" are absent in the Recruitment Regulations which speak only of five years service in the grade. Keeping in view the fact that promotions did not take place because of the delay on the part of the Respondents including the UPSC, I find no justification for not giving effect to the plain meaning of the phrase "service in the grade" as connoting adhoc, stop gap or temporary officiation on a consecutively continuing basis.
12. It has become common-place that promotions are usually made only after inexcruciating and inordinate delay. During this time stop gap, adhoc or current duty charge appointments are made which thereafter coalesces without any break into 'regular' promotion. The ratio in Madhavan's case (supra) must be ubiquitously applied to bring an end to a proliferation of service litigation. With a view to ensure that a miscarriage of justice does not occur, promotion should be deemed to have taken effect retrospectively from the commencement of the so-called adhoc, stop gap and current duty charge, provided the incumbent concerned fulfillled the essential criteria for consideration for promotion on the initial date. In the present case there is a clear and evident divide between the graduates and the diploma holders. On a digestion of the submission made in the Counter Affidavit it appears to me that the Board has sided with the graduates. I suspect that this may be for the reason that because of the continuous disadvantage thrust upon the diploma holders so far as promotional criteria is concerned, seniority at the highest echelons is overwhelmingly shared amongst the graduates. Failure to hold timely DPCs works to the detriment of the diploma holders. In Madhava's case (supra) this is what the Apex Court had observed:
15. There can be no doubt that if the meeting of the DPC scheduled to be held is arbitrarily or mala fide cancelled without any reasonable justification therefore to the prejudice of an employee and he is not considered for promotion to a higher post, the government in a suitable case can do justice to such an employee by granting him promotion or appointing him to the higher post for which the DPC was to be held, with retrospective effect so that he is not subjected to a lower position in the seniority list. But, if he cancellation or postponement of the meeting of the DPC is not arbitrary and is supported by good reason, the employee concerned can have no grievance and the government will not be justified in appointing the employee to the higher post with retrospective effect. An employee may become eligible for a certain post, but surely he cannot claim appointment to such post as matter of right.
13. Regretfully, learned counsel for the parties failed to make any reference to three celebrated decisions of the three separate Constitution Benches of the Hon'ble Supreme Court. In Mervyn Continho vs. Collector of Customs, Bombay, AIR 1967 SC 52 the question related to promotions to the grade of Principal Appraisers the only source of recruitment of which was that of Appraisers. The opinion of the Court is in the following paragraph:
8. This brings us to the question of Principal Appraisers. We are of opinion that the petitioners have a legitimate grievance in this respect. The source of recruitment of Principal Appraisers is one, namely, from the grade of Appraisers. There is, therefore, no question of any quota being reserved from two sources in their cases. The rotational system cannot, therefore, apply when there is only one source of recruitment and not two sources of recruitment. In a case, therefore, where there is only one source of recruitment, the normal rule will apply, namely, that a person promoted to a higher grade gets his seniority in that grade according to the date of promotion subject always to his being found fit and being confirmed in the higher grade after the period of probation is over. In such a case it is continuous appointment in the higher grade which determines seniority for the source of recruitment is one. There is no question in such a case of reflecting in the higher grade the seniority of the grade from which promotion is made to the higher grade. In so far, therefore, as the respondent is doing what it calls restoration of seniority of direct recruits in Appraisers' grade when they are promoted to the Principal Appraisers' grade it is clearly denying equality of opportunity to Appraisers which is the only source of recruitment to the Principal Appraisers' grade. There is only one source from which the Principal Appraisers are drawn, namely, Appraisers, the promotion being by selection and five years' experience as Appraiser is the minimum qualification. Subject to the above all Appraisers selected for the post of Principal Appraisers must be treated equally. That means they will rank in seniority from the date of their continuous acting in the Principal Appraisers' grade subject of course to the right of Government to revert any of them who have not been found fit during the period of probation. But if they are found fit after the period of probation they rank in seniority from the date they have sated continuously as Principal Appraisers whether they are promotees or direct recruits. The present method by which the respondent puts a direct recruit from the grade of Appraiser, though he is promoted later, above a promotee who is promoted to the grade of Principal Appraiser on an earlier date clearly denies equality of opportunity where the grade of Principal Appraiser has only one source of recruitment, namely, from the grade of Appraisers. In such a case the seniority in the grade of Principal Appraisers must be determined according to the date of continuous appointment in that grade irrespective of whether the person promoted to that grade from the Appraisers' grade is a direct recruit or a promotee. This will as we have already said be subject o the Government's right to revert any one promoted as a Principal Appraiser if he is not found fit for the post during the period of probation. The petition, therefore, will have to be allowed with respect to the method by which seniority is fixed in the grade of Principal Appraiser. That method denies equality of opportunity of employment to the Appraisers who are the only source of recruitment to of the grade of Principal Appraisers. What the impugned method seeks to do is to introduce a kind of reservation in respect of the two categories of Appraisers from which the promotions are made, and that cannot be done when the source of promotion is one.
14. In Roshan Lal Tandon vs. Union of India, AIR 1967 SC 1889 the Court noted the absorption of direct recruits and promotees in one cadre and held that any discrimination made for future promotions, giving favorable promotion to direct recruits, would be violative of Articles 14 and 16 of the Constitution.
15. In Bishan Sarup vs. Union of India, AIR 1974 SC 1618 equality was maintained between direct recruits and promotees for promotion to Income-Tax Officers Class-I. The Court found the parity procedure to be in consonance with the law.
16.It is true that the factual matrix of these cases may be different to that of the case in hand. The rationale, however, is that the 'birthmark' distinguishing classes of officers in a lower grade should be obliterated in the next higher grade. This rationale must be infused into the Rule which is attracted in the present case since some confusion has been caused by the language employed therein.
17. In this analysis once the disparity in educational qualifications is eradicated at the first promotional stage this corrective change would not come a day too soon. These views, however, are only a recommendation, since the Recruitment Rules have not been assailed. Looking at the eligibility criteria set down for promotion to the post of Executive Engineer (Civil) the words "service in the grade" must be given their plain meaning. Continuous officiation in the post, while possessing all the essential criteria requisite for serving in the post where regular vacancies have arisen, mandates a reckoning service in the grade from the date on which the Petitioners commenced serving as Assistant Engineer (Civil). The consequence would be that on the day when the impugned Order was passed, that is, 17.6.2003, the Petitioners had already put in ten years of service in the feeder grade of Assistant Engineer and, therefore, there was no warrant whatsoever for giving current duty charge to persons junior to the Petitioners. This conclusion has been arrived at without disregarding the principle that temporary, adhoc or current duty charge can, in exceptional cases, give an inference of seniority. In such an event the Establishment/Administration must make out a clear case justifying a departure from seniority and this must be clearly expressed in the Order itself.
18. The Writ Petitions are allowed. The impugned Order dated 16.6.2003 is quashed. The seniority of the parties hereto must be re-fixed within eight weeks.
19. Parties shall, however, bear their respective costs.