Delhi High Court
O.P. Gupta vs The Municipal Corporation Of Delhi And ... on 4 September, 1972
Equivalent citations: ILR1973DELHI1, 1973LABLC1278
JUDGMENT S.N. Andley, J.
(1) On October 5, 1967, the appellant filed Civil Writ No 1459 of 1967 in this Court challenging various orders and resolutions of the respondent-corporation between 1960 and 1967 as a result of which he was allegedly either superseded or not considered in the matter of promotion to the post of Executive Engineer from the post of Assistant Engineer which he held at the relevant time. Stated shortly, the learned Single Judge held that equality of opportunity guaranteed under Article 16 of the Constitution was denied to the appellant as he was not considered for promotion from Assistant Engineer to Executive Engineer when promotions were made on December 31, 1963. The appellant was, however, held disentitled to relief because he had'challenged the legality of these promotions after inordinate delay. The promotions made by the respondent-Corporation on other occasions during the period 1960- 1967 were held by the learned Single Judge to have been validly made without violating any such right of the appellant. In the result, the writ petition was dismissed without any order as to costs.
(2) The appellant obtained a diploma of overseer from the Thomson Engineering College of Roorkee in 1938 and served in various capacities in Rajasthan till he joined the Delhi Development Authority on December 10, 1956 as Assistant Engineer. Upon the establishment of the respondent-corporation in April; 1958 the appellant was appointed an Assistant Engineer by the respondent-corporation on July 4, 1958 and he joined as such on July 7, 1958.
(3) The next grade of promotion for Assistant Engineers in the respondent-Corporation was the grade of Executive Engineers. The Of Delhi And Others grade of Assistant Engineers comprised of degree holders and diploma holders. Appointments to the grade of Assistant Engineers were made by direct recruitment and by promotion from Section Officers in the respondent-corporation. Section Officers who held degrees A in engineering were eligible for promotion as Assistant Engineers after two years service and those who held diplomas were eligible for promotion after at least seven years service as Section Officers.
(4) It may be stated here that Rules pertaining to the promotion of Assistant Engineers to the grade of Executive Engineers were not made by the respondent-corporation in accordance with the provisions of the statute until long after the filing of the writ petition and, therefore, until the writ petition was filed, promotions were made to the grade of Executive Engineers on the basis of resolutions passed by the respondent-corporation from time to time and the appointments were made on ad-hoc basis for one year at a time.
(5) By resolution dated September 29, 1959, the respondent-Corporation promoted J.D. Goyal, a graduate Assistant Engineer and A.R. Dawar, a diploma-holder Assistant Engineer as Executive Engineers. Both these persons were senior to the appellant in the grade of Assistant Engineers and their promotion and appointment as Executive Engineers is not challenged.
(6) Since some more promotions had to be made in 1960, the Commissioner of the respondent-corporation addressed a communication dated July 14, 1960, pointing out the resolution dated May 17, 1960 of the respondent-corporation whereby qualifications for recruitment to the post of Executive Engineers were approved. These qualifications were:-
(I)A candidate must be a graduate in Civil Engineering or must possess equivalent qualifications recognised by the Institution of Engineers (India) and must have worked as an Assistant Engineer for at least 5 years, (II)Non-graduate emoloyee may be considered only if he has worked as an Assistant Engineer for at least 7 years and has an outstanding record of work.
(7) The Commissioner, therefore, proposed that until recruitment would be made through the Union Public Service Commission or by obtaining services of Executive Engineers of the Central Public Works Department, promotions from Assistant Engineers working in the respondent- corporation may be made for a period of six months. He proposed the names of S.P. Kohli, Anantha Swami, M.G. Bijiani, K. Sundaram, B. Dayal (respondent No. 5) and Sukhbir Prasad (respondent No. 6) all Assistant Engineers, for promotion as Executive Engineers. With regard to these promotions, the complaint of the appellant is that B. Dayal and Sukhbir Prasad-were junior to him and he should have been considered for promotion at this time after taking into consideration his service with the Delhi Development Authority as an Assistant Engineer. As to these promotions, the learned Single Judge held that the appellant was not entitled to tag on his service with the Delhi Development Authority to his service with the respondent-corporation to become eligible for promotion as Executive Engineer and that since B. Dayal and Sukhbir Prasad had longer service in the respondent-Corporation than the appellant, they had been rightly treated as senior to him and the appellant had no legal claim to promotion as Executive Engineer in preference either to B. Dayal or Sukhbir Prasad. Nothing more need be said about these promotions because no argument has been addressed to us with respect thereto.
(8) By resolution No. 426 dated July 20, 1961 of the respondent-Corporation it was decided that every officer and other employee serving under the Delhi Development Authority immediately before the establishment of the Corporation in connection with such items of work which may be transferred to the respondent-corporation shall be transferred to become an officer or other employee of the Corporation with such designation as the Commissioner of the Corporation may determine and shall hold office by the same tenure at the same remuneration and on the same terms and conditions of service as he would have held had he not been transferred to the Corporation until the remuneration and terms and conditions were duly altered by the respondent-corporation. A memorandum dated January 9, 1963 was issued by the Assistant Commissioner (Establishment) of the respondent-corporation that, :- "ASper rules approved by U.P.S.C. for recruitment to the post of Executive Engineers in the Municipal Corporation of Delhi, Graduate in Engineering with five years service in the grade of Assistant Engineer and those who are diploma holders with a service of seven years as Assistant Engineers, are eligible for consideration for promotion to the post of Executive Engineer. Their past service in equivalent grade of any State, Semi-Government or local body or even in any firm of repute in the grade of Assistant Engineer will also be counted."
Of Delhi And Others According to this memorandum, the appellant would complete seven years service as Assistant Engineer, counting his service with the Delhi Development Authority, on December 10, 1963.
(9) At about this time, the Rules for recruitment to the post of Executive Engineer in the respondent-corporation were in the process of formulation and finalisation with the concurrence of the Union Public Service Commission. The proposed recruitment Rules required a direct recruit to possess a degree in Civil Engineering of a recognised University or equivalent and about seven years practical experience of engineering works in specified organisations. This was provided by Rule 7 which excluded candidates other than those holding a degree in Civil Engineering. However, an anomaly crept in. Rule 8 prescribed the educational qualifications (degree in Civil Engineering) for promotees also but Rule 11 permitted promotion not only to graduates with five years service in the grade but also to others with seven years service in the grade. These recruitment Rules were adopted by the respondent- Corporation on December 5, 1963 in spite of the obvious anomaly.
(10) Earlier, by his letter dated July 30, 1963 to the respondent-Corporation, its Commissioner recorded that there were eleven vacancies of Executive Engineers in the various departments ; that the recruitment Rules would take some more time to be finalised and that there was urgency about the filling up of the vacant posts of Executive Engineers. He stated that he had considered the cases of the departmental Assistant Engineers for promotion as Executive Engineers and, in doing so, he had taken into consideration only the service rendered as Assistant Engineer exclusively under the respondent-corporation including service in the erstwhile Delhi Municipal Committee by the officers concerned. It is further clear from this letter that when promotions were made in November, 1960, Assistant Engineers who had rendered four years service in the grade of Assistant Engineers had been considered for promotion and, therefore, even for the proposed promotions the Commissioner had examined the cases of all Assistant Engineers who had completed four years service in the grade of Assistant Engineers in the respondent-corporation.
(11) At this time, the appellant had undoubtedly completed four years service with the respondent-corporation as he had been appointed in July, 1958. The names mentioned in this letter of the Commissioner were of Assistant Engineers holding a degree in Civil Engineering as also diploma-holders. Out of the eight names suggested by the Commissioner, D.G. Bapat was senior to the appellant as he was at item No. 10 of the combined seniority list. The others, namely, R.M. Aruna- chalam ; Prabhakar Sarup (respondent No. 11) T.R. Khanna (respondent No. 7) G.R. Ambawani (respondent No. 8) B.B. Nanda (respondent No.-9) ; D.N. Khurana (respondent No. 10) ; and K.L. Kapur were at serial Nos. 17, 25, 19, 20, 23, 24 and 26 of the combined seniority list and were, therefore, junior to the appellant who was at serial No. 12 of the combined seniority list. The appellant was not considered. This communicaton was considered by the Standing Committee of the respondent-corporation on October 23, 1963 and a resolution was passed recommending that without affecting the general seniority and inte.'-se seniority among them, Prabhakar Sarup (respondent No. 11) T.R. Khanna (respondent No. 7) G.R. Ambwani (respondent No. 8) and D.N. Khurana (respondent No. 10) "be appointed as Executive Engineers on ad-hoc basis for a period of one year or till regular appointments are made in accordance with the Rules and in consultation with U.P.S.C. whichever is earlier." The respondent- corporation passed its resolution on December 30, 1963 staling that these recommendations of the Standing Committee be approved with the modification that B.B. Nanda (respondent No. 9) be also appointed as Executive Engineer.
(12) Clearly, therefore, the appellant was not considered for promotion and appointment as Executive Engineer even though he was senior to all the persons appointed other then D.G. Bapat. The case of the respondent-Corporation is that the appellant was not eligible for promotion at this time as he had not completed the requisite experience of seven years as laid down in the recruitment Rules for the post at that time. This case, cannot be supported because, as stated by the learned Single Judge, :- "INmaking his recommendations on July 30, 1963, the Commissioner did not adopt the eligibility criterion of five years service in the grade by graduate Assistant Engineers and seven years in the grade by non-graduate Assistant Engineers. As stated in his letter he purported to consider the cases of all the Assistant Engineers who had completed four years service in the grade of Assistant Engineers under the Corporation."
(13) As appears from the judgment of the learned Single Judge, the counsel for the respondent-corporation conceded before him that the name Corporation Of Delhi And Others of the appellant somehow escaped notice, and as such, he could not be considered. We, therefore, agree with the learned Single Judge when he states,- "OBVIOUSLYif the petitioner's name had not escaped notice he having served the Corporation for over five years had a fair chance of being promoted, particularly as the Corporation did not adopt a different yard-stick for Judging eligibility of the officers who were approved for promotion. Equality of opportunity was, therefore, denied to him and his not being considered for promotion on December 31, 1963 was in no way justified."
(14) The learned Single Judge was, however, of the opinion that ad-hoc promotions made for a period of one year should not be set aside at this late stage because the challenge to the legality of the said promotions was made by the appellant after inordinate delay for which there was no reasonable explanation rendering his claim stale. In the circumstances of this case we are unable to concur with this view of the learned Single Judge.
(15) The plea of the respondent-corporation in its counter affidavit is that the alleged orders of supersession were passed in 1960, 1964 and 1966 while the writ petition has been filed in October, 1967 and that the petition being very much belated is liable to the dismissed on this short ground. In his rejoinder to the counter affidavit, the appellant asserted that since 1960 he had continuously been making oral and written representations to the respondent-corporation; that the wrong done to him was a continuing one and the plea of delay could not help the respondent-Corporation; that the promotions that were made purported to be made for a limited period for either six months or one year and, therefore, he was Under the impression that these promotions would be reviewed at the time when they would be made in consultation with the Union Public Service Commission; that from 1963 onwards, the history of promotions would show that the consideration of his case was being responed on one pretext Or the other and that, therefore, there was not delay on his part. These reverments by the patties in their pleadings do not contain any details and therefore, we were taken through the entire record to determine whether the appellant would be disentitled to relief on the ground of delay.
(16) It has been held by the Supreme Court in State of Madhya Pradesh v. Bhailal Bahai and others that as a general rule a Court ought not ordinarily lend its aid to a party by the extraordinary remedy of mandamus if there has been unreasonable delay. The Supreme Court accepted the contention of counsel that the provisions of the Limitation Act do not as such apply to the granting of relief under Article 226 but observed:- "ITappears to us however that the maximum period fixed by the legislature as the time within which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Art. 226 can be measured. This Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the dely is more than this period, it will almost always be proper for the Court to hold that it is unreasonable."
(17) While, therefore, the general rule is that a petition under Article 226 filed after the expiry of the period of limitation would be considered to have been filed after an unreasonable delay, there can be exceptions to this rule.
(18) The question of delay in the context of a petition filed in the Supreme Court under Article 32 of the Constitution came to be considered lately by a Constitution Bench of the Supreme Court in M/s. Tilokchand Motichand and others v. If.B. Munshi Hidayatullah, C.J. observed that the party claiming fundamental rights must move the Court before other rights come into existence as the action of courts cannot harm innocent parties if their rights emerge by reason of delay on the part of the person moving the Court, The learned Chief Justice observed that a petition under Article 32 is not a suit and is also not a petition or an application to which the Limitation Act applies. Even so, the party aggrieved must move the Court at the earliest possible time and explain satisfactorily all semblance of delay. The learned Chief Justice further observed that each case will have to be considered on its own facts and where there is appearance of avoidable delay and this delay affects the merits of the claim, the Court will consider it and in a proper case hold the party disentitled to invoke the extraordinary jurisdiction. He, therefore, concluded,- "THEREFORE,the question is one of discretion for this Court to follow from case to case. There is no lower limit and there is no upper limit. A case may be brought within Limitation Act by reason of some Article but this Court need not necessarily give the total Corporation Of Delhi And Others time to the litigant to move this Court under Art. 32. Similarly in a suitable case this Court may entertain such a petition even after a lapse of time. It will all depend on what the breach of the Fundamental Right and the remedy claimed are and how the delay arose."
(19) The learned Chief J Listice agreed with the result reached by Bachwat and Mitter, JJ. Bachwat, J. observed that the Supreme Court had summarily dismissed innumerable writ petitions on the ground that it was presented after unreasonable delay and that even in a petition under Article 226, the High Court acts on the analogy of the statute of limitation though the statute does not expressly apply to the proceedings and will almost always refuse to give relief under Article 226 if the delay is more than the statutory period of limitation. Mitter, J. observed that the Limitation Act does not in terms apply to claims against the State in respect of violation of fundamental rights and the High Courts. while dealing with a petition under Article 226, have a discretion and may in suitable cases refuse to give relief to the person approac hing it in cases of long unreasonable delay.
(20) The principles deduced from these cases are that the Limitation Act does not apply as such to proceedings taken either under Article 226 or Article 32 of the Constitution. A petition filed under any of these Articles may not be entertained if the delay in approaching the Court is unreasonable even if it is filed within the period of limitation prescribed for a suit to claim the relief which has been claimed in the petition. petition filed after the expiry of such period of limitation will ordinarily not be entertained in the exercise of discretion under Article 226 of the Constitution or even under Article 32 of the Constitution which itself recognises a fundamental right to approach the Supreme Court in case of the violation of a fundamental right guaranteed by the Constitution. A petition under Article 226 or Article 32 of the Constitution may be entertained even after the expiry of the prescribed period of limitation for a similar suit if the circumstances of the case so warrant and there is a reasonable explanation as to how the delay arose. A petition under Article 226 or Article 32 of the Constitution will not be entertained if there is unreasonable or unexplained delay or other rights have come into existence by reason of the delay on the part of the person moving the Court. We have to examine the facts of this case in the light of these observations.
(21) The promotions which had been recommended in 1963 were made with effect from January 1, 1964. The promotions were not permanent. They were ad-hoc and only for one year or until reguair appointments were made in accordance with the Rules in consultation with the Union Public Service Commission, hereinafter referred to as the "Cornmission", whichever was earlier. These appointments were, therefore, essentially temporary and ad-hoc in nature and could have been for a period of even less than one year if the Rules had been finalised and the consultation of the Commission obtained before the expiry of the year. The Rules were in the process of formulation and finalisation. In these circumstances, it was not, in our opinion, necessary for the appellant to file a petition in this Court challenging these ad-hoc appointments immediately they became effective and the appellant could well have believed that his omission from consideration would be rectified as soon as the Rules were finalised and the consultation of the Commission obtained. This belief must have been strengthened because of the fact that on August 24, 1964, the appellant was directed to hold current charge of the duties of Executive Engineer and was to exercise the power of an Executive Engineer for all purposes although he was not to be entitled to extra remuneration or benefits. The appellant continued to hold this current charge till April 28, 1966 when Executive Engineers selected in March, 1966, became available. It appears that the proposed recruitment Rules for the post of Executive Engineers in the General Wing of the respondent-corporation which had been sent to the Commission for approval provided in column 11 that degree-holders "and others with 7 years service in the grade" of Assistant Engineers will be eligible for promotion to the post of Executive Engineers. The Commission suggested, inter alia, the deletion of the words "and others with 7 years service in the grade" from Column II. On August 7, 1965, the Deputy Commissioner (E) of the respondent-corporation wrote a letter to the Deputy Secretary of the Commission asking for reasons .for making these modifications. Since the case of promotions of Assistant Engineers to Executive Engineers was proposed to be placed before the Standing Committee of the respondent-corporation on August II. 1965, the Commission was requested to send its reply immediately.
(22) By this time, the respondent-corporation had, on June 21, 1965, framed a provisional seniority list of Assistant Engineers wherein the name of the appellant was at item No. 1. The appellant, therefore, knew that the respondent-corporation itself was trying to pursuade the Commission to agree that diploma-holder Assistant Engineers should Corporation Of Delhi And Others be eligible for promotion as Executive Engineers. He could very well believe that being on top of the seniority list, his name was bound to be considered for permanent appointment as an Executive Engineer as and when regular appointments were made particularly as he would complete seven years service with the Corporation on July 7, 1965. It would, therefore, be unreasonable to expect the appellant to rush to Court against the respondent-corporation when he knew that it was fighting for the eligibility of diploma-holder Assistant Engineers with seven years service for promotion to the post of Executive Engineer.
(23) Unfortunately for the appellant, the Commission by their letter dated August 7, 1965, took the stand that diploma-holder Assistant Engineers with seven years service should not be eligible to fill the post of Executive Engineers as possession of an engineering degree by an Assistant Engineer was absolutely essential before he aspires for promotion to the higher post. On receipt of this letter, the Commissioner of the respondent-corporation wrote a letter dated August 10, 1965 stating that five posts of Executive Engineers had to be filled; that diploma-holder Assistant Engineers would not be eligible for promotion and that, therefore, seven degree-holder Assistant Engineers named in the said letter may be promoted as Executive Engineers for a period of one year or till such time recruitment is made through the Commission in accordance with the recruitment Rules whichever was earlier. This letter was considered by the Standing Committee of the respondent-corporation in its meeting held on September 8, 1965, when they resolved that the Commission should be approached to remove the anomaly between Rules 8 and 11 as to enable diploma- holders with minimum experience of seven years as Assistant Engineers to be considered for promotion to the post of Executive Engineers if they are otherwise eligible. The Standing Committee further resolved that the appellant be allowed to act as Executive Engineer against one of the vacancies for a period of one year or till the post is filled up in accordance with the recruitment Rules whichever was earlier and he would as such draw the pay of the post of Executive Engineer from the date of appointment only after the concurrence of the Commission had been received. This resolution must have given further hope to the appellant that the respondent-corporation was fighting for his individual case as also the case of other diploma- holder Assistant Engineers and, in this context, his failure to take action with respect to the ad hoc appointments made with effect from January 1, 1964, cannot be criticised. Upon the proposals made by the Commissioner, the Standing Committee recommended the appointment of five of the seven degree-holder Assistant Engineers to be appointed as Executive Engineers for a period of one year or till the appointments were made in accordance with the recruitment Rules whichever was earlier. This matter was taken up by the respondent-Corporation in its meeting on March 29, 1966 and it was resolved that four out of the five persons recommended by the Standing Committee be appointed as Executive Engineers. The respondent- corporation also resolved that the case of the appellant and other diploma-holder Assistant Engineers be referred to the Commission for opinion. Again, this resolution of the respondent-corporation must have assured the appellant that the respondent-corporation was not acting against his interest.
(24) The Commissioner of the respondent-corporation, accordingly, wrote to the Commisssion in May, 1966. The Commission replied to this letter by their letter dated July 6. 1966 and there was a slight change in their attitude because they agreed to make diploma-holder Assistant Engineers also eligible for promotion to the post of Executive Engineers if they had ten years service instead of seven years service as suggested by the respondent-corporation. Shortly thereafter, on October 17, 1966, the appellant requested that the reply received from the Commission may be placed before the respondent- corporation for its final early decision. It is not clear from the record in this case as to whether the respondent-corporation held any meeting to consider the aforesaid communication from the Commission.
(25) It appears that at this time there were four more vacancies of Executive Engineers to be filled in and an Internal Selection Board was constituted to make a selection to fill these vacancies. The Internal Selection Board met on March 7. 1967 and considered the names of 13 Assistant Engineers out of which 12 were degree-holders and one was a diploma-holder. The diploma-holder was none other than the appellant himself and his name was at the top of the list of persons who were considered. However, the appellant was pursued by his misfortune even at this stage. It appears that according to the respondent-corporation there was in respect of the appellant,- "Apreliminary inquiry registered with the Special Police Establishment. ....................... The consideration of his case had, therefore, to be regulated by O.M. No. 39/59-Ests (A) dated Corporation Of Delhi And Others 31st August, 1960 issued by the Ministry of Home Affairs, as confirmed by the Central Vigilance Commission who were consulted on the subject. Accordingly the Internal Selection Board has recorded its findings in respect of this officer A separately........................Accordingly it is proposed that leaving one post unfilled until such time as the inquiry against Shri O. P. Gupta is finalised and result known the remaining three posts may be filled by the promotion of the following officers on an ad-hoc basis for a period of one year or until such time as the posts are filled on a regular basis or the incumbents of the posts return to duty. whichever is earlier."
(26) The appellant did not, therefore, figure amongst the persons who were promoted. The appellant then made a representation on April 26, 1967, to the Commissioner of the respondent-corporation but nothing came out of it as three appointments as recommended by the Internal Selection Board were recommended by the Commissioner of the respondent-corporation to be made by his letter dated August 8, 1967, with the recommendation that one post may remain unfilled For the appellant. It was in these circumstances that the appellant filed the writ petition on October 5, 1967.
(27) It will, therefore, be seen that the appellant was not sitting idle as to his rights. Even the respondent-corporation had taken up the case of the appellant as also of the other diploma-holders with the Commission. The conduct of the respondent-corporation was sufficient to give rise to a belief in the mind of the appellant that his rights will be safeguarded by the respondent-corporation and that whenever regular appointments are made after the finalisation of the Rules, his case for promotion will be considered. Whatever appointments were made during this period between 1964 and 1967 were on ad-hoc basis for one year and the appellant was even considered for promotion by the Internal Selection Board on March 7, 1967. It was only when he found that the Commission had adopted an unbending attitude to which the respondent-corporation had succumbed and that even though considered in March, 1967 he was not promoted in spite of his representation that he filed the writ petition. In these circumstances, we are unable to hold that the appellant was guilty of unreasonable delay or to hold that his claim had become state so as to disentitle him to relief under Article 226 of the Constitutuion.
(28) The appellant would, therefore, be entitled to writ with respect to the appointments of Executive Engineers made by the respondent- corporation with effect from January 1, 1964.
(29) Even though we have held in favor of the appellant with respect to the appointments made with effect from January 1, 1964, it is still necessary for us to consider his case with respect to the appointments made later in 1966 and 1967. The reason is this. The writ that can be issued is only to consider the appellant as at January 1, 1964 for appointment as Executive Engineer. It can go no further by direeling that the appellant be appointed. In the event that even after such consideration the appellant is not found fit for appointment, he has a surviving right to contend that he should have been considered for the appointments made in 1966 and 1967. We shall, therefore, consider these appointments.
(30) Regarding the appointments made in 1966, it is clear from the facts already stated that up to 1968, no Rules had been made by the Corporation for making promotions or appointments to the post of Executive Engineers as required by section 98 of the Delhi Municipal Corporation Act, 1957, which empowers the Corporation to make regulations for, infer alia, conditions of service of its employees after consultation with the Commission. During this period, it had been acting under the proviso to section 96 of the said Act which provides that consultation with the Commission shall not be necessary in regard to the selection for appointment, inter alia, to a permanent or temporary post, if the officer or other employee to be appointed is not likely to hold that post for more than one year. It is also clear that during the period 1959 to 1967 promotions from Assistant Engineers to Executive Engineers were made according to different standards at different times. In so far as the promotions of 1966 are concerned, the standard adopted by the Corporation, in view of the stand taken by the Commission in its letter dated August 7, 1965, was that diploma-holder Assistant Engineers whatever be their length of service as such were not to be considered for promotion and only degree-holder Assistant Engineers were eligible for promotion. This standard, it is contended by the appellant, was violative of Articles 14 and 16 of the Constitution.
(31) The contention is that the promotion being from the grade of Assistart Engineers to the grade of Executive Engineers, no discrimination could be made between degree-holder Assistant Engineers Corporation Of Delhi And Others and diploma-holder Assistant Engineers as both of them formed the same class. It appears that promotions of Assistant Engineers were made from amongst Section Officers. Degree-holder Section Officers were eligible for promotion as Assistant Engineers after two years service while diploma-holder Section Officers were eligible for such promotion after at least seven years service. The contention proceeds that the longer experience of diploma-holders equated them to degree- holders and when degree holders and diploma-holders were appointed to the grade of Assistant Engineers, they must be treated as equals in the matter of further promotion. Reference has first been made on behalf of the appellant to the case of Kishori Mohanlal Bakshi v. Union of India (A. 1. R. 1962 Supreme Court 1139) (3) where it has been held that inequality of opportunity for promotion as between citizens holding different posts in the same grade may be an infringement of Article 16. No reliance can be placed on this observation because it cannot be applied to a case where for the higher promotion post, different qualifications are prescribed. It may be mentioned that what the Supreme Court was considering in this case was the contention that Article 16 was violated because Rules made Income-Tax Officers of Class I eligible for appointment as Assistant Commissioners but Income-Tax Officers of Class Ii were made eligible for promotion only as Income-tax Officers Class I and not for promotion to the post of Assistant Commissioners. This contention was repelled. Reliance on the case of The State of Punjab v. Joginder Singh ( is also misconceived. In this case teachers in the erstwhile Board schools became employees of Government and were given the same scales and grades of pay as were applicable to their counter-parts in the State cadre but except this equality of grade and pay there was nothing more that was contemplated or provided for.
(32) There was no integration of he t two cadres either expressly or by necessary implication. The Supreme Court held that the two cadres existed independently of the Punjab Educational Service (Provincialised Cadre) Class Iii Rules. It was further held that the two services had started as independent services; the qualifications prescribed for entry into each were different; the method of recruitment and the machinery for the same were also different and the general qualifications possessed by and large by the members of each class being different, they started as two distinct classes and that if they were distinct services, there was no question of inter-se seniority between members of the two services, nor of any comparison between the two in the matter of promotion for founding an argument based upon Article 14 or Article 16(1). It is difficult to see the application of the observations of the Supreme Court to the facts of the case before us. If at all, the observations in so far as they referred to the difference in qualifications go against the appellant. The decision of the Supreme Court in The State of Mysore and another v. p. Narasingha Rao is destructive of the appellant's contention rather than in support of it. In this case the respondent was a tracer in the Engineering Department in the Ex-Hyderabad State on the scale of pay of Rs. 65-90. This cadre comprised of matriculates and non-matriculates but there was no distinction in their scales of pay and all tracers were placed in the same scale. The respondent was a non-matriculate. Upon re-organisation of States in 1956, Hyderabad State became part of the new Mysore State and the respondent was allotted to the new State. After the transfer of the respondent to the new State, the cadre of tracers into which tracers from Bombay State had also been absorbed was re-organized into two grades, one consisting of matriculate tracers whose scale of pay was fixed at Rs. 50-120 and the other of non-matriculates at Rs. 40-80. Since the respondent was a non-matriculate, he was given the option to accept the new scale of pay of Rs. 40--80 or remain in the old Hyderabad scale of Rs. 65-90. He refused to exercise the option and claimed that the cadre of tracers in the new Mysore State should not have been divided into two grades and that no distinction should have been made between matriculates and non-matriculates and that his pay should be fixed in the higher grade of Rs. 120 for matriculates. The contention was rejected by the Supreme Court and it was held that the provisions of Article 14 or Article 16 do not exclude the laying down of selective tests, nor do they preclude the Government from laying down -qualifications for the post in question. In the case beforeous the standard adopted by the respondent- Corporation, on the advice of the Commission, was that a person to be eligible for appointment as Executive Engineer even on promotion should be the holder of a degree. This is consistent with the .observations of the Supreme Court above referred to. We cannot, therefore, accept the contention on behalf of the appellant that inasmuch as the laying down of the conditions of holding a degree barred diploma-holder Assistant Engineers from promotion as Executive Engineers, it is violative of Article 14 or Article 16 of the Constitution. Corporation Of Delhi And Others Qualifications pertain to the post to which appointments or promotions are to be made. It is open to an employer to prescribe or specify qualifications for eligibility to a post. So long as such qualifications apply equally to every candidate for the post, there cannot A be any violation of the right to equal treatment.
(33) The wider concept of equality before the law or equal protection of the law is that there shall be equality amongst equals. Even amongst equals, there can be unequal treatment by a law based on an intelligible differentia having a rational relation to the object sought to be achieved. Then again, it may so happen that unequals may belong to one class. Within that class, they will be entitled to equal treatment subject, however, to valid classification.
(34) Therefore, merely because diploma-holders and degree-holders belong to the class of Assistant Engineers as in this case would not give the former a right to belong to a higher class for which they do not possess the prescribed qualifications.
(35) The alternative contention that the differences between diploma- holder Assistant Engineers and degree-holder Assistant Engineers disappeared because of the longer experience of diploma-holders and, therefore, higher qualifications for the post of Executive Engineer so as to exclude diploma-holders from promotion could not be prescribed may now be considered. For this contention main reliance is placed upon the case Roshan La/ Tandon v. Union of India . In this case there was a class of Train Examiners. It contained two grades. The lower grade D had a smaller scale of pay while the higher grade 'C' had a higher scale of pay. Grade 'D' consisted of persons drawn from two different sources, namely. Apprentice Train Examiners and skilled artisans. Promotion to grade 'C' was made on the basis of senioritycum-suitability without any distinction as to whether an employee had entered grade 'D" as an Apprentice Train Examiner or as a skilled artisan. Later, by the impugned portion of the impugned notification the method of promotion to grade 'C' was altered. Apprentice Train Examiners who had been absorbed in grade 'D' were to be promoted to grade 'C' without any selection but skilled artisans who had been absorbed in grade 'D' were to be promoted on the basis of selection. In other words, differential treatment- in the matter of promotion to the higher scale in the same class was provided by the impugned notification although both these categories of employees had come to form one class-though drawn from two different sources- when they were absorbed in grade "D'. The Supreme Court observed that after absorption in grade 'D' both Apprentice Train Examiners and skilled artisans formed one class and thereafter no discrimination could be made in the matter of promotion by prescribing different standards in favor of recruits from one source as against recruits from the other source. It is true that in the present case diploma-holders and degree-holders formed one class when they were absorbed as Assistant Engineers and became equal in the class of Assistant Engineers not because they had been drawn from two different sources as in Tandon's case but because the lower qualification but longer experience of diploma-holders was equated to the higher qualification but shorter experience of degree-holders. As Assistant Engineers and while they remained in the class of Assistant Engineers, there could be no discriminatory treatment between them. Tandon's case would have applied if the posts of Executive Engineers were to be filled by promotion from Assistant Engineers by giving promotion to degree-holder Assistant Engineers without undergoing any selection and to diploma-holder Assistant Engineers by undergoing selection if both these groups of persons possessed the qualifications required for the post of Executive Engineers. In a case where, as in this case, some persons belonging to one class do not possess the qualification required for the post in the higher class, no unequal treatment can be said to have been meted out to such persons if the result of the specification of qualifications for the higher class is to exclude them from promotion. In S. M. Pandit and another v. State of Gujarat and others (1972 Service Law Reporter 79) (7). the Supreme Court struck down a reservation made in favor of directly recruited Mamlatdars for promotion to the post of Deputy Collectors. The Supreme Court held that directly recruited Mamlatdars and promotee Mamlatdars formed one class and thereafter no discrimination could be made in the matter of promotion in favor of directly recruited Mamlatdars to the post of Deputy Collectors. Here again the reservation was struck down because after persons coming from two sources get merged into one class, no discrimination can be made thereafter in the matter of promotion. This case is not an authority for the proposition that different or higher qualifications cannot be prescribed for the higher post even though it may have the effect of excluding persons who do not possess the requisite qualification. Reference was also made to the decisions reported in 1972 Service Law Reporter Corporation Of Delhi And Others 415; 1967 Service Law Reporter 251; 1966 Punjab Law Reporter 517; 1967 Punjab Law Reporter 960; 1966 Punjab Law Reporter 470 and 1968 Service Law Reporter 608. In none of these cases has it been held that qualifications for a higher post in a higher grade cannot prescribed even if it results in excluding persons belonging to a lower grade from promotion as they do not possess the requisite qualification for promotion.
(36) As already stated, in the absence of the final Rules, the respondent Corporation was adopting different standards but it was being guided by the views of the Commission from time to time. With respect to the 1966 promotions, the definite view to the Commission was that only degree-holders should be appointed and promoted to hold the post of Executive Engineers. The specification of a degree for the post of an Executive Engineer cannot be said to be unreasonable or arbitrary or violative of equality. The appellant, therefore, cannot challenge the appointments made in 1966.
(37) We agree with learned Single Judge when he says : "SOlong the recruitment regulations were not finalised and did not become effective there was no legal bar for the Corporation to adopt, from time to time, such standards for making temporary and ad-hoc promotions to the posts of Executive Engineers as were considered proper. The eligibility qualifications on the basis of which such promotions were made were fixed bonafide and not with a view to discriminate against the petitioner."
(38) Then we come to the promotions made in 1967. Four vacancies in the grade of Executive Engineers were again to be filled in or about March, 1967 by promotion. It is evident from the Commissioner's letter dated August 8. 1967 that by this time the Commission had modified its earlier stand. It agreed that posts of Executive Engineer ers may be filled by promotion from amongst graduate Assistant Engineers possessing five years service in the grade and diploma holder Assistant Engineers having ten years service in the grade. It appears from this letter that on March 7, 1967, an Internal Selection Board constituted by the respondent-corporation met and considered the names of 13 Assistant Engineers amongst whom the appellant, who was at the top of the list, was the only dioloma-holder. It is further stated that there was a preliminary enquiry registered with the Special Police Establishment on June 18, 1966 in respect of the appellant and consideration of his case had, therefore, to be regulated by the aforesaid memorandum of the Ministry of Home Affairs dated August 31, 1960. Accordingly, the Internal Selection Board recorded its findings in respect of the appellant separately and found S. M. Hasnain (respondent No. 16); R. P. Pandey (respondent No. 17) A and R. S. Jindal (respondent No. 18) fit for promotion as Executive Engineers. It was proposed that one post be left unfilled until the enquiry against the appellant was finalised and result known and the remaining three posts may be filled by the aforesaid three persons on an ad-hoc basis for a period of one year or until such time as the posts are filled on a regular basis or the incumbents of the posts return to duty whichever was earlier. It is clear from this letter that the appellant. a diploma-holder Assistant Engineer, must have been considered on the basis that he had completed ten years in the grade as suggested by the Commission and it follows that his service in the Delhi Development Authority was taken as service in the grade to complete the period of ten years in the grade. On this question of service in the grade. there is conflict about the period between various statements made on behalf of the respondent-corporation at different times and it is not clear whether at this time the requirement was seven years or ten years service in the grade for diploma-holder Assistant Engineers for promotion as executive Engineers. The fact, however, remains that the appellant was considered but his result was not announced.
(39) Now, the memorandum of the Ministry of Home Anairs was not in terms applicable to employees in the respondent-corporation but we will proceed on the basis that it was because it would not be an unreasonable standard for the selecting authority to adopt. This memorandum prescribes the procedure to be followed by Departmental Promotion Committees in the case of officers under suspension and officers against whom enquiries are pending. It provides that the Departmental Promotion Commettees should consider the cases of such employees for promotion but, "(A)The finding as to the suitability and the place in the select list should, however, be recorded not in the proceedings of the Departmental Promotion Committee or other authority but in the personal file of the officer concerned. The proceedings of the Departmental Promotion Committee etc. need only contain the note "please see the personal file of the officer", and Corporation Of Delhi And Others (b) If the officer is completely exonerated and it is held that the suspension was wholly unjustified, he should be promoted thereafter in the first vacancy that can be made available for the purpose".
"IT is further provided that the findings as to suitability and the place in the select list of such an officer should be recorded separately and attached to the proceedings, in a sealed envelope superscribed in the manner mentioned. Then it is provided that the procedure laid down should also be followed "in considering claims for confirmation of an officer under suspension, an officer whose conduct is under investigation, or an officer against whom departmental proceedings are about to be initiated."
(40) It is undisputed that the appellant was not under suspension nor was any departmental proceeding pending against him. It, therefore, follows that the appellant was not covered by the first part of this memorandum. It is contented on behalf of the respondent-corporation that the appellant's case is covered by the concluding part of the memorandum mentioned earlier as he was an officer whose conduct was under investigation as there was a preliminary enquiry pending against him with the Special Police Establishment. This contention appears to us to be without substance. This part of the memorandum applies only when claims for comfirmation are being considered. It will not apply to a case of promotion which is covered by the first part of the memorandum. Even in a case of confirmation, the officer concerned must be either under suspension or an officer whose conduct is under investigation or an officer against whom departmental proceedings are about to be initiated. Clearly, what was meant was that in considering claims for confirmation of an officer, the procedure prescribed by this memorandum should be followed if such an officer is under suspension or against whom a departmental proceeding is pending or against whom a departmental proceeding is about to be initiated. Mere pendency of a preliminary enquiry with the Special Police Establishment is not contemplated. In our opinion, therefore, the Inter Selection Board was wrong in applying the memorandum to the appellant when considering his case for promotion as Executive Engineer at this time and they should not have adopted the procedure recommended by this memorandum.
(41) The learned Single Judge was of the view, as we are of the view, that the instructions contained in this memorandum were reasonable and there could be no objection to their being adopted. He was, however, of the view that since a warning was administered to the appellant in 1968 when his name was also on the list of officers of doubtful integrity maintained by the Central Bureau of Investigation from where it was expunged on October 29, 1968, his non-promotion in 1967 was in no way irregular. We regret our inability to agree with this view. The only case set uo by the respondent-corporation was that the appellant was dealt with in accordance with the aforesaid memorandum because of the pendencey of a preliminary enquiry with the Special Police Exstablishment. The short question, therefore, is whether the Internal Selection Board was justified on applying the memorandum merely on the basis of the pendency of a preliminary enquiry as alleged. In our opinion reliance could be placed on the aforesaid memorandum in cases of promotion only if the officer concerned was under suspension or against whom a departmental proceeding was pending. The pendencey of a preliminary enquiry with the Special Police Establishment cannot by any stretch of imagination be called a departmental proceeding. Admittedly, the the appellant was not under suspension. Therefore, the findings of the Internal Selection Board should have been disclosed in so far as the appellant is concerned and should not have been put with his personal file.
(42) Then it was sought to be contended that at the time of the 1967 selections, the appellant had not completed ten years as Assistant Engineer with the respondent-corporation. Now, in the written statement filed by the respondent-corporation in answer to a suit filed by the appellant, the case was that in March, 1967 "Adiplomaholder Assistant Engineer can become entitled for appointment to the post of Executive Engineer only after having put in 7 years service as Assistant Engineer............" "and subsequently the respondent-corporation, by their resolution dated October 17, 1967, fixed ten years service as Assistant Engineer in the grade for diploma- holder Assistant Engineers. In paragraph 22 of this written statement, the respondent-corporation admits that the appellant "was considered for the post of Executive Engineer in the year 1967 because he has completed 7 years' service as Assistant Engineer which experience was prescribed in the recruitment regulations for the posts of Executive Engineers in force at that time."
(43) It appears, therefore, that the respondent-corporation had been taking different stands at different times. Whatever be the real position, Corpora Ton Of Delhi And Others the appellant was considered by the Internal Selection Board on March 7, 1967. if at that time the qualification for diploma- holder Assistant Engineer was seven years in the grade, the appellant was rightly considered by the Internal Selection Board. Even if the qualification was ten years in the grade, it must be assumed that the Internal Selection Board proceeded on the assumption that service with the Delhi Development Authority was to be counted as service in the grade and that could be the only basis for placing his name on the select list by the Commissioner of the respondent-corporation. The respondent-corporation cannot, therefore, be heard to say in this writ petition that the service of the appellant with the Delhi Development Authority is not to be counted as service in the grade or that he was wrongly considered on March 7, 1967.
(44) The result, therefore, is that the appellant would be entitled to a writ directing the respondent-corporation to open the envelope and announce the result in so far as he is concerned and, if the appellant was considered fit for promotion, to put him in the vacancy which was left unfilled.
(45) The respondent-corporation then urged that the present writ has become infructuous as the Rules for promotion of Assistant Engineers were finalised and gazetted on January 14. 1970; that the name of the appellant was considered by the Departmental Promotion Committee on August 14, 1970; that he was promoted as officiating Executive Engineer on December 22. 1971 with effect from January 1, 1971 and was assigned the position in the panel approved by the respondent-Corporation on. July 19, 1971. It was urged at the bar at the time of argurnsnts that the appellant was given his due place in the panel without taking into consideration the ad-hoc appointments that had been made until the coming into force of the Rules. The contention that the appellant has been given his due place is contested by him. There is no material before us to come to a conclusion one way or another but pri'ni fade it appears to us that Assistant Engineers appainted ad-hoc Executive Engineers in 1963 and 1967 are shown senior to the appellant as appears from Annexure 'RZ'. As stated earlier we decline to enter into this controversy for lack of material. In any case, even if the appellant has been assigned his due place in the panel after the coming into force of the Rules, he would be entitled to higher emoluments as Executive Engineer if he had been considered and promoted as a result of the selections made in 1963 and 1967 arid to this extent, at least, the writ will not be infructuous.
(46) Another argument which was addressed to us faintly on behalf of the respondent-corporation was that the appellant has no right to a mandamus. The argument has only to be stated to be rejected. The appellant is complaining of an infringement of his fundamental right guaranteed under Article 16 of the Constitution to be considered for promotion. It is no answer to say that because appointments were made from time to time until the finalisation of the Rules only on ad-hoc basis, the appellant had no right to be considered for promotion. Whatever be the nature of the appointment i. e. permanent. temporary or ad-hoc, a person eligible for promotion has a right to be considered. On our findings this right was denied to the appellant in 1963 and also in 1967 when, although he was considered, he was illegally subjected to the application of the aforesaid memorandum of the Ministry of Home Affairs. Reliance on K. V. Rajalakshmiah C Setty and another v. State of Mysore and another (A.l.R. 1967 Supreme Court 993) (8) is misconceived. In this case the demand of the petitioners was that they should all receive benefits which others promoted before and after them had received. The benefits received by others were that they had been promoted to the cadre of Assistant Engineers from the date on which they had been placed in charge of sub-divisions with all consequential benefits. The Supreme Court repelled the contention and while stating that some concession had been shown to some employees, it was observed that they were concessions and not something which could be claimed as of right. It was further observed that the State might have shown some indulgence to a batch of persons but a writ of mandamus could not be issued commanding it to do so as there was no service rule which the State had transgressed nor had the State evolved any principle to be followed in respect of persons who were promoted as Assistant Engineers. It was further observed that the indulgence shown to different batches of persons was really ad-hoc and it could not be predicted as to what ad-hoc indulgence could be meted out to the petitioners. The appellant before us is not claiming consideration for promotion as a matter of indulgence. It does not matter if there were no Rules and the appointments were made ad-hoc. His grievance is that in violation of Article 16 of the Constitution, persons similarly situated as himself in the matter of eligibility had been considered in 1963 and 1967 while he had not been considered. This is not a matter of indulgence much less ad-hoc indulgence but a matter of right. & Others Another contention raised by the respondent-corporation is that the appellant had earlier filed a writ petition (C. W. No. 1249 of 1967) on August 29, 1967, for the sams reliefs and that this writ petition having been dismissed in liming for non-prosecution on September A 12, 1957, the present writ petition giving rise to this appeal was not maintainable. Reliance is placed on an observation of the Supreme Court in Ramesh and another v. Gendalal Motilal Patni and others that a decision in the exercise of jurisdiction under Article 226 of the Constitution "whether interfering with the proceeding impugned or declining to do so, is a final decision in so far as the High Court is concerned l)ecause it terminates finally the special proceeding before it." No reliance can be placed on this observation which was made in the context of the application of Article 133 of the Constitution . The matter is concluded by the decision of the Supreme Court in Daryao and others v. State of U. P. and others where it is observed:- "If the petition is dismissed in liming without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata. It is true that, prima facie, dismissal in liming even without passing a speaking order in that behalf may strongly suggest that the Court took the view that there was no substance in the petition at all but in the absence of a speaking order it would not be easy to decide what factors weighed in the mind of the Court and that makes it difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a bar of res judicata against a similar petition filed under Art. 32. If the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under Art. 32, because in such a case there has been no decision on the merits by the Court."
(47) It is therefore, clear that the dismissal of the earlier writ petition in liming for non-prosecution cannot be said to be a dismissal on merits and would not give rise to plea of res-judicata.
(48) In the result, we allow the appeal. There will be a writ of mandamus against the respondent-corporation directing it to consider the appellant for promotion as Executive Engineer as at January I, 1964 and, if found fit, to treat him as promoted to the post of Executive Engineer on ad-hoc basis on the same terms as of other Assistant Engineers promoted as on this date and thereafter to treat him in the same way as these promoted Assistant Engineers have been treated. In the event the appellant is not found fit for promotion with effect from January 1, 1964, we direct that a writ be issued to the respondent-corporation to declare the result of the selection dated March 7, 1967 with respect to the appellant and if he was found fit for promotion on this date to appoint him as ad-hoc Executive Engineer on the same terms as of other Assistant Engineers promoted as on this date and thereafter to treat him in the same way as these promoted Assistant Engineers have been treated. The appellant will have his costs of this appeal as also of the writ. Counsel's fee for this appsal and for the original proceedings is fixed at Rs. 500.00.