Central Administrative Tribunal - Delhi
Sanjay Hingorani S/O Shri Hira Lal ... vs Municipal Corporation Of Delhi on 20 August, 2015
Central Administrative Tribunal Principal Bench, New Delhi O.A. No.1603/2010 Order reserved on 20th day of July 2015 Order pronounced on 20th day of August, 2015 Honble Shri Sudhir Kumar, Member (A) Honble Shri A.K. Bhardwaj, Member (J) 1. Sanjay Hingorani s/o Shri Hira Lal Hingorani JE (M-I) Shahdara South r/o H.No.230, Jagriti Enclave Delhi-92 2. Ms. Reshma Gupta d/o Shri M M Gupta JE (Najafgarh Zone), Delhi 3. Sandeep Kumar Jain s/o Shri Bimal Pd. Jain EE (M-II), Shahdara South Zone, Delhi 4. Manish Jain s/o Shri S C Jain EE (M-I), Shahdara South Zone, Delhi 5. Vishnu Dutt Vashistha s/o Shri Jagdish Chand VAshistha o/o EE (Bldg.), CNZ, Delhi 6. Vijay Sharma s/o Shri Babu Ram Verma JE (Pr.II), West Zone, MCD, Delhi 7. Shaheen Ahmad Niyazi s/o Shri Husain Ahmed Niyazi EE (Project), Shahdara South Zone, Delhi 8. Sanjeev Kumar Kaushik s/o Shri Brahma Pal Sharma EE (M-I), Shahdara South Zone, Delhi 9. Rajesh Kumar s/o Shri N C Gupta EE (Project), Shahdara South Zone, Delhi 10. Raj Kumar Gupta s/o Shri Mukut Lal Gupta EE (Pr.) Shahdara South Zone, Delhi 11. Ms. Mithlesh Kumar d/o Shri U S Sharma EE (Pr.) City Zone, Delhi 12. Arun Kumar Sharma s/o Shri Peeyush Kant Vashisth EE (M-IV) Shahdara North Zone, Delhi 13. Sanjeev Kumar s/o Shri Pratap Singh JE (EE Project) MGZ, Delhi 14. Ms. Seema d/o Shri Pratap Singh EE (Pr.)CLZ, Delhi 15. Jagbir Singh s/o Shri Maha Singh EE (M-III) MGZ, Delhi 16. Manohar Lal s/o Shri Kunwar Pal Singh EE (M-II), CNZ, Delhi 17. Girish Prakash s/o Shri Narain Singh EE (M-I) Shahdara North Zone, Delhi 18. Ajay Kumar Yadav s/o Shri Sher Singh Yadav O/o EE (M-III) Shahdara South Zone Delhi 19. Ghazanfar Ali s/o Shri Anis Ahmed JE (M-IV) Shahdara South Delhi 20. Khushi Ram s/o Shri Dal Chand EE (M-I), Shahdara South Zone, Delhi 21. Kuldip Singh Ruhil s/o Shri Meer Singh EE (Pr.II), West Zone, Delhi ..Applicants (Shri Rajeev Sharma, Advocate) Versus 1. Municipal Corporation of Delhi (through its Commissioner) Town Hall, Chandni Chowk, Delhi 2. The Commissioner Municipal Corporation of Delhi Town Hall, Chandni Chowk, Delhi 3. The Addl. Commissioner (Engg.) Municipal Corporation of Delhi Town Hall, Chandni Chowk, Delhi 4. The Director (Personnel) Municipal Corporation of Delhi Town Hall, Chandni Chowk, Delhi 4. Shri Naresh Kumar Bhardwaj 5. Shri Gulsher Khan 6. Shri Amar Singh Bizariniyan 7. Shri Rakesh Kumar Jain 8. Shri Sushil Kumar 9. Shri Jitender Singh 10. Shri Zavvar Kasim 11. Shri Ramesh Narayan Dahiya 12. Shri Niranjan Lal 13. Shri Zafar Mohsin 14. Shri Anil Kumar Sharma 15. Shri Chander Bhan Singh 16. Shri Ashok Kumar Singh 17. Shri Devender Singh 18. Shri Ajay Kumar Sharma 19. Shri Surinder Singh 20. Shri Virender Singh 21. Shri Uday Singh Chauhan 22. Shri Bijender Singh 23. Shri Rajesh Tewatia 24. Shri Ved Pal 25. Shri Mohd. Asif 26. Shri Agnivesh Sharma 27. Shri Sunil Jain 28. Shri Ravinder Kumar 29. Shri Pankaj Kumar Goel 30. Shri Rajinder Singh 31. Shri Sanjay Kumar Jain 32. Shri Surender Singh 33. Shri Avnish Gupta 34. Shri Rajesh Parashar 35. Shri Rajni Kant Tiwari 36. Shri Praveen Kumar Jain 37. Shri S M R Zaidi 38. Shri Ishat Ullah Khan 39. Shri Ajay Kumar Jain 40. Shri Somesh Kumar Mittal 41. ShriFarukh Mustafa Siddiqui 42. Shri Rajesh Kumar Gupta 43. Shri Feroze Muzaffar 44. Shri Yogendra Pal Singh 45. Shri Kuldeep Chopra 46. Shri Shamim Ahmed 47. Shri S D Raza 48. Shri Ajay Kumar Mittal 49. Shri Sumant Singh 50. Shri Satish Kumar Chauhan 51. Shri Pradeep Kumar Jain 52. Shri Anil Kumar Aggarwal 53. Shri Abdul Majid 54. Shri Ramesh Chander 55. Shri Mohd. Yasin 56. Shri Sabir Jung 57. Shri Mohd. Ishrat Ullah 58. Shri Rais Ahmed 59. Shri Radhey Shyam Garg 60. Shri Nawazish Hussain 61. Shri Satibir Singh 62. Shri Suresh Kumar Lakra 63. Shri Sunil Mohan 64. Shri Shiv Kumar 65. Shri Sharafat Ali Khan 66. Shri Kaptan Singh 67. Shri Sansar Singh 68. Shri Kaptan 69. Shri Daya Nand Dahiya 70. Shri Ranjan Shukla 71. Shri Suresh Kr. Saini 72. Shri Anil Mittal 73. Shri Kulbir Singh 74. Shri Virender Kr. Kapoor 75. Shri Shishan Pal Garg 76. Shri Sanjay Karanwal 77. Shri Rajbir 78. Shri Vimal Kr. Gupta 79. Shri Ramesh Kr. Goel 80. Shri Narinder Singh Grover 81. Shri Pramod Singhal 82. Shri Raj Kumar Garg 83. Shri Suresh dua 84. Shri Mahesh Chander Kumar 85. Shri Komal Pd. Sharma 86. Shri Rajiv Kumar Jain 87. Shri Ajmeri Suhail 88. Shri Nashir Khan 89. Shri S.M. Khalid Zaidi 90. Shri Dinesh Kumar Mital 91. Shri Chander Kant Yadav 92. Shri Kokab Naqvi 93. Shri Suhail Ahmed 94. Shri Sanjeev Kumar Sharma ..Respondents (Shri R.K. Jain, Advocate for official respondents Ms. Jyoti Singh, Senior Advocate and Shri Ankur Garg & Shri A K Soni, Advocates with her for private respondents) O R D E R
Shri A.K. Bhardwaj:
During the period 1987 to 1992, the Municipal Corporation of Delhi (MCD) engaged some Work Assistants, including the private respondents herein, to perform day to day civic work. They were engaged initially on muster roll basis and were subsequently given ad hoc appointment as Junior Engineer (Civil / Electrical). Finally, they were regularized as Junior Engineer in terms of the impugned orders. The details of the dates of engagement as Work Assistant, ad hoc appointment and regularization as Junior Engineer of the private respondents, as furnished by them, read thus:-
"Subject:- Status of private respondent (Civil).
S. No. Name of Private Respondent (Civil) Date of Engagement as Work Assistant Date of Ad-hoc Appointment as JE Date from which Regularized as JE Remarks 1 Sh. Naresh Kumar Bhadwaj 01.11.1985 01.10.1989 01.10.1989 2 Sh. Gulsher Khan 01.01.1987 04.10.1989 04.10.1989 3 Sh. Amar Singh Bizariniyan 15.12.1986 04.10.1989 04.10.1989 4 Sh. Rakesh Kumar Jain 27.09.1985 04.10.1989 04.10.1989 5 Sh. Sushil Kumar 15.03.1986 04.10.1989 04.10.1989 6 Sh. Jitender Singh 15.04.1986 04.10.1989 04.10.1989 7 Sh. Zawar Kasim 22.02.1986 04.10.1989 04.10.1989 8 Sh. Ramesh Narayan Dahiya 15.01.1987 04.10.1989 04.10.1989 9 Sh. Niranjan Lal 08.07.1986 04.10.1989 04.10.1989 10 Sh. Zafar Hohsin 21.08.1986 04.10.1989 04.10.1989 11 Sh. Anil Kumar Sharma 24.04.1986 03.05.1993 03.05.1993 12 Sh. Chander Bhan Singh 12.10.1986 03.05.1993 03.05.1993 13 Sh. Ashok Kumar Singh 15.10.1986 03.05.1993 03.05.1993 14 Sh. Devender Singh 25.11.1986 03.05.1993 03.05.1993 15 Sh. Ajay Kumar Sharma 15.12.1986 03.05.1993 03.05.1993 16 Sh. Surinder Singh 15.05.1987 03.05.1993 03.05.1993 17 Sh. Virender Singh 21.05.1987 03.05.1993 03.05.1993 18 Sh. Uday Singh Chauhan 25.05.1987 03.05.1993 03.05.1993 19 Sh/ Bijender Singh 15.06.1987 03.05.1993 03.05.1993 20 Sh. Rajesh Tewatia 09.10.1987 03.05.1993 03.05.1993 21 Sh. Ved Pal 16.09.1987 03.05.1993 03.05.1993 22 Sh. Mohd. Asif 06.09.1988 03.05.1993 03.05.1993 23 Sh. Agnivesh Sharma 09.09.1988 03.05.1993 03.05.1993 24 Sh. Sunil Jain 15.10.1988 03.05.1993 03.05.1993 25 Sh. Ravinder Kumar 01.11.1989 03.05.1993 03.05.1993 26 Sh. Pankaj Kumar Goel 23.11.1989 03.05.1993 03.05.1993 27 Sh. Rajinder Singh 21.12.1989 03.05.1993 03.05.1993 28 Sh. Sanjay Kumar Jain 24.10.1990 03.05.1993 03.05.1993 29 Sh. Surender Singh 24.04.1990 03.05.1993 03.05.1993 30 Sh. Avnish Gupta 07.06.1990 03.05.1993 03.05.1993 31 Sh. Rajesh Parashar 15.01.1990 03.05.1993 03.05.1993 32 Sh. Ranji Kant Tiwari 05.12.1991 03.05.1993 03.05.1993 33 Sh. Praveen Kumar Jain 26.02.1992 03.05.1993 03.05.1993 34 Sh. S.M.R Jaidi 07.09.1994 25.05.1995 25.05.1995 35 Sh. Ishat Ullah Khan 15.02.1987 04.10.1989 04.10.1989 36 Sh. Ajay Kuamr Jain 15.05.1986 04.10.1989 04.10.1989 37 Sh. Somesh Kumar Mittal 15.09.1985 04.10.1989 04.10.1989 38 Sh. Farukh Mustafa Siddiqui 17.02.1986.
04.10.1989 04.10.1989 39 Sh. Rajesh Kumar Gupta 04.09.1985 04.10.1989 04.10.1989 40 Sh. Feroze Muzaffar 17.12.1987 03.05.1993 03.05.1993 41 Sh. Yogendra Pal Singh 23.03.1987 03.05.1993 03.05.1993 42 Sh. Kuldeep Chopra
02.09.1987 03.05.1993 03.05.1993 43 Sh. Shamim Ahmed 16.09.1987 03.05.1993 03.05.1993 44 Sh. S.D Raza 29.09.1987 03.05.1993 03.05.1993 45 Sh. Ajay Kumar Mittal 01.09.1988 03.05.1993 03.05.1993 46 Sh. Sumant Singh 18.10.1989 03.05.1993 03.05.1993 47 Sh. Satish Kumar Chauhan 14.06.1989 03.05.1993 03.05.1993 48 Sh. Paradeep Kumar Jain 30.03.1990 03.05.1993 03.05.1993 49 Sh. Anil Kumar Aggarwal 23.02.1990 03.05.1993 03.05.1993 50 Sh. Abdul Majid 15.09.1990 03.05.1993 03.05.1993 51 Sh. Ramesh Chander 15.11.1990 03.05.1993 03.05.1993 52 Sh. Mohd. Yasin
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53Sh. Sabir Jung
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54Sh. Mohd. Ishrat Ullah 15.07.1980 02.06.1989 02.06.1989 55 Sh. Rais Ahmed 15.11.1980 02.06.1989 02.06.1989 56 Sh. Radhey Shyam garg 15.02.1983 02.06.1989 02.06.1989 57 Sh. Nawazish Hussain 26.03.1983 02.06.1989 02.06.1989 58 Sh. Satbit Singh 01.08.1983 02.06.1989 02.06.1989 59 Sh. Suresh Kumar Lakra 04.01.1983 02.06.1989 02.06.1989 60 Sh. Sunil Mohan 09.01.1984 02.06.1989 02.06.1989 61 Sh. Shiv Kumar 26.02.1984 02.06.1989 02.06.1989 62 Sh. Sharafat Ali Khan 31.03.1984 02.06.1989 02.06.1989 63 Sh. Kaptan Singh 28.02.1985 02.06.1989 02.06.1989 64 Sh. Sansar Singh 03.12.1984 02.06.1989 02.06.1989 65 Sh. Kaptan Singh 15.02.1985 02.06.1989 02.06.1989 66 Sh. Daya Nand Dahiya 02.08.1985 02.06.1989 02.06.1989 67 Sh. Ranjan Shukla 25.12.1986 02.06.1989 02.06.1989 68 Sh. Suresh Kr. Saini 15.01.1987 02.06.1989 02.06.1989 69 Sh. Anil Mittal 02.02.1987 02.06.1989 02.06.1989 70 Sh. Kulbir Singh 15.03.1989 03.05.1993 03.05.1993 71 Sh. Virender Kr. Kapoor 06.09.1985 04.10.1989 04.10.1989 72 Sh. Shishan Pal Garg 15.10.1985 04.10.1989 04.10.1989 73 Sh. Sanjay Karanwal 06.12.1985 04.10.1989 04.10.1989 74 Sh. Rajbir 01.02.1991 03.05.1993 03.05.1993 75 Sh. Vimal Kr. Gupta 01.05.1985 03.05.1993 03.05.1993 76 Sh. Ramesh Kr. Goel 17.12.1986 03.05.1993 03.05.1993 77 Sh. Narinder Singh Grover 23.12.1986 03.05.1993 03.05.1993 78 Sh. Pramod Singhal 16.12.1985 03.05.1993 03.05.1993 79 Sh. Raj Kumar Garg 23.10.1986 03.05.1993 03.05.1993 80 Sh. Suresh Dua 02.01.1987 03.05.1993 03.05.1993 81 Sh. Mahesh Chander Kumar 20.02.1987 03.05.1993 03.05.1993 82 Sh. Komal Pd. Sharma 17.08.1987 03.05.1993 03.05.1993 83 Sh. Rajiv Kumar Jain 18.04.1990 03.05.1993 03.05.1993 84 Sh. Ajmeri Suhil
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JE (Elct.) 85 Sh. Nashir Khan
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JE (Elct.) 86 Sh. S.M. Khalid Zaidi
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JE (Elct.) 87 Sh. Dinesh Kuamr Mittal
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JE (Elct.) 88 Sh. Chander Kant Yadav
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JE (Elct.) 89 Sh. Kakab Naqvi
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JE (Elct.) 90 Sh. Suhail Ahmed
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JE (Elct.) 91 Sh. Sanjeev Kumar Sharma
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JE (Elct.) Thus, the applicants filed the present Original Application praying therein:-
(a) to set-aside the impugned order dated 26.03.2004, 13.06.2005 and other similar orders as allowed by this Honble CAT in its order dated 12.10.2009 as illegal and unconstitutional.
(b) to issue direction to the respondents to prepare a fresh seniority list in view of prayer(a).
(c) to issue direction to the respondent asking them to declare that all the private respondents are junior to the applicants and a new seniority list may be issued by the respondents accordingly.
(d) the Honble Tribunal may pass any other order/direction as deemed fit and proper in the circumstances of the present case and in the interest of justice.
2. Mr. Rajeev Sharma, learned counsel for applicants espoused:
i) The regular appointment of the private respondents (Respondent Nos. 4 to 94) in itself is contrary to law and in disregard to the judgment of Honble Supreme Court (Constitution Bench) in Class II Engineers Association v. State of Maharasthra
ii) Respondent Nos. 1 to 4 miss-interpreted the Orders passed by the Honble High Court, as the only direction issued by the High Court was to consider the case of the applicants before it for regularization as per law.
iii) The applicants cannot be treated junior to those, who were appointed /regularized in disregard of law.
iv) Even the Union Public Service Commission (UPSC) could not have relaxed the Recruitment Rules for regularization of the private respondents herein.
v) Before fixation of seniority of respondent Nos. 4 to 95 above them, respondent Nos. 1 to 4 did not give any show cause notice to the applicants.
3. In the counter reply filed on behalf of the official respondents (respondent Nos. 1 to 4), it has been explained that the matter for regularization of private respondents as Junior Engineer (Civil/Electrical) was placed before the UPSC for its concurrence and relaxation of the Recruitment Rules and the Commission vide its letter No.F.4/30(A)/2003/AP-1 dated 28.7.2003 agreed to relax the recruitment Regulation Nos.6, 7 and 10 in terms of Regulation 14 (Power to relax) to enable the MCD to implement the various Orders of Honble High Court of Delhi. Thereafter the Committee vide its letter No.F.33/Engg./1477/C&C dated 19.8.2003 had proposed before the Adhoc (Appointment, Promotions, Disciplinary and Allied Matters) Committee for approval of one time relaxation of Regulation Nos. 6,7 and 10 for 30 posts of Junior Engineer (Civil) and 8 posts of Junior Engineer (Electrical) under provisions of Regulation No.14 of the Recruitment Rules for regularization as Junior Engineers with effect from the date of ad hoc appointment of the incumbents of the post, in the pay scale of Rs.1400-2300. The APD & AC Committee vide its Resolution No. 82 dated 17.12.2003 had recommended the proposal for being placed before the Corporation and the Corporation vide Resolution No.715 dated 12.1.2004 had approved the recommendations of the APD & AC Committee. Pursuant to Resolution No.715 dated 12.1.2004 passed in compliance of the Orders of the Honble High Court of Delhi in various petitions, the MCD appointed 38 Junior Engineers (Civil & Electrical) on regular basis with effect from the retrospective date as mentioned against them vide office order No.HC-II/Engg./HQ/2004-2066 dated 26.3.2004 and further pursuant to the Corporations Resolution No.85 dated 28.5.2004, 53 more persons were appointed as Junior Engineer (Civil/Electrical) on regular basis with retrospective effect in relaxation of Regulation Nos. 6, 7 and 10 of the relevant Recruitment Rules.
4. In sum and substance, the plea of official respondent Nos. 1 to 4 is that private respondent Nos. 4 to 94 were regularized as Junior Engineer (Civil / Electrical) after following the due process and in implementation of the directions issued by the Honble High Court and only such individuals, who satisfied the educational / technical education for the post of Junior Engineer and were recommended for ad hoc appointment, were so regularized.
5. In the counter reply filed on behalf of private respondent Nos.5, 6, 9, 12, 14, 16, 17, 18, 20, 22, 24, 26, 31, 35, 39, 42, 44, 49, 54, 73, 77, 78, 80, 81, 83, 84, 85 & 86, it has been espoused that they were appointed by the MCD as Work Assistants during the period between 15.4.1986 and 15.11.1990 and on being found fully eligible and qualified for the post of Junior Engineer (Civil), they were made to work against the available vacancies of the post and were given ad hoc appointment as Junior Engineer and were finally regularized. It is also the stand of the said private respondents that they were considered for regularization in implementation of the Orders passed by the Honble High Court in Writ Petition Nos. 2489/2003, 627/2003, 5700/2002 and 6018/2002. Relevant averments made by the said respondents in the reply in this regard read thus:--
It is necessary to submit here that the answering respondent no.5, 6, 9, 12, 14, 16, 17, 18, 20, 22, 24, 26, 31 & 35 as such in all compelling circumstances along with others filed a Writ Petition bearing no.2489/2003 titled as Naresh Kumar Bhardwaj and Others V. Municipal Corporation of Delhi before Honble High Court of Delhi. The respondents No.39, 42, 44, 49 & 54 along with others filed Writ Petition bearing no.627/2003 titled as Ishat Ullah Khan and Others V. Municipal Corporation of Delhi before Honble High Court of Delhi. The respondent no.73, 77 & 78 along with others filed Writ Petition bearing no.5700/2002 titled as Kulbir Singh and Others V. Municipal Corporation of Delhi before Honble High Court of Delhi. The respondents No.80, 83, 84, 85 & 86 along with others filed also Writ Petition bearing no. 6018/2002 titled as Ramesh Kr. Goel and Others V. Municipal Corporation of Delhi before Honble High Court of Delhi. The Honble High Court vide its orders dated 20.01.2003 and 22.5.2003 disposed of the aforesaid petitions in view of the judgments in CWP 142/1988 and CWP 2800/2002. It is respectfully submitted that the Honble High Court of Delhi in the aforesaid Writ Petition bearing CWP No.2800/2002 passed a detailed order dated 19.2.2003 wherein the Corporation was directed to process the matter immediately after obtaining necessary permission from the competent authority. The copies of the judgments in the aforesaid Writ Petitions no.2800/2000, 2489/2003, 627/2003, 5700/2002 and 6018/2002 are all collectively filed here with and marked as Annexure R2.
6. According to the aforementioned respondents, they discharged the duties as Junior Engineer (Civil) from the date of their initial appointment and their regularization was in implementation of the Orders of Honble High Court and by now they have been made to work as Assistant Engineer (Civil) on ad hoc / look after basis. Paragraphs 4 and 5 of the reply read thus:-
4. That the present application under reply is not maintainable and liable to be rejected by this Honble Tribunal. It is humbly submitted that the answering respondents as such were discharging duties as that of Junior Engineers (Civil) from the date of their initial appointment with the Corporation. It is further submitted that the regularisation of these respondents were done by the Corporation w.e.f. 4.10.1989 and 03.05.1993 as reflected in the preceding para after following due procedure in as much as in compliance to the direction passed by the Honble High Court of Delhi in above mentioned Writ Petitions filed by the respective respondents. It is humbly submitted that office orders dated 26.03.2004 & 13.06.2005 regularising the present respondents w.e.f. 4.10.1989 and 03.05.1993 impugned by the applicants were in pursuance of resolution no.85 dated 28.4.2005 and further in compliance to the decision of the Honble High Court as mentioned here in above in which the present respondents were the petitioners. These orders further mentioned the approval dated 26.5.2004 of the UPSC relaxing regulation no.6, 7 & 10 of the Recruitment Regulations for the post of Junior Engineers (Civil). The copies of these office orders dated 26.03.2004 & 13.06.2005 as impugned by the applicants are filed herewith for ready reference and marked as Annexure R5.
5. That the present application under reply is not maintainable and liable to be rejected by this Honble Tribunal. It is respectfully submitted that answering respondents have been continuously working under the respondent Corporation since initial date of their appointment and many of them in the course of time were given look after charge of Assistant Engineer (Civil), and further ad-hoc promotion to the post of Asst. Engineer (Civil), a post higher in rank to the post of Junior Engineer (Civil). It is necessary to state here that the respondent Corporation issued an office order dated 19.10.07 by which the answering respondents no.5, 9, 16, 24, 39, 42, 81, 83 & 85 were assigned look after charge of the Asst. Engineer (Civil). The Corporation issued another office order dated 23.07.2009 by which the respondents no. 6, 9, 14, 16, 17, 18, 24, 26, 39, 42, 77, 80, 81, 83, 85 & 86 were promoted to the post of Asst. Engineer (Civil) on ad-hoc basis against regular pay scale. The Corporation issued similar office orders dated 28.07.09 and 4.11.09 by which the answering respondents no.73 & 22 were also promoted respectively to the post of Asst. Engineers (Civil) on ad-hoc basis against regular pay scale. The copies of these office orders dated 19.10.07, 23.07.09, 28.07.09 & 4.11.09 are all collectively filed herewith and marked as Annexure R6. It is humbly submitted that the office orders dated 26.03.2004 & 13.6.2005 as impugned by the applicants have got finality in the course of time in as much as there was no illegality in the aforesaid impugned orders passed by the respondent Corporation in favour of the answering respondents and many others similarly situated. It is respectfully submitted that large number of similar orders were also passed by various Govt. agencies at the relevant periods for regularising the services of employee on muster roll and those on ad-hoc appointments. The applicants in the entire facts and circumstances of the case have already accepted the answering respondents as seniors to them. There is no justification on the part of the seniority of the present respondents. Even otherwise the application filed by the applicants at this belated stage impugning the regularisation and the seniority is liable to be rejected on the grounds of delay and laches.
7. Ms. Jyoti Singh, learned Senior Advocate appearing for the private respondents submitted that the applicants herein could have no locus standi to question the order of regularization of the services of private respondent Nos. 4 to 94 and since they have not questioned the seniority list wherein their seniority has been fixed below the said respondents, the Original Application is not maintainable. She further reiterated the stand taken in the counter reply that the regularization of said respondents is in implementation of the Orders passed by the Honble High Court and even if a view is taken that there cannot be any retrospective regularization, the private respondents would otherwise be entitled to fixation of seniority from the date of their ad hoc appointment followed by regularization.
8. We heard the learned counsels for the parties and perused the record.
9. Way back in the year 1987, i.e., on 20.5.1987, the Standing Committee of MCD resolved that all the Work Assistants employed in the Department, who possessed the requisite educational qualification and experience, should be considered for regular appointment as Junior Engineer. Relevant excerpt of the Resolution placed on record by the official respondents as enclosure to their reply reads thus:-
Resolved further that such of the Work Assistants, working in the department, who possess the requisite educational qualification and experience be considered for regular appointment as Junior Engineers.
10. In the year 1988, S/Shri Parmod Kumar Sharma and Baljor Singh filed C.W.P. No.142/1988 before the Honble High Court of Delhi with the prayer:
A) Issue a writ of mandamous, any other writ or writs, order or orders, direction or directions to command the respondents to consider the petitioners for regularisation i.e. for regular appointment as Junior Engineers.
B) Issue any other writ or writs, order or orders direction or directions to give the salary, other allowances and benefits to the petitioners which is equivalent to that of Junior Engineers;
11. In the counter reply filed in the said writ petitions, the MCD took a stand that though the petitioners had passed the diploma in Mechanical Engineering, yet the same was the basic qualification for appointment to the post of Work Assistant (Mechanical). It was also the stand of the Corporation taken in the writ petition that the job of Junior Engineer and that of a Work Assistant was neither similar nor identical. According to them, when the job of Junior Engineer involve planning, estimation, preparation of specification executive capital and maintenance works, maintenance of cost and store accounts, recording of measurement, preparing bills of contracts and assisting the senior in Administrative matters and overall supervision of skilled and unskilled workers, etc., the Work Assistants were assisting the Junior Engineer in the said spheres, such as extending assistance in respect of procurement and supervision of skilled and unskilled workers. Paragraphs 4 and 7 of the reply filed in the writ petition, reproduced in the Order of the Honble High Court, read thus:-
Para 4 of the petition is wrong and is denied, it is denied that the petitioners are eligible to be promoted as Junior Engineers. It is submitted that although the petitioners have passed diploma in Mechanical Engineering, yet the same is the basic qualification for appointment to the post of Work Asstt. (Mechanical).
xx xx xx xx Para 7 of the petition is wrong and is denied. It is submitted that the job of Junior Engineer and that of a Work Assistant is neither similar nor identical. A Junior Engineers job involves planning, estimation, preparation of specification executive capital and maintenance works, maintenance of cost and store accounts, recording of measurement, preparing bills of contracts and assisting the senior in Administrative matters and overall supervision of skilled and unskilled workers, etc. On the other hand, the Work Assistants are performing their duties of Assisting Junior Engineers in view of aforesaid spheres such as assisting the Junior Engineers in respect of procurement and supervision of skilled and unskilled workers. The Work Assistants have neither to put hard-work and skill like artisan, such as Fitters, Painters, Welders etc. nor have they to shoulder the vast responsibility like that of the Jr. Engineer. It is submitted that the petitioners no. 1 & 2 are working as Work Assistants. Since the year 1978 periodical sanction for their engagement for Assisting the Jr. Engineer (Mechanical). The pay scales mentioned in the petition are for regular skilled workers and Jr. Engineer and the same can not be applicable to work assistants who are working on daily wages basis.:
12. Nevertheless, the High Court did not sustain the stand taken by the MCD and directed the Corporation to pass appropriate order regarding regularization of the petitioners. Para 2 of the Order reads thus:-
2. The reasons given by the Municipal Corporation of Delhi cannot at all be sustained in view of the principles laid down by the Supreme Court in this behalf in several decisions. The Municipal Corporation of Delhi ought to have considered the case of the petitioners in accordance with law for regularisation and fix their pay scales accordingly.
13. In the meantime, in the year 1993, the MCD had contemplated filling up the vacant posts of Junior Engineer (Civil / Electrical) and in the year 1995, the Additional Commissioner (Engineering) had written a letter No.RC-II/Engg./Estt./95/2722 dated 1.12.1995 to the Secretary, UPSC making a request for one time relaxation in the recruitment Regulations for the post of Junior Engineer (Civil) to regularize the services of 82 officials working on ad hoc basis. The letter reads thus:
Subject: One time relaxation in the Recruitment Regulations for the post of JE (Civil) for appointment on regular basis.
Sir, The Recruitment Regulations for the post of JE (Civil) were notified vide Notification No.F.9/7/88-LSG/6057 dated 9.10.84 (copy enclosed). In this connection, Commissions letter No.F.3/24(II)/78-RR dated 28.6.82 may be referred to. The method of recruitment for appointment to the post of JE (Civil) as provided in the Recruitment Regulations is by direct recruitment.
There are 82 officials in the Engineering Department of MCD, holding the post of JE (Civil) on ad hoc basis as per the list enclosed. These officials were working on Work Assistants in the Engineering Department of the Municipal Corporation of Delhi for a long time and were subsequently posted as Junior Engineers (Civil) on ad hoc basis. A perusal of the particulars given in the enclosed list would reveal that as many as 35 officials are holding the post on ad hoc basis for the last more than 6 years and 46 officials are holding the post on ad hoc basis for more than 30 months. The Recruitment Regulations of the post provide the age limit for MCD employees as 35 years. All these 82 officials were within the permissible age limit of 35 years as provided in the Recruitment Regulations for MCD employees although some of them would have now crossed the age limit at the time of consideration for their appointment on regular basis to the post of JE (Civil), in relaxation of Recruitment Regulations of the post. Since these officials have been working on ad hoc basis for a considerably long time, it would perhaps not be possible to terminate their services at this stage. This would also avoid inviting unwanted litigation in the matter.
Presently, we are having m ore than 200 posts of JE (Civil) vacant which are to be filled by direct recruitment. As has already been stated that it would not be desirable to terminate services of these 82 officials, one time relaxation in the Recruitment Regulations with regard to the method of recruitment for the post of JE (Civil) for appointment on regular basis is sought. However, these officials will be considered for regular appointment subject to fulfilling other conditions of Recruitment Regulations i.e. educational and other qualifications as provided in the Recruitment Regulations for the post.
It is, therefore, requested that one time relaxation in the Recruitment Regulations for the post of JE (Civil) with regard to age at the time of considering regular appointment and to the method of recruitment may be considered to enable MCD to consider regular appointment of these 82 officials holding the post on ad hoc basis and convey the concurrence of the Commission at an early date.
14. It is not in dispute that finally in consultation with the UPSC the conditions mentioned in clauses 6, 7 and 10 of the Recruitment Rules were relaxed and respondent Nos. 4 to 94 were regularized with retrospective effect. Relevant excerpts of the Recruitment Rules are reproduced hereinbelow:-
6. Age limit for direct recruitment Not exceeding 25 years (Relaxation upto 15 years for Govt. servants and employees of the MCD in accordance with the instructions issued by the Central Govt.
xx xx xx
7. Education and other Essential:
qualifications required for (A) Degree in Civil Engineering direct recruits. from a recognized University or equivalent. (B) (i) Diploma in Civil Engin- eering from a recognized institution or equivalent. (ii) 2 year professional experience xx xx xx 10. Method of rectt. whether Not applicable by direct recruitment or by promotion or by deputation /transfer & percentage of the vacancies to be filled by various methods
15. After the Order passed in C.W.P. No.142/1988 the Honble High Court had also passed Order dated 11.10.2001 in Writ Petition No.3276/1987 with C.M. No.4450/2000. In the said Order, the Order passed in C.W.P. No.142/1988 was relied upon. For easy reference, the Order is reproduced hereinbelow:-
C.W.3276/87 & C.M. 4450/2000 The petitioners herein are the diploma holders in engineering and they have filed the present writ petition seeking for a direction to the respondents to regularise their services as Junior Engineers. Counsel appearing for the petitioners submits that the reliefs sought for by the petitioners herein are similar to that of in CWP No.142/88.
I have perused the records placed before me and I find that the aforesaid writ petition was taken up for consideration by this court and after hearing the parties, the said writ petition was allowed with certain directions to the respondents in terms of the judgment and order dt. 10.3.99. In the said judgment it was observed by the Division Bench that the MCD ought to have considered the case of the petitioners in accordance with law for regularisation and fix their pay scales accordingly. In the context of the aforesaid observations and conclusions, this court issued directions to the MCD to pass appropriate orders in that behalf within a particular date. I am informed that in terms of the aforesaid order, the matter is being processed by the respondents.
Since the petitioners herein are similarly situated with the petitioners in CW 142/88, I do not see any reason why the observations and conclusions along with operative portion of the said judgment should not be also made applicable to the petitioners herein. Accordingly, it is directed that the MCD shall consider the case of the petitioners in accordance with law for their regularisation and fix their pay-scales accordingly. Necessary steps in that regard shall be taken at the earliest and the matter shall be processed alongwith the records of CW 142/88. In case any relaxation is required to be given, in respect of the rules, the respondents shall process the matter for the same and get necessary permission from the competent authority in that regard also.
16. Thereafter a catena of Orders were passed by the Honble High Courts in the writ petitions referred to in the counter replies filed on behalf of the official as well as private respondents (ibid). In the year 2010 when the Original Application came up for consideration having heard the counsels for the parties, this Tribunal tried to draw a balance and passed Order dated 22.11.2011, operative part of which reads thus:-
28. When the private respondents could not be entitled to their regularization with effect from the dates of their initial adhoc appointment, particularly for the reason that the respondents had decided the regularize them only because they had worked on the post in question for quite some time. When on initial date of their appointment on adhoc basis the private respondents had no adoc service to their credit, the ground for their regularization i.e. adhoc service rendered by them did not exist as on said date. However when in the year 1995 the MCD had believed that the private respondents deserved regularization even by relaxing the recruitment rules and its such belief was endorsed by UPSC, the private respondents should not be made to suffer for the delay caused by MCD/UPSC in their regular appointment from prospective date. In the circumstances, it would be fair and magnanimous to treat the regular appointment of the private respondents effective from the date of filing of WP (C) No.142/1998 before Honble Delhi High Court. However such change in date of regular appointment would not result in unsettling the position already settled and existing as on date.
29. In view of the aforementioned to uphold the majesty of law and secure the end of justice it is ordered as under:-
i) Ad hoc service rendered by private respondents from the date of their initial appointment would not be counted for the purpose of seniority.
ii) Impugned orders dated 26.3.2004 and 13.6.2005 would be modified to the extent that the private respondents would be treated regular Junior Engineer (Civil/Elect) from the date of filing of CW No. 142/1998 before Honble Delhi High Court.
iii) Aforementioned change in date of regularization of private respondents would not result in change of their seniority position in seniority list of JE (Elect./Civil) dated 9.3.2007
iv) The change of date of regularization of private respondents from the date of their initial ad hoc appointment as Junior Engineer (Civil/Elect) to the date of filing of CW No.142/1998 would not result in their disturbance/reversion from their present position. However, for the purpose of future / further promotion / regularization, seniority of private respondents on the post of Assistant Engineers (Civil/Elect) would be counted on the basis of the date, which could be date of their promotion in present capacity in view of their regularization as Junior Engineer with effect from the date of filing CW No.142/1998 before Honble Delhi High Court.
O.A. is accordingly disposed of No order as to costs.
17. Nevertheless, both the applicants and the private respondents were not satisfied with the Order and filed separate Review Applications. In R.A. No.38/2012 filed on behalf of private respondents, it could be espoused:-
i) Way back in the year 1987, i.e., 20.5.1987, the Corporation itself had resolved to regularize the services of the ad hoc Junior Engineers.
ii) Alleging disobedience of the Orders passed in the respective Writ Petitions, the petitioners in C.W.P. No.142/1988 and Writ Petition No.3276/1987 had filed CCP No.183/2000 and CCP No.374/2002 before the Honble High Court and the CCP No.183/2000 was disposed of by the Honble High Court taking note of the Order passed by the MCD regularizing the services of the petitioners with effect from the date of their ad hoc appointment, and like-wise in view of the statement made by the Corporation that the services of the petitioners had been regularized from the date of their ad hoc appointment the CCP No.374/2002 titled Satya Kumar Sharma v. MCD was disposed of in terms of the Order dated 24.10.2002. The petitioners in C.W.P. No.142/1988 were given ad hoc status w.e.f. 11.2.1994 while the private respondents herein were given such status from earlier dates, therefore, once the petitioners in two writ petitions were made regular with effect from the date of ad hoc appointment, under no circumstances the private respondents herein could have been regularized from a subsequent date, as any such venture could be discriminatory.
iii) Since it is not open to this Tribunal to interfere with the date of regularization of the petitioners in Writ Petition Nos.3276/1987 and 142/1988 for the simple reason that the orders of their regularization were brought to the notice of the Honble High Court in the contempt proceedings and were the basis of the final order passed in such proceedings, the inevitable date of regularization of the services of the private respondents (ibid) may also be not interfered by it, as the date of their ad hoc appointment was interior to that of the petitioners in the two writ petitions (ibid).
iv) Since the petitioners in the CCP No.374/2002 had raised a plea that their services should have been regularized from the date of initial appointment and Honble High Court had given them liberty to establish such claim in separate proceedings, the ramification is that the High Court had consciously accepted the date of their regularization with effect from the date of ad hoc appointment.
v) Since the petitioners in the CCP were ad hoc appointees of 1994, private respondent Nos. 4 to 94 herein being ad hoc appointees of 1987 to 1993 were entitled to be regularized ahead of them and there is no infirmity in the order of their regularization with effect from the dates of ad hoc appointment.
18. Before the aforementioned Review Application was filed on behalf of the private respondents, the applicants herein also, i.e., Shri Sanjay Hingorani & others had filed R.A. No.7/2012 with the pleas:-
i) The Order under review was self-contradictory.
ii) There was no delay in filing the Original Application.
iii) 35 out of total respondents were interviewed for the post of Junior Engineer but could not be appointed on account of their low merit.
iv) In passing the Order under review, the Tribunal exceeded its jurisdiction.
19. Having heard both the Review Applications, i.e., R.A. Nos.38/2012 and 7/2012, we passed the Order dated 30.1.2013 with the view that the ramification of the fact that the retrospective regularization of the private respondents had its root in the Order passed in CCP No.374/2002 need to be examined. Relevant excerpt of the Order reads thus:-
12.. The correction of the year of CWP (ibid) would have vital ramification on seniority of review applicants. Similarly the authentication of regularization of petitioners in CCP 374/2002 from the date of their promotion on ad hoc basis is at variance of the view taken in para 23 of our order. In sum and substance the implication of the year of filing of CWP No. 3276/1987 and the order dated 24.10.2002 passed in CCP 374/2002 would have overwhelming effect on the validity of regularization of review applicants from the date of their adhoc appointment. It is a different issue that the legal position on the subject declared by the Honble Supreme Court may not be ignored lightly. Non filing of any objection to the review application on behalf of MCD and filing of separate application i.e. RA No. 7/2012 by original applicants seeking review of the order dated 22.11.2011 has also weighed in our mind while taking the view regarding the prayer made in the RA. Finding an error apparent on the face of our order dated 22.11.2011 passed in OA 1603/2010 as well as other sufficient reasons, we recall the same. R.A. stands disposed of.
20. Since the R.A. No.38/2012 was allowed, R.A. No.7/2012 was disposed of as infructuous. During fresh hearing of the Original Application, the overwhelming emphasis of the submissions put forth by learned counsel for applicants has been:
i) The initial appointment of the private respondents being illegal, they could not have been given regular appointment.
ii) The illegally appointed individuals, though regularized subsequently, could not have been given seniority over the incumbents appointed in accordance with law.
iii) There is no such law, which envisages the regularization with retrospective effect.
iv) The regularization of the individuals, who did not even satisfy the condition of requisite qualification and experience, is wholly illegal and arbitrary.
v) The initial appointment of the private respondents was admittedly not as Junior Engineer but was as Work Assistant, thus they could not have been regularized as Junior Engineer under any circumstances.
21. The various judgments of Honble Supreme Court relied upon by learned counsel for the applicants are:-
i) State of W.B. & others v. Aghore Nath Dey & others (1993) 3 SCC 371.
ii) Union of India v. Dharam Pal & others, (2009) 4 SCC 170.
iii) Ch. Narayana Rao v. Union of India & others, (2010) 10 SCC 247.
iv) Renu & others v. District & Sessions Judge, Tis Hazari & another (Civil Appeal No.979/2014) decided on 12.2.2014,
v) Vireshwar Singh & others v. Municipal Corporation of Delhi & others, (2014) 10 SCC 360.
22. In Renu & others (supra), relied upon by learned counsel for the applicants, it could be categorically ruled that the appointment made without following the proper procedure under the rules/Government instructions and without advertising or inviting applications from the open market would amount to breach of Articles 14 and 16 of the Constitution of India. The view taken in the judgment is that the power to make appointment to public services should be exercised only to the width of the constitutional rights and limits. The relevant excerpt of the judgment reads thus:-
12. The principles to be adopted in the matter of public appointments have been formulated by this Court in M.P. State Coop. Bank Ltd., Bhopal v. Nanuram Yadav and Ors.: (2007) 8 SCC 264 as under:
(1) The appointments made without following the appropriate procedure under the rules/government circulars and without advertisement or inviting applications from the open market would amount to breach of Articles 14 and 16 of the Constitution of India. (2) Regularisation cannot be a mode of appointment.
(3) An appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularisation. (4) Those who come by back-door should go through that door.
(5) No regularisation is permissible in exercise of the statutory power conferred under Article 162 of the Constitution of India if the appointments have been made in contravention of the statutory rules. (6) The court should not exercise its jurisdiction on misplaced sympathy.
(7) If the mischief played is so widespread and all pervasive, affecting the result, so as to make it difficult to pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection, it will neither be possible nor necessary to issue individual show-cause notice to each selectee. The only way out would be to cancel the whole selection. (8) When the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place and the entire selection has to be set aside.
13. A similar view has been reiterated by the Constitution Bench of this Court in Secretary, State of Karnataka and Ors. v. Umadevi and Ors., AIR 2006 SC 1806, observing that any appointment made in violation of the Statutory Rules as also in violation of Articles 14 and 16 of the Constitution would be a nullity. "Adherence to Articles 14 and 16 of the Constitution is a must in the process of public employment". The Court further rejected the prayer that ad hoc appointees working for long be considered for regularisation as such a course only encourages the State to flout its own rules and would confer undue benefits on some at the cost of many waiting to compete.
14. In State of Orissa and Anr. v. Mamata Mohanty: (2011) 3 SCC 436, this Court dealt with the constitutional principle of providing equality of opportunity to all which mandatorily requires that vacancy must be notified in advance meaning thereby that information of the recruitment must be disseminated in a reasonable manner in public domain ensuring maximum participation of all eligible candidates; thereby the right of equal opportunity is effectuated. The Court held as under:
Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the employment exchange or putting a note on the notice board, etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance with the said constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit.
15. Where any such appointments are made, they can be challenged in the court of law. The quo warranto proceeding affords a judicial remedy by which any person, who holds an independent substantive public office or franchise or liberty, is called upon to show by what right he holds the said office, franchise or liberty, so that his title to it may be duly determined, and in case the finding is that the holder of the office has no title, he would be ousted from that office by judicial order. In other words, the procedure of quo warranto gives the Judiciary a weapon to control the Executive from making appointment to public office against law and to protect a citizen from being deprived of public office to which he has a right. These proceedings also tend to protect the public from usurpers of public office who might be allowed to continue either with the connivance of the Executive or by reason of its apathy. It will, thus, be seen that before a person can effectively claim a writ of quo warranto, he has to satisfy the Court that the office in question is a public office and is held by a usurper without legal authority, and that inevitably would lead to an enquiry as to whether the appointment of the alleged usurper has been made in accordance with law or not. For issuance of writ of quo warranto, the Court has to satisfy that the appointment is contrary to the statutory rules and the person holding the post has no right to hold it. (Vide: The University of Mysore and Anr. v. C.D. Govinda Rao and Anr.: AIR 1965 SC 491; Shri Kumar Padma Prasad v. Union of India and Ors.: AIR 1992 SC 1213; B.R. Kapur v. State of Tamil Nadu and Anr.: AIR 2001 SC 3435; The Mor Modern Co-operative Transport Society Ltd. v. Financial Commissioner and Secretary to Govt., Haryana and Anr.: AIR 2002 SC 2513; Arun Singh v. State of Bihar and Ors.: AIR 2006 SC 1413; Hari Bansh Lal v. Sahodar Prasad Mahto and Ors.: AIR 2010 SC 3515; and Central Electricity Supply Utility of Odisha v. Dhobei Sahoo and Ors.: (2014) 1 SCC 161).
16. Another important requirement of public appointment is that of transparency. Therefore, the advertisement must specify the number of posts available for selection and recruitment. The qualifications and other eligibility criteria for such posts should be explicitly provided and the schedule of recruitment process should be published with certainty and clarity. The advertisement should also specify the rules under which the selection is to be made and in absence of the rules, the procedure under which the selection is likely to be undertaken.
This is necessary to prevent arbitrariness and to avoid change of criteria of selection after the selection process is commenced, thereby unjustly benefiting someone at the cost of others.
17. Thus, the aforesaid decisions are an authority on prescribing the limitations while making appointment against public posts in terms of Articles 14 and 16 of the Constitution. What has been deprecated by this Court time and again is "backdoor appointments or appointment de hors the rules".
In State of U.P. and Ors. v. U.P. State Law Officers Association and Ors.: AIR 1994 SC 1654, this Court while dealing with the back-door entries in public appointment observed as under:
The method of appointment is indeed not calculated to ensure that the meritorious alone will always be appointed or that the appointments made will not be on the considerations other than merit. In the absence of guidelines, the appointment may be made purely on personal or political consideration and be arbitrary. This being so those who come to be appointed by such arbitrary procedure can hardly complain if the termination of their appointment is equally arbitrary. Those who come by the back-door have to go by the same door.... From the inception some engagements and contracts may be the product of the operation of the spoils system. There need be no legal anxiety to save them.
(Emphasis added)
18. In Som Raj and Ors. v. State of Haryana and Ors.: AIR 1990 SC 1176, this Court held as under:
The absence of arbitrary power is the first postulate of rule of law upon which our whole constitutional edifice is based. In a system governed by Rule of Law, discretion when conferred upon an executive authority must be confined within clearly defined limits. The rules provide the guidance for exercise of the discretion in making appointment from out of selection lists which was prepared on the basis of the performance and position obtained at the selection. The appointing authority is to make appointment in the order of gradation, subject to any other relevant rules like, rotation or reservation, if any, or any other valid and binding rules or instructions having force of law. If the discretion is exercised without any principle or without any rule, it is a situation amounting to the antithesis of Rule of Law. Discretion means sound discretion guided by law or governed by known principles of rules, not by whim or fancy or caprice of the authority.
19. In making the appointments or regulating the other service conditions of the staff of the High Court, the Chief Justice exercises an administrative power with constitutional backing. This power has been entrusted to the safe custody of the Chief Justice in order to ensure the independence of the Judiciary, which is one of the vital organs of a Government and whose authority is to be maintained. The discretion exercised by the Chief Justice cannot be open to challenge, except on well known grounds, that is to say, when the exercise of discretion is discriminatory or mala fide, or the like(s).
20. Even under the Constitution, the power of appointment granted to the Chief Justice under Article 229(1) is subject to Article 16(1), which guarantees equality of opportunity for all citizens in matters relating to employment. 'Opportunity' as used in this Article means chance of employment and what it guaranteed is that this opportunity of employment would be equally available to all.
21. As a safeguard, the Constitution has also recognized that in the internal administration of the High Court, no other power, except the Chief Justice should have domain. In order to enable a judicial intervention, it would require only a very strong and convincing argument to show that this power has been abused. If an authority has exercised his discretion in good faith and not in violation of any law, such exercise of discretion should not be interfered with by the courts merely on the ground that it could have been exercised differently or even that the courts would have exercised it differently had the matter been brought before it in the first instance or in that perspective.
22. Article 235 of the Constitution provides for power of the High Court to exercise complete administrative control over the Subordinate Courts. This control, undoubtedly, extends to all functionaries attached to the Subordinate Courts including the ministerial staff and servants in the establishment of the Subordinate Courts. If the administrative control cannot be exercised over the administrative and ministerial staff, i.e. if the High Court would be denuded of its powers of control over the other administrative functionaries and ministerial staff of the District Court and Subordinate Courts other than Judicial Officers, then the purpose of superintendence provided therein would stand frustrated and such an interpretation would be wholly destructive to the harmonious, efficient and effective working of the Subordinate Courts. The Courts are institutions or organism where all the limbs complete the whole system of Courts and when the Constitutional provision is of such wide amplitude to cover both the Courts and persons belonging to the Judicial Office, there would be no reason to exclude the other limbs of the Courts, namely, administrative functionaries and ministerial staff of its establishment from the scope of control. Such control is exclusive in nature, comprehensive in extent and effective in operation. (Vide: The State of West Bengal and Anr. v. Nripendra Nath Bagchi: AIR 1966 SC 447; Shri Baradakanta Mishra v. Registrar of Orissa High Court and Anr.: AIR 1974 SC 710; Yoginath D. Bagde v. State of Maharashtra and Anr.: AIR 1999 SC 3734; Subedar Singh and Ors. v. District Judge, Mirzapur and Anr.: AIR 2001 SC 201; High Court of Judicature for Rajasthan v. P.P. Singh and Anr.: AIR 2003 SC 1029; and Registrar General, High Court of Judicature at Madras v. R. Perachi and Ors.: AIR 2012 SC 232).
23. In M. Gurumoorthy v. The Accountant General, Assam and Nagaland and Ors.: AIR 1971 SC 1850, the Constitution Bench of this Court held:
The unequivocal purpose and obvious intention of the framers of the Constitution in enacting Article 229 is that in the matter of appointments of officers and servants of a High Court it is the Chief Justice or his nominee who is to be the supreme authority and there can be no interference by the executive except to the limited extent that is provided in the Article......Thus, Article 229 has a distinct and different scheme and contemplates full freedom to the Chief Justice in the matter of appointments of officers and servants of the High Court and their conditions of service.
24. In this Case, this Court spelt out the powers of the Chief Justice of the High Court in the matters of appointment of staff of the High Court, but this Court did not lay down in any way that the Chief Justice can exercise such powers in contravention of the provisions of Articles 14 and 16 of the Constitution while making appointments in the establishment of the High Court.
25. In H.C. Puttaswamy and Ors. v. The Hon'ble Chief Justice of Karnataka High Court, Bangalore and Ors.: AIR 1991 SC 295, while dealing with a similar situation and interpreting the provisions of Article 229(2) of the Constitution and Karnataka State Civil Services (Recruitment to Ministerial Posts) Rules, 1966, this Court held the appointments made by the Chief Justice of the High Court without advertising the vacancies as invalid being violative of Articles 14 and 16(1) of the Constitution. The Court came to the said conclusion as the appointments were made without following the procedure prescribed in the Rules. The Court further observed:
While the administration of the Courts has perhaps, never been without its critics, the method of recruitment followed by the Chief Justice appears to be without parallel.... The methodology adopted by the Chief Justice was manifestly wrong and it was doubtless deviation from the course of law which the High Court has to protect and preserve.
The judiciary is the custodian of constitutional principles which are essential to the maintenance of rule of law. It is the vehicle for the protection of a set of values which are integral part of our social and political philosophy. Judges are the most visible actors in the administration of justice. Their case decisions are the most publicly visible outcome. But the administration of justice is just not deciding disputed cases. It involves great deal more than that. Any realistic analysis of the administration of justice in the Courts must also take account of the totality of the judges behaviour and their administrative roles. They may appear to be only minor aspects of the administration of justice, but collectively they are not trivial. They constitute in our opinion, a substantial part of the mosaic which represents the ordinary man's perception of what the Courts are and how the Judges go about their work. The Chief Justice is the prime force in the High Court. Article 229 of the Constitution provides that appointment of officers and servants of the High Court shall be made by the Chief Justice or such other Judge or officer of the Court as may be directed by the Chief Justice. The object of this Article was to secure the independence of the High Court which cannot be regarded as fully secured unless the authority to appoint supporting staff with complete control over them is vested in the Chief Justice. There can be no disagreement on this matter. There is imperative need for total and absolute administrative independence of the High Court. But the Chief Justice or any other Administrative Judge is not an absolute ruler. Nor he is a free wheeler. He must operate in the clean world of law; not in the neighbourhood of sordid atmosphere. He has a duty to ensure that in carrying out the administrative functions, he is actuated by same principles and values as those of the Court he is serving. He cannot depart from and indeed must remain committed to the constitutional ethos and traditions of his calling. We need hardly say that those who are expected to oversee the conduct of others, must necessarily maintain a higher standards of ethical and intellectual rectitude. The public expectations do not seem to be less exacting.
(Emphasis added) (See also: State of Assam v. Bhubhan Chandra Datta and Anr.: AIR 1975 SC 889).
26. In Binod Kumar Gupta and Ors. v. Ram Ashray Mahoto and Ors.: AIR 2005 SC 2103, this Court did not accept the contention that appointment could be made to Class-IV post in Subordinate Courts under the Civil Court Rules without advertisement in the newspapers inviting applications for the posts as that would lead to lack of transparency and violation of the provisions of Article 16 of the Constitution. The Court terminated the services of such appointees who had worked even for 15 years observing that the Court otherwise "would be guilty of condoning a gross irregularity in their initial appointment."
27. To say that the Chief Justice can appoint a person without following the procedure provided under Articles 14 and 16 would lead to an indefinite conclusion that the Chief Justice can dismiss him also without holding any inquiry or following the principles of natural justice/Rules etc., for as per Section 16 of General Clauses Act, 1897 power to appoint includes power to remove/suspend/dismiss. (Vide: Pradyat Kumar Bose v. The Hon'ble Chief Justice of Calcutta High Court: AIR 1956 SC 285; and Chief Justice of Andhra Pradesh and Anr. v. L.V.A. Dikshitulu and Ors.: AIR 1979 SC 193).
But as no employee can be removed without following the procedure prescribed by law or in violation of the terms of his appointment, such a course would not be available to the Chief Justice. Therefore, the natural corollary of this is that the Chief Justice cannot make any appointment in contravention of the Statutory Rules, which have to be in consonance with the scheme of our Constitution.
28. In State of West Bengal and Ors. v. Debasish Mukherjee and Ors.: AIR 2011 SC 3667, this Court again dealt with the provisions of Article 229 of the Constitution and held that the Chief Justice cannot grant any relief to the employee of the High Court in an irrational or arbitrary manner unless the Rules provide for such exceptional relief. The order of the Chief Justice must make reference to the existence of such exceptional circumstances and the order must make it so clear that there had been an application of mind to those exceptional circumstances and such orders passed by the Chief Justice are justiciable. While deciding the matter, the court placed reliance on its earlier judgment of the Constitution Bench in State of U.P. and Ors. v. C.L. Agrawal and Anr.: AIR 1997 SC 2431.
29. Thus, in view of the above, the law can be summarised to the effect that the powers under Article 229(2) of the Constitution cannot be exercised by the Chief Justice in an unfettered and arbitrary manner. Appointments should be made giving adherence to the provisions of Articles 14 and 16 of the Constitution and/or such Rules as made by the legislature.
30. In today's system, daily labourers and casual labourers have been conveniently introduced which are followed by attempts to regularise them at a subsequent stage. Therefore, most of the times the issue raised is about the procedure adopted for making appointments indicating an improper exercise of discretion even when the rules specify a particular mode to be adopted. There can be no doubt that the employment whether of Class IV, Class III, Class II or any other class in the High Court or courts subordinate to it fall within the definition of "public employment". Such an employment, therefore, has to be made under rules and under orders of the competent authority.
31. In a democratic set up like ours, which is governed by rule of law, the supremacy of law is to be acknowledged and absence of arbitrariness has been consistently described as essence of rule of law. Thus, the powers have to be canalised and not unbridled so as to breach the basic structure of the Constitution. Equality of opportunity in matters of employment being the constitutional mandate has always been observed. The unquestionable authority is always subject to the authority of the Constitution. The higher the dignitary, the more objectivity is expected to be observed. We do not say that powers should be curtailed. What we want to say is that the power can be exercised only to the width of the constitutional and legal limits. The date of retirement of every employee is well known in advance and therefore, the number of vacancies likely to occur in near future in a particular cadre is always known to the employer. Therefore, the exercise to fill up the vacancies at the earliest must start in advance to ensure that the selected person may join immediately after availability of the post, and hence, there may be no occasion to appoint any person on ad-hoc basis for the reason that the problem of inducting the daily labourers who are ensured of a regular appointment subsequently has to be avoided and a fair procedure must be adopted giving equal opportunity to everyone.
23. In Dharam Pals case (supra), it could be ruled that where the initial appointment is only ad hoc, not according to rules and made as a stopgap arrangement, the period of officiation in such post cannot be taken into account for considering the seniority. Paragraphs 18, 20, 23 and 25 read thus:-
13. A policy decision taken by the authorities of the Railway to regularize the services of those MCCs who had been appointed on ad hoc basis was a one time measure. It was not to be followed as a precedent. It was, therefore, not necessary to follow subsequently.
xxxx xxxx xxxx xxxx
20. In T. Vijayan (supra), this Court opined:
18. The above para indicates that ad hoc promotion is permissible pending regular selection. Once ad hoc promotion is found to be permissible under the Rules and Respondents 4 to 143 were promoted on ad hoc basis in the exigencies of service, pending regular selection, which, incidentally, took sufficient time as Respondents 4 to 143 who were on official duty "online" were not available at one point or at one time to facilitate the selection, the entire period of ad hoc service will have to be counted towards their seniority, particularly as all the respondents (4 to 143) were duly selected and their services were also regularised with effect from 16-12-1991 by order dated 18-1-1992. The employees concerned, including Respondents 4 to 143 had already been alerted for the process of selection which had been started in 1988 (sic 1987). While making direct recruitment against posts which were advertised in 1985, it was given out to the present appellants that their absorption and seniority was subject, inter alia, to the finalisation of the selection to the post of First Fireman which was in progress. The appellants, as stated earlier, were selected in 1988 and were put on two years' training as Apprentices whereafter they were absorbed by order dated 18-7-1990 and were issued separate and individual appointment letters in which, it was clearly mentioned that their seniority was subject to the finalisation of the selection for promotion to the post of First Fireman which was in progress. The appellants, in this situation, cannot claim seniority over Respondents 4 to 143 who had already been appointed to the posts of First Firemen on ad hoc basis and were after due selection regularised on those posts.
xxxx xxxx xxxx xxxx
23. Even otherwise, the decision in T. Vijayan (supra) has no application to the fact of the present case. We have noticed hereinbefore that the question in regard to inter se seniority amongst the promotees on the one hand and the direct recruits on the other, are governed by Rule 302 of the Rules. xxxx xxxx xxxx xxxx
25. It is, however, also well settled that where the initial appointment is only ad hoc, not according to rules and made a stop-gap arrangement, the period of officiation in such post cannot be taken into account for considering the seniority.
24. Also in State of W.B. & others v. Aghore Nath Dey & others (supra), it could be ruled that where initial appointment is only ad hoc and not according to the rules and made as a stopgap arrangement, the officiation in such post cannot be taken into account for considering the seniority. Paragraphs 15 and 16 of the judgment read thus:-
15. The question, therefore, is whether Shri Sanghi is right in his submission that this case falls within the ambit of the said conclusion (B) in Maharashtra Engineers case. The submission of the other side is that this case falls, not within conclusion (B) but the corollary mentioned in conclusion (A), of that decision Conclusions (A) and (B), which alone are material, are as under:
(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. (B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules, the period of officiating service will be counted.
16. It is not necessary to deal at length with the decisions of this Court in A. Janardhana and Narender Chadha in view of the later Constitution bench judgment in Maharashtra Engineers' case, wherein all the relevant earlier decisions have been considered before summarising the conclusions in para 44 of SCR : para 47 of SCC.
25. In Vireshwar Singhs case (supra), the principle of taking into account the ad hoc service for the purpose of service was again analyzed and it was viewed that the period of continuous officiating following the appointment made in violation of the Rules or not in accordance with the rules cannot be counted for the purpose of seniority. Relevant excerpt of the said judgment reads thus:-
12. An elaborate recital of the facts had been considered necessary to trace out the core issue in the case. Both sets of GDMOs i.e. in Phase-I and Phase-II were not appointed on the basis of a selection held by the UPSC as mandated by the Regulations in force. Their appointments were recommended by a Specially Constituted Selection Committee. Their appointments were ad hoc; initially for a period of six months which was subsequently extended from time to time. Being similarly circumstanced, undoubtedly, both sets of GDMOs will have to be treated equally and evenly for the purpose of regularization. In Dr. Anuradha Bodi (supra) after noticing the precise terms of appointment of the Phase-I GDMOs, the entitlement of the said GDMOs (Phase-I) to regularization with effect from the date of their initial appointments was considered by this Court in the light of the decision of the Constitution Bench in Direct Recruit Class II Engineering Officers Association Vs. State of Maharashtra and Others[2], particularly, in the backdrop of the two propositions (A) and (B) set out in paragraph 47 of the Report. A subsequent judgment of a three Judges Bench in State of West Bengal and Others Vs. Aghore Nath Dey and Others[3] throwing further light and clarity on the contents of propositions (A) and (B) laid down in Direct Recruit Class II (supra) had also been considered to come to the conclusion that the cases of doctors appointed on ad hoc basis in Phase-I fall within the corollary to conclusion (A) of Direct Recruit (supra) and therefore they are not entitled to the benefit of service rendered on ad hoc basis. Paragraph 12 of the report in Dr. Anuradha Bodi (supra) may be conveniently noticed at this stage.
12. If the facts of these two cases are analysed in the light of the aforesaid decisions, there can be no doubt whatever that the petitioners fall within the corollary in Conclusion (A). The orders of appointment issued to the petitioners are very specific in their terms. Though the recruitment rules came into force on 6-8-1982, the appointments were not made in accordance therewith. They were ad hoc and made as a stopgap arrangement. The orders themselves indicated that for the purpose of regular appointment the petitioners were bound to pass the UPSC examination in the normal course [pic]in the direct competition. Hence the petitioners will not fall under the main part of Conclusion (A) or Conclusion (B) as contended by the learned counsel for the petitioners.
13. If the GDMOs appointed in Phase-II are similarly circumstanced as Dr. Anuradha Bodi and others, we fail to see how their claim to regularization with effect from the date of their initial appointments can be countenanced except perhaps if we take a view contrary to that has been recorded in Dr. Anuradha Bodi (supra).
14. The learned counsel for the appellants has tried to persuade us to charter the aforesaid course by placing reliance on two decisions of this Court in Narender Chadha and Others Vs. Union of India and Others[4] and Keshav Chandra Joshi and Others Vs. Union of India and Others[5] It is contended that the denial of benefit of long years of ad hoc service, in view of the ratio of the law laid down in the aforesaid two decisions, would be contrary to Articles 14 and 16 of the Constitution.
15. It is the view expressed in Narender Chadha (supra) which would require a close look as Keshav Chandra Joshi (supra) is a mere reiteration of the said view. In Narender Chadha (supra) the lis between the parties was one relating to counting of ad hoc service rendered by the promotes for the purpose of computation of seniority qua the direct recruits. The basis of the decision to count long years of ad hoc service for the purpose of seniority is to be found more in the peculiar facts of the case as noted in para 20 of the report than on any principle of law of general application. However, in paragraphs 15-19 of the report a deemed relaxation of the Rules of appointment and the wide sweep of the power to relax the provisions of the Rules, as it existed at the relevant point of time, appears to be the basis for counting of the ad hoc service for the purpose of seniority.
16. The principle laid down in Narender Chadha (supra) was approved by the Constitution Bench in Direct Recruit Class II (supra) as the promotion of the officers on ad hoc basis was found to be without following the procedure laid down under the Rules. That apart, what was approved in the Direct Recruit Class II (supra) is in the following terms.
13. We, therefore, confirm the principle of counting towards seniority the period of continuous officiation following an appointment made in accordance with the rules prescribed for regular substantive appointments in the service.
17. In State of West Bengal and Others Vs. Aghore Nath Dey and Others (supra) a three Judges Bench of this Court has held that in view of the lis involved in Narender Chadha (supra) i.e. inter se seniority of direct recruits and promotees, the said decision cannot be applied to cases where the initial appointment was not according to the Rules. Paras 19 and 20 of the decision in State of West Bengal (supra) may be usefully extracted hereinbelow.
19. The constitution bench in Maharashtra Engineers case, while dealing with Narender Chadha emphasised the unusual fact that the promotees in question had worked continuously for long periods of nearly fifteen to twenty years on the posts without being reverted, and then proceeded to state the principle thus: (SCC p. 726, para 13) 13We, therefore, confirm the principle of counting towards seniority the period of continuous officiation following an appointment made in accordance with the rules prescribed for regular substantive appointments in the service.
20. The constitution bench having dealt with Narender Chadha in this manner, to indicate the above principle, that decision cannot be construed to apply to cases where the initial appointment was not according to rules.
18. All the aforesaid discussion would lead us to the conclusion that any departure from the views expressed and conclusions reached in Dr. Anuradha Bodi (supra) will not be necessary or justified. Accordingly, we do not find any merit or substance in the appeals under consideration. They are, therefore, dismissed but without any order as to costs.
26. While deciding the Original Application, we had authoritatively concluded that the service rendered on ad hoc basis followed by regular appointment cannot be counted for the purpose of seniority and the private respondents could not have been given such benefit. Nevertheless, considering the ramification of the Order passed by the Honble Supreme Court in C.W.P. No.142/88, we tried to draw a balance and directed that the private respondents should be treated as regular from the date of filing C.W.P. No.142/88. In fact the C.W.P. was filed in the year 1988 and not in the year 1998, thus the direction given by this Tribunal in the Original Application could have resulted regularization of the applicants from a date much prior to the date from which the official respondents have treated them as regular. They could file Review Application only because the C.W.P. No.142/88 could wrongly be indicated in paragraph 29 of the Order as C.W.P. filed in 1998. The relevant excerpt of the Order passed in the Original Application with the view that the ad hoc service cannot be counted for the purpose of seniority and continuance in service on ad hoc service cannot espouse the right for continuance on ad hoc basis even, reads thus:-
13. In the case of Dr. M.S. Patil v. Gulbarga University & others, JT 2010 (9) SC 132, Honble Supreme Court ruled that in service law there is no place for the concept of adverse possession or holding over. Questioning the appointment of petitioner before it and his long continuance in service, Honble Supreme Court viewed that his continuance in service on ad hoc basis for 17 years would not advance his cause for further continuance on ad hoc basis even. Honble Supreme Court did not appreciate the contention of Mr. Patil that throwing him out of service after more than 17 years would be very hard and unfair to him. Paragraphs 11 to 14 of the judgment read as under:-
11. But at this stage once again a strong appeal is made to let the appellant continue on the post where he has already worked for over 17 years. Mr. Patil, learned senior counsel, appearing for the appellant, submitted that throwing him out after more than 17 years would be very hard and unfair to him since now he cannot even go back to the college where he worked as lecturer and from where he had resigned to join to this post.
12. We are unimpressed. In service law there is no place for the concepts of adverse possession or holding over. Helped by some University authorities and the gratuitous circumstances of the interim orders passed by the Court and the delay in final disposal of the mater, the appellant has been occupying the post, for all these years that lawfully belonged to someone else. The equitable considerations are, thus, actually against him rather than in his favour. The matter can also be looked at from a slightly different angle. It is noted above how the appellant was able to secure the appointment and how he managed to continue on the post. By notification dated August 13, 2004, the appellant was discharged from the service of the University on the post of Reader in Kannada but was asked to continue on ad-hoc basis until the appointment of the new incumbent to the post. His position is, thus, only ad- hoc till the appointment of the new incumbent and in that position he is continuing on the basis of the direction of this court to maintain status quo. We see no reason to continue this ad-hoc arrangement any further and we do not wish to stand any longer in the way of the post being filled up on a regular basis.
13. Since the matter has become very old, it would not be reasonable for the University to fill up the post on the basis of the notification issued in the year 1993. The University may, therefore, issue a fresh notification to fill up the post. The process of selection and appointment on the basis of the fresh notification should be completed within six months from today.
14. In the result, the appeal is dismissed with costs, quantified at Rs.50.000.00 (rupees fifty thousand only).
14. Again in the case of Satya Prakash & others v. State of Bihar & others, JT 2010 (3) SC 605, Honble Supreme Court ruled that merely because a temporary employee or a casual wage worker is continued beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. Paragraphs 6 and 12 to 14 of the judgment read as under:- 6. We are of the view that the appellants are not entitled to get the benefit of regularization of their services since they were never appointed in any sanctioned posts. Appellants were only engaged on daily wages in the Bihar Intermediate Education Council. In Umadevi's case (supra) this Court held that the Courts are not expected to issue any direction for absorption/regularization or permanent continuance of temporary, contractual, casual, daily-wage or ad hoc employees. This Court held that such directions issued could not be said to be in consistent with the constitutional scheme of public employment. This Court held that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. In view of the law laid down by this Court, the directions sought for by the appellants cannot be granted.
7. xx xx xx
8. xx xx xx
9. xx xx xx
10. xx xx xx
11. xx xx xx
12. In our view, the appellants herein would fall under the category of persons mentioned in paragraphs 8 and 55 of the judgment and not in paragraph 53 of judgment of Umadevi's.
13. Appellants in their reply affidavit filed on 14.10.2004 before the High Court has specifically stated in paragraph 5 that they were only engaged as Assistant Routine Clerks and Peons on daily wages. Further in paragraph 20 of the affidavit it was stated that they were discharging their duties on daily wages basis since 1995 and had entertained a legitimate expectation for regularization of their services. Appellants' own case is that they were only engaged on daily wages basis and never appointed in service either on a temporary basis or on ad-hoc basis.
14. Appellants stated that they had undergone a selection process held fourteen years back, following an advertisement published in the year 1995 but the merit list was neither prepared nor published. Selection process, though had undertaken by the Council was not completed and now the Council is no more in existence. However, if Board proposes to undertake any regular selection process to fill up the posts, the applications, if any, submitted by the appellants may also be considered after giving age relaxation. In Umadevi's case in paragraph 55 of the judgment, the Constitution Bench has also permitted such persons to participate in selection process waiving the age relaxation and giving the weightage for having been engaged or worked in the department for a significant period of time.
15. In CSIR & others v. Ramesh Chandra Agrawal & another, JT 2009 (1) SC 562, Honble Supreme Court ruled that the doctrine of legitimate expectation has no application in absorption. In the said case, Honble Supreme Court further ruled that regularization in service is not a mode of recruitment, as it is meant for irregularity and not for illegality. In the said case, Honble Supreme Court further ruled that relaxation can be granted only on satisfaction of conditions prescribed therefore. Paragraph 37 & 38 of the judgment read as under:- 37. Regularization, as is well-known, cannot be a mode of recruitment. It does not mean permanence. Only an irregularity can be regularized; an illegality cannot be. Contention raised by the learned counsel for the parties that the rules were unworkable is equally meritless apart from the fact that that at least fifty candidates had been found eligible for consideration, out of whom eight had been selected. Even according to the respondents themselves they have been working for more than 13 years. Thus, it is not correct to contend that the period of 15 years which was fixed, was an unreasonable one.
38. The High Court, in our opinion, furthermore committed a serious error insofar as it failed to take into consideration that the respondents did not have any legal right for regularization having regard to the decision of the Constitution Bench of this Court in Umadevi (3) (supra). Furthermore, it is one thing to say that a public authority may exercise its discretionary jurisdiction to grant relaxation in a particular case but it is another thing to say that the superior court shall direct it to exercise its discretionary jurisdiction of relaxation in a particular manner. Relaxation can be granted only when there exists a provision therefor. If the provision to grant relaxation is circumscribed by conditions, those conditions must be fulfilled before an order in that regard can be passed. However, in this case, paragraph 9 of the scheme although does not contain any limitation in the matter of exercise of power, it was for the authority concerned to lay down a principle as to in which case the power of relaxation should be exercised and in which case it would not be. If sufficient number of candidates were available who had worked for more than 15 years, keeping in view the requirements of the appellant itself the Director could take a further policy decision that no relaxation shall be granted to an applicant who did not fulfill that criterion. Ordinarily, the court, it is trite, would not interfere with such discretionary power in exercise of its jurisdiction of judicial review. In Kendriya Vidyalaya Sangathan and Others v. Sajal Kumar Roy and Others [(2006) 8 SCC 671], this Court held: 11...The appointing authorities are required to apply their mind while exercising their discretionary jurisdiction to relax the age limits. Discretion of the authorities is required to be exercised only for deserving candidates and upon recommendations of the Appointing Committee/ Selection Committee. The requirements to comply with the rules, it is trite, were required to be complied with fairly and reasonably. They were bound by the rules. The discretionary jurisdiction could be exercised for relaxation of age provided for in the rules and within the four corners thereof. As Respondents do not come within the purview of the exception contained in Article 45 of the Education Code, in our opinion, the Tribunal and consequently, the High Court committed a manifest error in issuing the aforementioned directions. In Union of India and Others v. R.N. Hegde and Others [(1998) 8 SCC 731], this Court held:
6. By the impugned judgment, the Tribunal has given direction for regularisation of the respondents by giving the relaxation in the upper age limit by treating the minimum period of 40 days for the calendar year 1989 and no period for the calendar year 1990 for such of the Casual Staff Artistes who were recruited prior to 1988 and were not assigned work in the calendar years 1988 and 1989 in pursuance of the note dated 26-5-1989 (sic). The said direction of the Tribunal is not in consonance with the scheme as notified vide OM dated 9-6-1992 and it cannot be upheld. The matter of regularisation of the respondents, including the question whether they should be given relaxation in the matter of age, has to be considered only in accordance with the provisions contained in the scheme as notified vide OM dated 9-6-1992. Similar view has been taken by this Court in Director, Doordarshan Kendra, Trivandrum and Others v. S. Kuttan Pillai and Others [(1998) 8 SCC 736].
16. In the present case, even when the official respondents processed the claim of private respondents for their regularization by relaxing the rules, they were apparently not clear in their concept, as when the Work Assistants, who were so engaged on daily wages basis, were given ad hoc appointment as Junior Engineer, their appointment was as direct recruit only and could not be called as promotion in any manner. Further, even the regularization of the incumbents appointed on ad hoc basis on a particular post from open market is treated as direct recruitment. Adhoc appointment of work Assistants working on casual/Muster roll basis to the post of JE was as good as an appointment from open market. Thus, it is not understood that what persuaded the official respondents to seek relaxation of clause 10 of schedule (recruitment regulations) for the post of Junior Engineer in Engineering Department of MCD. By giving the private respondents the benefit of age relaxation, official respondents could have subjected them to selection for their regularization/direct appointment as Junior Engineer along with candidates who were to be called from Employment Exchange.
17. In view of the aforementioned, particularly the law declared by Honble Supreme Court on the subject, the regularization of private respondents itself cannot be treated unquestionable on many counts. However, we find that in CWP No.142/98 (P.K. Sharma v. Municipal Corporation of Delhi) followed in CWP No.2800/2002 (Mohd. Ishrat Ullah & others v. Municipal Corporation of Delhi & another), Honble High Court of Delhi had directed MCD to consider the case of Junior Engineers (Civil/Electrical) appointed on ad hoc basis for regularization by taking approval / recommendation from UPSC. Thus, when the official respondents processed and finalized the claim of private respondents for their regularization in compliance of order passed by Honble High court it is not open for this Tribunal to interfere with such regular appointment.
18. Coming to the proposition of counting of ad hoc service for the purpose of determination of seniority, it is stare decises that the if initial appointment made only on ad hoc basis not according to rules, the period of officiation in such capacity cannot be taken into account for determining the seniority. In the case of Ch. Narayana Rao v. Union of India & others, JT 2010 (9) SC 346, Honble Supreme Court viewed that the seniority of petitioner initially appointed on ad hoc basis in the year 1981 would be counted from the date of his qualifying the proficiency test in stenography, i.e., in 1992. In the said case, petitioner was not given benefit of ad hoc service from 1981 to 1992, i.e., the date till he was subjected to process prescribed for regular appointment to the post in question. Paragraph 21 to 24 of the judgment read as under:- 21. The view which has been taken by us hereinabove finds favour from a recent judgment of this Court reported in (2009) 4 SCC 170 titled, Union of India Vs. Dharam Pal & Ors. Perusal of the said judgment shows that the cases on which we have placed reliance have also been fully relied upon by learned two Judges of this Court while dealing with the said case. Succinctly, it has been held in paragraph 25 and 27 as under : 25. It is, however, also well settled that where the initial appointment is only ad-hoc, not according to rules and made as a stop-gap arrangement, the period of officiation in such post cannot be taken into account for considering the seniority.
26. .... .... .... ....
27. When an ad-hoc appointment is made, the same must be done in terms of the rules for all purposes. If the mandatory provisions of the rules had not been complied with, in terms of Direct Recruit Class II Engineering Officers' Association Vs. State of Maharashtra & Ors. (1990) 2 SCC 715, the period shall not be taken into consideration for the purpose of reckoning seniority. Furthermore, it is one thing to say that an appointment is made on an ad-hoc basis but it is another thing to say that inter se seniority would be determined on the basis laid down in another rule.
22. We are, therefore, fortified in our reasoning as adopted in the aforesaid Appeal.
23. Thus, looking to the matter from all angles, we are of the considered view that no relief can be granted to the Appellant. His seniority has been correctly worked out only from the date he had passed the Stenography Test as contemplated under the Rules approved by Staff Selection Commission.
24. Thus, the appeal being devoid of any merit and substance is hereby dismissed but with no order to costs.
19. Aforementioned view taken by the Honble Supreme Court is further reiterated in Central Council for Research in Homeopathy v. Bipin Chandra Lakhera & others, (2011 (5) SCALE 124). Judgment delivered by Honble supreme court in said case reads as under:-
Heard learned counsel for the appellant and respondent No. 1. As regards the other respondents in respect of whom service is complete no one has entered appearance on their behalf so far. This Appeal has been filed against the impugned judgment & order dated 24.03.2004 passed by the High Court of Sikkim in Writ Petition (Civil) No. 542 of 1998. The facts have been given in the impugned judgment and order and hence we are not repeating the same here, except where necessary. The short question in this Appeal is whether ad hoc service of respondent No. 1 from 1984 before his regularisation with effect from 05.01.1996 can be added for the purpose of seniority. We are of the opinion that it cannot. Admittedly, respondent No. 1 was appointed as Research Assistant (Homeopathy) in the service of the appellant on purely ad hoc basis by order dated 03.02.1984 till 31.03.1984 or till the post is filled on a regular basis whichever was earlier.
This appointment was done without any regular selection. It may be noted that respondent No. 1 herein (Writ petitioner before the High Court) had not applied for appointment in response to any advertisement issued by the appellant. In his application respondent No. 1 stated that "I have come to know through some reliable sources that there is a post of Research Assistant lying vacant in the Central Council for Research in Homeopathy." Accordingly, respondent No. 1 was offered the post on a purely ad hoc basis vide order dated 03.02.1984 clearly stating that his appointment was till 31.03.1984 or till a regularly selected candidate joins, whichever was earlier. Thus, this appointment was made without following any procedure. The tenure was extended by the appellant from time to time. The post of Research Assistant was advertised in 1986 and respondent No. 1 applied for the post and was called for an interview before a Selection Committee on 29.06.1987 but was not found suitable. However, he was continued on ad hoc basis in view of an interim order passed by the High Court in a writ petition.
The post was again advertised in 1995 for regular appointment and respondent No. 1 again applied, and this time he was successful and given regular appointment with effect from 05.01.1996. It has been held by this Court in Ch. Narayana Rao Vs. Union of India & Ors., (2010) 10 SCC 247, and State of West Bengal & Ors. Vs. Aghore Nath Dey & Ors., (1993) 3 SCC 371, that ad hoc service before regularisation cannot be counted for seniority. It was contended by learned counsel for respondent No. 1 that some others similarly situate have been given retrospective regularisation.
This is not correct. No one has been given benefit of ad hoc service for the purpose of seniority. The persons mentioned in the writ petition are those persons who had been selected earlier, whereas respondent No. 1 had not been selected. Such persons have been given seniority only from the date of their regular appointment after selection. It has been pointed out in paragraph 17 of the counter affidavit filed by the Council before the High Court that these persons were given seniority from the date of their regular appointment after a regular selection.
Thus, Dr. Gautam Rakshit was appointed on ad hoc basis on 10.08.1987, but thereafter he faced a regular selection and was selected and given regular appointment on 12.04.1988. He has been given seniority from 12.04.1988 and not from 10.08.1987. Similar is the case of Dr. (Miss) I.M. Kumar, Dr. G.K. Mathew and Dr. Mohan Singh. Hence, their cases are clearly distinguishable. In view of the decision of this Court in Ch. Narayana Rao's case (supra), we allow this Appeal and set aside the impugned judgment and order of the High Court and dismiss the writ petition. No costs.
20. In the present case, apparently, the initial ad hoc appointment of private respondents was not made after following recruitment rules or process prescribed for regular appointment to the post of Junior Engineer at relevant point of time. Rather claim of ad hoc Junior Engineer for their regularization had to be taken up with UPSC to relax certain provisions of recruitment rules in vogue. Maybe at the time of their initial appointment, private respondents could be within age limit prescribed for direct recruitment, further being muster roll Work Assistant for the purpose of appointment to the post of J.E., they could be considered outsiders and could claim direct recruitment to the said post, but certainly at the time of their initial appointment on ad hoc basis, private respondents did not have the requisite experience and they were not sponsored for their such appointment through Employment Exchange along with other candidates. Moreover, it is nowhere born out of record that even at the time of their regularization in the year 2004, the applicants were subjected to interview/selection before issuance of order of regular appointment.
21. In view of the aforementioned, we find that the service rendered on ad hoc basis followed by regular appointment cannot be counted for the purpose of seniority and the private respondents could also be not given such benefit.
27. In the absence of Orders passed by the Honble High Court in a catena of Writ Petitions/Contempt Petitions, the regularization of private respondent Nos. 4 to 94, as also the regularization from retrospective date, could not have been countenanced. Nevertheless, as has been noted hereinabove, the official respondents had regularized the service of the private respondents only in the wake of certain number of Orders passed by the Honble High Court of Delhi (ibid).
28. As has been noticed hereinabove, indubitably in C.W.P. No.142/1988 (ibid) after having nixed the stand taken by the Corporation before it, the Honble High Court viewed that the Corporation ought to have considered the case of the petitioners in the petition in accordance with law for regularization and fix their pay scales accordingly, and directed the Corporation to pass appropriate orders in this behalf on or before 31.5.1999. The Order was followed in a catena of petitions including the few filed by the private respondents herein. Maybe in terms of the directions issued by the Honble High Court the Corporation (MCD) was supposed to act in accordance with the law and all those, who had not satisfied the eligibility in terms of the Recruitment Rules for the post of Junior Engineer (Civil / Electrical), should not have been considered for regularization. However, in the Recruitment Rules (ibid) there was a provision providing for relaxation and in exercise of the powers under the provision, the official respondent Nos.1 to 4 relaxed the rules and considered the ad hoc Work Assistants/ Junior Engineers (Civil / Electrical) for their regularization. In the wake of there being provision for appointment in relaxation of the rules and exercise of the power under the provision by the competent authority with due regard to such rules to regularize the services of the private respondents herein, it cannot be viewed that the regularization of the services of private respondents was illegal more so for the reason that the exercise was undertaken in implementation of the directions issued by the Honble High Court (ibid).
29. As far as the retrospectivity / retroactivity of the regularization is concerned, there cannot be two opinions that the same would be contrary to the law declared by the Apex Court. Even otherwise also, it is also well settled that judicial precedent cannot be followed as a statute and need to be applied with reference to the facts of the case involved in it. In Collector of Central Excise, Calcutta v. M/s Alnoori Tobacco Products & another, 2004 (6) SCALE 232, it has been held thus:
12. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. V. Horton (1951 AC 737 at p.761), Lord Mac Dermot observed:
"The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge."
13. In Home Office v. Dorset Yacht Co. (1970 (2) All ER 294) Lord Reid said, "Lord Atkin's speech.....is not to be treated as if it was a statute definition It will require qualification in new circumstances." Megarry, J in (1971) 1 WLR 1062 observed: "One must not, of course, construe even a reserved judgment of Russell L.J. as if it were an Act of Parliament." And, in Herrington v. British Railways Board (1972 (2) WLR 537) Lord Morris said:
"There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case."
14. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
15. The following words of Lord Denning in the matter of applying precedents have become locus classicus:
"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."
30. Nevertheless, the distinct feature before us, as has noted hereinabove in the present case, is that during the pendency of CCP No.374/2002 in CWP No.3276/1987 the MCD had issued office order No.HC-II/Engg/Estt/2002/899 dated 19.9.2002 regularizing the services of Junior Engineer (Civil / Electrical) with effect from the dates of their appointment on ad hoc basis. The office order reads thus:-
No.HC-II/Engg/Estt/2002/899 Dated:-19.9.2002 Office Order
In pursuance of Resolution No.205 dated 22.7.2002 of the Corporation and in compliance of the Judgement and orders of the Honble High Court of Delhi dated 11.10.2001 & 17.10.2001 passed in CWP No.3276 of 1987 and CWP No.2664 of 2000 respectively for the 8 petitioners of J.Es (Elect.) and one petitioner of J.E. (Mech.) who are petitioners in the said CWPs and working as Jr. Engineers on adhoc basis in MCD, are hereby appointed to the post of Jr. Engineers (Elec) & (Mech) on regular basis with effect from the date mentioned against each in the pay scale of Rs.1400-2300 (under IVth CPC as revised from time to time):-
CWP No.3276 of 1987 - Jr. Engineers (Elect.) S.No. Name Date of appointment on regular basis
1. Sh. Satya Kumar Sharma 3.5.93 s/o Sh. Kali Ram Sharma
2. Sh. Urender Pal Singh s/o Sh. Onkar Singh -do-
3. Sh. Atma Ram Yadav, Sh. Shri Ram Yadav -do-
4. Sh. Abdul Sayeed s/o Late Sh. Abdul Majid -do-
5. Sh. Awdesh Kumar Ojha s/o Sh. Ganga Prashad -do-
6. Sh. Ram Bhool Singh s/o Sh. Amar Singh -do-
7. Sh. Quamar Mehdi s/o Sh. Hamid Hussain -do-
8. Sh. Suresh Kumar s/o Sh. Harsarup Singh -do-
CWP No.2664 of 2000 - Jr. Engineer (Mechanical)
1. Sh. Ashok Kumar 11.2.94 s/o Sh. Rameshwar Dass This issues with the prior approval of the Competent Authority.
31. Taking note of the fact of their regularization from the dates of ad hoc appointment, Honble High Court closed the contempt petition in terms of Order dated 24.10.2002. At the cost of repetition, the said Order is reproduced hereinbelow:-
Learned counsel for the respondents states that according to him the order of this Court has been complied with and MCD has regularised the services of the petitioner on the post of Junior Engineer from the date of his appointment on ad-hoc basis.
Learned counsel for the petitioner states that the regularisation should have been from the date of initial appointment and not from the date of appointment on ad-hoc basis.
In case the petitioner has any grievance in respect of the date of regularisation, he may adopt independent writ proceedings as this issue cannot be decided in contempt proceedings.
The contempt petition stands disposed of as infructuous with the above liberty.
32. Subsequently, just to give equal treatment to the private respondents, official respondents regularized them also from the dates of their ad hoc appointment. In the wake, at this stage, any interference in the dates of regularization of the private respondents by this Tribunal would amount to tweaking the Order of the Honble High Court, which is not permissible, thus the interference with the impugned orders is nixed. This Tribunal cannot even think to tread on the toes of the Order of the Honble High Court. Nevertheless, we cannot turn blind eyes to the fact that prior to issuance of the orders impugned herein, when they were not even regular employees, the private respondents might be working subject to command and control of some of the applicants herein. With the regularization of their services from the dates of their ad hoc appointment, the said respondents may have become senior to certain such employees including the applicants herein, who might be their superior and supervising authorities, thus retrospective regularization of the applicants has led to not only a skewed and an anomalous situation in the Department but has also resulted in heartburning amongst those who were regular Junior Engineers between 1989 and 13.6.2005. Such individuals, i.e., the applicants herein cannot be left with heartburning and feeling that they are denied justice. It is often impressed upon, at least at the level of the Tribunal, that even when there is violation and disregard of rules and procedure by the Executive, the job of the Tribunal is only to do away such violation. Such practice of redressal does not result in justice all the times and at times it boomerangs and leads to multiplicity of the litigation.
33. To deal with such situations only, in Ansar Alam & others v. Municipal Corporation of Delhi & others (L.P.A. No.95/1994 with connected Applications) decided on 12.5.1998, the Honble High Court of Delhi ruled that an effort to do complete justice between the parties is a compulsion of judicial conscience and the Court can and should strive to evolve an appropriate remedy, in the facts and circumstances of a given case, so as to prevent injustice arising from the exigencies of the cause or the matter before it. Relevant excerpt of the judgment reads thus:-
It has to be borne in mind that an effort to do complete justice between the parties is a compulsion of judicial conscience and the Court can and should strive to evolve an appropriate remedy, in the facts and circumstances of a given case, so as to prevent injustice arising from the exigencies of the cause or mater before it.
34. Also in S. P. Gupta v. Union of India & another etc. etc. 1981 (Supp.) SCC 87, Honble Supreme Court ruled that what is necessary is to have a Judges who are prepared to fashion new tools, forge new methods, innovate new strategies and evolve a new jurisprudence and who have, above all, a deep sense of commitment to the Constitution with an activist approach and obligation for accountability. Relevant excerpt of the judgment reads thus:
What is necessary is to have a Judges who are prepared to fashion new tools, forge new methods, innovate new strategies and evolve a new jurisprudence, who are judicial statement with a social vision and a creative faculty and who have, above all, a deep sense of commitment to the Constitution with an activist approach and obligation for accountability.
35. In the present case, when we are not inclined to interfere with the impugned orders, we need to fashion new tools, forge new methods and innovate new strategies to administer justice to the applicants. A situation more or less similar to the one before us in the present came before the Apex Court in Dr. P.P.C. Rawani & others v. Union of India & others, 1991 SCR Supl. (2) 109 wherein it was ruled that while the appellants before the Apex Court should get their rights, which were declared by their Lordships, there should be at the same time no prejudice to the doctors appointed through regular recruitment by the UPSC. With such view, their Lordships directed that the regularized doctors should be treated to be a separate category with their own seniority list and entitled to promotion in accordance with that seniority, and further appropriate number of supernumerary posts should be created. For easy reference, relevant excerpt of the said judgment of Honble Supreme Court is reproduced hereinbelow:-
Briefly, the appellants were originally appointed after interview by selection committees but only as adhoc appointees in the above service. They were appointed on various dates between 1968 and 1977. Their grievance is that despite their long service in the Department they were not regularised with reference to their original dates of appointment. The Union of India pointed out certain difficulties in giving effect to the order of this Court of April, 1987 by filing a review petition and then a clarification application but these have been dismissed. The resultant position is that all the appellants have to be regularised in Group A of the Central Health Service w.e.f. 1.1.1973 or the date of their respective original appointments whichever is later. We may mention here that this date 1.1.1973 is mentioned here because the appellants have now expressed their willingness to be considered for regular appointment only from this date and not from any earlier date, this being the date on which the group B and Group A services were merged together by the Government of India on the recommendations of the Third Pay Commission. The only difficulty experienced by the Union of India in giving effect to the directions of this Court which now subsists is that if regularisation is granted to all the appellants, doctors who have been regularly appointed in Group A after an interview by the Union Public Service Commission may get relegated to secondary positions in view of the fact that the appellants were appointed much earlier though on an adhoc basis. These regularly recruited doctors had not been heard earlier and they have now come up with intervention applications praying that any order of regularisation of the appellants should ensure that their interests are not prejudiced. This was also the anxiety of the Union of India as expressed in the counter affidavit filed in this Court.
After hearing all the counsel, we were inclined to think that while the appellants should get their rights which were declared by this Court in its earlier orders, there should at the same time be no prejudice to the doctors appointed through regular recruitment by the Union Public Service Commission. After some discussion, counsel for the appellants agreed to put forward certain proposals which would safeguard their interests and also at the same time not prejudice the regular appointees through the Union Public Service Commission. The essence of the proposal made by them is that they may be treated to be a separate category with their own seniority list and entitled to promotion in accordance with that seniority list, the problem of conflict with the direct regular recruits being avoided by creation of an appropriate number of supernumerary posts. The Union of India is not agreeable to accept these proposals which were set down by the appellants at our instance, in the form of an affidavit. The proposals of the appellants have been set down in an annexure to an affidavit filed by Dr. PPC Rawani and dated 16th July, 1991. However, after considering the matter we are of the opinion that there is no way of rendering justice to all the parties before us except by accepting these proposals in the manner to be set down below particularly because we find that while making the proposals, the appellants have also to some extent expressed the willingness to forgo certain rights that might have accrued to them in consequence of the earlier orders passed by this Court. We are of the opinion that the proposals made are reasonable in the circumstances of the case and that they do not also in any way prejudice the rights of the regularly recruited doctors.
In view of this, we direct that the following proposal be implemented by the Department by way of giving effect to the order of this Court in C.A. 3519/84 dated April, 1987 and the subsequent clarificatory orders passed by this Court:
The directions given are as follows:
1. Each of the appellants will be treated as regularised in Group A of the Central Health Service from 1.1.1973 or the date of his first initial appointment in the service (though as adhoc Group B doctor), whichever is later.
2. In order to ensure that there is no disturbance of the seniority and the promotional prospects of the regularly recruited doctors there will be a separate seniority list in respect of the appellants and their promotions ('about which directions are given below) shall be regulated by such separate 'seniority list and such promotions will only be in supernumerary posts to be created as mentioned below.
3. (a) Each of the appellants will be eligible for promotion to the post of Senior Medical Officer or Chief Medical Officer or further promotional posts therefrom taking into account his seniority in the separate seniority list which is to be drawn up as indicated above.
(b) The promotion of any of the appellants to the post of Senior Medical Officer, Chief Medical Officer and further promotional post therefrom will be on par with the promotion of the regularly recruited doctor who is immediately junior to the concerned appellant on the basis of their respective dates of appointment. In other words, if a regularly recruited doctor, on the basis of the seniority list maintained by the Department, gets a promotion as Senior Medical Officer or Chief Medical Officer or further promotion thereafter, then the appellant who was appointed immediately earlier to him will also be promoted as a Senior Medical Officer or Chief Medical Officer or further promotion therefrom (as the case may be) with effect from the same date.
4. In order that there may be no conflict or any possibilities of reversion, the post to which an appellant will be promoted (whether as Senior Medical Officer or Chief Medical Officer or on further promotion therefrom) should only be to a supernumerary post. Such number of supernumerary posts should be created by the Government as may be necessary to give effect to the above directions. No promotion will be given to any of the appellants in the existing vacancies which will go only to the regularly appointed doctors.
5. The appellants hereby agree to give up all monetary claims on account of revision of scales, regularisation or promotion to which they would be entitled till 31.10.1991.
6. Apart from the appellants there are certain doctors who fall in the same category but who had not filed writ petitions before the High Court. They have filed directly writ petitions before this Court beating Nos. 2620-2659/1985 and intervention applications. The intervention applications are allowed and rule nisi is issued in the writ petitions of which the other parties take notice. These interveners and writ petitioner have to be granted the same relief as the appellants. It is made clear that all these applicants and petitioners will be entitled to the same reliefs as the appellants for all purposes of seniority and promotion. All monetary claims on account of revision of scales, regularisation or promotion till 31.10.1991 are given up by These applicants and petitioners as well. We direct that, in view of the long pendency of litigation before this Court, the Union of India should take immediate steps to implement the above directions. The directions should be given effect to latest by 31st March, 1992.
All the interim applications in the matter stand disposed of in view of the fact that the main CMP itself has been disposed of.
R.P. Matters disposed of. (emphasis supplied)
36. Following the view taken by the Honble Supreme Court in the aforementioned case, we dispose of the present Original Application with direction to the respondents to describe the private respondents herein as Junior Engineers (regularized) and to put them in a separate seniority block with their own seniority list, with all benefits of service including due promotions and give option to the applicants herein to avoid their posting in such position where they may be required to work under the direct supervision of the said private respondents. No costs.
( A.K. Bhardwaj ) ( Sudhir Kumar ) Member (J) Member (A) /sunil/