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PETITIONER: DR. ANURADHA BODI & ORS. ETC. ETC.

       Vs.

RESPONDENT: MUNICIPAL CORPORATION OF DELHI AND OTHERS

DATE OF JUDGMENT:       08/05/1998

BENCH: S.C. AGRAWAL, M. SRINIVASAN

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T SRINIVASAN, J.      There are nine petitioners in the earlier writ petition and one  petitioner in  the later  writ petition.  They were appointed by  the first  respondent as  General Duty Medical Officer Grade II between 1982 and 1985. The first petitioner in the Civil Writ Petition 60 of 1994 and petitioner in Writ Petition No. 8 of 1997 were appointed in 1982. Petitioners 2 and 3  in the earlier writ petition were appointed din 1083. Petitioners  4   and  5   were  appointed  in  1984  whereas petitioners   6 to  9 were  appointed in  1985. It is not in dispute that  all of  them were  appointed on  purely ad hoc basis on  the same  terms and conditions. In the appointment orders, Clause 1 stated that the appointment would be purely on an ad hoc basis as a stop gap arrangement for a period of six months  or till  such time  the posts  were filled up on regular basis  through Union  Public Service Commission (for short ‘UPSE’)  or till further orders whichever was earlier. Clause 2  provided that  the ad  hoc appointments  could  be terminated at  any time  by the  competent authority without assigning any reason whatsoever and without giving any prior notice. According  to Clause  3, the  appointment  will  not confer   any   right   whatever   on   the   appointee   for regular/permanent appointment. Under Clause 9 the appointees were advised  for regular  appointment to  pass the U.P.S.C. examination in normal course in the direct competition. 2.   There is  a specific  averment in the counter-affidavit filed by  the  first  respondent  that  inspite  of  several opportunities available  to the  petitioners, they preferred not to  apply to  the  UPSC for direct competition entitling them to  be appointed on regular basis. The petitioners have not filed any rejoinder controverting the same. 3.   The Recruitment  Rules,  called  "The  Delhi  Municipal Corporation Health  Service  Recruitment  Regulation,  1982" (herein after  referred to  as ‘the Rules’) were made by the Municipal Corporation of Delhi under Section 98 of the Delhi Municipal  Corporation   Act,  1957   and   notified   under Notification No. R-9/38/82-LSG/5686 dated 6.8.82. As per the rules, the  posts in  question were  to be filled up through the U.P.S.C.  Admittedly, the  petitioners were not selected

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through U.P.S.C.  but according to the petitioners they were selected by a high-profile Selection Committee consisting of Deputy Commissioner  and  Director  (Personnel)  of  M.C.D., Medical Superintendent  of the  hospital concerned  and  two specialists  in   Clinical  Medicine   from   two   renowned hospitals. 4.   Though  the   appointments  of   the  petitioners  were initially for  a period  of  six  months,  they  were  being continued periodically  by subsequent  orders issued  by the first respondent.  One such order has been filed as a sample by the  petitioners bearing  dated 15.2.90.  The preamble to the order reads as follows :      "The   Chief    Secretary,    Delhi      Administration,  exercising  powers      of the  Corporation  under  Section      490 (2)(b)  of the D.M.C. Act, 1957      vide  Decision   No.   211/CW/Corp.      dated  2.2.1990  has  approved  the      continued  ad  hoc  appointment  of      following GDMOs Grade II in the pay      scale of  Rs,  2200-4000  plus  the      usual allowances  with effect  from      13.7.1989 for  a period of one year      or till  such time  the  posts  are      filled   up   on   regular   basis,      whichever is earlier" 5.   By a  similar order dated 24.7.1990 the services of the petitioners were  extended for  a period  of one  year  with effect  from   13.7.1990.  The   petitioners   were   making representations to  regularise their  services even  without appearing before the U.P.S.C. but in vain. 6.   They filled a writ petition in this Court under Article 32 of  the Constitution  in Writ  Petition (Civil) No. 47 of 1991 praying  that  their  services  should  be  treated  as regular from  the respective  dates of  their induction into the service  and to  consider them for promotion to Grade I, that  their   initial  appointment  be  treated  as  regular appointment with  effect from the date of their induction of their service  and to grant them consequential seniority, to declare that the Corporation should absorb them first before offering the  existing vacancies  to the  new  recruits  who might be  selected in  pursuance  of  the  combined  Medical Service Examination  1991 and  to restrain  the  respondents from terminating the services of the petitioners pending the disposal of  the petition. The said petition was disposed of vide order dated 29.7.1991 in the following terms :      "We  are   informed  that  all  the      petitioners have  been  called  for      interview by  Union Public  Service      Commission.  In  view  of  this  no      further  relief   requires  to   be      granted  in   the   petition.   The      petitioners certainly can not claim      that  they   are  entitled   to  be      regularised even  though  they  are      not selected.  The Writ Petition is      dismissed as  infructuous.  If  the      petitioners have  not been selected      and they have any grievance in that      connection with  the selection  the      remedy for them is to file separate      proceedings" 7.   Thereafter,  the   petitioners  appeared   before   the U.P.S.C.  and   were  selected.   Consequently,  the   first respondent passed  an  order  on  17.8.1992  appointing  the

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petitioners on  regular basis  to the  grade of  G.D.M.O. II with  effect  from  27.6.91,  the  date  when  the  U.P.S.C. recommended the appointment of the petitioners. 8.   The petitioners  are aggrieved  by the  date from which they  are   appointed  on  regular  basis  namely,  27.6.91. According  to   the  petitioners  they  should    have  been appointed on  regular basis  with effect  from  the  initial dates of appointment respectively. Hence they have filed the present writ  petition with prayers for declaration that the respondents should  treat them  as holding  their respective posts regularly  from the  respective dates of their initial appointments which  stand now  regularised by  U.P.S.C.  and grant them  their due  seniority with consequential benefits such as  promotion to higher grade notwithstanding the order dated 17.8.92  which may  be suitably  amended,  declaration that the  action of  the respondents in not treating them as regular employees of the Corporation since the date of their initial appointment  is unwarranted, arbitrary and violative of  Articles   14  and   16  of  the  Constitution  and  for declaration that  the petitioners are entitled to be treated as having  been appointed  on regular basis as G.D.M.Os from the date  of respective initial appointment as has been done in the case of other employees vide order dated 31.12.86. 9.   A preliminary  objection  was  raised  by  the  learned counsel for  first the  respondent that the writ petition is not maintainable  in as much as the claim for regularisation has been  negatived by  this Court  in Writ Petition (Civil) No. 47 of 1991 the order in which has already been extracted by us.  Though the  prayers in  the two  writ petitions  are almost the  same and  the petitioners are seeking once again to  claim   that  their   initial  appointments   should  be considered to be on regular basis. This writ petition has to be considered  in so  far  as  it  relates  to  question  of seniority. In  view of  the  order  dated  27.9.91  in  Writ Petition 47  of 1991  the petitioners cannot claim that they are  entitled   to  be  treated  as  having  been  regularly appointed  with  effect  from  the  date  of  their  initial appointment. But the petitioners are placing reliance on the judgment of  the Constitution  Bench of this Court in Direct Recruit Class  II Engineering  Officers’ Association  Versus State of  Maharashtra &  Ors .  (1990) 2  S.C.C. 715 and are contending that  their services  from the  dates of  initial appointment till the date of regularisation have to be taken into consideration  for purposes  of fixing their seniority. In fact  on an  earlier occasion when this case was heard on 27.10.94 the  Court took  note of  the said  contention  and directed the  impleadment  of  persons  who  were  regularly appointed after  selection  by  the  U.P.S.C.  and  were  in service during  the period  1982 to  1991. Thus  the regular appointees have been impleaded as respondents in the present case. Hence,  the question  which has  to be  considered  is whether the  petitioners are  entitled to get any benefit on the basis of the decision rendered by the Constitution Bench in the Direct Recruit case (supra). 10.  The propositions laid down by the Constitution Bench in the aforesaid  case are  set out  in  Paragraph  47  of  the judgment. We are concerned with only Conclusions (A) and (B) which read as follows :      (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

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    initial appointment  is only ad hoc      and not according to rules and made      as  a  stop  gap  arrangement,  the      officiation in such posts 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      appointed  continues  in  the  post      uninterruptedly      till       the      regularisation of  his  service  in      accordance  with   the  rules,  the      period of  officiating service will      be counted". 11.  These two  clauses have been explained in a  subsequent judgment in State of West Bengal and others etc. etc. versus Aghore Nath  Dey and  others etc.  etc. (1993)  3 S.C.C. 371 The relevant passages in the said judgment read as follows :      "21.     We  shall  now  deal  with      conclusions  (A)  and  (B)  of  the      constitution    bench     in    the      Maharashtra Engineers  case  quoted      above.      22.   There can  be no  doubt  that      these two  conclusions have  to  be      read harmoniously,  and  conclusion      (B) cannot  cover cases  which  are      expressly  excluded  by  conclusion      (A). We may, therefore, first refer      to  conclusion  from  the  date  of      initial   appointment    and    not      according   to    the    date    of      confirmation, the  incumbent of the      post has  to be initially appointed      ‘according to rules’. The corollary      set out in conclusion (A), then is,      that ‘where the initial appointment      is only ad hoc and not according to      rules  and   made  as   a   stopgap      arrangement,  the   officiation  in      such  posts   cannot  betaken  into      account   for    considering    the      seniority’. Thus,  the corollary in      conclusion (A)  expressly  excludes      the category  of  cases  where  the      initial appointment  is only ad hoc      and not  according to  rules, being      made only as a stopgap arrangement.      The case  of the  writ  petitioners      squarely    falls    within    this      corollary in  conclusion (A), which      says that  the officiation  in such      posts cannot  be taken into account      for counting the seniority.      23.   This    being   the   obvious      inference from  conclusion (A), the      question  is  whether  the  present      case   can    also   fall    within      conclusion  (B)  which  deals  with      cases   in    which    period    of      officiating service will be counted      for seniority.  We  have  no  doubt      that conclusion (B) cannot include,      within its ambit, those cases which

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    are  expressly   covered   by   the      corollary in  conclusion (A), since      the two  conclusions cannot be read      in conflict with each other.      24. The  question, therefore, is of      the category which would be covered      by   conclusion    (B)    excluding      therefrom the  cases covered by the      corollary in conclusion (A).      25. In  out opinion, the conclusion      (B) was  added to cover a different      kind  of   situation,  wherein  the      appointments are otherwise regular,      except  for   the   deficiency   of      certain   procedural   requirements      laid down  by the  rules.  This  is      clear from the opening words of the      conclusion  (B),  namely,  ‘if  the      initial appointment  is not made by      following the  procedure laid  down      by  the   ‘rules’  and  the  latter      expression ‘till the regularisation      of his  service in  accordance with      the  rules’.   We  read  conclusion      (BH), and  it must  be so  read  to      reconcile with  conclusion (A),  to      cover the  cases where  the initial      appointment  is   made  against  an      existing vacancy,  not limited to a      fixed period  of time or purpose by      the appointment  order itself,  and      is made  subject to  the deficiency      in  the   procedural   requirements      prescribed   by   the   rules   for      adjudging   suitability    of   the      appointment on  the date of initial      appointment in such cases. Decision      about    the    nature    of    the      appointment,    for     determining      whether it  falls in this category,      has to  be made on the basis of the      terms of  the  initial  appointment      itself and  the provisions  in  the      rules.   In    such   cases,    the      deficiency   in    the   procedural      requirements laid down by the rules      has  to   be  cured  at  the  first      available opportunity,  without any      default of  the employee,  and  the      appointee must continue in the post      uninterruptedly      till       the      regularisation of  his service,  in      accordance with  the rules. In such      cases,  the  appointee  is  not  to      blame for  the  deficiency  in  the      procedural requirements  under  the      rules at  the time  of his  initial      appointment,  and  the  appointment      not  being   limited  to   a  fixed      remaining  procedural  requirements      of the rules being fulfilled at the      earliest.   In   such   cases   all      appointee is  not to  blame for the      initial   appointment,    and   the      appointment not  being limited to a

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    fixed period of time is intended to      be regular  appointment, subject to      the      remaining       procedural      requirements  of  the  rules  being      fulfilled at  the earliest. In such      cases also,  if there  be any delay      in curing the defects on account of      any fault  of  the  appointee,  the      appointee would  not get  the  full      benefit of  the earlier  period  on      account of his default, the benefit      being confined  only to  the period      for which  he is not to blame. This      category of cases is different from      those covered  by the  corollary in      conclusion  (A)  which  relates  to      appointment only on ad hoc basis as      a  stopgap   arrangement  and   not      according to rules". 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   6.8.82,   the appointments were  not made  in accordance  therewith.  They were ad  hoc and  made as a stop gap arrangement. The orders themselves  indicated   that  for  the  purpose  of  regular appointment the  petitioners were bound to pass the U.P.S.C. examination in  normal course  in  the  direct  competition. Hence the  petitioners will  not fail under the main part of Conclusion (A) or Conclusion (B) as contended by the learned counsel for the petitioners. 13.  A strange  contention has  been urged  by  the  learned counsel for  the petitioners  by referring  to Section 96 of the Delhi  Municipal Corporation  Act. Under that Section no appointment to  any category  A post  shall be  made  except after consultation  with the  U.P.S.C. but under the proviso no such  consultation shall  be necessary  in regard  to the selection for  appointment to  any acting or temporary posts for a  period not  exceeding one  year. According to learned counsel  for   the  petitioners,   the  appointment  of  the petitioners was  for a  period of  six months only and there was no  necessity to  consult the  Commission. Consequently, according to  her the  appointments were  in accordance with the  statutory   provisions.  There  is  no  merit  in  this contention.  If   this  contention   is  accepted  the  main provision  contained   in   Section   96   prohibiting   any appointment without consulting the  Commission can be easily defeated. Appointments  can be  made for periods lesser than one year  and after  continuing such  appointments for  some years, the  appointees could  be made  permanent. That  will only lead  to nepotism  and anarchy.  The  Statute  has  not provided for  any such  situation. In fact a note of warning has been  issued by  this Court in Dr. M.A. Haque and others Versus Union  of India  & Ors.  (1993) 2  S.C.C. 213  in the following words :      "As  against   this,  however,   we      cannot lose  sight of the fact that      the recruitment  rules  made  under      Article  309  of  the  Constitution      have to  be followed  strictly  and      not in  breach. If  a disregard  of      the rules and the by-passing of the      Public  Service   Commission’s  are

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    permitted, it will open a back door      for  illegal   recruitment  without      limit." With  respect,  we  adopt  that  reasoning  and  reject  the contention of the learned counsel for the petitioners. 14.  Learned counsel  attempted to contend that the posts of GDMOs Grade  II were  in category  B within  the meaning  of Section 90  of the  Delhi Municipal Corporation Act and they did not  fall within  the ambit of U.P.S.C. There is no such plea in  the writ  petition. In  the absence of any specific pleading in  that regard  we cannot  permit the petitioner’s counsel  to   raise  such  a  contention  at  the  stage  of arguments. However,  it must be pointed out that in the writ petition  there   is  an  averment  by  the  petitioners  in Paragraph 12 that since the petitioners have been in service for periods  ranging between  5 to  9 years,  it  is  to  be presumed that consultation with the approval of U.P.S.C. was obtained for  their continued  appointment. That averment is on the  footing that  the posts  fell within   the  ambit of U.P.S.C.. Hence,  it is  not  open  to  the  petitioners  to contend to the contrary. 15.  The next contention of the petitioners’ counsel is that they have  been in service for such a long time enjoying the benefits  of  revised  pay  scales  as  well  as  allowances periodically  and  have  been  prevented  from  carrying  on private practice  of any  kind whatsoever and therefore they should be  treated as regular appointees from the inception. Support is  sought from  the judgment of this Court in Jacob M. Puthuparambil  and others  etc. etc.  versus Kerala Water Authority and  others (1991) 1 S.C.C. 28 in which this Court on an  interpretation of  the relevant  rules held that long continuous service  of temporary  appointees should  not  be terminated  but  should  be  regularised  by  the  authority concerned. The  ruling has  no application  in  the  present case. Our  attention is  also drawn  to the judgment in I.K. Sukhija and others versus Union of India and others (1997) 6 S.C.C. 406.  The contention  put forward  by the  counsel in that case  was that  the appellants  were  governed  by  the corollary  of  Conclusion  A  in  the  Direct  Recruit  case (supra). The  Court found  on the facts that the appellants’ promotions were  not contrary  to any  statutory recruitment rules,  they   were  duly   considered  by  the  D.P.C.  and promotions were  made according  to their  placement in t he merit list.  It was  also found  that the only reason for ad hoc promotion  instead of  regular promotion  was  that  the draft rules  had not  been finalised. In that situation, the Court held  that the  appellants fell  within the  scope  of Conclusion  B  in  Direct  Recruit  case  (supra)  and  were entitled  to  the  benefit  of  the  period  of  officiating service. That ruling will not apply in the present case. 16.  The next  contention of  the learned counsel is that by an order  dated 31.12.86  the  Corporation  regularised  the services of  several appointees on the recommendation of the Union  Public  Service  Commission  with  effect  from  27th December 1980  or the  date  of  appointment  whichever  was later.   According    to   the   learned   counsel   hostile discrimination is  made against  the petitioners who were in a similar  situation. There  is no merit in this contention. In the  counter-affidavit it  has been clearly stated by the respondents that  those  persons  were  appointed  prior  to 20.6.78 during the period of strike of Municipal doctors and non-availability  of   the  recommended   doctors  from  the U.P.S.C.  and   there   was   an   agreement   between   the representatives of those doctors pursuant to which they were regularised and  such regularisation  was with  effect  from

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27.12.80 i.e.  the date of recommendation by the U.P.S.C. It should be  noted that  those appointments were long prior to the passing  of the  recruitment rules  and the  petitioners cannot claim  that they  are on  the same  platform as those appointees. 17.  The petitioners  have been regularised with effect from 27.6.91 the  date on  which the  U.P.S.C. recommended  their appointments. Hence there is nothing illegal or arbitrary in the office order dated 17.8.92 appointing the petitioners on regular  basis   with  effect   from   27.6.91.   The   said regularisation is in accordance with the rules. 18.  We hold  that the  order of  regularisation made by the first respondent on 17.8.92 with reference to petitioners is valid and  not arbitrary.  The petitioners  cannot have  any grievance against  the same. Consequently the writ petitions have to fail and they are hereby dismissed. There will be no order as to costs.