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PETITIONER: H. C. SHARMA AND OTHERS.

       Vs.

RESPONDENT: MUNICIPAL CORPORATION OF DELHI AND OTHERS

DATE OF JUDGMENT13/07/1983

BENCH: VARADARAJAN, A. (J) BENCH: VARADARAJAN, A. (J) TULZAPURKAR, V.D.

CITATION:  1983 AIR  881            1983 SCR  (3) 372  1983 SCC  (3) 567        1983 SCALE  (2)983  CITATOR INFO :  R          1987 SC2359  (8)  RF         1989 SC 307  (5,8)

ACT:      Constitution of  India-Arts. 14 and 16-Scope of-Carving out two  classes in the same category on the basis merely of qualification not permissible.      Delhi Municipal  Corporation  Act,  1957-Secs.  47  and 480(2)-Scope  of-Delhi   Municipal  Corporation-A  statutory authority-Not bound  by policy of C.P.W.D. unless adopted by its resolution. Recruitment Regulations dated 27.6.1970 made with  approval  of  Central  Government  under  sec.  480(2) Applicable prospectively, Appointment of Assistant Engineers (Civil)-Quota rule-50  per cent by promotion and 50 per cent by  direct   recruitment-Validity  of.  Appointment  of  Jr. Engineers as  Assistant Engineers  on  current  duty  charge basis for long periods.-Irregular.

HEADNOTE:      The first  respondent, Municipal  Corporation of Delhi, put up  an advertisement  in the  press  on  30-12-1978  for filling up  8 posts of Assistant Engineers (Civil) by direct recruitment. Pursuant  to the interviews held in this behalf a  list  of  selected  candidates  out  of  Graduate  Junior Engineers was  prepared and  approved on  2.5.1979. The list was pending  final decision  about the  appointment  of  the direct recruits  selected for  these 8  posts. By its office order dated  10.4.1978  the  first  respondent  entrusted  6 diploma holders Junior Engineers with current duty charge of the posts  of Assistant  Engineers and by office order dated 21.6.1979 promoted  two diploma  holder Junior  Engineers as Assistant Engineers on current duty charge. Feeling that the proposed direct  recruitment would  be detrimental  to their interest, the  petitioners, who  were diploma  holder Junior Engineers of  the first  respondent, filed writ petition No. 221 of  1979 under  Art. 32 of the Constitution, praying for directions to  be issued to the first respondent to restrain the first  respondent from  recruiting  Assistant  Engineers directly; to give effect to the recommendations of the Third Pay Commission  regarding the  rules and policy of promotion etc; to  reckon the  seniority of the petitioners with their length of  service and not to affect in any manner all those

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holding  adhoc   charge  and   current  duty   charge.   The petitioners also  prayed for  quashing  the  seniority  list dated 2.9.1978  (Annexure G  in writ petition 1194 of 1979), The petitioners  contended that  the first respondent should have suspended the direct recruitment of Assistant Engineers and that  the rule  prescribing a  quota of  50 per  cent by promotion and 50 per cent by direct recruitment laid down in the recruitment  regulations dated  27.6.1970 should  not be followed.  The   petitioners  submitted   that   the   first respondent Corporation  had been  following the  pattern  of functioning current  in the  Central Public Works Department (C.P.W.D.) in  all matters  of  recruitment,  promotion  and other conditions. The C.P.W.D. had decided in August, 373 1975 to  suspend direct  recruitment in  Central Engineering Service w.e.f.  1.4.1972. The  first respondent  had taken a decision by  passing resolutions  in 1970  and 1971  to  the effect that  all fundamental  rules and  supplementary rules including  amendments  and  orders  issued  by  the  Central Government  shall   be  treated  as  rules  etc.  issued  by respondent I.  The Central  Government had  power of general superintendence  over   the  first  respondent  and  it  had informed the first respondent by letter dated 23.2.1976 that consequent upon  recommendations of the Third Pay Commission direct recruitment may be banned by respondent I as had been done by  the C.P.W.D.  The 27th  respondent in writ petition 1194 of  1979 contended  that since there were only 60 posts of Civil  Engineers when  the Recruitment  Regulations dated 27.6.1970 were made those Regulations could apply only to 60 posts of  Assistant Engineers  and direct  recruits would be entitled to  only 30  posts and  they were  not entitled  to further posts  by direct recruitment now as they had already been given 36 posts.      The graduate  Junior Engineers  whose names were on the select list, along with others, filed writ petition No. 1194 of 1979  under Art.  32  of  the  Constitution  praying  for directions to be issued to the first respondent to fill up 8 posts of  Assistant Engineers  from  amongst  those  in  the Select Panel;  to fill  up the  remaining posts of Assistant Engineers in  the direct  recruitment quota from amongst the empanelled petitioners;  to grant  revised pay  scale of Rs. 550-900  to   the  petitioners  and  other  Graduate  Junior Engineers w.e.f.  the date  it was  made applicable  in  the C.P.W.D.; to  revise special  pay from  Rs. 40 to Rs. 75 per mensem w.e.f.  1.1.1979. The  petitioners  also  prayed  for quashing  office   orders  dated  10.4.1978  and  21.6.1979; declaring  the  Graduate  Junior  Engineers  as  a  separate category and  giving them equal quota under the departmental promotee quota in the posts of Assistant Engineers; and also declaring that  the Graduate Junior Engineers in the service of respondent  I are  entitled to  be put  on par with their counterparts   in    other   Government   Departments.   The petitioners urged that even though a statutory duty was cast on the  first respondent  to fill  up the posts of Assistant Engineers on 50:50 basis, 26 posts of Assistant Engineers in the direct  recruitment quota  were kept unfilled and only 8 posts were  advertised. The  respondent I  had not filled up even those  8 posts with candidates from the select list but had in violation of the rights of the petitioners guaranteed under Art.  16 of the Constitution promoted Junior Engineers with diploma on current duty charge. Under the Central Civil Service Rules,  1973 and  on the  basis  of  the  Third  Pay Commission’s report the petitioners who were graduate Junior Engineers were entitled to the pay scale of Rs. 550-900. The petitioners  submitted   that  since   they  were  similarly

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circumstanced with those other graduate Engineers in class 3 service in other Government departments there was no just or valid reason  to discriminate  the petitioners qua the other graduate Junior  Engineers  in  class  3  service  in  other Government departments.      Dismissing writ  petition 221  and partly allowing writ petition 1194, ^      HELD: There  is nothing  wrong  in  the  respondent  1- Corporation  proceeding   to  appoint   Assistant  Engineers (Civil)  by   direct  recruitment  as  per  the  Recruitment Regulations or in fixing the 50:50 quota [and working it out or in the selection of the petitioners in Writ Petition 1194 of 1979 as Assistant 374 Engineers pursuant  to the  decision to  appoint 8 Assistant Engineers (Civil) by direct recruitment. [403 D-H]      The Municipal Corporation of Delhi which is a statutory authority is  not automatically  bound by  any decision that may be taken by the C.P.W.D. in regard to direct recruitment of Assistant  Engineers and it is open to the Corporation to adopt any  policy of the C.P.W.D. by a resolution when alone that policy  will become  binding  on  the  Corporation.  No provision in  the Third  Pay Commission’s  Report  has  been brought to  the notice of the Court. On the other hand it is admitted that  there is no resolution of the Delhi Municipal Corporation banning  or  suspending  direct  recruitment  of Assistant Engineers  for 7 years or any period from any date whatsoever. The  Central Government’s letter dated 23.2.1976 does not  contain any direction which could be issued by the Central Government  under sec.  487 of  the Act  and is  not binding on  respondent I.  The  50:50  quota  fixed  in  the Recruitment Regulations  approved on  27.6.1970 has not been altered but  has been  approved by  the Corporation  in  its Resolution No. 348 dated 10.7.1978. [400 C-F]      A.K. Subbaraman  & Ors.  v. Union  of India,  (1975)  2 S.C.R. 979 referred to.      Respondent I  is admittedly  bound by  the  Recruitment Regulations made with the approval of the Central Government as  required   by  sec.   480(2)  of   the  Delhi  Municipal Corporation Act  and it  shall fill  the remaining  posts of Assistant Engineers  in the  direct recruitment  quota which are kept vacant in the seniority list dated 2.9.1978 and any further posts  which might  have become available thereafter or become  available in  view of  the decision  in these two Writ  Petitions   or  otherwise  in  accordance  with  those Recruitment Regulations. [403 H, 404 A-B]      The quota  fixed in  the Recruitment Regulations cannot be restricted  to only 60 posts of Assistant Engineers which were in  existence  on  the  date  of  their  approval.  The Recruitment Regulations  themselves do not say that they are retrospective in  operation from  1958.  Prima  facie  those Regulations would  apply  to  all  future  recruitments  and promotions. That  is how  they have  been understood  by the authorities of respondent I Corporation when they decided to have 8  posts of  Assistant Engineers  filled up  by  direct recruitment though  at that  time  there  were  36  directly recruited Assistant  Engineers holding more than 50 per cent of 60 such posts. [400 H, 401 A-B]      The seniority  list dated  2.9.1978 (Annexure G in Writ Petition 1194  of 1979) which was prepared after hearing all concerned does not appear to have been objected to before or after it  was finalised except in Writ Petition 221 of 1979. In that  seniority list 130 posts of Assistant Engineers are mentioned by  placing one  promotee and  one direct  recruit

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alternatively according  to their seniority. The petitioners in Writ  Petition 221  of 1979  are  only  Junior  Engineers whereas the  seniority list  relates to Assistant Engineers. It is  not the  case of the petitioners in Writ Petition 221 of 1979  that their  seniority as  Junior Engineers  has not been fixed properly. They are only Junior Engi- 375 neers and  consequently they cannot question the correctness of the  seniority list  dated 2.9.1978 relating to Assistant Engineers. As  they have not yet been regularly appointed or promoted  as   Assistant  Engineers  they  cannot  have  any grievance about  their names  not being  mentioned  in  that seniority list.  Therefore, there  is no  need to  quash the seniority list  dated 2-9-1978  or to  give any direction to respondent I to reckon the seniority of the petitioners with the length of their services. [401 C-E, 410 H, 411 A-B]      Continuing Current  Duty Charge  and Adhoc appointments for period exceeding the period of one year mentioned in the memorandum dated  30.12.1976 of  the Government  of India is irregular though  that Memorandum  could not be stated to be automatically binding on respondent I. What is totally wrong is that  appointment of  Junior Engineers  on  Current  Duty Charge as  Assistant Engineers has been made by the impugned order dated  21.6.1979 even after the approval of the select list prepared  for the  appointment of 8 Assistant Engineers without issuing  orders for  appointment even  to 8  out  of those persons who are in the select list. The appointment of 6  Diploma  Holder  Junior  Engineers  by  the  order  dated 10.4.1978 (Annexure I) and of 2 such Junior Engineers by the order 21.6.1979  (Annexure M) as Junior Engineers on Current Duty Charge  for periods  which are proved to be too long is irregular and  the same is quashed. Respondent I shall issue orders of  appointment to  8 Degree  holder Junior Engineers out of  those in the select list approved on 2.5.1979 within one month  from this  date and  complete the  appointment of Assistant Engineers for the remaining posts on regular basis in accordance  with  the  quota  fixed  in  the  Recruitment Regulations within  six months  from this  date until  which time the  Current Duty  Charge holder  and Adhoc  appointees according to  seniority will  continue to  man the remaining posts. Respondent I shall not make Current Duty Charge/Adhoc appointments and  promotions except  strictly and  truly  in accordance with  the instructions  and Regulations and other instructions, if  any, issued in that regard. [408 H, 409 A- E]      Declaring  the  petitioners  Graduate  Engineers  as  a separate category  amongst Junior  Engineers and giving them equal quota  like the Diploma holder Junior Engineers out of the 50 per cent for promotion as Assistant Engineers, cannot be done  except by  carving out  two  classes  in  the  same category of  Junior Engineers  on the  basis merely of their qualification which  is not  permissible in  law though  the creation of  selection grade  in the  same category  on  the basis of  merit and seniority is well known and permissible. The Junior  Engineers do  the same kind of work and bear the same responsibilities  whatever their qualification, whether they are degree holders or diploma holders. [411 C-E]      S. B.  Patwardhan v.  Maharashtra,  (1977)  3  SCR  775 referred to.      The petitioners in Writ Petition 1194 of 1979 cannot be allowed to  blow hot  and cold.  In regard  to the policy of suspension of direct recruitment of Assistant Engineers (for 7 years w.e.f. 1.4.1972) their contention is that the policy of  the   C.P.W.D.  cannot   apply  automatically   to   the Corporation until  it is  adopted by  a resolution.  Now  in

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regard to the planning allowance they 376 cannot be  heard to  say that  the revision  should be  made automatically from  1.1.1979 following the C.P.W.D. pattern. Evidently, the  Corporation has resolved to grant the upward revision only from 19.5.80. The petitioners are not entitled to claim  the revision from 1.1.1979 itself and they have to be satisfied  with the  revision effected from 19.5.80. [410 C-E]

JUDGMENT:      ORIGINAL JURISDICTION: Writ Petition Nos. 221 & 1194 of 1979.      Under article 32 of the Constitution of India.                       (In WP. 221/79):      Mrs. Shyamla Pappu and A. Minocha for the Petitioner.      U.R. Lalit,  B.P. Maheswari, Suresh Sethi and Miss Asha Rani Jain, for the Respondents Nos. 1-2.      R.P. Sharma for the Respondents 9, 13 and 28.      G.L. Sanghi,  Miss Kamini  Jaiswal and  Miss Nishi Puri for   Mrs    Urmila   Kapur   for   the   Respondents   Nos. 3,4,6,10,12,13,20,38,44 and 45.                    (In WP. No. 1194/79):      V.M. Tarkunde,  Miss Kamini Jaiswal and Miss Nishi Puri for the Petitioners 1 to 10.      G.L. Sanghi,  Miss Kamini  Jaiswal and  Miss Nishi Puri for the Petitioners 11-21.      U.R.  Lalit,  B.P.  Maheshwari  and  Suresh  Sethi  for Respondents 1 and 2.      S.C. Gupta  and Ramesh Chand for Respondents Nos. 13,25 and 27.      The Judgment of the Court was delivered by      VARADARAJAN, J.  The  petitioners  in  these  two  Writ Petitions, filed  under Article  32 of the Constitution, are Junior  Engineers   of  the   first  respondent,   Municipal Corporation of Delhi. W.P: No. 221 of 1979 has been filed by Diploma-holders amongst the Junior 377 Engineers for  the  issue  of  Writ  of  mandamus  or  other appropriate writ to:      (1)  Restrain respondent  1 from  recruiting  Assistant           Engineers directly  and filling  up the  posts  of           Assistant Engineers;      (2)  Direct  respondent   1  to   give  effect  to  the           recommendations  of   the  Third   Pay  Commission           regarding the rules and policy of promotion etc;      (3)  Quash the  seniority list (Annexure G) prepared by           respondent 1;      (4)  Direct respondent 1 to reckon the seniority of the           petitioners with their length of service; and      (5)  Direct respondent  1 not  to affect  in any manner           all those  holding adhoc  charge and  current duty           charge. W.P. No.  1194 of  1979 has  been filed  by Graduate  Junior Engineers as  well as Graduate Junior Engineers selected for appointment directly as Assistant Engineers for the issue of a writ of mandamus, certiorari or any other appropriate writ to:      (1)  Direct respondent  1 to  fill up  eight  posts  of           Assistant Engineers  amongst those  in the  Select           Panel;      (2)  Quash Office  Order dated  10.4.1978 (Annexure  I)           entrusting  Junior  Engineers  with  current  duty

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         charge of the posts of Assistant Engineers and the           Office  Order   dated   21.6.1979   (Annexure   M)           promoting  two   Junior  Engineers   as  Assistant           Engineers on  current duty charge on their own pay           scale;      (3)  Direct respondent 1 to fill up the remaining posts           of Assistant  Engineers in  the direct recruitment           quota from  amongst the empanelled petitioners who           are Graduate Junior Engineers;      (4)  Declare the  petitioners-Graduate Junior Engineers           as a separate category and give them equal quota 378           under the departmental promotee quota in the posts           of Assistant Engineers;      (5)  Restrain respondent 1 from giving adhoc promotions           to current  duty  charge  holders  amongst  Junior           Engineers;      (6)  Declare  that   the  petitioners  Graduate  Junior           Engineers in  the  service  of  respondent  1  are           entitled to be put on par with their counter-parts           in other government departments;      (7)  Direct respondent 1 to grant revised pay scales of           Rs. 550-900  to the petitioners and other Graduate           Junior  Engineers  as  in  the  case  of  Graduate           Engineers in Class III service in other government           departments with  effect from  the date it is made           applicable in  the Central Public Works Department           in view  of the decision in Ram Kumar and Ors. vs.           Union of India; and      (8)  Direct respondent 1 to revise special pay from Rs.           40 to  Rs. 75  per mensem  to the  petitioners and           other Graduate  Junior Engineers  entitled thereto           from 1.1.1979.      The case  of  the  petitioners  in  W.P.  221  of  1979 (Diploma-holders Junior  Engineers) is that they are holding the posts of Junior Engineers in the service of respondent 1 for 16 to 18 years having joined service as Junior Engineers during 1967  to 1970 while respondents 3 to 46 are those who have been  directly recruited  as Assistant Engineers during 1974-78 in  contravention of  the  declared  policy  of  the Government barring  direct recruitment. The next promotional posts to  the petitioners are Assistant Engineers. The first respondent has  been resorting  to direct recruitment to the posts of  Assistant Engineers  to the  extent of 50 per cent resulting in  stagnation of  the petitioners in the grade of Junior Engineers.  It has  been  following  the  pattern  of functioning current  in the Central Public Works Department, hereinafter  referred   to  as  ’CPWD’  in  all  matters  of recruitment, promotion  and other conditions of service. The CPWD had  decided  to  suspend  direct  recruitment  to  the Central Engineering  Service because  no promotional chances were  available   to  the   Central   Engineering/Electrical Engineering Service (Class II). That decision. 379 taken  in   August  1975   became  effective  from  1.4.1972 (Annexure ’B’). The first respondent has taken a decision by Resolutions Nos. 416 and 78 dated 27.7.1970 and 21.2.1971 to the effect  that all  fundamental  rules  and  supplementary rules including  amendments and orders issued by the Central Government shall  be treated  as rules  etc.  of  the  first respondent  Corporation.  Similarly,  the  Central  Services Conduct Rules  as applicable  to Central  Government and the general fundamental  rules including  amendments and  orders issued by  the Central  Government have been made applicable to  the   first  respondent  Corporation.  As  soon  as  the

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petitioners  learnt  that  there  is  suspension  of  direct recruitment  in   the  CPWD   the  petitioners  invited  the attention of  the first  respondent to that fact in November 1975 and  requested for  banning of  direct  recruitment  of Assistant Engineers  and were  given an assurance that their rights will not be over-looked. The petitioners made several representations  including  the  last  one  dated  24.1:1979 (Annexure  ’E’).   The  then   Commissioner  of   the  first respondent assured  the petitioners orally that the practice adopted  by   the  CPWD   will  be  followed  by  the  first respondent, but  he however, wrote to the petitioners saying that the matter was under consideration. The petitioners met the Deputy Commissioner of the first respondent on 23.1.1979 and protested against the advertisement made in the Press to fill  up  eight  posts  of  Assistant  Engineers  by  direct recruitment, and  as  he  accepted  the  suggestion  of  the petitioners they  expected that  the advertisement  will  be withdrawn. Respondent  1 is,  however, bent upon going ahead with the  direct recruitment though more than 275 out of 400 Junior Engineers  aspiring for  promotion as Asst. Engineers are eligible  for consideration.  The Central Government has power of  general superintendence  over the first respondent and it  has informed  the first  respondent by  letter dated 23.2.1976   (Annexure    ’F’)   that   consequent   on   the recommendation  of   the  Third  Pay  Commission  the  first respondent may  ban direct  recruitment as  has been done by the CPWD. The Director in the Office of the Director-General of  Works,   Government  of  India  informed  the  Assistant Commissioner (Establishment)  of  the  first  respondent  by letter  dated   16.2.1978  (Annexure   ’F1’)   that   direct recruitment to  CES/CEES Group B was still under suspension. Though no  specific reference has been made in the Third Pay Commission’s  Report   to  Junior  Engineers  of  the  first respondent  Corporation,   its  recommendations   have  been followed by  the first  respondent, and  its  employees  are treated in  the same  manner as  employees  of  the  Central Government are  treated by  the Government, their pay scales and service  conditions being  the same. The proposed direct recruitment 380 to eight  posts of Assistant Engineers is detrimental to the interests of  the petitioners  in the  light of  the Central Government’s  memorandum   of  the  year  1959  relating  to seniority.  The   first  respondent  should,  therefore,  be directed to  follow the  same policy as is being followed by the Engineering Department of the Central Government.      The details  of the appointments of respondents 3 to 46 who have  been directly  recruited  as  Assistant  Engineers during the  years 1974-78, given in Annexure A-1, would show that the  direct recruits  of the  year 1974 rank higher and above the petitioners who are recruited much earlier. Of the 400 Junior  Engineers in the service of respondent 1, 36 are holding current duty charge as Assistant Engineers from 1978 and several others are holding charge as Assistant Engineers on adhoc  basis. Those  Junior Engineers who are officiating as Assistant  Engineers ought  to be  treated  as  regularly appointed Assistant  Engineers. However, their names are not shown in  the seniority  list (Annexure  ’G’  circulated  on 2.9.1978. That seniority list has been prepared on the basis of the  memorandum  issued  by  the  Central  Government  in December 1979  which is similar to the seniority rules which has been  struck down  by this  Court in  the case  of  S.B. Patwardhan and  Ors. etc.  v. State  of Mahrashtra & Ors.(1) Respondent 1  is drawing  the  seniority  list  without  any authority of  law by  putting one  promotee and  one  direct

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recruit  thereafter   and  so  on  in  accordance  with  the instructions of  the Central  Government, according to which those confirmed earlier would rank senior to those confirmed later. The  conferment of artificial seniority by respondent 1 deprives  the petitioners of their actual seniority and is destructive of the fundamental right to equality.      The first  respondent-Corporation  has  filed  counter- affidavit contending  that the  Corporation has to be guided by its  own rules relating to its Engineering Service though the conditions  of  service  under  it  could  not  be  less attractive than  those prevailing  in the CPWD in order that it may  attract proper engineering talents. All appointments in the  Corporation carrying  a minimum  salary of less than Rs. 700  per mensem could be made by the Commissioner of the Corporation  since   10.1.1975  in   accordance   with   the recruitment rules  which have  been framed  in  consultation with the  Union Public  Service Commission  though prior  to that date  consultation with Union Public Service Commission was essential in the matter of 381 appointment to  posts carrying  a minimum  salary of Rs. 350 and above  per mensem.  After from  Executive Engineers  and Superintending Engineers, the Engineering Service (Civil) in the first respondent-Corporation consists of: (1) 450 Junior Engineers in  the pay  scale of Rs. 425-700, of which 80 per cent is  filled  by  direct  recruitment  with  the  minimum qualification of Diploma in Civil Engineering and 20 percent is filled by promotion from amongst Works Assistants already in the  service of  the Corporation  with Diploma  in  Civil Engineering and  minimum experience  of two  years;  (2)  13 Selection Grade  Junior Engineers  in the  pay scale  of Rs. 550-900 to  be filled  by promotion  of Junior  Engineers on completion of  12 years of service on the basis of seniority and (3)  99 Assistant Engineers in the pay scale of Rs. 650- 1200, of  which 50 per cent is to be filled by promotion and 50 per  cent  by  direct  recruitment.  A  Degree  in  Civil Engineering and  two years  of professional  experience  are essential for  direct recruits  while for promotees from the cadre of  Junior Engineers  a minimum  experience  of  three years of  service  for  Degree-holders  and  five  years  of service for Diploma-holders in the grade of Junior Engineers are essential.  Higher  posts  of  Executive  Engineers  and Superintending  Engineers   were  primarily   filled  up  by promotion of  Assistant Engineers  and  Executive  Engineers respectively.   These    higher   posts    require    better qualifications and  experience. For that purpose 50 per cent of posts  of Assistant  Engineers are  reserved  for  direct recruitment for  which a Degree in Civil Engineering and two years   of    professional    experience    are    essential qualifications.      All posts to be filled by direct recruitment have to be advertised  and   the  candidates  have  to  be  called  for interview and  the selection  made has to be approved by the Corporation. Even  for promotion,  a Departmental  Promotion Committee  with   a  member  of  the  Union  Public  Service Commission has  to be  constituted and  a list  of  eligible candidates has  to be  prepared and they have to be screened before the  selection is  made. All  this takes time and the work of  the Corporation  cannot remain  unattended  in  the meanwhile. Therefore,  senior personnel  from the  immediate lower category  of officers  are drafted to the vacant posts on adhoc  basis with  pay and  other emoluments  due to  the posts held  under current duty charge, but without any right to that  post which  has to be filled by either promotion or direct recruitment  as per  the rules.  The  recruitment  to

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higher grades  of  Executive  Engineers  and  Superintending Engineers  being   primarily  by  promotion  from  Assistant Engineers and  Executive Engineers  respectively,  the  only avenue 382 to have  engineers with  better qualifications  is by direct recruitment of  Assistant Engineers  to the extent of 50 per cent. If  that avenue of direct recruitment is closed, there will be no source from which better qualified Engineers with higher Degree  qualifications  will  become  available.  The Corporation considered  the question  of  suspending  direct recruitment of Assistant Engineers on several occasions, but it came  to the  conclusion that  it is neither feasible nor desirable to  do so  in the  interests  of  the  Engineering Department.  The   Writ  Petition   has  not  disclosed  any violation of  any right much less a fundamental right of the petitioners. The  petitioners have  no right  to  force  the first respondent-Corporation,  a statutory body, to exercise its discretion  in particular  manner which  is against  the rules.      The  Municipal   Corporation,  Delhi   is  a  statutory authority, which  is no  doubt  controlled  by  the  Central Government to  the extent  mentioned in  s. 487 of the Delhi Municipal Corporation Act, 1957. The Recruitment Regulations for the posts of Assistant Engineers(Civil) were notified in the Official  Gazette on   27.6.1970  (Annexure ’R1’).  They provide for recruitment of Assistant Engineers to the extent of 50  per cent  by promotion of Junior Engineers and to the extent of  50 per  cent by  direct recruitment. The CPWD had decided  to   suspend  direct  recruitment  to  the  Central Engineering Service  Class II for seven years from 1972. The first respondent  has resolved  by Resolution  No. 50  dated 20.7.1964 to  adopt the  CPWD patten  of work with regard to execution of  works alone and not with regard to the mode of recruitment  and   other  service   matters.   The   Central Government rules  are made  applicable to  the employees  of respondent-1 only  on their  adoption and  approval  by  the Corporation; otherwise  its employees  are governed  by  the rules and regulations framed by the Corporation itself under s. 98  of the  Delhi Municipal  Corporation Act,  1957.  The representations received from time to time for suspension of direct  recruitment   of  Assistant   Engineers  were   duly considered but  it was  found that there is no justification to comply  with the  request, and  a decision in that regard was taken  by the  Council of  the Corporation  on 19.4.1978 (Annexure  ’R2’).  Out  of  401  Junior  Engineers,  one  is unqualified,  343   are  Diploma-holders  and  only  57  are Graduates in  Civil Engineering.  The decision  to  fill  up eight posts  of Assistant  Engineers by  direct recruit  was taken in  view of  the short-fall  in the direct recruitment quota compared  to the  promotion quota  in accordance  with Recruitment Regulations which provide for filling up 50 per 383 cent by  promotion and  50 per cent by direct recruitment of Assistant  Engineers  though  sufficient  number  of  Junior Engineers amongst  Diploma-holders had  become eligible  for the posts of Assistant Engineers. The practice of suspending direct recruitment  followed by  other  departments  of  the Central  Government   cannot,  therefore,   be  followed  by respondent 1.  Section 47 of the Delhi Municipal Corporation Act provides  for directions  being  given  by  the  Central Government.  But   the  Central  Government’s  letter  dated 23.2.1976   to   the   effect   that   consequent   on   the recommendations of  the Third  Pay Commission,  respondent 1 may ban  direct recruitment as has been done by the CPWD was

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not written in accordance with power conferred by Section 47 of the  Delhi  Municipal  Corporation  Act  and  it  cannot, therefore,  be   taken  as  a  directive  from  the  Central Government.      The relative seniority of direct recruits and promotees has been  determined in  accordance  with  the  instructions contained in the Ministry of Home Affairs’ Office Memorandum No.  9/11/55-RPS   dated  22.12.1959.   Out  of  401  Junior Engineers, 36  persons are  holding the  posts of  Assistant Engineers on  adhoc basis in the Junior Engineer’s pay scale and they  are liable  to be  reverted as Junior Engineers as and when  the posts  are filled  up on  a regular  basis  in accordance with  the Recruitment  Regulations. The  officers appointed on  adhoc basis and current charge basis cannot be treated as regular appointees in the absence of appointments in  accordance   with  the   Recruitment  Regulations,  and, therefore, their names have been rightly not included in the seniority list.  The persons confirmed earlier are ranked as seniors to  persons who  are officiating  in  the  grade  in accordance  with  para  3  of  the  Home  Ministry’s  Office Memorandum dated  22.12.1959 and there is no infringement of any fundamental right of the petitioners.      Respondents 3  to 10  and 12  to 15 have filed counter- affidavit contending  that prayers  Nos. 1,  2 and 4 in W.P. No. 221  of 1979  are in direct violation of the Recruitment Regulations relating  to Assistant  Engineers. Respondents 3 to 7 appeared before the Union Public Service Commission and were duly  selected as  Assistant Engineers  on 2.1.1974  as mentioned  in   the  Office  order  dated  4.6.1975  of  the Assistant  Commissioner   (Establishment)   of   the   first respondent (Annexure  ’RA-1’). Respondents  8 to  18 of whom respondent 11  had died  a few years ago also were appointed as Assistant  Engineers with  effect from  2.1.1974  in  the direct recruitment  quota. Respondents  19 to  46 also  were appointed as Assistant Engineers on various 384 dates  after  2.1.1974  in  the  direct  recruitment  quota. Therefore, it is not open to the petitioners to question the seniority of respondents 3 to 46 fixed long ago in according with statutory  rules. Respondents  3 to 10 and 12 to 17 are working as  Executive Engineers on adhoc basis for over four years.      The promotional policy of respondent 1 is in accordance with the  statutory rules  approved in  1970 in consultation with the  Union Public  Service Commission  and are  neither arbitrary nor  without authority  of law.  There has been no ban on  direct recruitment  to 50  per cent  of the posts of Assistant Engineers  as  per  the  Recruitment  Regulations. Respondents 3  to 46  are Graduates in Civil Engineering and more qualified  than the  petitioners who  are only  Diploma holders.  The  petitioners  are  eligible  to  promotion  as Assistant Engineers  in the 50 per cent promotion quota. The first respondent is not following the pattern of the current functioning of  the CPWD  in the  matter of  recruitment and other  service   conditions  but  has  its  own  Recruitment Regulations which  have been  approved by  the Union  Public Service Commission  and duly notified on 27.6.1970. The CPWD has suspended  direct recruitment  of Assistant Engineers in Class II  temporarily for  seven years from 1.4.1972. Direct recruitment  of   Assistant  Engineers  is  resorted  to  by respondent  1  for  having  highly  qualified  and  talented Engineers and  maintaining  standards  and  efficiency.  The petitioners  cannot   have  any   grievance  against  direct recruits of  1974 ranking  higher in seniority in accordance with Recruitment  Regulations. The  final seniority  list of

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Assistant Engineers  circulated on  30.1.1975 (Annexure  ’RA III’) was  finalised after considering the objections and is in  accordance  with  the  Home  Affairs  Ministry’s  Office Memorandum  dated   22.12.1959  which  lays  down  that  the relative seniority of direct recruits and promotees shall be determined according  to the  rotation of  vacancies between direct recruits  and promoters  which shall  be based on the quota reserved  in the Recruitment Regulations. It cannot be challenged  after   a  long   period  of   five  years.  The petitioners are, therefore, not entitled to any relief.      The petitioners  in W.P.  No. 1194 of 1979 are Graduate Junior Engineers.  Their case  is that  the first respondent has been denying for the last six or seven years to them and other Graduate  Junior Engineers  their  rightful  quota  of appointment as  Assistant Engineers  in accordance  with the Rules while  following the pattern of the CPWD even though a statutory duty  is cast  on the  first respondent to fill up the posts of Assistant Engineers on 50 : 50 basis. 385 Consequently, 26  posts of Assistant Engineers in the direct recruitment quota  are kept  unfilled as is evident from the final seniority  list of  Assistant Engineers dated 2.9.1978 (Annexure ’G’) though there are 50 Graduate Junior Engineers who are eligible to compete for those posts. Though 26 posts of Assistant Engineers were available for being filled up as an 20.12.1978  only 8  posts were  advertised (Annexure ’A’) and the  names of  petitioners 1  to 21 appeared in the duly prepared selection list. The first respondent has not filled up even  those 8 posts with the candidates in that selection list but  has  filled  up  6  posts  by  putting  up  Junior Engineers with  Diploma as  respondents 5  to 41  on current duty charge under the order dated 10.4.1978 forming Annexure ’I’  in  violation  of  Rules  and  the  petitioners  ’right guaranteed under Article 16 of the Constitution of India. In all 37  posts of  Assistant Engineers  including some in the quota of  direct recruits  have been  filled  up  by  Junior Engineers holding  only Diplomas on current duty charge with the object  of favouring  Diploma-holders who have got great political influence  by the  Office  order  dated  21.6.1979 (Annexure ’M’). The Assistant Commissioner (Engineering) has taken an  absolutely new  stand in  his reply (Annexure ’P’) received on  6.9.1979 by  saying that  implementation of the approved panel was not feasible on account of ban imposed by the  Commissioner  on  10.8.1979  on  new  recruitment.  The Diploma-holders posted as Assistant Engineers on the current duty charge  have been  further promoted as adhoc appointees by Office  order dated  10.8.1979 (Annexure ’R’). The effect of this  adhoc appointment is that the adhoc appointees draw pay in  the higher scale of Assistant Engineers while in the current duty  charge they  were entitled  to draw only their pay in  the lower grade of Junior Engineers. The petitioners have,  therefore,  prayed  for  quashing  the  orders  dated 10.4.1978 and 21.6.1979 (Annexures ’I’ & ’M’).      The  chances  of  Graduate  Junior  Engineers  becoming Assistant Engineers  are very  bleak. Justice can be done of both  Diploma-holders   and  Graduates  amongst  the  Junior Engineers  by   providing  a   reasonable  quota   for  both categories in  the 50  per cent quota reserved for promotees in the  matter of  appointment of  Assistant Engineers as is done in  the  Delhi  Electric  Supply  Undertaking  so  that Graduates and  Diploma-holders amongst  the Junior Engineers may get equal chances of promotion.      The petitioners,  who are  Graduate  Junior  Engineers, form a  category with  distinguishing features separate from Junior Engineers

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386 who are  Diploma-holders. The  Supreme Court  has held  that separate category  within the  same category on the basis of educational qualifications  is clearly  permissible and  not violative of  Article 14  of the  Constitution of India. But the first  respondent is  treating  the  two  categories  as equal.  The  Graduate  Engineers  suggested  to  the  Deputy Commissioners  (Engineering)   that  a   separate  cadre  of Graduate Junior  Engineers in  the pay  scale of Rs. 550-900 may be  created and  designated as  Design  Assistants.  The Assistant Commissioner  (Engineering)  has  replied  by  his letter dated  27.3.1979 (Annexure  ’K’) that  the  Municipal Chief Accountant  has not accepted the suggestion. Under the Central Civil  Service Rules,  1979 and  on the basis of the Third  Pay  Commission’s  Report  the  petitioners  who  are Graduate Junior  Engineers are  entitled to the pay scale of Rs. 550-900  which  is  the  revised  pay  scale  of  Junior Engineers  in   Class  III   service  in   other  government departments. The  petitioners  are  similarly  circumstanced with those  other Graduate Junior Engineers, and there is no just or valid reason to discriminate the petitioners qua the other Graduate  Junior Engineers  in Class  III  service  in other Government departments.      The first  respondent-Corporation has  not revised  the special pay  (planning allowance)  from the  date from which the petitioners  as Graduate  Junior Engineers  are  legally entitled thereto. The planning allowance has been revised in the CPWD  from Rs.  40 to  75 per  mensem with  effect  from 1.1.1979 by  the order  dated 1.1.1979  (Annexure ’ZA’). The Corporation  has  by  Resolution  No.  184  dated  21.6.1971 sanctioned special  pay to  Section Officers  now  known  as Junior Engineers  working in  the Planning  Circle at Rs. 40 per mensem in the case of Graduates and Rs. 25 per mensem in the case of Diploma-holders with effect from 1.4.1971 on the pattern  of  the  CPWD.  The  Planning  allowance  has  been increased from  Rs. 40  to Rs.75 per mensem in the CPWD with effect from  1.1.1979 by letter No. 28017 (17) 78 EW-1 dated 1.1.1979 (Annexure  ’ZA’)  of  the  Ministry  of  Works  and Housing Government  of India.  Though the  Commissioner  has recommended revision  from Rs.  40 to  Rs. 75 in his letter, the revision  has not  been effected  on the ground that the approval of  the Municipal  Council is  not forthcoming. The Delhi   Administration’s    Notification   dated   19.9.1972 circulated by  respondent 1  on  30.9.1972  (Annexure  ’ZC’) shows that  the General Financial Rules including amendments and orders  issued by  the Central Government are applicable to respondent  1 in  every manner,  be  it  pay  or  general allowance. Therefore, the stand of the first respondent 387 that revision  of the  planning allowance  will be effective only from  the date  of approval by the Municipal Council is baseless, mala-fide and illegal.      The petitioners  have prayed  for the aforesaid reliefs in these circumstances.      The first  respondent  has  filed  a  counter-affidavit contending  that   the  qualification   prescribed  in   the Recruitment Regulations  notified on 27.6.1970 is Diploma in Civil Engineering or any higher qualification, and since all the Junior  Engineers either with Degree or with Diploma are performing the  same duties,  no separate  category  can  be allowed to  Graduate  Junior  Engineers.  Those  Recruitment Regulations provide  for 50  per cent  of posts of Assistant Engineers being filled by promotion amongst Junior Engineers and  50   per  cent   by  direct  recruitments.  For  direct recruitment a  Degree in  Civil Engineering and two years of

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professional  experience   are  the  minimum  qualifications required while  for promotees  five  years  of  professional experience as  Junior Engineers  in  the  case  of  Diploma- holders and  three years  of professional  experience in the case  of   Graduate  Junior   Engineers  are   the   minimum qualifications required. The suggestion of the petitioner to treat the  Graduate Junior  Engineers as a separate category is not acceptable to the first respondent.      The select  list for direct recruitment to the posts of Assistant Engineers  out of  Graduate Junior  Engineers  was approved by  the competent  authority on  2.5.1979  and  the matter of  appointment being  still under consideration only two appointments  on current duty basis were made out of the senior-most Junior  Engineers by  the order  dated 21.6.1979 (Annexure ’M’).  After the  notification of  the Recruitment Regulations in  1970, 36  Graduate Engineers  in the  direct recruitment quota  and 10  promotees from  amongst Graduates were appointed  as Assistant  Engineers.  The  criteria  for promotion of  Junior Engineers  as  Assistant  Engineers  is selection-cum-seniority. The  rules for promotion applicable to the first respondent-Corporation are quite different from those of  the CPWD  and it  is not  incumbent on  the  first respondent to  follow the CPWD rules. The eligibility of the petitioners and  their selection  to the  posts of Assistant Engineers are  not  denied  by  the  first  respondent.  The petitioners’ names  appear in the select list which has been approved by  the Competent  Authority  on  2.5.1979  and  is pending final  decision about  the appointment of the direct recruits selected  for the  8 posts  advertised in  December 1978. The current duty charge arrangement 388 mentioned in  Annexure ’M’  had to  be made  as a  stop  gap arrangement  to  meet  the  immediate  requirements  of  the Department and  not to  favour any  Diploma-holders, and  it does not  amount to  any violation  of  Article  16  of  the Constitution of  India. It is not admitted that 26 vacancies of Assistant  Engineers still  exist  for  being  filled  by direct recruitment.  The  appointment  under  the  promotion quota is  no doubt in excess of the prescribed percentage as some of  the promotees  had been adjusted against short-term vacancies.      The demand  of the Graduate Junior Engineers’ Union for the creation  of a  separate cadre  in the  pay scale of Rs. 550-900 for  Graduate  Engineers  was  objected  to  by  the Finance Department  of the  first respondent-Corporation and found  to   be  not   feasible  in  view  of  the  financial implications involved.      The matter of revising planning allowance of Rs. 40 and Rs.  25   paid  to  Graduate  Junior  Engineers  and  Junior Engineers holding Diploma is under consideration.      The 27th  respondent has  filed a  counter-affidavit in the Petition  for Stay filed in W.P. 1194 of 1979. Though he has  sought  leave  in  that  counter-affidavit  to  file  a detailed counter-affidavit  in the  main Writ  Petition,  no such counter-affidavit  has been  filed. In  the  course  of arguments before  us  reference  was  made  by  the  learned counsel for  the parties  to what  is stated  in  the  above counter-affidavit.  Therefore,  we  would  like  to  mention briefly the  contentions put  forward by the 27th respondent in that counter-affidavit.      The seniority  list published  on 11.10.1979 shows that the quota  of the promotee Assistant Engineers is deficient, in that  21 posts  out of  the quota for promotees are still unfilled whereas  the entire  quota for  direct recruits has been filled  up already. That seniority list has been issued

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with the approval of the Commissioner, vide office Order No. 2(90)/ECI/ENGG/ESTT/1574 dated 11.10.1979, and shows that no post is available for being filled up by direct recruitment.      The Selection  Board was  not constituted  as  per  the proper procedure.  A minimum of two Deputy Commissioners are required to be on the Selection Board whereas in the case of the selection  of Graduate  Junior Engineers for appointment as Assistant Engineers 389 there was  not even  a single  Deputy  Commissioner  on  the Selection Board. When this illegality in the constitution of the  Selection   Board   was   realised,   the   Corporation authorities,  at  the  behest  of  interested  persons,  had interpolated the  name of  the Deputy  Commissioner (E)  and obtained his  signature sometime  after the deliberations of the Selection  Board had  been completed and the minutes had already been  signed  by  the  members.  Page  180C  of  the proceedings of  the Selection  Board (Annexure  RIII to this counter-affidavit) shows  that Har  Mohinder Singh  (sl. No. 15) was  absent for the interview. Yet he has been awarded a total of 34 marks, including four marks at the interview and his name  is sought  to be  placed at  No. 14  in the Select Panel. The  order  communicating  the  constitution  of  the Selection Board  shows that  there were  only  four  members including the  Municipal Engineer  who was designated as the Chairman. But  the final  minutes are  signed by  5  members including the Deputy Commissioner (E).      The Corporation  was formed  on 7.4.1958.  Since then a total of  95 Assistant  Engineers  have  been  appointed  by direct recruitment  whereas amongst the Junior Engineers and lower categories  only 78  have been  appointed as Assistant Engineers. Thirty-six  respondents who  are holding  Current Charge as  Assistant Engineers  since various  dates falling between 10.4.1978 and 21.6.1979 had joined service as Junior Engineers about 18 to 20 years ago, i.e., between 14.10.1959 and 24.8.1961.  and they  have become eligible for promotion as Assistant  Engineers on  a regular basis according to the rules of  the Corporation  long  ago.  Therefore,  there  is nothing wrong  in promoting  them on Current Charge basis as Assistant Engineers.      The  Recruitment   Regulations  deal   with  and  apply expressly to  only 63  posts  of  Assistant  Engineers.  The direct recruits are, therefore, entitled to only 30 posts on 50 : 50 basis, but they have been admittedly given 36 posts. Therefore, there is no further post of Assistant Engineer to be given  to them  on any of the respondents holding Current Charge being  reverted as Junior Engineers. According to the procedure and  rules of the Corporation, Current Duty Charge holders are  to be  given  adhoc  appointments  as  soon  as possible, and  as per  the preamble  to  the  Commissioner’s letter No.  34 C&C  dated 11.9.1979 adhoc status is required to be conferred with effect from the date of commencement of Current Duty Charge.      The panel  prepared by  the Selection  Board, which has yet not been issued, is supposed to contain 37 names. Though under the 390 Rules for  the 8  posts of Assistant Engineers advertised to be filled.  by direct  recruitment only  8 plus  20% thereof have to  be selected  it is  interesting to  note  that  the number of  Junior Engineers  holding Current  Duty Charge is also 37.      We have  re-arranged the  order of  the prayers  in the Writ Petitions  filed for  the issue of Writs of Mandamus or other appropriate  Writs and  would mention  them here  once

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again for the sake of convenient reference. They are:      Writ Petition No. 221 of 1979:      (1)  to restrain respondent 1 from recruiting Assistant           Engineers directly  and filling  up the  posts  of           Assistant Engineers;      (2)  to direct  respondent 1  to  give  effect  to  the           recommendations  of   the  Third   Pay  Commission           regarding the rules and policy of promotion etc;      (3)  to quash  the seniority list (Annexure G) prepared           by respondent 1;      (4)  to direct  respondent 1 to reckon the seniority of           the petitioners  with the length of their service;           and      (5)  to direct respondent 1 not to affect in any manner           all Junior  Engineers holding  current duty charge           and adhoc appointments as Assistant Engineers.      Writ Petition No. 1194 of 1979:      (1)  to direct  respondent 1  to fill up the 8 posts of           Assistant Engineers  by  direct  recruitment  from           amongst  the  Graduate  Junior  Engineers  in  the           select panel;      (2)  to  quash   the  Office   Order  dated   10.4.1978           (Annexure  1)  entrusting  Junior  Engineers  with           current duty  charge of  the  posts  of  Assistant           Engineers and  the Office  Order  dated  21.6.1979           (Annexure  M)   promoting  Junior   Engineers   as           Assistant Engineers on current duty charge; 391      (3)  to direct  respondent 1  to fill  up the remaining           posts  of   Assistant  Engineers   in  the  direct           recruitment  quota  from  amongst  the  empanelled           petitioners who are Graduate Junior Engineers;      (4)  to  declare   the  petitioners   Graduate   Junior           Engineers as  a separate  category amongst  Junior           Engineers and  give  them  equal  quota  like  the           Diploma  holders   Junior  Engineers  out  of  the           departmental  quota  in  the  posts  of  Assistant           Engineers;      (5)  to  restrain   respondent  1   from  giving  adhoc           promotions to  current duty charge holders amongst           Junior Engineers;      (6)  to declare  that the  petitioners Graduate  Junior           Engineers in  the  service  of  respondent  1  are           entitled to  be put on par with their counterparts           in other Government departments;      (7)  to direct  respondent 1 to grant revised pay scale           of  Rs.  550-900  to  the  petitioners  and  other           Graduate  Junior  Engineers  as  in  the  case  of           Graduate Junior  Engineers in  Class (III) service           in other  Government departments  with effect from           the date  on which  it is  made applicable  in the           CPWD; and      (8)  to direct  respondent 1  to revise the special pay           from  Rs.   40  to   Rs.  75  per  mensem  to  the           petitioners and  other Graduate  Junior  Engineers           entitled thereto from 1.1.1979.      We shall  consider prayers 1 and 2 in Writ Petition No. 221 of  1979 and  prayer I in Writ Petition No. 1194 of 1979 all of  which relate  to direct  recruitment to  8 posts  of Assistant  Engineers.  According  to  the  counter-affidavit filed on  behalf  of  respondent  1,  apart  from  Executive Engineers, Superintending  Engineers and  Municipal Engineer who is  at the  top,  the  Engineering  Service  (Civil)  of respondent 1 consists of:      (1)  450 Junior  Engineers in the pay scale of Rs. 425-

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         700 of  which 80%  is filled by direct recruitment           with the 392           minimum  qualification   of   Diploma   in   Civil           Engineering and  20% is  filled by  promotion from           amongst Works Assistants already in the service of           respondent 1 with Diploma in Civil Engineering and           minimum experience of 2 years;      (2)  13 Selection  Grade Junior  Engineers in  the  pay           scale of  Rs. 550-900 to be filled by promotion of           Junior Engineers  on completion  of  12  years  of           service on the basis of seniority; and      (3)  99 Assistant  Engineers in  the pay  scale of  Rs.           650-1200 of which 50% is to be filled by promotion           of Junior  Engineers and  50% is  to be  filled by           direct recruitment.  A Degree in Civil Engineering           and  2   years  of   professional  experience  are           essential  for  direct  recruitment  as  Assistant           Engineers  while   for  promotion   as   Assistant           Engineers from  the cadre  of Junior  Engineers  a           minimum of  3 years  of service for Degree holders           and 5  years of service for Diploma holders in the           Grade of Junior Engineers are essential. All other           higher    posts     of    Executive     Engineers,           Superintending Engineers  and Municipal  Engineers           are primarily  filled by  promotion  of  Assistant           Engineers, Executive  Engineers and Superintending           Engineers respectively.  All the  appointments  in           the respondent  1 - Corporation carrying a minimum           salary of  less than  Rs. 700  per mensem could be           made by  the Commissioner of the Corporation since           10.1.1975 in accordance with the recruitment rules           which are  framed in  consultation with  the Union           Public Service  Commission though  prior  to  that           date consultation  with the  Union Public  Service           Commission  was   essential  in   the  matter   of           appointment to  posts carrying a minimum salary of           Rs. 350  per mensem  and above. Direct recruitment           is  to  be  made  on  the  recommendation  of  the           Selection Board  to be constituted for the purpose           from time to time. Similarly, promotions are to be           made on  the recommendation  of  the  Departmental           Promotion Committee  to  be  constituted  for  the           purpose from time to time. The quota of 50% for 393           promotees amongst  Junior Engineers  and  50%  for           direct recruitment  from amongst outsiders as well           as Graduate  Junior Engineers  for appointment  to           posts of  Assistant Engineers  which are selection           posts was  fixed  by  the  Recruitment  Regulation           dated 27.6.1970 made by the first respondent under           S. 98  of the  Delhi  Municipal  Corporation  Act,           1957, vide  resolution No.  97 dated  4 5.1970  in           connection with  the recruitment  for the posts of           Assistant Engineers  (Civil) and  approved by  the           Lt. Governor,  Delhi under  section 480 (2) of the           said  Act  read  with  the  Government  of  India,           Ministry  of   Home  Affairs’  Notification  dated           19.10.1966.  The  cause  of  the  Graduate  Junior           Engineers  is  espoused  by  the  Graduate  Junior           Engineers Union  while the  cause of  the  Diploma           holders  Junior   Engineers  is  espoused  by  the           Municipal Corporation of Delhi Assistant Engineers           (ORG) (Regd.).  There is  no dispute  about  these           facts except  in regard  to the  quota of  50% for

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         promotee Junior  Engineers and  50%  for  directly           recruited Graduate  Engineers  including  Graduate           Junior Engineers.      According to  the petitioners  in Writ  Petition 221 of 1979 who  are Diploma  holders Junior Engineers respondent 1 has been following the pattern of functioning current in the CPWD in  all matters  of recruitment,  promotion  and  other conditions of  service. The  CPWD  has  decided  to  suspend direct  recruitment   in  the  Central  Engineering  Service because no promotional chances were available to the Central Engineering  Service/Electrical  Engineering  Service  Class (II).  The   said  decision  taken  in  August  1975  became effective from  1.4.1972. The  first respondent  has taken a decision by  Resolution Nos. 416 and 78 dated 27.10.1970 and 21.2.1971 respectively  to the  effect that  all fundamental rules  and  supplementary  rules  including  amendments  and orders issued  by the Central Government shall be treated as rules etc.  by respondent  1. The  Central Services  Conduct Rules and General Fundamental Rules including amendments and orders issued  by the  Central  Government  have  been  made applicable to  respondent 1.  As  soon  as  the  petitioners learnt that there is suspension of direct recruitment in the CPWD they invited the attention of respondent 1 to that fact in November 1975 and requested 394 for banning  direct recruitment  of Assistant  Engineers and were given  an assurance that their rights will not be over- looked.  The   petitioners  made   several   representations including  the   last  one   dated   24.1.1979.   The   then Commissioner of  respondent 1  gave an oral assurance to the petitioners that  the practice  adopted by  the CPWD will be followed by respondent 1, and later wrote to the petitioners saying  that   the  matter   was  under  consideration.  The petitioners met  the Deputy  Commissioner of respondent 1 on 23.1.1979 and protested against the notification made in the press on  30.12.1978 for  filling up  8 posts  of  Assistant Engineers by  direct recruitment  and they expected that the notification would  be with drawn as the Deputy Commissioner accepted their  suggestion. But  respondent 1  is,  however, bent upon  going ahead  with the  direct recruitment  though more than  275 Junior  Engineers out of 400 Junior Engineers aspiring for  promotion as  Assistant Engineers are eligible for consideration.  The  Central  Government  has  power  of general superintendence over the first respondent and it has informed the first respondent by letter dated 22.3.1976 that consequent  on   the  recommendations   of  the   Third  Pay Commission direct  recruitment may be banned by respondent 1 as has  been done by the CPWD. The Director in the Office of the Director-General  of  Works,  Government  of  India  has informed  the   first  respondent’s  Assistant  Commissioner (Establishment)  by   letter  dated  16.2.1978  that  direct recruitment to  the Central  Engineering Service and Central Electrical Engineering  Service (Group  B) was  still  under suspension. Though  no specific  reference has  been made in the Third Pay Commission’s Report to Junior Engineers of the first respondent  its recommendations  have been followed by the first  respondent and  its employees  are treated in the same manner  as the employees of the Central Government. The pay scales  and service  conditions of  the employees of the first respondent  and the  Central Government  are the same. The proposed  direct recruitment  to 8  posts  of  Assistant Engineers is detrimental to the interest of the petitioners. The first  respondent should,  therefore, be asked to follow the same  policy as  the one  adopted by  the  CPWD  and  be restrained from  appointing 8  Assistant Engineers by direct

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recruitment. This  is how  the petitioners  in Writ Petition 221 of  1979 seek  the relief  covered by  the first prayer. This is  also the  stand as  defence in  regard to the first prayer in  Writ  Petition  1194  of  1979  which  is  for  a direction being given to respondent 1 to fill up the 8 posts of Assistant  Engineers by  direct recruitment  from amongst those in the select list. 395      The 27th  respondent  has  contended  in  his  counter- affidavit that  since the formation of the first respondent- Corporation on  7.4.1958 as  many as  95 Assistant Engineers have been  appointed by  direct recruitment  whereas amongst Junior Engineers  only 78  have been  appointed as Assistant Engineers by  way of  promotion. There were only 60 posts of Civil  Engineers  when  the  Recruitment  Regulations  dated 27.6.1970 were  made and  those Regulations could apply only to 60 posts of Assistant Engineers and direct recruits would be entitled  to only  30 posts  and they are not entitled to further posts by direct recruitment now as they have already been given  36 posts.  The 27th  respondent has attacked the selection of  the panel of 37 persons by the Selection Board constituted pursuant  to the  decision to fill up 8 posts of Assistant Engineers by direct recruitment on the ground that the Selection  Board had  not been  properly constituted and there are certain other irregularities. This is how the 27th respondent  is   challenging  the   decision  to  appoint  8 Assistant Engineers  by direct  recruitment and the validity of the select panel prepared by the Selection Board.      The first  respondent’s contention  is that  the  Delhi Municipal Corporation  is a  statutory authority which is no doubt controlled  by the  Central Government but only to the extent  mentioned   in  S,   487  of   the  Delhi  Municipal Corporation Act,  1957.  The  Corporation  has  resolved  by Resolution No.  50 dated 20.7.1964 to adopt the CPWD pattern with regard  to the  execution of  works alone  and not with regard to the mode of recruitment and other service matters. The Central  Government Rules  are made  applicable  to  the employees  of  respondent  1  only  on  their  adoption  and approval by the Corporation, and otherwise its employees are governed  by   the  Rules  and  Regulations  framed  by  the Corporation itself  under section  98 of  the said  Act. The representations made  from time  to time  for suspension  of direct  recruitment   of  Assistant   Engineers  were   duly considered, but it was found that there was no justification to comply  with that  request and  a decision to that effect was taken  by the Council of the Corporation on 19.4.1978 in the interest  of the  Corporation. Section  47 of  the Delhi Municipal Corporation  Act  provides  for  directions  being given to  the Corporation by the Central Government, but the Central Government’s  letter dated  23.2.1976 to  the effect that   consequent    on   the    Third   Pay    Commission’s recommendations respondent  1 may  ban direct recruitment as has been  done by  the CPWD  is not  a direction given under that section and is, therefore, not binding on respondent 1. The Recruitment 396 Regulations dated  27.6.1970 framed  under section 98 of the Delhi Municipal Corporation Act provide for 50% of the posts of Assistant  Engineers being  filled by  direct recruitment and 50%  by promotion  of Junior  Engineers. The decision to fill up 8 posts of Assistant Engineers by direct recruitment was taken in view of the shortfall in the direct recruitment quota compared to the promotion quota.      Respondents 3  to 10  and 12 to 15 in Writ Petition 221 of 1979  have contended  in their counter-affidavit that the

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prayers 1,2  and 4  in that  Writ Petition are in the direct violation of  the Recruitment  Regulation  dated  27.6.1970. They  have  further  contended  that  respondent  1  is  not following the pattern of the current functioning of the CPWD in the  matter of  recruitment and  other service conditions but is  following its own Recruitment Regulations which have been approved  by the  Union Public  Service Commission  and duly  notified  on  27.6.1970.  The  direct  recruitment  is resorted to  by respondent 1 for having highly qualified and talented Engineers and maintaining standards and efficiency.      The petitioners  in Writ  Petition 1194 of 1979 contend that a statutory duty is cast on respondent 1 to fill up the posts of  Assistant Engineers  on 50:50  basis. Though there were 26  posts of  Assistant Engineers  to be filled on that basis by  direct recruitment,  only 8 posts were notified on 30.12.1978 to  be filled  by direct  recruitment. The  first respondent has  however not filled up even those 8 posts but has filled  up some  posts of Assistant Engineers thereafter on adhoc  basis with Junior Engineers even though the select list  has   been  approved   on  2.5.1979  pursuant  to  the interviews held on the 6th and 7th March, 1979 in connection with the  decision to fill up 8 posts of Assistant Engineers by direct recruitment.      The first  respondent has  contended  in  its  counter- affidavit in Writ petition 1194 of 1979 that the select list for direct  recruitment to  the posts of Assistant Engineers out  of  Graduate  Junior  Engineers  was  approved  by  the competent  authority   on  2.5.1979   and  the   matter   of appointment of 8 Assistant Engineers is under consideration. The petitioners’  names are  in the  select list  and  their eligibility  and   selection  to   the  posts  of  Assistant Engineers is  not denied  and their appointment as Assistant Engineers by direct recruitment is under consideration.      We  may  state  here  that  Mr.  U.  R.  Lalit,  Senior Advocate, appearing  for respondents  1  and  2  has  stated before us on 29.7.1981 397 that the  total number  of vacancies  of Assistant Engineers would be  ascertained within  2-1/2 months and thereafter in another 2-1/2  months orders  of  appointment  of  Assistant Engineers by direct recruitment will be issued by respondent 1.      Mrs. Shyamla  Pappu, Senior  Advocate appearing for the petitioners in  Writ petition 221 of 1979 drew our attention to certain  documents and  submitted that direct recruitment of  Assistant   Engineers  should  have  been  suspended  by respondent 1  following the  decision taken  by the  CPWD to suspend direct  recruitment of  Assistant  Engineers  for  7 years from 1.4.1972. She also submitted that the 50:50 quota rule in  the Recruitment  Regulations approved  on 27.6.1970 should not  be followed. If her submission is that the quota rule should  not be followed altogether it is not consistent with the  stand taken by the 27th respondent in his counter- affidavit and  also  by  Mr.  S.C.  Gupta,  learned  counsel appearing for  respondents 13,  25 and  27 in  Writ petition 1194 of 1979. The contention of the 27th respondent referred to above  is that  the quota rule can apply only to 60 posts of Assistant  Engineers which  were in existence on the date on which  the Recruitment  Regulations were  approved,  viz. 27.6.1970  and   since  there  were  36  directly  recruited Assistant Engineers  when Writ  petition 1194  of  1979  was filed which  was more  than 50% of the 60 posts there are no more posts  of Assistant  Engineers to  be filled  by direct recruitment. There can be no difficulty in holding that this contention of  the 27th  respondent is totally unacceptable.

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It is  true  that  when  the  Recruitment  Regulations  were approved on  27.6.1970 there were only 60 posts of Assistant Engineers (Civil)  in respondent  1-Corporation. The  number was 99  when Writ  petition 1194  of 1979  was filed and 115 when it  was heard  in this  Court. The  contention that the 50:50 quota  rule can  apply only  to 60 posts which were in existence when the Recruitment Regulations were approved and will not  apply to  posts which are in excess of that number is totally  unreasonable and  unsustainable and consequently rejected.      We will  now refer to the documents relied upon by Mrs. Shyamla Pappu.  The Under  Secretary, Government  of  India, Ministry of  Works and  Housing, drew  the attention  of the Commissioner of  respondent 1  by his letter dated 23.2.1976 to the  CPWD banning recruitment of Class II Engineers for 7 years from  1972 consequent  on the  recommendations of  the Third pay Commission in order to avoid stagnation in respect of promotion  of Junior Engineers and stated that it will be appreciated if the Commissioner could 398 consider the  possibility of  following that  policy in  the Corporation which  will  go  a  long  way  in  reducing  the stagnation in  respect of  promotion of  Junior Engineers in the Corporation. Admittedly, there is no direct reference to Junior Engineers  of respondent  1-Corporation in  the Third pay Commission’s Report. The decision of the CPWD to suspend direct recruitment  to  CEC  Class  II  for  7  years  w.e.f 1.4.1972 is  found at  pages 20  and 21  of the  CPWD Manual Volume I  1975 Edition. The Delhi Municipal Corporation is a statutory  authority   governed  by   the  Delhi   Municipal Corporation Act,  1957.  The  Central  Government  can  give directions to the Corporation only under Section 487 of that Act. According  to that  section the  Central Government may direct the  Corporation or the Municipal Authority concerned to make  arrangements to  its satisfaction  for  the  proper performance of  the duty  or as  the case  may  be  to  make financial provision  to its satisfaction for the performance of the  duty if,  whether on  receipt of  any information or report  obtained   under  Section  485  or  Section  486  or otherwise the Central Government is of the opinion:      (a)  that any  duty imposed  on the  Corporation or any           Municipal Authority  by or  under that Act has not           been  performed   or  has  been  performed  in  an           imperfect, insufficient or unsuitable manner; or      (b)  that adequate  financial provision  has  not  been           made for the performance of any such duty.      Sub-section (2) of Section 487 relates to directions to Municipal Authorities  in relation  to  the  Delhi  Electric Supply Undertaking  or the  Delhi Water  Supply  and  Sewage Disposal Undertaking  with which  we are  not  concerned  in these two  Writ Petitions.  As rightly contended by Mr. V.M. Tarkunde, Senior  Advocate appearing  for the petitioners in Writ Petition  1194  of  1979  the  letter  dated  23.2.1976 referred to above does not contain any direction which could be issued by the Central Government under Section 487 of the Act and is not binding on respondent 1.      The  President   of  the  Delhi  Municipal  Corporation Assistant Engineers  (ORG) (Regd.)  has stated in his letter dated 13.4.1978  addressed to the Commissioner of respondent 1 that  respondent 1 has agreed to adopt the practice of the CPWD for  filling up posts of Assistant Engineers. No record has been produced to show what 399 exactly are  the terms of that agreement. It is not possible for us  to infer  from this letter that the Commissioner has

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agreed to suspend direct recruitment of Assistant Engineers. The Secretary  of the  Delhi Municipal Corporation Assistant Engineers (ORG)  (Regd.) has  by his  letter dated 24.1.1979 requested the  Deputy Commissioner of respondent 1 to cancel the  Notification   published  on   30.12.1978  for   direct recruitment of  Assistant  Engineers.  The  Commissioner  of respondent 1  has stated  in his  letter No.  5504 C&C dated 20.8.1979 that the Corporation generally follows the pattern prevailing in  the  CPWD.  The  Standing  Committee  of  the Corporation had  resolved to  recommend to  the  Corporation that "in  view of  the widespread  stagnation amongst Junior Engineers (Civil)  direct recruitment  to posts of Assistant Engineers (Civil)  may be banned/suspended for a period of 7 years under  the civil  body also  in  conformity  with  the recommendations of  the Third  Pay Commission  as adopted by the civil  body" and  that "as  recruitment to  the posts of Assistant Engineers  (Civil) has  already been  made by  the Corporation  in  violation  of  the  aforesaid  ban  of  the Government of India during the period 1.4.1972 to 31.12.1978 the proposed suspension of recruitment to the said posts may be operative for 7 years from the 1st January, 1979". But in his note dated 19.4.1978 against stopping direct recruitment of Assistant  Engineers the  Commissioner has stated that it would not  be in  the larger interests of the Corporation to stop direct  recruitment and  not to  induct fresh Engineers with higher  qualifications. In  that note  the Commissioner had directed the formation of panels for the promotional and direct recruitment  quotas and  the issue of notification in the press  for direct  recruitment of  Assistant  Engineers. Regarding the  proceedings of  the  Appointment,  Promotion, Disciplinary and  Allied Matters Committee dated 5.4.1978 in respect of  a Municipal  Councillor’s notice  of  resolution about amendment  of the existing recruitment and promotional rules for  the posts of Assistant Engineers the Commissioner of respondent 1 has stated thus in his note:           "In the  Municipal Corporation of Delhi it is only      at  the   level  of  Assistant  Engineers  that  direct      recruitment of  Degree holders in provided which too is      limited to  50% posts  only. Since sufficient number of      highly qualified  Engineers are not presently available      with the  Corporation and  whereas all the higher posts      right upto  the posts  of Municipal Engineer have to be      filled up  from the  cadre of  Assistant Engineers  the      cadre must 400      have sufficient  number of officers of high calibre. It      is, therefore,  not considered  in the interests of the      Corporation to  stop direct recruitment to the posts of      the  Assistant   Engineers.   Moreover,   the   amended      Recruitment Regulations  for  the  posts  of  Assistant      Engineers (Civil/Elect.)  have since  been approved  by      the Corporation recently, vide their Resolution No. 348      dated 10.7.1978  wherein there  is  no  change  in  the      existing mode  of  recruitment,  i.e.,  50%  by  direct      recruitment. Obviously,  there is  no justification  to      stop direct  recruitment against  the allocation of 50%      posts earmarked  for direct recruitment as per approved      Recruitment Regulations framed in consultation with the      UPSC".      It would  appear from  what has  been stated above that the Municipal  Corporation of  Delhi which  is  a  statutory authority is  not automatically  bound by  any decision that may be  taken by the CPWD in regard to direct recruitment of Assistant Engineers  and that  it is open to the Corporation to adopt  any policy  of the CPWD by a resolution when alone

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that policy  will become  binding  on  the  Corporation.  No provision in  the Third  Pay Commission’s  Report  has  been brought to  our notice. Mrs. Shyamla Pappu has, on the other hand, admitted  that there  is no  resolution of  the  Delhi Municipal   Corporation   banning   or   suspending   direct recruitment of Assistant Engineers for 7 years or any period from any  date whatsoever.  The 50:50  quota  fixed  in  the Recruitment Regulations  approved on  27.6.1970 has not been altered but  has been  approved by  the Corporation  in  its Resolution No.  348 dated  10.7.1978. Therefore, there is no substance in  the contention  of  the  petitioners  in  Writ Petition 221  of 1979  or the contesting private respondents in Writ  Petition 1194 of 1979 that respondent 1 should have suspended the  direct recruitment of Assistant Engineers and that the quota rule laid down in the Recruitment Regulations should not be followed.      Coming now  to the  contention urged by Mr. S.C. Gupta, learned counsel  appearing for  respondents 13, 25 and 27 in Writ Petition 1194 of 1979, regarding the quota fixed in the Recruitment Regulations  we have already held that it cannot be restricted  to only 60 posts of Assistant Engineers which were in  existence  on  the  date  of  their  approval.  The Recruitment Regulations  themselves do not say that they are retrospective in  operation from  1958.  Prime  facie  those Regulations would apply to all future recruitments and 401 promotions. That  is how  they have  been understood  by the authorities of respondent 1-Corporation when they decided to have 8  posts of  Assistant Engineers  filled up  by  direct recruitment though  at that  time  there  were  36  directly recruited Assistant  Engineers holding  more than  50% of 60 such posts.      Mr. S.C.  Gupta invited  out attention  to the counter- affidavit of the 27th respondent where it is stated that the seniority list  dated 11.10.1979  purporting  to  have  been issued with the approval of the Commissioner of respondent 1 subject to  the final  decision of  the Delhi  High Court in Writ Petitions  327 of  1971 and  1631 of 1976 shows a large deficiency in  the quota  of promotees  in the  category  of Assistant Engineers. But he admitted that seniority list was withdrawn soon  afterwards and  that a  subsequent seniority list prepared  by respondent 1 was quashed by the Delhi High Court in  Writ Petition  742 of  1971 on  11.2.1981 and  the matter is pending in this Court in a special leave petition. The seniority  list  dated  2.9.1978  (Annexure  G  in  Writ Petition 1194  of 1979) which was prepared after hearing all concerned does not appear to have been objected to before or after it  was finalised except in Writ Petition 221 of 1979. In that  seniority list 130 posts of Assistant Engineers are mentioned by  placing one  promotee and  one direct  recruit alternatively according  to their  seniority. Thus  we  find that there  is no merit in the contention of respondents 13, 25 and  27 in  Writ Petition  1194 of  1979 as  regards  the decision to fill up 8 posts of Assistant Engineers by direct recruitment  and   the  quota   fixed  in   the  Recruitment Regulations, 1970.      Mr. S.C.  Gupta did  not advance any argument in regard to the plea of the 27th respondent about the constitution of the Selection  Board and  the alleged  irregularity  in  the preparation of  the select list for appointment of Assistant Engineers by  direct recruitment. Our attention has not been drawn  to   any  rule  or  provision  requiring  two  Deputy Commissioners of respondent 1 to be present on the Selection Board. The  27th respondent  has not  produced any record to show   that    the   name   of   the   Deputy   Commissioner

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(Establishment) has  been interpolated in the records of the Selection Board  at a later stage or that Mohinder Singh who is stated  to have  been marked  as absent for the interview was really absent and the award of 34 marks to him including 4 marks  at the  interview is irregular. The 27th respondent has not  substantiated any of the disputed questions of fact urged by  him in  his counter-affidavit  in  regard  to  the selection 402 of the  persons who are now in the select panel of Assistant Engineers.      Mr. V.M.  Tarkunde  submitted  that  in  spite  of  the Commissioner having  approved the  selection made on 6th and 7th March,  1979 by  the  Selection  Board  constituted  for direct recruitment of Assistant Engineers the petitioners in Writ petition  1194 of  1979  who  have  been  selected  for appointment as  Assistant Engineers  have not been appointed and that  on the other hand on 21.6.1979 under orders of the Deputy Commissioner  dated 19.6.1979  two  Junior  Engineers have been  posted as  Assistant Engineers (Civil) on Current Charge basis  with immediate  effect and  that by  the order dated 5.6.1979  pursuant to  the Commissioner’s  order dated 2.6.1979 Sukhbir Singh, one of the petitioners, against whom some departmental  proceedings appear  to have been pending, had been  promoted  as  Assistant  Engineer  (Civil)  w.e.f. 2.1.1975 and ordered to continue in the post in which he was working on adhoc basis though the final seniority list dated 2.9.1979 (Annexure  G) shows  that  26  posts  of  Assistant Engineers to be filled by direct recruitment are kept vacant right from  1971. The  learned counsel also pointed out that in the  meeting of  the Commissioner  and other  officers of respondent 1  on the  one hand  and the General Secretary of the Graduate  Junior Engineers  Union on  the other, held on 12.3.1979 it  was decided  that the appointment/promotion to posts of Assistant Engineers (Civil) should be made strictly and truly  as per the Recruitment Regulations and no Diploma holder should  be promoted till the direct recruitment quota is filled  up, and  that the  Deputy Commissioner  stated in that meeting  that appointments/promotions  to the  posts of Assistant Engineers  (Civil) were  being made only according to the  Recruitment Rules. It was pointed out rightly by Mr. V.M.  Tarkunde  that  the  following  particulars  given  in paragraph 14  of Writ  petition 1194 of 1979 showing that 33 appointments of Junior Engineers as Assistant Engineers have been made  between 1972  and 1978 irregularly is admitted in the counter-affidavit  filed on  behalf of respondents 1 and 2.      Appointments made  after the  Recruitment  Regulations,      1970  fixed  50%  for  promotees  and  50%  for  direct      recruits: Promotees                                Direct Recruits 1972 Regular  - 47                        1974 - Regular  18 1975 Regular  - 13                        1976 - Regular   3 1979 Regular  -  1                        1977-78-Regular 13 Adhoc         -  3                        1978-Regular     2 Current                                                 Duty Charge         39               -----                                     ---- Total         103                                         36 403      In the  counter-affidavit of  respondents 1 and 2 it is stated  that  appointment  of  Assistant  Engineers  in  the promotion quota  is of  course in  excess of  the prescribed limit and  that the  question of direct recruitment to posts of Assistant  Engineers (Civil)  is under  consideration and

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the eligibility  of the petitioners in Writ petition 1194 of 1979 and their selection to the posts of Assistant Engineers by direct recruitment are not denied by respondents 1 and 2.      This Court  has observed  in A.K.  Subbaraman & ors, v. Union of India(1) thus:           "When recruitment  is from  two or several sources      it  should  be  observed  that  there  is  no  inherent      invalidity in  introduction of quota system and to work      it out  by the  rule of  rotation. The  existence of  a      quota and  rotational rule  by itself  will not violate      Art. 14 or Art. 16 of the Constitution."      For all  the reasons stated above we find that there is nothing wrong  in the respondent 1-Corporation proceeding to appoint Assistant Engineers (Civil) by direct recruitment as per the Recruitment Regulations or in fixing the 50:50 quota and working it out or in the selection of the petitioners in Writ petition  1194 of  1979 as Assistant Engineers pursuant to the decisions to appoint 8 Assistant Engineers (Civil) by direct recruitment  in the  interviews held for that purpose on 6th  and 7th  March, 1979  and that  respondent 1  and  2 should issue  orders of  appointment to  those posts to 8 of the petitioners in Writ petition 1194 of 1979 who are in the select list  within six  weeks from this date if not already issued as  undertaken by  Mr. U.R. Lalit on 29.7.1981 within five months from that date.      Prayer No. 3 in Writ petition 1194 of 1979 is to direct respondent 1  to fill  up the  remaining posts  of Assistant Engineers in  the direct  recruitment quota from amongst the empanelled petitioners  who are Graduate Junior Engineers No further discussion  is necessary to record a finding on this question after  what has  been stated  above  in  regard  to prayers. 1  and 2  in writ petition 221 of 1979 and prayer 1 in Writ  petition 1194  of 1979.  Respondent 1 is admittedly bound by  the Recruitment Regulations made with the approval of the  Central Government  as required by section 480(2) of the Act 404 and it shall fill the remaining posts of Assistant Engineers in the direct recruitment quota which are kept vacant in the seniority list  dated 2.9.1978  (Annexure G in Writ petition 1194 of  1979) and any further posts which might have become available thereafter  or become  available in  view  of  our decisions in  these  two  Writ  petitions  or  otherwise  in accordance with  those Recruitment  Regulations  within  six months from  today or from the date on which further vacancy to  the   posts  of   Assistant  Engineers   in  the  direct recruitment quota  arises as the case may be, if permissible from out of the select list approved on 2.5.1979.      Next we  will consider  prayers Nos.  2 and  5 in  Writ petition 221  of 1979  and Prayer No.2 in Writ petition 1194 of 1179  which relate to Current Duty Charge appointment and Adhoc  appointment   of  Junior   Engineers   as   Assistant Engineers. As  stated earlier the allegation in paragraph 14 of Writ  petition 1194  of 1979  that there  are  39  Junior Engineers working  as Assistant  Engineers on  Current  Duty Charge and 3 Junior Engineers working as Assistant Engineers on Adhoc basis is admitted in the counter affidavit filed on behalf of  respondents 1  and 2.  The  27th  respondent  has admitted in  his counter-affidavit  that there are 37 Junior Engineers  holding   Current  Duty   Charge   as   Assistant Engineers. In  another portion of Writ petition 1194 of 1979 it is  alleged that  in all  37 posts of Assistant Engineers including some  in the  quota of  direct recruits  have been filled up  by Junior  Engineers  holding  only  Diplomas  on Current Duty  Charge including  2 appointed  by  the  office

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order dated  21.6.1979  (Annexure  M)  with  the  object  of favouring Diploma  holders  without  appointing  8  Graduate Junior  Engineers   as  Assistant   Engineers  though  their selection has  been approved  by the  competent authority on 2.5.1979 and  that earlier  6 posts  of assistant  Engineers have  been  filled  up  by  putting  Junior  Engineers  with Diplomas on  Current Duty  Charge by  the office Order dated 10.4.1971 (Annexure  I) in  violation of  the rules  and the petitioners’ rights  guaranteed  under  Article  16  of  the Constitution. It  is further  alleged in  the Writ  petition that the  effect of  Adhoc appointments  is that  the  Adhoc appointees  draw  the  higher  scale  of  pay  of  Assistant Engineers though when they hold Current Duty Charge they are entitled to  draw only  their own  pay in the lower grade of Junior Engineers.  The petitioners  have, therefore,  prayed for quashing  those two  office orders  dated 10.4.1978  and 21.6.1979.      The defence of respondent 1 in the counter-affidavit is that the  Current Duty Charge arrangement made in the office order 405 dated 21.6.1979  had to be made as a stop gap arrangement in order to meet the minimum requirements of the department and not to favour any Diploma holder and that it does not amount to violation  of Article  16 of  the Constitution.  The 27th respondent has contended that according to the procedure and rules of  the Corporation Current Duty Charge holders are to be given  Adhoc appointments  as soon  as possible  and that according to  the preamble  to the Commissioner’s letter No. 346/C&C dated  11.9.1979 Adhoc  status  is  required  to  be conferred with  effect from  the date of commencement of the Current Duty Charge. The petitioners in Writ Petition 221 of 1979 contend  that 26  Junior Engineers  out  of  the  total number of  Junior Engineers  in the  service of respondent 1 are holding Current Duty Charge from 1978 and several others are holding charge as Assistant Engineers on adhoc basis and that all  those Junior  Engineers  who  are  officiating  as Assistant Engineers are to be treated as regularly appointed Assistant Engineers.  In the counter-affidavit filed in Writ Petition 221  of 1979  respondent I  has contended  that all posts  to  be  filled  by  direct  recruitment  have  to  be advertised  and   the  candidates  have  to  be  called  for interview and  the selection  made has to be approved by the Corporation and  that  even  for  promotion  a  Departmental Promotion Committee  with  a  member  of  the  Union  Public Service Commission on it has to be constituted and a list of eligible candidates  has to  be prepared and they have to be screened  before  the  selection  is  made.  It  is  further contended that  all these  procedures take time and the work of the  Corporation cannot remain unattended and, therefore, senior  personnel  from  the  immediate  lower  category  of officers  are  drafted  to  fill  up  the  vacant  posts  of Assistant Engineers  on adhoc  basis without  any  right  to those posts  which have  to be filled by either promotion or direct recruitment as per the rules.      Mrs. Shyamla  Pappu appearing  for the  petitioners  in Writ Petition  221 of 1979, Mr G. L. Sanghi, Senior Advocate appearing for respondents 3, 4, 6, 10, 12, 20, 38 and 44 and Mr. R.P.  Sharma, Advocate appearing for respondents 9 to 13 and 28  in that  petition and  Mr. S.C.  Gupta appearing for respondents 13,  25 and 27 in Writ Petition 1194 of 1979 did not advance  any argument  regarding the Current Duty Charge and Adhoc  appointment  of  Junior  Engineers  as  Assistant Engineers which  is impugned  in Writ Petition 1194 of 1979. Mr. V.M.  Tarkunde  submitted  that  there  is  no  specific

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provision for  respondent 1  making  adhoc  appointments  as Assistant Engineers  and he  pointed out  that  the  revised seniority 406 list dated  2.9.1978 (Annexure  G in  Writ Petition  1194 of 1979) shows  that adhoc  appointments are  being  made  from 22.6.1962 though  according to  the  Office  Memorandum  No. 22011/6/75 Estt.  (D) dated  30.12.1976 of the Government of India, Cabinet  Secretariat,  Department  of  Personnel  and Administrative  Reforms  in  exceptional  circumstances  and under exigencies  of public  service it  may be necessary to make adhoc  appointments without  following  the  prescribed procedure and  such appointments  should be  subject to  the following instructions, viz:      (a)  Purely  short-term   vacancies  caused  by  leave,           short-term deputation, training etc. may be filled           by adhoc appointments if the posting of the person           next  in   the  panel   will  be  administratively           difficult or  if he  is  not  interested  in  such           short-term promotion. Such appointment can be made           also when  the panel  is exhausted  or has expired           and if  there is no time to convene a Departmental           Promotion Committee  meeting and  prepare a  fresh           panel. Adhoc  appointments made  to fill in short-           term vacancies  should be  only  by  promotion  of           departmental  candidates   and   not   by   direct           recruitment.      (b)  In the  case of  regular vacancies  due to  death,           retirement, resignation,  promotion and deputation           for period exceeding one year the vacancies should           be filled  by regular  method  and  not  by  adhoc           appointments. However,  if the  panel is exhausted           and delay  is anticipated  in  preparing  a  fresh           panel and  if the  exigencies of  public  interest           required the  filling of  the vacancy  immediately           adhoc appointments  can be  made without following           the prescribed procedure.      But regarding Current Duty Charge appointments there is a Circular dated 14.12.1973 of respondent 1 and it lays down the  following   norms  for   making  Current   Duty  Charge appointments for higher posts viz:      (1)  Current Duty  Charge appointments  should be  made           only in  the order  of seniority  subject  to  the           condition that  the officer  is otherwise fit with           reference to 407           service, character  rolls  and  clearance  reports           from the DOV/DOI;      (2)  Current Charge  arrangements should not be made if           otherwise suitable  person senior to the incumbent           is  available  except  where  the  Current  Charge           arrangement is  for such  a short  period that  it           will not  be in administrative interest to disturb           the eligible person from his existing assignment;      (3)  Current Charge  arrangement should cease forthwith           when an officer becomes eligible for adhoc/regular           appointment to  the post.  Cases of  adhoc/regular           appointments are  to be  initiated  simultaneously           with making Current Charge arrangements.      The Commissioner  of respondent  1 has issued an Office Order dated 10.8.1979 approving the adhoc arrangement to the post of Assistant Engineers (Elect.) in the pay scale of Rs. 650-1200 plus the usual allowances in respect of 5 Assistant Engineers (Elect.)  who were  presently working  on  Current Duty Charge  from the  dates of  their taking over charge or

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entrustment of  Current Duty  Charge as  noted against their names for the period ending 29.2.1980 or until the posts are filled on  a regular  basis. Out of these 5 persons one each was on  Current Duty Charge from 1974 and 1976 and 3 were on Current Duty  Charge from  1978. Thus it is seen that on the electrical side  respondent 1  has been  keeping persons  on Current Duty Charge from 1974, 1976 and 1978 until 29.2.1980 though as  per the Circular dated 14.12.1973 mentioned above cases for  adhoc/regular appointments  should  be  initiated simultaneously while making Current Charge arrangements.      Mr. V.M.  Tarkunde pointed  out that  in all 55 Current Charge appointments  have been made from 15.6.1970 inclusive of 2  made on 15.6.1970, 22 made in 1978, 15 made in 1979, 6 made in  1980 and  10 made  in 1981  and that  they were all continuing even on 22.7.1981. It is not disputed that Junior Engineers working  on Current Duty Charge receive emoluments based only  on their  own pay  scale as Junior Engineers and that on  their adhoc appointment as Assistant Engineers they receive emoluments  on the  basis of the higher pay scale of Assistant Engineers  right from  the date on which they were put on Current Duty Charge. It is evident that Junior 408 Engineers would  be anxious to be put on Current Duty Charge as they  are sure that if they are subsequently appointed on adhoc basis  they would become entitled to emoluments on the higher pay  scale right from the date on which they were put on Current Duty Charge.      All that  Mr. U.R.  Lalit did  before us  in connection with this  question was  to  invite  our  attention  to  the aforesaid Circular  dated 14.12.1973  and  to  a  Memorandum presented to  respondent I  by the Graduate Junior Engineers Union  where   the   following   decision   taken   by   the Establishment Board on 17.8.1974 is extracted, viz:           "In the meeting of the Establishment Board held on      17.8.1974 it  is explained  and recommended by the M.E.      (Municipal Engineer)  that under the direct recruitment      quota  only   qualified  persons   having   Degree   in      Engineering are  eligible. It  was, therefore,  decided      that selection  be made  out of the departmental Junior      Engineers having  Degrees in  Engineering after looking      into their  CRs and after assessing their merits by the      Establishment Board.  They will be appointed on Current      Duty Charge/Adhoc  basis in the first instance and will      be replaced as soon as the persons selected by the UPSC      are available."      Mr. U.R.  Lalit did  not dispute the facts mentioned by Mr. V.M. Tarkunde about the Current Duty Charge appointments having been  made from  1974 to 1981 of which 2 were made by the impugned  order dated  21.6.1979 even  after the  select list of  37 persons  prepared for  appointment to 8 posts of Assistant Engineers  by direct  recruitment was  approved by the competent  authority on  2.5.1979 Mr. U.R. Lalit did not dispute the factual statement made by Mr. Tarkunde that only Junior Engineers  holding Diplomas  have been put on Current Duty Charge  and  appointed  on  adhoc  basis  as  Assistant Engineers and  that not  even a  single Degree holder Junior Engineer   has    been   chosen    for   such    appointment notwithstanding   the    above   decision   taken   by   the Establishment Board  in the  meeting held  on  17.8.1974  to choose  only   suitable   Junior   Engineers   with   Degree qualification for such appointments. Continuing Current Duty Charge  and  Adhoc  appointments  for  such  a  long  period exceeding the  period of  one year  mentioned  in  the  said Memorandum dated  30.12.1976 of  the Government  of India is irregular though  that Memorandum  could not be stated to be

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automatically binding on respondent 1, 409 What  is   totally  wrong  is  that  appointment  of  Junior Engineers on  Current Duty Charge as Assistant Engineers has been made  by the  impugned order dated 21.6.1979 even after the approval of the select list prepared for the appointment of  8   Assistant  Engineers   without  issuing  orders  for appointment even  to 8  out of  those persons who are in the select  list.  In  these  circumstances  we  hold  that  the appointment of  6 Diploma  holders Junior  Engineers by  the order dated  10.4.1978 (Annexure  I) and  of 2  such  Junior Engineers by  the order  dated  21.6.1979  (Annexure  M)  as Junior Engineers  on Current  Duty Charge  for periods which are proved  to be  too long  is irregular  and we  quash the same.      Respondent 1  shall issue  orders of  appointment to  8 Degree holders  Junior Engineers  out of those in the select list approved  on 2.5.1979  within one  month from this date and complete  the appointment of Assistant Engineers for the remaining posts  on regular  basis in  accordance  with  the quota fixed in the Recruitment Regulations within six months from this  date until  which time  the Current  Duty  charge holders and  Adhoc appointees  according to  seniority  will continue to  man the remaining posts. Respondent 1 shall not make Current  Duty Charge/Adhoc  appointments and promotions except  strictly   and  truly   in   accordance   with   the instructions and  Regulations referred  to above  and  other instructions, if any, issued in that regard.      The only  other prayer  about which  Mr. V.M.  Tarkunde advanced argument  is Prayer  No. 8 in Writ Petition 1194 of 1979  which  is  to  revise  the  special  pay  or  planning allowance of  Rs. 40  per mensem  to Rs.  75 per mensem from 1.1.1979  to   Graduate  Junior  Engineers  working  in  the planning circle.  The planning allowance has been revised in the CPWD  from Rs.  40 to  75 per  mensem  in  the  case  of Graduate Junior  Engineers w.e.f.  1.1.1979 pursuant  to the letter No.  28017 (17)-EWI dated 1.1.1979 of the Ministry of Works  and   Housing  (Works   Division)  addressed  to  the Director-General  of   Works,  CPWD   (Annexure   ZA).   The Commissioner of  respondent 1 has stated in his letter dated 20.8.1979 (Annexure ZB) that the Corporation has resolved on 21.6.1971  to  sanction  special  pay  to  Junior  Engineers working in  the planning  circle at Rs. 40 per mensem in the case of  Degree holders and Rs. 25 per mensem in the case of Diploma holders  w.e.f. 1.4.1971 and that he had recommended it may  be increased from Rs. 40 to Rs. 75 per mensem as had been done  by the  CPWD w.e.f.  1.1.1979, observing that the Corporation 410 generally follows the pattern prevailing in the CPWD and the original planning  allowance itself was sanctioned following that pattern.  In Writ  Petition 1194  of 1979 it is alleged that  arbitrary  and  illegal  treatment  is  meted  out  to Graduate Junior  Engineers by  respondent 1  as borne out by the fact that the planning allowance is not revised from the date from  which the  Graduate Junior Engineers are entitled to enhancement.  In the  counter-affidavit respondent  1 has stated that  the issue  regarding revision  of the  planning allowance to  Junior Engineers is still under consideration. Mr. V.M.  Tarkunde admitted  before us that the revision has since been  effected w.e.f.  19.5.1980 whereas  the claim of the petitioners  in Writ  Petition 1194  of 1979  is that it should be  revised w.e.f.  1.1.1979. The petitioners in Writ Petition 1194  of 1979  cannot be  allowed to  blow hot  and cold. In  regard to  the  policy  of  suspension  of  direct

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recruitment  of  Assistant  Engineers  for  7  years  w.e.f. 1.4.1972 their  contention is  that the  policy of  the CPWD cannot apply  automatically to  the Corporation  until it is adopted by  a resolution.  Now in  regard  to  the  planning allowance they  cannot be  heard to  say that  the  revision should be  made automatically  from 1.1.1979  following  the CPWD pattern.  Evidently, the  Corporation has  resolved  to grant  the   upward  revision   only  from   19.5.1980.  The petitioners are  not entitled  to claim  the  revision  from 1.1.1979 itself  and they  have to  be  satisfied  with  the revision effected from 19.5.1980.      We shall next consider prayers 3 and 4 in Writ Petition 221 of  1979 which  are to  quash the  seniority list  dated 2.9.1978 (Annexure  G in  Writ Petition 1194 of 1979) and to direct  respondent   1  to   reckon  the  seniority  of  the petitioners with  the length of their services. Mrs. Shyamla Pappu stated  that the  names of  the  petitioners  in  Writ Petition 221  of 1979  are not  found in that seniority list and that  the question  of their seniority may be left open. This request  was opposed by Mr. G.L. Sanghi who stated that the question itself does not arise for consideration in Writ Petition 221  of 1979. The contention of respondent 1 in its counter-affidavit is  that the  names  of  Junior  Engineers working as  Assistant Engineers  on Current  Duty Charge and Adhoc basis are not mentioned in that seniority list as they are only  Junior  Engineers  who  have  not  been  regularly appointed as Assistant Engineers. This contention is correct and has  to be  upheld. The petitioners in Writ Petition 221 of 1979 are only Junior Engineers whereas the seniority list dated 2.9.1978 relates to Assistant Engineers. It is not the case of  the petitioners  in writ  Petition 221 of 1979 that their seniority as Junior Engineers has not been fixed 411 properly. They  are only  Junior Engineers  and consequently they cannot  question the  correctness of the seniority list dated 2.9.1978 relating to Assistant Engineers. As they have not yet  been regularly  appointed or  promoted as Assistant Engineers they  cannot have  any grievance about their names not being mentioned in that seniority list. Therefore, there is no  need to quash the seniority list dated 2.9.1978 or to give any  direction to  respondent 1  as prayed  for by  the petitioners in  Writ Petition  221  of  1979  in  regard  to seniority.      Now we  are left  only with  prayers 4, 6 and 7 in Writ Petition 1194  of 1979  about which  rightly no argument was advanced by  Mr. V.M.  Tarkunde. Prayer  No. 4 is to declare the petitioners  Graduate Engineers  as a  separate category amongst Junior  Engineers and give them equal quota like the Diploma holders  Junior Engineers  out of  the 50% quota for promotion as Assistant Engineers. This cannot be done except by carrying  out two  classes in the same category of Junior Engineers on  the basis  merely of their qualification which is not  permissible in  law though the creation of selection grade in  the same  category on  the basis  of merit  and or seniority  is   well  known   and  permissible.  The  Junior Engineers do  the same  kind  of  work  and  bear  the  same responsibilities whatever  their qualification, whether they are Degree holders or Diploma holders. In this connection it will be  useful to note what this Court has observed in S.B. Patwardhan v. Maharashtra. (1) viz;           "Though  drawn  from  two  different  sources  the      direct recruits and promotees constitute in the instant      case  a   single  integrated   cadre.  They   discharge      identical functions,  bear similar responsibilities and      acquire an equal amount of experience in the respective

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    assignments. And  yet clause  (iii) of  Rule 8 provides      that probationers  recruited during any year shall in a      bunch be  treated as seniors to the promotees confirmed      in that  year...  This  formula  gives  to  the  direct      recruit even  the benefit  of his  one year’s period of      training and another year’s period of probation for the      purposes of  seniority  and  denies  to  promotees  the      benefit of their long and valuable experience. If there      was some  intelligible ground  for this differentiation      bearing nexus with efficiency in 412      public services  it might perhaps have been possible to      sustain such a classification.      We think  that the ratio of this observation applies to the facts  of this  case in  regard to prayer No. 4 and that the petitioners  in Writ  Petition  1194  of  1979  are  not entitled to  be  treated  as  a  separate  class  of  Junior Engineers.      Prayer  No.  6  is  to  declare  that  the  petitioners Graduate Junior Engineers in the service of respondent 1 are entitled to  be put  on par with their counterparts in other Government departments,  and  prayer  No.  7  is  to  direct respondent 1  to grant  revised pay  scale of Rs. 550-900 to the petitioners  in Writ  Petition 1194  of 1979  and  other Graduate Junior  Engineers as in the case of Graduate Junior Engineers  in   Class  III   service  in   other  Government Departments. This  scale of  Rs. 550-900 is of the selection grade of  Junior Engineers.  There are  13  selection  grade posts in the Engineering Service (Civil) of respondent 1. We think that  the petitioners  are not  entitled to  these two reliefs also.      The result  is that Writ Petition 221 of 1979 fails and is  dismissed   with  costs   of  the   contesting   private respondents and  Writ Petition  1194 of  1979 is  allowed in part in  regard to  prayers 1, 2, 3 and 5 as indicated above and is  otherwise dismissed.  The contesting  respondents in Writ Petition 1194 of 1979 shall pay the petitioners’ costs. There will  be one  set of  Advocates’ fees in both the Writ Petitions. H.S.K.                          W.P. No. 221 partly allowed                                 and W.P. No. 1194 dismissed. 413