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PETITIONER: D.M. BHARATI

       Vs.

RESPONDENT: L.M. SUD AND ORS.

DATE OF JUDGMENT19/09/1990

BENCH: RANGNATHAN, S. BENCH: RANGNATHAN, S. AHMADI, A.M. (J)

CITATION:  1991 AIR  940            1990 SCR  Supl. (1) 580  1991 SCC  Supl.  (2) 162 JT 1990 (4)   622  1990 SCALE  (2)677

ACT:     Service  Law: Bombay  Municipal  Corporation--Deputation from one Establishment to another--Promotion obtained in the Establishment  deputed  to--Whether confers  any  right  for higher posts in the parent department, on reversion.

HEADNOTE:     The appellant was appointed as a Tracer in the Municipal Corporation in 1955. with the appointment of a Town Planning Officer  in  1957. the appellant came to be appointed  as  a Tracer  in the Town Planning Establishment. Later, the  post of Junior Draftsman fell vacant in the Town Planning  Estab- lishment.  Respondent No. 6 was posted to fill the  vacancy. However,  his appointment was cancelled  shortly  thereafter and  the  appellant was appointed as Junior  Draftsman  with effect from 4.12. 1959.     The  next  higher post  of  Surveyor-cum-Draftsman  fell vacant in 1962.. Meanwhile, the appellant was suspended. The Industrial  Court  granted  approval for  his  removal  from service,  but suggested that he may be reappointed.  Accord- ingly. the appellant was appointed afresh as junior  Drafts- man  in the Estates Department of the Municipal  Corporation where he was previously working.     Aggrieved,  the appellant filed a writ  Petition  before the  High  Court. Setting aside the order.  the  High  Court remanded  the matter to the Industrial Court for fresh  dis- posal. The Special Leave Petition preferred by the employer, viz.,  the  Municipal Corporation against the  High  Court’s order was dismissed.     The  Industrial  Court reheard the matter  and  declined approval for the removal of the appellant from service.  The appellant  was reappointed as Junior Draftsman in  the  Town Planning Establishment which was abolished subsequently, and he was reverted to the service of the Municipal  Corporation as  a Tracer, and not as a Junior Draftsman.  The  appellant filed an appeal against the said order. but it was  rejected on  the ground that direct recruits were already working  as Junior Draftsmen and that there was no vacancy against which the appellant could be appointed. 581     The  appellant  moved the High Court by way  of  a  Writ

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petition.  contending  that since he had been  appointed  as junior  Draftsman  in the Town  Planning  Establishment,  he could  not be repatriated to a lower post, viz..  Tracer  in the  Municipal Corporation. It was also contended  that  the Deputy  Municipal Commissioner, was a person lower  in  rank than  the appointing authority viz., the  Municipal  Commis- sioner and hence the order passed by him was without  juris- diction.     The High Court proceeded on the footing that the  appel- lant  was  on deputation from Municipal Corporation  to  the Town Planning Establishment and dismissed the writ Petition. The  appellant  has preferred this appeal against  the  High Court’s order dismissing his Writ Petition. Dismissing the appeal, this Court.     HELD: 1. I The appellant’s promotion as junior Draftsman and proposed promotion as Surveyor-cum-Draftsman in the Town Planning  Establishment cannot confer any rights on  him  in his  parent department. When he left the Municipal  Corpora- tion  and  joined the Town Planning Establishment he  was  a Tracer  and he can go back to the Estate Department  or  any other  Department of the Municipal Corporation only  to  his original  post i.e.. as Tracer, subject to the  modification that, if in the meantime he had qualified for promotion to a higher post. that benefit cannot be denied to him.     1.2  The order dated 16.8. 1965 was passed in  pursuance of the recommendation of the Industrial Court, while approv- ing the appellant’s removal, that he may be reconsidered for appointment. In view of this order of the Industrial  Court, the  appellant  had to be given a posting and since  he  had been discharged from service when he was a Junior Draftsman. orders were passed appointing him as junior Draftsman.  This again  was  made as an order of fresh  appointment  and  the appellant’s representation that he should be given seniority was  rightly  not accepted. There is also the  further  fact that  the appellant was relieved from this post with  effect from  October 1, 1967. There has been, apparently, no  chal- lenge  to  this order. Moreover, theses  orders  lost  their basis  once the petitioner was restored to his post  in  the Town  Planning  Establishment. In  these  circumstances  the order dated 16.8.65 or the determination of his seniority in 1966 are of no relevance to the present case. 2.1 What the appellant is really attempting is to  challenge the 582 appointments of Respondents 6 to 11, which had been made  in 1963-64,  by  a  Writ Petition filed in 1978,  more  than  a decade after the above selections and appointments had  been made. It is true that, at that time the appellant, was under a  cloud  because  he had been  suspended  and  subsequently removed from service. But all the same, if he had desired to challenge those appointments, he should have taken immediate steps.  Anyhow,  these obstacles had  disappeared  when  the tribunal,  on remand by High Court, had and disapproved  the appellant’s   removal  from  service  by  the  order   dated 13.5.1964.  Atleast in 1971, when the order was  passed  re- storing him to the position of Junior Draftsman in the  Town Planning Establishment, he could and should have taken steps to  Obtain his "pro-forma" promotion in the  parent  depart- ment.  The fact remains that he took no effective  steps  to challenge the appointment of respondents 6 to 11 from  1963- 64 right upto 15.2.1978, when he filed the Writ Petition  or atleast  upto  1.10.1976,  when  he  made  a  representation against the order of reversion.     2.2  S. 54(2) of the Municipal Act, dispenses  with  the Staff  Selection Committee when it is proposed to  fill  the

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appointment from among persons already in municipal service. But  the  nature of the recruitment that took place  is  not known.  That  apart, the constitution of a  Staff  Selection Committee to decide upon the selections cannot be said to be illegal even though not mandatory in the situation. The High Court  has found that respondents 6 to 11 had been  directly selected  as Junior Draftsmen after proper scrutiny  by  the Staff  Selection Committee. Admittedly there was a  circular among  the Municipal employees in regard to  these  appoint- ments  and  selections. The appellant should  have  made  an application for selection at that time or, if he thought  it more appropriate, should have challenged the constitution of Staff Selection Committee and the direct recruitment and put forward  his  claim  for promotion as  Junior  Draftsman  by virtue of his seniority. That he tailed to do at the crucial time. It may be that this was because he had certain  diffi- culties  facing  him  by way of  suspension  and  subsequent expulsion from service. But even in 1971, after his original order of suspension and removal had been set aside, he  took no immediate steps to claim his rights in the parent depart- ment.  He.was apparently satisfied with his  restoration  as Junior Draftsman in the Town Planning Establishment.  Having regard  to the circumstances of the appointment of  respond- ents  6 to 11, the appellant was not entitled to any  promo- tion  in preference to them and he cannot claim  appointment as  Junior Draftsman when there was no such post in 1976  to which he could he appointed.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1213  of 1979. 583     From  the  Judgment and Order dated 24.4.  1978  of  the Gujarat High Court in L.P.A. No. 97 of 1978. Appellant in person. H.S. Parihar for the Respondents. The Judgment of the Court was delivered by     RANGANATHAN, J. The appellant, D.M. Bharati,  challenges the  validity  of an order dated 30.9. 1976  passed  by  the Deputy  Municipal Commissioner of the Municipal  Corporation of  the  City of Ahmedabad. By the said  order,  the  Deputy Municipal  Commissioner,  consequent  on the  staff  of  the Municipal  Corporation working in the Town  Planning  Estab- lishment having to be absorbed in the Municipal Corporation, "reverted"  the appellant from the post of junior  draftsman in the Establishment and appointed him to act in the post of a tracer in the Town Development Department of the  Corpora- tion.  The High Court rejected his writ petition  and  hence the present appeal.     It is necessary to state the relevant facts. The  appel- lant had been appointed as a tracer in the Estate Department of the Municipal Corporation on 26.6. 1955 and worked  there till  18th  February, 1957. It appears that  the  Government appointed  a Town Planning Officer under the  provisions  of section  31 of the Bombay Town Planning Act. 1954. The  Town Planning  Officer had to be supplied with an  establishment. The establishment of the Town Planning Officer was admitted- ly  temporary. An arrangement was entered into  between  the two  authorities that the arbitrator in the planning  office could  select  such  persons from the  Corporation  for  his establishment  as he thought fit. The Town Planning  Officer demanded the services of the appellant and he was  appointed as  a  tracer in the Town Planning  Establishment  on  22.2.

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1957. It is not clear whether the appellant went therein  by way  of  transfer or by way of deputation  as  the  original order  dated 22.2. 1957 is not available with  us.  However, the  High  Court  and the appellant have  proceeded  on  the footing  that the appellant was deputed from  the  Municipal Corporation to the Town Planning Establishment.     Sometime  later,  the post of a  junior  draftsman  fell vacant  in  the Town Planning Establishment.  The  appellant tells  us that he was asked to take charge of that  post  on 4.12.  1959. It appears that Mr. Yevla (Respondent No. 6  in the W.P.) was posted to fill in that vacancy but, 584 on 21.4. 1960, his appointment was cancelled and the  appel- lant was appointed as junior draftsman in the Town  Planning Establishment w.e.f. 4.12. 1959. The appellant tells us that he had also been subsequently recommended for appointment to the post of Surveyor-cum Draftsman, which was a higher  post and  which had fallen vacant on 28.2. 1962. But before  this proposal  could materialise the appellant was  suspended  on 5th December,  1962 by the Corporation and was removed  from service on 13.5.64. The Industrial Court granted approval to the  removal of the appellant from service but made  certain observations  suggesting that he may be re-appointed to  the said  post. The appellant filed a writ petition against  the order  of the industrial court. The High  Court  eventually, set aside the order of the industrial court on 1.2. 1969 and remanded  the  matter for fresh disposal to  the  industrial court.  The Municipal Corporation preferred S.L.P. 48/71  in this  Court which was dismissed on 27.1.71.  The  industrial court re-heard the matter pursuant to the order of the  High Court  and declined approval to the order of removal of  the appellant  from  service with the result that the  order  of removal dated 13.5.64 stood vacated and an order was  passed on  3.3.71 by the Municipal Commissioner that the  appellant was  reappointed as a junior draftsman in the Town  Planning Establishment.     In the meantime, on 16.8. 1965, consequent on the recom- mendations  of the industrial court, the appellant  was  ap- pointed as junior draftsman in the Estates Department of the Municipal Corporation where he had been previously  working. This  purported to be a fresh appointment and so the  appel- lant  made a representation that he should be  appointed  in this post according to his seniority. No orders were  passed on this representation except a direction that the appellant should join service within a week of receipt of the memo and then  represent  his case for seniority, if he  so  desired. Thereupon the appellant accepted the order re-appointing him as  junior  draftsman  in the Estates  Department  and  took charge of his office. The order of the High Court has  found that  the appellant was relieved from service  on  1.10.1967 because of retrenchment.     When the above proceedings in the case of the  appellant were taking place respondents 6 to 11 were directly selected as  junior  draftsmen by the Staff Selection  Committee  and promoted  to  the said post. The appellant  did  not  appear before the Staff Selection Committee perhaps because of  the various proceedings above referred to, as a result of  which he was under suspension from 5.12. 1962 to 13.5. 1964,  when he was removed and then again till 16.8.65, when he was re- 585 appointed  as a draftsman. Once the proceedings against  the appellant came to a close, the Municipal Commissioner passed order  on 3.3. 1971, cancelling the order dated  13.5.  1964 removing the appellant from service. He was re-appointed  as a  junior  draftsman  in the  Town  Planning  establishment.

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Subsequently,  however, the Town Planning Establishment  was abolished, and the appellant was served with the order dated 30.9. 1976, by which he was reverted to the services of  the Municipal Corporation. On such reverter, however, as we have seen, he was posted as a tracer and not as a junior  drafts- man.  The appellant filed an appeal against the  said  order before the Standing Committee but his appeal was rejected on 15.3.  1977  on the ground that in  the  Corporation  direct recruits were already working as junior draftsmen, and  that there was no post of junior draftsman vacant in the Corpora- tion, to which the appellant could be appointed. The  appel- lant thereupon filed a writ petition and, as already stated, he was unsuccessful therein and hence this present appeal.     The appellant’s contention before the High Court was two fold.  The first contention was that since he had  been  ap- pointed as junior draftsman in the Town Planning  establish- ment by the order dated 21.4. 1960, he could not be repatri- ated as a tracer in the Municipal Corporation, that is, to a lower post. It was also contended that the order dated 30.9. 1976  has been passed by the Deputy Municipal  Commissioner, who is a person lower in rank than the person who  appointed him, namely, the Municipal Commissioner and that, therefore, the  order  dated 30.9.76 was passed by an  officer  without jurisdiction.  These  two  arguments  have  been  reiterated before us also. So far as the second contention is concerned it  may  at  once be pointed out that  if  the  order  dated 30.9.76  is  an order of reversion by  way  punishment,  the appellant’s contention may be correct in view of the  provi- sions contained in sections 53 and 56 of the Bombay  Provin- cial Municipal Corporation Act. However, if the order  dated 30.9.76 has merely given effect to the abolition of the Town Planning  establishment  and restored the appellant  to  the post he can properly hold in the Municipal Corporation  then no  element  of reversion would be involved and  the  Deputy Commissioner  would be quite competent to pass the order  in question.  The  only question therefore  that  survives  for consideration  is regarding the validity of an  order  dated 30.9.76  in so far as it purported to appoint the  appellant as  a  tracer in the Municipal Corporation instead of  as  a junior draftsman. We may mention here that a point was  also made that the appellant should not have been appointed as an "acting" tracer but it has been explained by the Corporation that it was a verbal inaccuracy and that the appointment 586 of  the  appellant in the Municipal Corporation  is  not  an acting  but a substantive one. This point,  therefore,  does not survive.     We  shall proceed on the assumption that  the  appellant went to the Town Planning establishment (which was a  tempo- rary  one) by way of deputation from the Municipal  Corpora- tion. There is some controversy as to whether the  appellant was properly promoted as junior draftsman in the Town  Plan- ning  establishment.  There is a suggestion  that  both  the demand  by the Town Planning establishment for the  services of  the appellant as well as his promotion therein were  not acceptable to the Corporation and that they were the  conse- quence  of undue favour shown to the appellant by the  Arbi- trator who was the appointing authority. We do not think  it is necessary to go into this controversy here because it  is quite clear that the appellant’s promotion as junior drafts- man and proposed promotion as Surveyor-cum Draftsman in  the Town Planning Establishment cannot confer any rights on  him in his parent department. When he left the Municipal  Corpo- ration  and joined the Town Planning establishment he was  a tracer  and he can go back to the Estate Department  or  any

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other  Department of the Municipal Corporation only  to  his original  post i.e., as tracer, subject to the  modification that, if in the meantime he had qualified for promotion to a higher  post, that benefit cannot be denied to him.  In  the present  case,  unfortunately, what happened was  that  when junior draftsmen were recruited by the Municipal Corporation in  1959-60  and in 1963-64, persons were selected  and  ap- pointed  to the said posts through the machinery of a  Staff Selection Committee. The appellant submits that he had  been wrongly overlooked and that the respondents had been wrongly promoted as junior draftsmen. He points out that, under  the regulations, junior draftsmen had to be appointed by  promo- tion  on  the basis of seniority-cure-fitness and  that  the question of Staff Selection Committee did not at all  arise. According  to  him,  the procedure for  selecting  by  Staff Selection  Committee  would  not come into  force  when  the recruitment  was  restricted  to persons  in  the  municipal service. In the present case, however, all the persons,  who were  appointed as junior draftsmen during  the  appellant’s absence  were  from the municipal service.  The  appointment should,  therefore,  have been made  directly  by  promotion without  the  intervening machinery of the  Staff  Selection Committee  and  the appellant being  the  seniormost  tracer should have been appointed as junior draftsman in preference to respondents 6 to 11.     There  are considerable difficulties in  accepting  this case of the appellant. In the first place, what he is really attempting is to challenge 587 the appointments of respondents 6 to 11, which had been made in  1963-64, by a writ petition filed in 1978, more  than  a decade after the above selections and appointments had  been made It is true that, at that time the appellant, was  under a  cloud  because  he had been  suspended  and  subsequently removed from service. But all the same, if he had desired to challenge those appointments, he should have taken immediate steps.  Anyhow,  these obstacles had  disappeared  when  the tribunal,  on  remand  by High Court,  had  disapproved  the appellant’s  removal from service by the order  dated  13.5. 1964. At least in 1971. when the order was passed  restoring him to the position of junior draftsman in the Town Planning establishment,  he  could  and should have  taken  steps  to obtain  his "pro-forma" promotion in the parent  department. The  appellant says he was making some  representations  but this  was not enough. The fact is that he took no  effective steps  to challenge the appointment of respondents 6  to  11 from  1963-64 right upto 15.2.1978, when he filed  the  writ petition or atleast upto 1.10.1976, when he made a represen- tation against the order of reversion.     Quite  apart from the above consideration, there  is  no material before us to show that the appointments of respond- ents 6 to 11 were made irregularly and that the constitution of a Staff Selection Committee for selecting junior  drafts- men did not conform to the regulations and the provisions of the Bombay Provincial Municipal Corporations Act. The Corpo- ration  has stated that they have been  directly  recruited. The High Court has pointed out that the relevant  regulation gave  a discretion to the Commissioner to make the  appoint- ments by promotion or by direct recruitment. S. 54(2) of the Municipal  Act,  on which the petitioner  relies,  no  doubt dispenses  with  the Staff Selection Committee  when  it  is proposed to fill the appointment from among persons  already in municipal service. But the nature of the recruitment that took  place is not known. That apart, the constitution of  a Staff  Selection  Committee to decide  upon  the  selections

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cannot  be said to be illegal even though not  mandatory  in the  situation. The High Court has found as a fact  at  more than one place in the judgment that the respondents 6 to  11 had been directly selected as junior draftsmen after  proper scrutiny  by the Staff Selection Committee. Even the  appel- lant  stated before us that there was a circular  among  the municipal  employees  in regard to  these  appointments  and selections.  The appellant should have made  an  application for selection at that time or, if he thought it more  appro- priate,  should  have challenged the constitution  of  Staff Selection  Committee  and  the direct  recruitment  and  not forward  his  claim  for promotion as  junior  draftsman  by virtue of his 588 seniority. That he failed to do at the crucial time. It  may be that this was because he had certain difficulties  facing him  by  way  of suspension and  subsequent  expulsion  from service.  But  even  in 1971, after his  original  order  of suspension and removal had been set aside, he took no  imme- diate steps to claim his rights in the parent department. He was  apparently  satisfied with his  restoration  as  junior draftsmen  in  the Town Planning establishment.  We  are  in agreement  with  the High Court that, having regard  to  the circumstances of the appointment of respondents 6 to 11,  he was not entitled to any promotion in preference to them  and that  he cannot claim appointment as junior  draftsman  when there was no such post in 1976 to which he could be appoint- ed.  It is not his case that any posts of  junior  draftsmen became  vacant after his reversion to the parent  department to which he could have been promoted.     The appellant contends that the fact that his eligibili- ty  for  appointment  as a junior draftsman  in  the  parent department  had been accepted by the order  dated  16.8.1965 referred to earlier. It is also pointed out that subsequent- ly  a question arose of the seniority as between the  appel- lant  and one Kavadia. This was gone into and the  Municipal Corporation  accepted the position that the  appellant  pos- sessed  qualifications  required  for  the  post  of  junior draftsman  and that he was senior to Mr. Kavadia.  This  was sometime in 1966. We, however, find that this aspect of  the matter  does not help the appellant because the order  dated 16.8. 1965 was passed in pursuance of the recommendation  of the industrial court, while approving the appellant’s remov- al, that he may be reconsidered for appointment. In view  of this order of the industrial court, the appellant had to  be given a posting and since he had been discharged from  serv- ice  when  he  was a junior draftsman,  orders  were  passed appointing  him as junior draftsman. This again was made  as an order of fresh appointment and the appellant’s  represen- tation  that he should be given seniority was not  accepted, rightly,  for the reason mentioned above. There is also  the further fact that the appellant was relieved from this  post with effect from October 1, 1967. There has been,  apparent- ly, no challenge to this order. Moreover, these orders  lost their basis once the petitioner was restored to his post  in the Town Planning Establishment. In these circumstances  the order  dated 16.8.65 or the determination of  seniority  be- tween  appellant and Kavadia in 1966 do not help the  appel- lant’s case.     Learned counsel for the Municipal Corporation  submitted to us that the appellant had not joined his post as a tracer in compliance 589 with  the  order dated 30.9.76 and that by now he  has  also reached the age of superannuation. We are not here concerned

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in this appeal with the consequences of "non acceptance"  of the  order dated 30.9.76 by the appellant. We are only  con- cerned  with the question whether the appellant was  rightly appointed as tracer on his reverter to the Municipal  Corpo- ration  and that question we have answered in  the  affirma- tive. We do not express any opinion on the questions  raised by the learned counsel for the respondent.     In  the circumstances, we are of the opinion that  there are  no  grounds  to interfere with the order  of  the  High Court.  We, therefore, dismiss this appeal but, in the  cir- cumstances, we make no order as to costs. G.N.                                          Appeal    dis- missed. 590