VIRESHWAR SINGH Vs MUNICIPAL CORPORATION OF DELHI .
Bench: RANJAN GOGOI,M.Y. EQBAL
Case number: C.A. No.-008414-008415 / 2014
Diary number: 32405 / 2011
Advocates: GARIMA PRASHAD Vs
KAILASH CHAND
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REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 8414-8415 OF 2014 (Arising out of SLP (C) Nos. 31023-31024 of 2011)
VIRESHWAR SINGH & ORS. ... APPELLANT (S)
VERSUS
MUNICIPAL CORPORATION OF DELHI & ORS. ... RESPONDENT (S)
J U D G M E N T
RANJAN GOGOI, J.
1. Leave granted.
2. The appellants are General Duty Medical Officers
(GDMO) Grade-II who were appointed on ad hoc basis
between 1986 and 1989. They are aggrieved by the denial
of their claim to regularization with effect from the dates of
their initial appointments. Regularization granted from the
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date of the recommendations of the Union Public Service
commission (for short ‘UPSC’), namely, 24.07.1998 as
approved by the High Court of Delhi by means of the
impugned order dated 05.07.2011 has been called into
question in the present appeal.
3. The relevant facts are as follows.
The post of GDMO Grade-II is a Group ‘A’ post governed
by the Delhi Municipal Corporation Health Service
Recruitment Regulations, 1982 (hereinafter referred to as
‘the Regulations’). Under the said Regulations appointment
in the post of GDMO Grade-II is required to be made through
the UPSC. Between 1982 and 1986 (for convenience may be
referred to as the Phase-I) 82 GDMOs were appointed on ad
hoc basis for an initial term of six months which was
subsequently extended from time to time. In what may be
again conveniently referred to as the Phase-II, between
1986-1989, another 69 number of GDMOs were appointed on
ad hoc basis on terms similar to the appointments made in
Phase-I. Both sets of appointments were not through the
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UPSC but were made on the basis of a selection held by a
Specially Constituted Selection Committee.
4. The cases of the GDMOs appointed on ad hoc basis in
Phase-I were referred to the UPSC for its recommendations
for the purpose of regularization. The UPSC approved 63
cases while holding 10 candidates to be unfit for
regularization. The recommendations of the UPSC were
communicated to the Municipal Corporation of Delhi on
27.06.1991. Accordingly, by order dated 17.08.1992 the
Municipal Corporation regularized the services of the 63
GDMOs recommended by the UPSC with effect from the date
of recommendation i.e. 27.06.1991. Aggrieved by their
regularization with effect from the date of the
recommendation of the UPSC, the GDMOs appointed in the
Phase-I approached this Court under Article 32 of the
Constitution claiming regularization from the date of their
initial appointments.
5. While the aforesaid writ petition was pending, the
Municipal Corporation of Delhi sent the cases of the GDMOs
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appointed in Phase-II to the UPSC for its recommendations
for regularization of the incumbents. The UPSC refused to
consider any of the cases on the ground that the 10 GDMOs
appointed in Phase-I, who were found by it to be unfit, had
not been dismissed from service. This had led the GDMOs
appointed in Phase-II to file a writ petition (Writ Petition (C)
No. 1550/1996) before the Delhi High Court.
6. The writ petition filed by the Phase-I GDMOs before this
Court under Article 32 was decided on 8.5.1998 holding that
their regularization with effect from the date of
recommendation of the UPSC was validly made and they
were not entitled to such regularization from the dates of
their initial appointments. The judgment of this Court is
reported as Dr. Anuradha Bodi and Others Vs. Municipal
Corporation of Delhi And Others1 and will be specifically
referred to at a later stage of the present order.
7. Six days after the judgment was rendered by this Court
in Dr. Anuradha Bodi (supra) the Delhi High Court on
14.05.1998 allowed the writ petition (Writ Petition (C) No. 1 (1998) 5 SCC 293
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1550/1996) filed by Phase-II GDMOs by directing the UPSC to
consider their cases for regularization from the dates of their
initial appointments. In compliance of the aforesaid order of
the Delhi High Court, the UPSC recommended regularization
of the said GDMOs from the dates of their initial
appointments by its communication dated 24.07.1998.
8. There being an apparent conflict with regard to
regularization of the GDMOs appointed in Phase-I and Phase-
II, though made in identical circumstances and on the same
terms, the Municipal Corporation of Delhi by its Resolution
dated 17.01.2000 decided to regularize the services of both
sets of GDMOs with effect from the date of their initial
appointments. On the basis of the said Resolution dated
17.01.2000 a formal Order dated 16.08.2000 was passed to
the said effect.
9. The Resolution dated 17.01.2000 and the formal Order
dated 16.08.2000 came to be challenged by the regularly
appointed GDMOs before the Delhi High Court. The writ
petition filed was, however, withdrawn and instead the order
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dated 14.05.1998 passed by the Delhi High Court in Writ
Petition (C) No. 1550/1996, which has led to the alleged
Resolution dated 17.01.2000 and the formal Order dated
16.08.2000, were challenged in a Letters Patent Appeal by
the regularly appointed GDMOs. It is at this stage that the
Municipal Corporation of Delhi issued another Order dated
15.06.2007 and a Corrigendum dated 18.06.2007 to the
effect that the regularization of both sets of GDMOs would be
effective from the date(s) of communication of the
recommendation of the UPSC. The said action of the
Municipal Corporation was challenged in a writ petition (Writ
Petition (C) No. 4619/2007) before the Delhi High Court by
the present appellants.
10. The Letter Patent Appeals (LPA Nos. 708/2001 and
138/2003) filed by the regularly appointed GDMOs against
the order dated 14.05.1998 passed in Writ Petition (C) No.
1550/1996 were disposed of by the Division Bench of the
High Court on 05.02.2008 by holding that the challenge
made in the appeals stood answered by the subsequent
order of the Municipal Corporation of Delhi dated
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15.06.2007. The Division Bench also took note of the fact
that the said order dated 15.06.2007 was under challenge in
Writ Petition (C) No. 4619/2007 and directed that the views
expressed in the order dated 14.05.1998 in Writ Petition (C)
No. 1550/1996 would have no relevance or bearing while
deciding Writ Petition (C) No. 4619/2007.
11. Writ Petition (C) No. 4619/2007 was thereafter
transferred to the Central Administrative Tribunal and
numbered as T.A. No. 398/2009. By order dated 09.12.2010
the learned Tribunal decided the aforesaid case (T.A. No.
398/2009) alongwith a connected matter holding that the
Resolution dated 17.01.2000 with regard to regularization of
GDMOs appointed in both phases from the dates of their
initial appointments was contrary to the decision of this
Court in Dr. Anuradha Bodi (supra). Accordingly, while the
Resolution dated 17.01.2000 was quashed, the subsequent
Order of the Municipal Corporation of Delhi dated 15.06.2007
was upheld. The aforesaid order has been confirmed by the
Division Bench of the High Court by means of the impugned
order dated 05.07.2011. It is the said order dated
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05.07.2011 as well as the order dated 05.09.2011 refusing
to review the order dated 05.07.2011 that have been
challenged in the present appeals.
12. We have heard learned counsels for the parties.
13. An elaborate recital of the facts had been considered
necessary to trace out the core issue in the case. Both sets
of GDMOs i.e. in Phase-I and Phase-II were not appointed on
the basis of a selection held by the UPSC as mandated by
the Regulations in force. Their appointments were
recommended by a Specially Constituted Selection
Committee. Their appointments were ad hoc; initially for a
period of six months which was subsequently extended from
time to time. Being similarly circumstanced, undoubtedly,
both sets of GDMOs will have to be treated equally and
evenly for the purpose of regularization. In Dr. Anuradha
Bodi (supra) after noticing the precise terms of
appointment of the Phase-I GDMOs, the entitlement of the
said GDMOs (Phase-I) to regularization with effect from the
date of their initial appointments was considered by this
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Court in the light of the decision of the Constitution Bench in
Direct Recruit Class II Engineering Officers’
Association Vs. State of Maharashtra and Others2,
particularly, in the backdrop of the two propositions (A) and
(B) set out in paragraph 47 of the Report. A subsequent
judgment of a three Judges Bench in State of West Bengal
and Others Vs. Aghore Nath Dey and Others3 throwing
further light and clarity on the contents of propositions (A)
and (B) laid down in Direct Recruit Class II (supra) had
also been considered to come to the conclusion that the
cases of doctors appointed on ad hoc basis in Phase-I fall
within the corollary to conclusion (A) of Direct Recruit
(supra) and therefore they are not entitled to the benefit of
service rendered on ad hoc basis. Paragraph 12 of the
report in Dr. Anuradha Bodi (supra) may be conveniently
noticed at this stage.
“12. If the facts of these two cases are analysed in the light of the aforesaid decisions, there can be no doubt whatever that the petitioners fall within the corollary in Conclusion (A). The orders of appointment issued to the petitioners are very
2 (1990) 2 SCC 715 3 (1993) 3 SCC 371
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specific in their terms. Though the recruitment rules came into force on 6-8-1982, the appointments were not made in accordance therewith. They were ad hoc and made as a stopgap arrangement. The orders themselves indicated that for the purpose of regular appointment the petitioners were bound to pass the UPSC examination in the normal course in the direct competition. Hence the petitioners will not fall under the main part of Conclusion (A) or Conclusion (B) as contended by the learned counsel for the petitioners.”
14. If the GDMOs appointed in Phase-II are similarly
circumstanced as Dr. Anuradha Bodi and others, we fail to
see how their claim to regularization with effect from the
date of their initial appointments can be countenanced
except perhaps if we take a view contrary to that has been
recorded in Dr. Anuradha Bodi (supra).
15. Learned counsel for the appellants has tried to
persuade us to charter the aforesaid course by placing
reliance on two decisions of this Court in Narender Chadha
and Others Vs. Union of India and Others4 and Keshav
Chandra Joshi and Others Vs. Union of India and
4 (1986) 2 SCC 157
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Others5 It is contended that the denial of benefit of long
years of ad hoc service, in view of the ratio of the law laid
down in the aforesaid two decisions, would be contrary to
Articles 14 and 16 of the Constitution.
16. It is the view expressed in Narender Chadha (supra)
which would require a close look as Keshav Chandra Joshi
(supra) is a mere reiteration of the said view. In Narender
Chadha (supra) the lis between the parties was one relating
to counting of ad hoc service rendered by the promotees for
the purpose of computation of seniority qua the direct
recruits. The basis of the decision to count long years of ad
hoc service for the purpose of seniority is to be found more
in the peculiar facts of the case as noted in para 20 of the
report than on any principle of law of general application.
However, in paragraphs 15-19 of the report a deemed
relaxation of the Rules of appointment and the wide sweep
of the power to relax the provisions of the Rules, as it
existed at the relevant point of time, appears to be the basis
5 1992 Supp (1) SCC 272
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for counting of the ad hoc service for the purpose of
seniority.
17. The principle laid down in Narender Chadha (supra)
was approved by the Constitution Bench in Direct Recruit
Class II (supra) as the promotion of the officers on ad hoc
basis was found to be “without following the procedure laid
down under the Rules.” That apart, what was approved in
the Direct Recruit Class II (supra) is in the following
terms.
“We, therefore, confirm the principle of counting towards seniority the period of continuous officiation following an appointment made in accordance with the rules prescribed for regular substantive appointments in the service.” {Para 13}
18. In State of West Bengal and Others Vs. Aghore
Nath Dey and Others (supra) a three Judges Bench of this
Court has held that in view of the lis involved in Narender
Chadha (supra) i.e. inter se seniority of direct recruits and
promotees, the said decision cannot be applied to cases
where the initial appointment was not according to the
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Rules. Paras 19 and 20 of the decision in State of West
Bengal (supra) may be usefully extracted hereinbelow.
“19. The constitution bench in Maharashtra Engineers case, while dealing with Narender Chadha emphasised the unusual fact that the promotees in question had worked continuously for long periods of nearly fifteen to twenty years on the posts without being reverted, and then proceeded to state the principle thus: (SCC p. 726, para 13)
“We, therefore, confirm the principle of counting towards seniority the period of continuous officiation following an appointment made in accordance with the rules prescribed for regular substantive appointments in the service.”
20. The constitution bench having dealt with Narender Chadha in this manner, to indicate the above principle, that decision cannot be construed to apply to cases where the initial appointment was not according to rules.”
19. All the aforesaid discussion would lead us to the
conclusion that any departure from the views expressed and
conclusions reached in Dr. Anuradha Bodi (supra) will not
be necessary or justified. Accordingly, we do not find any
merit or substance in the appeals under consideration. They
are, therefore, dismissed but without any order as to costs.
.…....…………………………J.
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[RANJAN GOGOI]
.…....…………………………J. [M. Y. EQBAL]
NEW DELHI, SEPTEMBER 2, 2014.
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