Decided on July 09,2007



KAILASH GAMBHIR, J. - (1.) Aggrieved with the order dated 5.1.2007, the petitioner has filed the present writ petition seeking directions for setting aside of his reversion from the post of Director-in-Chief (Sanitation) to the post of Chief Engineer, Slum and JJ Department of the respondent. Before dealing with the contentions raised by the respective counsels appearing for the parties, it would be appropriate to set out the brief facts for proper appreciation of the controversy involved in the present case. The facts as stated in the petition inter-alia are that petitioner was appointed to the post of Assistant Engineer (Civil) in the year 1982 against direct quota through a process of selection against a regular post. On the recommendation of the Union Public Service Commission, the petitioner was given officiating promotion to the post of Executive Engineer (Civil) vide order dated 1.9.94 , on which post he was subsequently confirmed. Vide letter dated 1.5.96, the petitioner was assigned 'look-after-charge' on the next higher post of Superintending Engineer (Civil) and vide order dated 18.10.2002, the petitioner was promoted on another higher post of Director (CSE) equivalent to the level of Chief Engineer on the same basis of 'look-after-charge'. The petitioner further contended that the post of Chief Engineer is the feeder post for appointment to the next higher post of Engineer-in-Chief under the respondent no.1 and as per the submission of the petitioner all the present Chief Engineers in MCD are either on current duty charge, 'look-after-charge' or on ad hoc basis and no Chief Engineer or Director (Sanitation) is working against regular post. It has also been submitted that whenever the Chief Engineer is posted in the Sanitation Department, then, he is designated as Director (CSE) and therefore, the post of Chief Engineer and Director (CSE) are interchangeable. Similarly, the post of Director-in-Chief (Sanitation) is equivalent to the post of Engineer-in-Chief and therefore, these two posts being equivalent are also interchangeable. The petitioner has further stated that the post of Director-in-Chief (Sanitation) was created by the respondent/MCD and the decision was taken to promote one of the seniormost Chief Engineer from the engineering department to the post of Director-in-Chief (Sanitation) in the CSE Department. The petitioner has further contended that in the MCD there is a practice to first promote the officer either on current duty or 'look after charge' on the basis of the seniority of the incumbent in the feeder post, and then, to confirm such promotee on the next higher post. Circular dated 14.12.73 issued by the respondent/MCD stated that current duty arrangement should be made only in order of seniority, subject to condition that such an officer is otherwise fit with reference to service, character roll and clearance from DDC/DOI. In the said circular it is also stated that only those officials/officers will be considered for appointment on current duty charge who have already rendered 2/3rd of the service as prescribed for regular appointment. The petitioner has further stated that vide office order dated 8.11.2005, the petitioner was promoted to the post of Director-in-Chief (Sanitation) after he was selected by the Special Selection Committee and its approval by the competent authority. The petitioner further contended that Special Selection Committee was constituted which has considered the case of all eligible Chief Engineers and finally the Selection Committee made recommendations in favour of the petitioner for appointment to the said higher post of Director-in-Chief (Sanitation) on 'look-after-charge' basis. The petitioner further contended that although the said promotion was stated to be for a period of one year but the same was, in fact, of a permanent character as the petitioner continued to perform his duties on the said post of Director-in-Chief (CSE) even after the expiry of said one year period. The petitioner further contended that he was the seniormost Chief Engineer at the time of his elevation to the next higher post of Director-in-Chief (Sanitation) and therefore, because of his seniority he had a vested right to be considered for the said post. The petitioner further contended that vide order dated 5.1.2007 which is impugned herein, the petitioner was directed to be relieved with immediate effect from the said post of Director-in-Chief (Sanitation) and was directed to report to the Additional Commissioner (Slum and JJ) as Chief Engineer for his further duties. This order of the respondent is under challenge in the present writ petition and the petitioner has termed this order as illegal, arbitrary, mala fide and punitive in nature. It is mala fide because as per the petitioner he had raised his voice against the allotment of maintenance of lavatories of 12 zones to one single contractor and since such stand of the petitioner did not find favour with certain high ups in MCD and the concerned contractor, therefore, all of them conspired against the petitioner to get him removed from the said post of Director-in-Chief (Sanitation). The petitioner further stated that the said order dated 5.1.2007 was sent to the petitioner by fax at 7.30 P.M. on the same date and the said stand of the petitioner opposing the allotment of lavatories of 12 zones in favour of one single contractor was also highlighted by various national dailies. The petitioner has also stated that for awarding such a punishment, full fledged enquiry should have been held against the petitioner and without holding any such enquiry or even without issuing any show cause notice, the impugned order dated 5.1.2007, could not have been passed. The petitioner stated that there was nothing adverse against him on any account, concerning his work, integrity, behavior, conduct and discipline and still the petitioner has been divested of the charge of the said higher post. The petitioner stated that even the principle of 'last-come-first go' has not been followed by the respondent/MCD at the time of passing the impugned order.
(2.) The counsel for the respondent/MCD on the other hand has seriously refuted the case as set up by the petitioner. The respondent/MCD in its counter affidavit has contended that the substantive post of the petitioner was Executive Engineer (Civil) and on the other posts he was merely posted on 'look-after-charge' basis and on the same pattern, the petitioner was entrusted with charge of post of Director-in-Chief (Sanitation) on look after basis. The respondent, therefore, stated that the petitioner has no legitimate or any legal right to retain the post of Director-in-Chief (Sanitation) which was given to him as a 'stop gap arrangement'. The respondent further stated that the petitioner was made well aware of the terms and conditions of the said assignment on the post of Director-in-Chief (Sanitation), vide office order dated 8.11.2005 which clearly mentions that the assignment shall be purely on 'look after charge' basis as a 'stop gap arrangement' and the same shall not entitle the incumbent to claim any benefit on account of that order. It was also made clear that such 'stop gap arrangement' could be revoked at any time by the competent authority without assigning any reason and without even prior notice. The said office order also clarified that the petitioner would not be entitled to any additional benefits such as pay, seniority or promotion or any other service benefits whatsoever. The respondent further stated that the petitioner has not been removed or punished or reverted to any lower post, than being held by him as he has been merely relieved from the post which was given to him on look after basis. It is further stated that if a person is given the duties of higher post to meet certain exigencies, then, mere discharge of such duties on the higher post which was essentially in the nature of 'stop gap arrangement' cannot be treated as a case of a promotion.
(3.) The respondent also disputed the nature of duties of the petitioner being not of current duty charge as alleged by the petitioner but of 'look after charge' only and the same cannot be equated with the current duty charge or promotion on ad hoc basis. The respondent stated that the action of the respondent was not punitive in nature as the petitioner has been transferred from one Department to another and such a transfer cannot be treated as reversion of the petitioner. The respondent further stated that the transfer of an employee is an incidence of service and employer is the best judge to take decision to post an employee from one department to another. The respondent has also disputed the position as claimed by the petitioner that the slum department is not a part of the respondent corporation and has a distinct entity of its own.;

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