VARADARAJAN - (1.) 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 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 ad hoc 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 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 under the departmental promotee quota in the posts of Assistant Engineers; (5) Restrain respondent 1 from giving ad hoc promotions to current duty chargholders 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. 555-900 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 v. Union of India; and (8) Direct respondent 1 to revise special pay from Rs. 40.00 to Rs. 75.00 per mensem to the petitioners and other Graduate Junior Engineers entitled thereto from 1-1-1979.
(2.) 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 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 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 overlooked. 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 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 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 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 ad hoc basis. Those Junior Engineers who an 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 rule which has been struck down by this Court in the case of S. B. Patwardhan v. State of Maharashtra, AIR 1977 SC 2051. Respondent 1 is drawing the seniority list without any authority of law by putting one promotee and one direct 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. 700.00 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 appointment to posts carrying a minimum salary of Rs. 350.00 and above per mensem. Apart 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 per cent 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.
(3.) 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 had 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 ad hoc 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 higher grades of Executive Engineers and Superintending Engineers being primarily by promotion from Assistant Engineers and Executive Engineers respectively, the only avenue 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 Section 487 of the Delhi Municipal Corporation Act, 1957. The Recruitment Regulations for the posts of Assistant Engineer (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 pattern 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 Section 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 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 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.;