Skip to content


J.P. Gupta and ors. Vs. Municipal Corporation of Delhi and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 1379 of 1973
Judge
Reported in13(1977)DLT363
ActsMunicipal Corporation Act, 1957 - Sections 96; Delhi Administration Seniority Rules, 1965 - Rule 6
AppellantJ.P. Gupta and ors.
RespondentMunicipal Corporation of Delhi and ors.
Advocates: G.D. Gupta,; S.N. Chopra,; Madan Bhatia and;
Cases ReferredChandramouleshwar Prasad v. Patna High Court
Excerpt:
service - seniority - section 96 of municipal corporation act, 1957, delhi state service seniority rules, 1954 and rule 6 of delhi administration seniority rules, 1965 - whether petitioners entitled to seniority over respondents - petitioner unable to refer to any rule which may entitle corporation to take past service into account in determining seniority - as such service rendered by petitioners as assistant engineers before they joined corporation not be taken into account in determining seniority - petitioners not entitled to claim relation back of regular appointment to date of initial appointment - period during which petitioners served in ad hoc capacity prior to their selection not be considered for determining their inter se seniority or of principle of relation back being.....h.l. anand, j. (1) by this petition under article 226 of the constitution of india, the petitioners, executive engineers (civil), in the delhi water supply & sewerage disposal undertaking, for short, the undertaking, of the municipal corporation of delhi, for short, the corporation, stake their claim to superior seniority in the grade of executive engineers over respondents 6 to 14 and seek a declaration with regard to their consequential right to be considered for promotion to the next higher post of superintending engineer on the basis of revised .seniority. the petition was filed in the following circumstances.(2) petitioners nos. 1 and 2 joined the undertaking as assistant engineers on march 2, 1960, and august 10, 1961, respectively. petitioner no. 3 joined the corporation as.....
Judgment:

H.L. Anand, J.

(1) By this petition under Article 226 of the Constitution of India, the petitioners, Executive Engineers (Civil), in the Delhi Water Supply & Sewerage Disposal Undertaking, for short, the Undertaking, of the Municipal Corporation of Delhi, for short, the Corporation, stake their claim to superior seniority in the grade of Executive Engineers over respondents 6 to 14 and seek a declaration with regard to their consequential right to be considered for promotion to the next higher post of Superintending Engineer on the basis of revised .seniority. The petition was filed in the following circumstances.

(2) Petitioners Nos. 1 and 2 joined the Undertaking as Assistant Engineers on March 2, 1960, and August 10, 1961, respectively. Petitioner No. 3 joined the Corporation as Assistant Engineer (Civil) on August 30, 1961, and his services were subsequently transferred to the Undertaking by an order made on June 30, 1962. It appears that prior to their appointments as Assistant Engineers, all the petitioners were working as Assistant Engineers in different Government Departments/Organizations. Petitioner No.1 was working in that capacity in the Hindustan Chemicals & Fertilizers, a Government of India Undertaking, from May 13, 1958 to March 1, 1960. Petitioner No. 2 was working as Assistant Engineer in the Agra Municipal Corporation from September 19, 1960 to August 6, 1961, and petitioner No. 3 was working in that capacity in the U.P. Irrigation Department between November 15, 1956 to August 23, 1961. Respondents Nos. 6 and 7 joined the Undertaking as Assistant Engineers on August 18, 1959, and August 20, 1959 respectively. .Respondents 8 to 14 joined the Undertaking on different dates between the years 1958 and 1961. The petitioners and the said respondents were confirmed in the grade of Assistant Engineers on April 1, 1964. In March 1964, certain posts of Executive Engineers (Civil) were created in the Undertaking. All the Assistant Engineers, who were eligible, were considered for promotion to the said post by a duly constituted Selection Board. On the basis of a consideration of their qualifications, experience and perfor- mance, the petitioners were considered suitable for promotion to the post of Executive Engineers. By its Resolution No. 438 of April 3, 1964 (Annexure V), the Corporation decided that the petitioners be promoted and appointed as Executive Engineers for a period of one year or till the posts were filled up in consultation with the Union Public Service Commission, for short, the Commission, whichever is earlier. The resolution described the petitioners as being 'seniormost' Assistant Engineers. Respondent No. 7 was also considered suitable, but was not appointed because he was not eligible for being conidered for the post. Subsequently, 'respondents 6 to 14 were also appointed Executive Engineers on an ad hoc basis, as the petitioners, as and when they became eligible. It may be pointed out that the recruitment rules for the post of Executive Engineers in the Undertaking had not until then been concurred into by the Commission, but since these Rules were identical with those adopted by the Corporation for its General Wing with the concurrence of the Commission, it was presumed that there would be no difficulty in obtaining the concurrence to the proposed Rules. According to the Recruitment Rules for the post of Executive Engineers in the Corporation, an Engineering graduate with 5 years service in the grade of Assistant Engineer was eligible for promotion to the post of Executive Engineer. According to Note 2 to the said Rules 'for appointments made soon after the promulgation of the recruitment rules, experience in post of equivalent responsibility and status in other organisations will also be taken into account'. Similar provisions were made in the proposed Rules for the Undertaking. It appears that in terms of Note 2 benefit of past service was given to the petitioners and that is why they were considered eligible and were treated as being 'seniormost'. By his letter of November 24, 1964 (Annexure VIII), the Deputy Commissioner of the Corporation sought the concurrence of the Commission to the appointment of the petitioners as Executive Engineers as required under section 96 of the Municipal Corporation of Delhi Act, 1957, for short, the Act. In the course of the correspondence between the Corporation and the Commission that ensued, the Commission took the view that the Departmental Promotion Committee for regular appointments to the posts of Executive Engineers could not be convened until the recruitment rules for the post in the Undertaking had been framed in consultation with the Commission. The aforesaid Rules were eventually concurred in by the Commission on July 12, 1965, as a sequel to which the Corporation requested the Commission to convene a meeting of the Departmental Promotion Committee for regular appointments to the posts of Executive Engineers and forwarded to the Commission a list of Executive Engineers, who had been appointed meanwhile on an ad hoc basis, including the petitioners and respondents 6 to 14. In this list, the petitioners were shown senior to the said respondents apparently because the petitioners had been appointed Executive Engineers, even though on an ad hoc basis, earlier inpoint of time than the said respondents. The Commission, however, reacted to this list and took up the position that since the regular appointments to the posts of Executive Engineers were to be made from among the rank of Assistant Engineers, which the petitioners and the said respondents held before their ad hoc appointment, the Commission should be provided a list in the order of seniority of the petitioner and respondents as Assistant Engineers. In the correspondence that ensued, a question was also raised as to how the petitioners had been shown senior to S. Prakash, respondent No. 7. By his letter of July 11, 1967 (Annexure XIII), the Deputy Commissioner of the Corporation explained that the petitioners were treated senior to the said respondent in accordance with the decision of the Corporation because 'the service rendered by them in a equivalent capacity in other organisations before joining the M.C.D. was counted and benefit of the same given'. It was further pointed out in that letter that the names of all the Assistant Engineers, who had become eligible during the course of time for appointment, as Executive Engineers, had been included in the list 'and their position indicated in regard to their appointment as Executive Engineers'. This letter ended by a reiteration of the request of the Corporation for an early meeting of the Departmental Promotion Committee 'so that the appointments of Executive Engineers may be regularised'. The seniority which was allocated to the petitioners in the said list had its genesis in the decision of the Undertaking that the appointment to the post of Executive Engineers be made 'in the order the W.S. & S.D. Committee had made their ad hoc appointment', the reference being to the fact that while appointments of petitioners on an ad hoc basis to the post of Executive Engineers (Water) was made on April 17, 1964, respondents 6 to 14 were similarly appointed between August 21, 1964, the date on which respondent No. 7 was appointed, and August 10, 1968, on which one P. K. Jain, who has not been imp leaded, was appointed. It, however, appears that by a subsequent letter of December 31, 1968 (Annexure XV) the Deputy Commissioner of the Corporation informed the Commission that the seniority of eligible officers of the Undertaking had been re-fixed as indicated in the letter and that 'the above seniority has also been agreed and accepted by all such officers of the rank of Executive Engineers without any objection by any one and in this regard no one will represent any time in future'. The revised seniority list set out in this letter placed S. A. Swami and Ram Arunachalam above the petitioners. As the Commission had not until then convened the meeting of the Departmental Promotion Committee, by its letter of March 3, 1970 (Annexure XVII) it gave ex post facto concurrence to the ad hoc appointments made to the posts of Executive Engineers from 16th November 1960, to 10th June 1969, and for a further period up to March 31, 1970. By his letter of June 6, 1970, the then Commissioner of the Corporation forwarded to the Commission a list of 15 Assistant Engineers purporting to be 'in order of seniorty and authenticated'. This list which is at page 102 of the Paper Book and with regard to the authenticity of which there has been considerable controversy, placed respondents 6, 7, 10, 11 and certain others above the petitioners. According to the petitioners, no such list had either been drawn or authenticated. The petitioners, however, admit that all the persons mentioned in the list, including the petitioners, had signed against their names in the list, but claim that the list had been prepared by respondent No. 7, the Secretary of the Undertaking's Engineers Association with a view to provide the particulars of the various Executive Engineers and was 'surreptitiously' made use of as a seniority list to which all the Executive Engineers had subscribed. Be that as it may, the Departmental Promotion Committee considered the candidature of the Executive Engineers, except that of R. M. Arunachalam, who had meanwhile resigned. All the candidates were assessed as 'Very Good', except S. C. Gupta, respondent No. 10, who was evaluated as 'good' and the Committee recommended the inclusion of petitioners and respondents 6 to 14 and one P. K. Jain 'in the panel for officiating promotion to the post of Executive Engineer'. In the panel, petitioner No.1 was shown at Seriall No. 5, while petitioners Nos. 2 and 3 were shown at Seriall Nos. 11 and 12 respectively. Respondent No. 7 was shown at Seriall No. 4. Pursuant to the aforesaid recommendation, the Corporation, inter alia, resolved that 'the Commissioner be asked to fix the inter se seniority of the Executive Engineers as per panel drawn by the U.P.S.C. and place the same before the Committee'. This was done by Resolution No. 347, which was of January 6, 1972. There is nothing on the record to indicate that a formal order fixing the inter se seniority of the Executive Engineers was made pursuant to the aforesaid Resolution. However, -effect appears to have been given to it when the Commissioner of the Corporation, by his Office Order of February 8, 1973 (Annexure XXIV), inter alia, directed that consequent on the appointment of S/s Jain and D'Cruz as Chief Engineer and Addtional Chief Engineer respectively. 'The consequential vacancies of S.E.(S) and S.E.(C) shall be filled in as under :-

(1)S. S. Ramrakhyani presently working as Executive Engineer(C) shall hold current duty charge of the post of S.E.(S).

(2)Shri S. Prakash presently working as E.E.(P) shall hold current duty charge of the post of S.E.(C) Water'.

THEappointments of respondents 6 and 7, which are described by the petitioner as promotions 'to the posts of Superintending Engineer on current duty charge basis', were apparently an ad hoc arrangement to fill in the vacancies created by the appointments of the previous incumbents to the aforesaid posts of Superiendending Engineers. The petitioners thereupon filed a petition under Article 226 of the Constitution of India, being Civil Writ Petition No. 237 of 1973. When the aforesaid petition came up for preliminary hearing on May 10, 1973, apparently after a show cause notice to the respondents, this Court (T. V. R. Tatachari and R. Sachar, JJ.) directed on a concession made on behalf of the Corporation that the Commission will examine the seniority of the petitioners vis-a-vis the respondents 6 to 14 in the grade of Executive Engineers in accordance with the rules and place its recommendation before the Committee who would decide the question of seniority in accordance with the Rules, and that the status quo as on that date will be maintained till further orders. Subsequently, by office order of July 30, 1973 (Annexure XXVI), a provisional seniority list of Executive Engineers (Civil), whose services had been 'regularised' by the Departmental Promotion Committee, was circulated and objections to it were invited. In this list, petitioner No. 1 was placed at Seriall No. 5 while petitioners 2 and 3 were placed at Seriall Nos. 11 and 12. Respondents 6 and 7 were shown at Seriall Nos. 3 and 4. Petitioner No.1 filed his objections to this list by a representation of August 7, 1973 (Annexure XXVII). By an office order No. 510 of September 6, 1973 (Annexure 1), the Commissioner confirmed the provisional list as the final seniority list. The petitioners challenge the Resolution of January 6, 1972, to the extent it directed the Commissioner to fix the seniority of the petitioners vis-a-vis the respondents on the basis of the panel prepared by the Departmental Promotion Committee and the final seniority list and claim superior seniority and the right to be considered for promotion to the post of Superintending Engineer along with such of the respondents as may be eligible on the basis of the revised seniority.

(3) According to the petitioners, the petitioners were senior to the said respondents as Assistant Engineers by virtue of the service rendered by the petitioners as such Assistant Engineers before they joined the Corporation. It is claimed that the said service was recognised by the relevant rules for the purpose of eligibility and had been taken into account by the Corporation itself in determining such seniority. It is further urged by the petitioners that, in any event, the determination of the seniority of the petitioners vis-a-vis the said respondents in the grade of Executive Engineers suffers from the fatal infirmity in that the determination ignores that the petitioners, having been promoted as Executive Engineers, even though on an ad hoc basis, before any of the said respondents were so promoted, the period during which the petitioners so served as Executive Engineers should have been taken into account for the purpose of determination of seniority in the grade of Executive Engineers because on the 'regularisation' by the Departmental Promotion Committee of the ad hoc promotion of the petitioners to the said post, the regular promotions related back to the date of ad hoc promotion. It is, thereforee, urged that the determination of seniority as well as the consequential promotion of respondents 6 and 7 as Superintending Engineers on the basis of erroneous seniority were invalid and the petitioners were entitled to being restored their proper seniority on a re-determination of it and to being considered for promotion to the said post on the basis of the revised seniority.

(4) The petition is opposed by the Corporation, as indeed by the affected officers, respondents 6 to 14. According to the respondents, neither the service rendered by the petitioners as Assistant Engineers, before they joined the Corporation, nor the period during which the petitioners held the post of Executive Engineers on a purely ad hoc basis could be taken into account in determining the inter se seniority of the petitioners and the said respondents. It was further urged that the ad hoc appointment of the petitioners could not, by itself, confer any right on the petitioners or entitle the petitioners to superior seniority, and the eventual regular selection by the Departmental Promotion Committee was not given retrospective effect and could not, thereforee, sublimate the initial appointment which was in the nature of an ad hoc arrangement. A contention was also urged that the initial appointment of the petitioners as Executive Engineers and its continuance from time to time was contrary to the mandatory provisions of section 96 of the Act and being, thereforee, thus void ab initio was, in any event, incapable of being regularised or validated by the eventual selection. It was further urged that the superior seniority attributed to the petitioners by the Corporation in the grade of Assistant Engineers was based on a misapprehension and was of no effect. It was further urged that the Departmental Promotion Committee was competent to determine seniority at the time of selection and the order in which the selection was made could not be disturbed, and that the seniority on the basis indicated in the selection was consistent with the relevant rules which were in operation during the material period.

(5) The first question that requires to be considered is as to whether the service rendered by the petitioners as Assistant Engineers before they joined the Corporation could be legitimately taken into account in determining the seniority of the petitioners vis-a-vis the affected officers in the lower grade of Assistant Engineers. After hearing learned counsel for the parties, I am of the view that this question must be answered in the negative. The petitioners sought to justify their claim to the service rendered as Assistant Engineers before they joined the Corporation being considered for the purpose of seniority in that grade in the Corporation on two grounds. In the first instance, this benefit was sought on the ground that in terms of the Recruitment Rules for the post of Executive Engineers in the Corporation both in relation to the general wing and in the Undertaking contained an identical provision that in determining eligibility of Assistant Engineers for appointment to the posts of Executive Engineers the requisite qualification with regard to practical experience included 'experience in post of equivalent responsibility and status under other organisations'. In the second instance, it was sought to be justified on the ground that the Corporation had been consistently taking the position that the petitioners were the seniormost Assistant Executive Engineers by virtue of the fact that the benefit of past service had been given to them. Neither of these grounds, to my mind, survives close scrutiny. It is no doubt true, and this was not disputed that the Recruitment Rules referred to above which, inter alia, provide for conditions of eligibility for promotion to the post of Executive Engineers laid down in Note (ii) that 'experience in posts of equivalent responsibility and status and other organisations will also be taken into account'. The aforesaid note, however, has relation to conditions of eligibility for promotion to the post of Executive Engineers, but does not confer the benefit of past service for purpose of seniority. There is a clear distinction between condition of eligibility for promotion and the basis of seniority of officers in a particular service or grade. The Rules provide the condition of five year service in the grade of Assistant Engineers as qualifying an officer for being considered for promotion to the post of Executive Engineer. The note referred to above gives an extended meaning to the provision and enables the Corporation to consider experience in an equivalent grade outside the Corporation, but the benefit is not carried beyond that. The Note in terms confines the benefit 'for appointments' and not for purposes of determining their seniority. Ordinarily, seniority has relation to service rendered in a particular service or in a particular grade, but rules may provide that in determining seniority in a particular service or in a particular grade, service outside that service or in a grade that may be equivalent to it, may be taken into account for the purpose of determining seniority. The petitioners were unable to point to any such rule and were unable to spell out of the note such a provision. It is true that up to a certain stage, the Corporation itself accepted the position that the petitioners were senior- most in the grade of Assistant Engineers presumably because benefit of past service had been given to them and such a view is clearly expressed not only in the Resolution No. 438 of April 3, 1964 (Annexure V), but also in the Corporation's letter of July Ii, 1967 (Annexure XIII). The petitioners were, however, unable to refer to any Rule which may entitle the Corporation to take their past service into account in determining their seniority in the grade of Assistant Engineers in the Corporation. If the Corporation took up that position, it may constitute some sort of a representation and the petitioners may perhaps be entitled to take advantage of it or the equities that may arise from it, but the acceptance by the Corporation of that position would not, by itself, validate the position if there .was no warrant in law for it. The petitioners were unable to press into service any principle of estopple, legal, equitable or promissory, which may entitle them to any right arising out of the aforesaid position. It must, thereforee, be held that the petitioners were not entitled to the benefit of their past service in the determination of the seniority of the petitioners vis-a-vis the affected officers in the grade of Assistant Engineers. With this would also fail the claim of the petitioners that they would be entitled to superior seniority in the grade of Executive Engineers on the basis of their corresponding seniority in the lower grade of Assistant Engineers.

(6) The next question that requires consideration is if the period during which the petitioners held the posts of Executive Engineers on an ad hoc basis until the regular selection by the Departmental Promotion Committee could be taken into account in determining the inter se seniority of the petitioners and the affected officers. The decision on this question would in turn depend on a number of ancillary questions: whether the ad hoc appointment of the petitioners was merely irregular or ab initio void by virtue of the provisions of section 96 of the Act in that the said provision was mandatory in character and a non-compliance with it vitiated the appointments Whether the ad hoc appointment could be or could not be said to have been regularised on the regular selection by the Departmental Promotion Committee of the petitioners, among others What was the effect of the regular selection on the ad hoc appointments and if the regular selection and the appointments pursuant thereto could relate back to the date on which ad hoc appointments were made These are some of the questions which must be answered.

(7) What then was the nature of the initial appointment of the petitioners as Executive Engineers? If it was a regular appointment or an appointment which in any event did not need to be regularised, it would obviously follow that the petitioners, having been appointed earlier than the affected officers in the aforesaid grade, would be entitled to superior seniority and nothing further would then survive for consideration. If the appointment was, however, merely of an ad hoc nature, it would obviously be incapable, by itself, to confer any right on the petitioners. A faint attempt was made on behalf of the petitioners to suggest an answer to these questions in favor of the petitioners on the ground that the initial appointment was not ad hoc in the sense that the petitioners were appointed without a formal consideration of the eligibility and suitability of the petitioners, as indeed, others within the field of choice. It was, thereforee, urged that for all practical purposes, it was a regular appointment based on a proper consideration by the authorities competent to make the appointment after the candidature of all eligible persons had been considered. It is true that the appointments were not ad hoc in the sense that they were made without the consideration of the candidature of the various officers, but were the result of an informal selection by the authorities out of officers who were within the field of choice. But that would not be capable of sublimating the appointment to the position of a regular appointment because the appointments were made otherwise than envisaged by section 96 of the Act, and were clearly subject to the selection for the appointment to be made by the Departmental Promotion Committee in accordance with the Recruitment Rules which had yet to be concurred in by the Commission as envisaged by section 97 of the Act. It was not disputed that the appointments were specifically made for a limited period pending the finalisation of the Recruitment Rules by the Commission and a formal selection by the Departmental Promotion Committee as envisaged in the Regulations framed by the Commission under section 97 of the Act, and the consequential concurrence of the Commission under section 96 of the Act. An appointment which has to be made in a manner laid down in the Statute, which confers the power or in accordance with any rules that had yet to be framed or otherwise on the basis of a formal selection by a designated authority would be ad hoc and subject to the concurrence of these eventualities even though the suitability of all officers, who may be within the field of choice, may be considered even for the limited purpose of making appointment on an ad hoc basis. It is, thereforee not possible to accept the contention that the initial appointment of the petitioners was regular or was regular for all practical purposes and did not need any confirmation to enable the petition's to take advantage of the period during which they held such an appointment.

(8) The question that, thereforee, arises is as to whether the selection by the Departmental Promotion Committee of the petitioners, among others, was in the nature of a 'regularisation' of the initial appointments of the petitioners or could be said to have 'regularised' such initial appointment so as to entitle the petitioners to claim a relation back of the regular appointment to the date of the initial appointment. A decision of this question would be not only necessary, but vital because it was not disputed that if the initial appointment was not tantamount to a. regular appointment, such initial appointment would not by its own force confer any rights on the petitioners in relation to the appointment or entitle the petitioners to the period during which they held such appointment being considered for the purpose of seniority. It was urged on behalf of the Corporation and the affected officers that the selection by the Departmental Promotion Committee was neither an act of regularisation of any earlier appointment nor was it intended to regularise any such appointment. The selection, it was claimed, had no connection whatever with the initial appointment and there was, thereforee, no question of the ultimate selection having any impact on the efficacy of the initial appointment. It is not possible to accept this contention. It is a common case of the parties that ad hoc arrangement was necessary because the finalisation of the Recruitment Rules, the concurrence of the Corporation and a formal selection by the Departmental Promotion Committee envisaged by the Regulations would have taken considerable time, and meanwhile work of the local body could not be held up. It is also a common case of the parties that for the purpose of making ad hoc arrangements, the suitability of all the eligible officers, including respondent No. 7, was considered and the apponitments of the petitioners on an ad hoc basis were made for a specified period or until formal selection had been made and the arrangement was continued from time to time by the ex post facto concurrence of the Corporation. It is also not possible to dispute that since the appointment on an ad hoc basis, the Corporation has been repeatedly requesting the Commission to 'regularise' the appointments by convening meetings of the Departmental Promotion Committee after the Recruitment Rules had been finalised in accordance with the Regulations. It would be sufficient for our present purpose to refer to the Corporation's letter of July Ii, 1967 (Annexure XIII), and December 31, 1968 (Annexure XV), which are among the many communications on record which clearly bring out that the Corporation has been requesting the Commission to convene an early meeting of the Departmental Promotion Committee, so that appointments of the Executive Engineers may be regularised. It is interesting to notice in this connection that the regularisation was sought not only before some of the affected officers were appointed on an ad hoc basis, but even after their appointments and the regularisation was sought not only of ' the initial appointments of the petitioners, but of all the ad hoc appointees. It is true that the proceedings of the Departmental Promotion Committee do not use the expression regularisation but nothing would turn on the form. What is more material is the substance and it is the substance that would prevail over the form unless 'the form was part of a mandatory requirement. It is, thereforee, difficult to accept the contention that in spite of the historical background in which selection was made by the Departmental Promotion Committee and in .spite of the fact that ad hoc appointments were made as a temporary measure pending formal selection in accordance with the legal requirements, the eventual selection did not have the effect of regularising what had been done in the meanwhile even though the ad hoc appointees were selected and eventually confirmed. It must, thereforee, beheld that the eventual selection of the petitioners, as indeed of the affected officers, was tantamount to a regularisation of ad hoc appointments made in a manner which was otherwise than regular and for which certain legal requirements had to be satisfied. Where, in such circumstances, an ad hoc appointee has eventually been selected, it would not be a fresh appointment, but a confirmation of the appointment already made. The selection and the consequent confirmation would, thereforee, relate back to the date of the initial appointment and once such a selection and confirmation is made, the officer concerned would be deemed to have throughout been in regular employment. To my mind, it is not possible to accept the contrary conclusion either on principle or on the basis of any precedent. That the conclusion arrived at by me found reinforcement in a number of precedents was not seriously disputed at the hearing of the petition. It would be sufficient to refer to the cases of Ishwar Chander Sanger(1). In this case, a Division Bench of this Court considered the question as. to the effect of aregular selection by the Departmental Promotion Committee on the acting promotions earlier of certain officers to the grade of.Executive Engineers and held that such a selection was tantamount to. an approval of or .an agreement to the acting promotions made by the Corporation earlier even though the expression regularisation, as in the present case, was not used by the Departmental Promotion Committee and the expression was only used by the Corporation in some of its communications to the Commission. It was accordingly held that the period during which the officers concerned held the appointment as Executive Engineers in an acting capacity could on formal selection be taken into account in determining their seniority. An attempt was made on behalf of the respondents to distinguish the aforesaid decision on the ground that in that case the acting appointments for the initial period, as well as the subsequent extensions until the formal selection, had the concurrence of the Commission, while in the present case, even though ex post facto concurrence was given by the Commission to the ad hoc appointment of the petitioners, it did not cover the entire period, but left a part of it which remained uncovered by formal concurrence. The contention appears to be based on a wrong reading of the judgment of the Division Bench. The Division Bench determined the effect of regular selection on the period during which the officer held the appointment in an acting capacity, independently of the question of concurrence, as a matter of principle, even though the learned Single Judge had held that the acting appointments were without the concurrence of the Commission and the Division Bench found as a matter of fact that there has been such a concurrence. It must, however, be pointed out that the concurrence of the Commission found by the Division Bench was not prior concurrence but ex post facto concurrence, as in the present case. Moreover, the decision was not based on the existence of the concurrence and this would be amply borne out by a reference to the relevant portion of the judgment. This is what the Division Bench held :-

'IT is true that normally the period of ad hoc service or of acting appointment would not be on the same footing as the period of regular service so long as the ad .hoc service or acting appointment continues as such without being regularised. But, when the said ad hoc service or acting appointment is regularised by the Service Commission on a consideration of the merits of the concerned officer, the said period of ad hoc service or acting appointments which has been regularised would be on the same footing as the period of regular service'.

THEeffect of formal selection on the initial ad hoc appointment, as indeed the principle enunciated above, were sought to be diffused on the basis of the observations of the Supreme Court made in the case of Dr. Satyabrata Dutta Choudhury (2). I am, however, unable to see anything in the decision of the Supreme Court, with respect, which may deviate from the principle. The claim of superior seniority based on earlier appointment on an ad hoc basis was repelled in that case because of aprovision in the relevant rules that if appointments of a number of persons were regularised in one batch 'then the inter se seniority of these persons should be according to the merit list of A.P.S.C.'. The rules further provided that the A.P.S.C. should be requested 'to indicate the order of preference'. In the face of such a rote, the regularisation of the ad hoc appointment in that case did not carry by its own force the right to superior seniority. It was in this context that it was observed that there was no enitlement to rank senior 'irrespective of the result of the final recruitment through the Service Commission'. The eventual selection had the -effect of regularising the initial appointment made on an ad hoc basis even though it did not necessarily entitle a person, who was appointed earlier in an ad hoc capacity, to rank senior if there was provision in the rules which made the order in which they are regularised determinative of seniority under the relevant rules.

(9) Learned counsel for the Corporation and the affected officers did not seem to be oblivious of the almost insurmountable difficulty facing them in resisting the normal import of regularisation and, thereforee, laid stress on another aspect of the matter to resist the aforesaid conclusion. Regularisation or confirmation, ran the argument, could be of a valid appointment, which may be merely irregular. It was urged that an appointment which was ab initio void could not be regularised , or confirmed because what was ab initio void had no de jure existence. In such a case, there was nothing in existence which could be regularised or confirmed and the purported confirmation or regularisation and the selection was, thereforee, de hors the initial appointment and was the only appointment in the eye of law, and there was, thereforee, no question of service during any period prior to such an appointment being legitimately taken into account. The conclusion that the initial appointment was ab initio void was sought to be justified on the basis that the provision of Section 96 of the Act was mandatory in character and in the scheme of Sections 92 and 96 of the Act, there was no power in the Corporation to make appointments which are within the mischief of Section 96 without complying with its mandatory requirement. Any appointment, it was argued, which was in contravention of Section 96, which was couched in prohibitory language, had no legal existence. The respondents pose an interesting question which, however, cannot survive a closer scrutiny.

(10) Chapter Vi of the Act, inter alias deals with Municipal officers. Section 89 deals with the power to appoint' specified officers with which we are not concerned in the present case. Section 90 makes a provision I for schedule of permanent posts and creation of temporary posts. Section 92 confers on the Corporation and its Committees and certain functionaries the power to make appointments to posts other than those specified in Section 89 of the Act. Section 96 provides for consultation with the Commission for appointment to certain posts. Section 97 empowers the Commission to make regulations with regard to the procedure to be followed by the Commission for consultation with the Commission for selecting candidates for appointment and matters incidental to or necessary for the purpose of consultation with the Commission. Sections 96 and 97 run thus :-

'96.No appointment to the post of the General Manager (Electricity) or to any post carrying a minimum monthly salary of three hundred and fifty rupees or more (exclusive of allowance) shall be made except after consultation with the Union Public Service Commission (hereafter in this Chapter referred to as 'the Commission') :

PROVIDED that no such consultation with the Commission shall he necessary in regard to the selection for appointment-

(A)to any acting or temporary post for a period not exceeding one year; or

(B)to such ministerial posts as may from time to time be specified by the Corporation in consultation with the Commission when such posts are to be filled by promotion ; or

(C)to a post when at the time of such appointment the person to be appointed thereto is in the service of the Central Government or a State Government in a class I post ; or

(D)to a permanent or temporary post, if the officer or other employee to be appointed is not likely to hold .that post for more than one year, or if such officer or other employee is likely to hold the post for more than one year but not more than three years and the commission advises that the appointment may be made without consulting the Commission.'

'97.(1) The Commission may make regulations for the following matters, namely:-

(A)the procedure to be followed by the Commission in advertising posts inviting applications scrutinizing the same and selecting candidates for interview ;

(B)the procedure to be followed by the Commission for selecting candidates for appointment and by the Corporation for consultation with the Commission ;

(C)any other matter which is incidental to, or necessary for, the purpose of consultation with the Commission.

(2)In the case of any difference of opinion between the Commission and the Corporation on any matter the Corporation shall refer the matter to the Central Government and the decision of that Government thereon shall be final.'

(11) Whether section 96 of the Act is mandatory in nature and a non-compliance with it in making an appointment, which attracts Its provisions, would, thereforee, vitiate the appointment and the further question if there is no power in the Corporation to make appointments which attracts Section 96 without complying with its requirements, are in a sense two distinct questions, but are two facets of the same problem. An affirmative answer to these questions would lead to a common result though by different processes of reasoning. Even in the process of reasoning, there is overlapping to an extent. Where the power to make an appointment and the conditions subject to which or the manner in which it could be made are part of the same provision, the conditions and the manner is so inextricably involved in the power to make the appointment that there would be little difficulty in construing such a provision as denying the power to make the appointment except subject to the conditions and in the manner laid down in the provision itself. Difficulty can and does arise where, as in the present case, the power to make appointment and the conditions or the manner of it are dealt with by two different provisions, even though in the same Chapter. In such a case, if the condition or the manner are mandatory in nature, the appointment which does not comply with the requirement would be vitiated and it would be unnecessary to answer the further question if there was a power to make an appointment de hors the condition or the manner because the conclusion either way would be the same. Where, however, the condition for the exercise of the power or the manner in which it is to be exercised are not mandatory, but are merely directory, however, laudable may be the object for such a provision, it would neither vitiate the appointment, nor in any manner affect the power or the exercise of it. The basic question in any event, in either case, would be if there was a mandatory prohibition in the provision that deals with the manner of exercise of power which is capable of vitiating an appointment and if it does, then obviously there would be no power to make the appointment except in the manner indicated.

(12) The question whether a provision in a statute is of a directory or mandatory nature has frequently arisen, but it has been said that no general rule could be laid down, and that in every case the question that must be asked is as to the object of the statute. When a statute requires that something shall be done or done in a particular manner or form, without expressly declaring what shall be the consequences of non-compliance, is the requirement to be regarded as imperative or directory or merely as directory or permissive In some cases, the conditions or forms prescribed by the statute have been regarded as essential to the Act. or thing regutated by it, and their omission has been held fatal to its validity. In others, such prescriptions have been considered as merely directory, the neglect of them involving nothing more than liability to a penalty, if any were imposed, for breach of the enactment., (Maxwell Interpretation of Statutes page 314). As observed by Lord Coleridge, C. J. in Woodward v. Sarsons (3), 'An absolute enactment must be obeyed or fulfillled exactly, but it is sufficient if a directory enactment be obeyed or fulfillled substantially'. No universal rule, said Lord Campbell L. C. in Liverpool Borough Bank v. Turner (4) can be laid down for the construction of a statute as to whether enactment shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed. What is required in each case is for the Court to look to the subject matter, consider the importance of the provision that has been disregarded and the relation of that provision to the general object intended to be secured by the Act and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory (Howard v. Bodington) (5). When the provision of a statute relates to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done (Per Sir Arthur Channel) (6). This principle was followed by the Federal Court in the case of Biswanath Khemka v. The King Emperor (7) in construing Section 256 of the Government of India Act, and it was held that Section 256 was directory and not mandatory and that non-compliance with it would not render an appointment, otherwise regularly and validly made, ineffective and inoperative. It was further observed that any other view would lead in many cases to results which could not have been intended by Parliament and would entail general inconvenience and injustice to persons who have no control over those entrusted with the duty of making recommendations for the grant of magisterial powers. Following these principles, the Supreme Court ruled in the case of Manbodhan Lal Srivastava v. State of U.P. (8) that the use of the word 'shall' in a statute though generally taken in a mandatory sense does not necessarily mean that in every case it shall have that effect that is to say, that unless the words of the statute are punctiliously followed, the proceedings or the outcome of the proceeding, would be invalid. On the other hand, it is not always correct to say that where the word 'may' has been used, the statute is only permissible or directory in the sense that non-compliance with those provisions will not render the proceeding invalid. Applying this test, it was held that the provisions of Article 320(3)(c) of the Constitution of India, which provided for consultation with the Union Public Service Commission, are not mandatory and non-compliance with those provisions does not afford a cause of action to civil servant in a court of law, even while striking a note of caution that it was not open to the executive Government completely to ignore the existence of the Commission or to pick and choose cases in which it may or may not be consulted. Following the decision in the case of Manbodhan Lal (supra), it was held by the Supreme Court in the case of K.S. Srinavasan v. Union of India (9) that Rule 4(b) of the Temporary Service Rules which provided for consultation with the Commission was nevertheless directory- In the case of Banwari Lal Aggarwal v. State of Bihar (10) it was observed by the Supreme Court that in deciding the question if a provision was directory or mandatory, and as to the true legislative intent. Court has to consider not only the actual words used, but the scheme of the statute, the intended benefit to the public of what is enjoined by the provisions and the material danger to the public by contravention of the same. This test was reiterated and applied by the Supreme Court in the case of R. B. Sugar Co. v. Union of India. (II) In the case of Mannalal Khetan v. Kedar Nath Khetan & Ors. (12), the Supreme Court stressed the importance of the prohibitive and negative words in a statute and observed that prohibitive and negative words can rarely be directory, and that there was one way to obey the command, and that was 'completely to refrain from doing the forbidden act'. It was further observed that negative, prohibitory and exclusive words were indicative of the legislative intent when the status is mandatory. Applying the test, it was held that the provisions contained in section 108 of the Companies Act were mandatory in nature.

(13) All problems of interpretation of statutes involve an inquiry as to what was the true legislative intent. Legislative intent has not only to be inferred from the language of a statute, but also from the purpose and object of the statute. In determining of the provisions of Section 96 are of a mandatory character, no individual .test would, by itself, be conclusive. The question must be answered in the context of the totality of all the factors, such as the language employed in the provision, the inter-relation between the different prozisions, the purpose and object of the statute and of the provision, as indeed, the consequence of holding the provision to be mandatory or directory, such as rendering it nugatory if it is held to be directory or the likelihood of causing general public inconvenience or hardship if it is held to be mandatory. In the case of Biswanath Khemka (supra), Section 256 of the Government of India Act contained both negative and prohibitory words when it enjoined that 'no recommendation shall be made', 'save after consultation with the District Magistrate', and yet the Federal Court ruled that the provision was nevertheless directory and not mandatory because to hold to the contrary 'would lead in many cases to results which could not have been intended by Parliament and would entail general inconvenience and injustice to persons who have no control over those entrusted with the duty of making recommendations for the grant of magisterial powers'. The language , of Section 43 of U.P. Kshetra Samithis and Zila Parishads Adhiniyam, 1961, contained neither a word of prohibition nor employed any negative words and was yet held to be mandatory by the Supreme Court in the case of Prakash Chand Maheshwari and another v. The Zila Parishad, Muzaffarnagar & another (13) and treated by the Supreme Court at par with the provision for consultation with the High Court contained in Article 233(1) of the Constitution of India and the ratio of the decision of the Supreme Court in Chandramouleshwar Prasad v. Patna High Court & Ors. (14) was applied and it was held that the appointment without consultation with the Commission invalidated the appointment probably because the power to make the appointments and the provision for consultation with the Commission were so intertwined in the section itself as to be inseparable. What may perhaps have influenced the Supreme Court in arriving at the conclusion that it did, and I say so with utmost respect, may be the proviso which laid down that in case there was a difference of opinion between the Commission and the Parishad, the appointing authority, 'the matter shall be referred to the State Government whose decision shall be final'. On the peculiar language of this provision, the obligation to consult the Commission could legitimately be considered as a restriction on the exercise of power of appointment, and was construed accordingly. It would be useful to remember in this context that Article 233 of the Constitution of India employs somewhat similar phraseology because the power to make the appointment and the obligation to consult are similarly contained in the same provision and are entertained in such a way that the severance of the two is not possible. But for this distinction. Section 43 of the U.P. Kshettra Samithis and Zila Parishads Adhiniyam, 1961, could perhaps not be held to be mandatory in view of the analogous provision of Article 320 of the Constitution of India which, on the tenor of the language and the object sought to be achieved by it, was held by the Supreme Court in the case of Manbodhan Lal (supra) to be merely directory. The distinction between the two sets of provisions is obvious. Article 320 does not occur in the Chapter dealing with services and the power to make the appointment and the manner in which it is to be made are clearly severable in the scheme of the Constitution. Consultation, with he Commission does not divest the Union or the States to make the appointments and could not, thereforee, be considered as a fetter on their power to make the appointment. Article 233 clearly stands apart as a salutary provision intended to maintain the independence of the judiciary, and that is why the consultation with the High Court was held to be mandatory because to hold to the contrary would have frustrated the very object for which the provision was made. Applying the test in its totality to the provisions of Section 96, the question posed has to be answered in favor of the petitioners. True Section 96 employs the language which can be said to be one of prohibition and contains negative words. It is, however, in parimateria with Section 256 of the Government of India Act which was held to be directory. The object of a provision for consultation with the Commission in matter of appointment would, in the first instance, be to ensure that there would be proper consideration of the candidature of a person by an independent-body so as to eliminate chances of favoritism and in the second place to make available to the local Government the advice of an expert body with regard to the suitability of a candidate for a particular post. There was, however, no intention to restrict the power to make appointment- Otherwise Section 92 of the Act would have been differently worded. However, salutary may be the provision for consultation, it is bound to lead to general inconvenience and serious hardship if it were held that there was no power to make appointment except after consultation with the Commission which would have the effect of vitiating the numerous appointments being made by the Corporation pending consultation with the Commission obviously because the process of finalisation of rules, regulations and constitution and functioning of Departmental Promotion Committees are by their very nature time consuming. A contention was raised that in view of the provision of sub-section (2) of Section 97, the provision of Section 96 was in parimateria to the provision of Section 43 of the U.P. Kshettra Samithis and Zila Parishads Adhiniyam, 1961. Sub-section (2) of Section 97 provides that in case of any difference of opinion between the Commission and the Corporation 'on any matter' the Corporation shall refer the matter to the Central Government and makes the decision of the Central Government final. Subsection (2) has no connection with the consultation provided in Section 96 in the matters of appointment. Sub-section (2) of Section 97 regulates the framing of regulations by the Commission under Section 97 and the matters that are referred to in sub-section (2) are matters with regard to which regulations are to be made. What has, thereforee, to be referred to the Government is any difference that may arise between the Commission and the Corporation with regard to the framing of the regulations. It is not possible to read sub-section (2) of Section 97 into Section 96. On the other hand, Section 43 of the U.P. Kshetra Samithis and Zila Parishads Adhiniyam, 1961, contains the provision regarding a reference to Government as a proviso to the power to make appointment subject to consultation and could, thereforee, be legitimately considered a restriction on the power to make the appointment. Having regard, thereforee, io the totality of the context in which Section 96 occurs and having due regard not only to its language, but its frame and the object sought to be achieved by it, it must be held that the provision is only directory and not mandatory howsoever salutory the provision for consultation may be and, however, desirable it is that it should be followed both in letter and spirit by the local body in making appointment regulated by it, so that the vital interests of its services and those that aspire for employment in it are adequately protected.

(14) This leaves for consideration two further grounds on which the impugned seniority was sought to be justified on behalf of the respondents. Firstly it was urged that the Departmental Promotion Committee not only evaluated the comparative merit of the various candidates, but, what is more, indicated a certain order of their placement thereby impliedly determining their inter se seniority. and that in any event this Court should not lightly interfere with such a. determination. There is no substance in this contention. The Departmental Promotion Committee had before it the list of the officers drawn on the basis of their seniority in the lower grade of Assistant Engineers from which they were to be selected for regular promotion. They maintained that order and in the selection, changed it only to the extent it was necessary on account of evaluation. All the officers considered were found to be very good except S. C. Gupta. All of them except S. C. Gupta were put in places which corresponded to the list of seniority in the lower-grade and the name of S. C. Gupta was put at the bottom of the list. Neither the Departmental Promotion Committee nor the Commission were concerned with the question as to the determination of the seniority of these officers in the grade of Executive Engineers. It was neither the function of the Committee or the Commission nor had they made any direction in that behalf. The impugned determination of seniority was a result of the decision of the Corporation to assign the seniority to the officers in the order in which their names appeared in the selec- tion. It is, thereforee, open to this Court, as indeed necessary, to determine the true seniority of the officers independently of the question of the evaluation of their respective merits. If the Departmental Promotion Committee or the Commission had determined or were expected to determine the inter se seniority of the Executive Engineers, there would have been nothing left for the Corporation to decide. The Corporation nevertheless resolved by the impugned Resolution that the Commissioner be asked to fix the inter se seniority of the Executive Engineers as per panel drawn by the U.P.S.C.

(15) The second ground on which the impugned determination of seniority was sought to be justified on behalf of the respondents, however, appears to raise a hurdle for the petitioners which, to my mind, is virtually insurmountable, and the claim of the petitioners must fail on the bedrock of this contention. Rule 6 of the Dellii Administration Seniority Rules, 1965, for short the 1965 Rules, claim the respondents, lays down the criteria for the determination of sonority and impliedly excludes any preselection service from consideration for the purpose of determining seniority in a grade, accepts the yardstick of merit list of confirmation or regular selection as the deterining factor for the purpose of determining seniority and, thereforee, excludes the application of the principles of relation back, if it could be elevated to the position of a principle, or any other principle however just and fair it may appear the Court to be.

(16) The relevant portion of Rule 6 of the 1965 Rules reads thus :'6. Promotees-

(1)The relative seniority of persons promoted to the various grade shall be determined in the order of their selection for such promotion, :

PROVIDED that where the persons promoted initially on a temporary basis are confirmed subsequently in an order different from the order of merit indicated at the time of their promotion, seniority shall follow the order of confirmation and not the original order of merit. (2)* * * * * *

ExplanationN-WHEREpromotions are made on the basis of selection by a selecting authority, the seniority of such promotees shall be in the order in which they are recommended for such promotion by the authority. Where promotions are made on the basis of seniority subject to the rejection of the unfit, the seniority of persons considered fit' for promotion at the same time shall be the same as the relative seniority in the lower grade from which they are promoted. Where, however, a person is considered as unfit for promotion and is superseded by a junior, such person shall not, if he is subsequently found suitable and promoted, take seniority in the higher grade over a junior person who had superseded him.'

SUB-RULE(1) of this Rule provides that the seniority shall follow the order of selection for promotion. The proviso deals with cases where initial promotion on a temporary basis may be followed by confirmation in an order different from the original order of merit. The Rule envisages that all promotions would be preceded by selection for such promotion. Rule 10 of the Rules envisages ad hoc appointments when it provides that the ad hoc appointees, until replaced by regular appointees, 'will be shown in the order of their ad hoc appointments and follow all persons regularly appointed to the grade'. Nevertheless Rule 6 does not give to an appointee any weightage on account of pre-selection ad hoc appointment. Proviso to sub-rule (1) makes it amply clear that where persons who were promoted initially on a temporary basis are confirmed subsequently in an order different from the order of merit indicated at the time of promotion 'seniority shall follow the order of confirmation and not the original order of merit'. What makes it worse for the petitioners is the Explanationn which leaves no manner of doubt that where -promotions are made on the basis of selection by a selecting authority 'the seniority of such promotees shall be in the order in which they are recommended for such promotion by the authority'.

(17) Rule 6, which is apparently intended to give statutory effect to the principles incorporated in the December 1959 Memorandum of the Government of India clearly restores the supremacy of confirmation and regular selection as the determining factor in the matter of seniority. It may be useful to bear in mind in this connection that ordinarily seniority was to be reckoned on the basis of confirmation in a post, and it was with a view to safeguard the interests of thousands of displaced Government servants who were appointed to the central services after the partition of India that a departure was made from the normal rule in regard to determination of seniority and the Ministry of Home Affairs issued instructions contained in their Memorandum of June 22, 1949, to the effect that seniority in a grade was to be governed as a general rule on the basis of continuous length of service in a grade, and that the normal rule was restored when the Ministry of Home Affairs issued its instructions in its Memorandum of December 22, 1959, as a result of a realisation that the displaced Government servants, whose peculiar problem had led to the departure from the normal rule, had, by and large, been absorbed in the various central services making the continuance of the departure unnecessary. If that be the effect of Rule 6, it clearly follows that in terms of the Explanationn, to Rule 6, seniority had to follow the order in which the Departmental Promotion Committee had recommended the petitioners and the affected officers for promotion and no exception could, thereforee, be taken to the determination. In such a view, there would be no question of the period during which the petitioners served in an ad hoc capacity, prior to their selection by the Departmental Promotion Committee, being considered for the purpose of determining their inter se seniority or of the principle of relation back being applied. Both these appear to be clearly excluded by a statutory rule framed in exercise of power under Article 309 of the Constitution of India, which must prevail unless it is hit by Articles 14 or 16 of the Constitution of India.

(18) Learned counsel for the petitioner was unable to justify the application of the principle of relation back if Rule 6 was to govern the seniority of the petitioners and the affected officers and, thereforee, sought to make good the claim of superior seniorrity on the basis that the 1965 Rules could not govern the determination of seniority in the present case, and that the matter would be governed by the Delhi State Service Seniority Rules, 1954, for short the 1954 Rules, which were repealed by the 1965 Rules. It was urged that the 1965 Rules, which came into force on July 31, 1965, were prospective in operation and, thereforee, had no retrospective operation, and that the petitioners, having entered service before the aforesaid date, would continue to be governed in the matter of seniority by the 1954 Rules. Support for the contention was sought from the decision of the Supreme Court in the case of Ravi Verma (15). There is no merit in this contention. It is true that the petitioners and the affected officers were already in service when the 1965 Rules were promulgated and were before that being governed in the matter of determination of seniority by the 1954 Rules. 1965 Rules are of a statutory nature having been made in exercise of power conferred by proviso to Article 309 of the Constitution of Indid. These are legislative in character and are in the nature of delegated legislation. It was not disputed that the presumption with regard to the prospective operation of statutes is not an irrebuttable presumption. It is not an inflexible or rigid rule. The only requirement is that no statute would be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act or arises by necessary and clear implication. Nor was power of Government to make a unilateral change in the service conditions of a public servant challenged. As was pointed out by the Supreme Court in the case of Roshal Lal (16), the-legal position of a Government servant is more of status than of a contract. The hall mark of the status is attachment of a legal relationship of rights and dirties imposed by the public law and not by mere agreement of the parties. The emoluments of the Government servant and his terms of service are governed by statute an,d statutory rules which may be unilaterally altered by the Government without the consent of the employee.

(19) Rules 3 and 14 of the 1965 Rules lay down the extent and effect of operation of the Rules. Rules 3 and 14 read thus :

'3.Seniority of persons appointed before the enforcement of these Rules--Subject to the provisions of Rule 4, persons appointed in a substantive or officiating capacity to a grade prior to the enforcement of these rules shall retain the relative seniority already assigned to them or such seniority as may hereafter be assigned to them under the provisions of the Delhi State Service (Seniority) Rules, 1954, applicable to their cases, and shall enbloc be senior to all others in that grade.

ExplanationN-FORpurposes of these rules

(A)persons who are confirmed retrospectively with effect from a date earlier than the enforcement of these rules, and (b) persons who are appointed on probation to a permanent post substantively vacant in a grade prior to the enforcement of these rules shall be considered to be permanent ' officers of the grade.'

'14.Repeal.-The Delhi State Service (Seniority) Rules, 1954 are hereby repealed :

PROVIDED that all cases pending at the commencement of these rules or hereafter arising out of the determination of seniority under the said rules shall be disposed of in accordance with the provisions of the said Rules as if the said Rules had continued in force and these rules had not come into force:

PROVIDEDfurther that the provisions of section 6 and section 24 of the General Clauses Act, 1897, shall mutates mutendis, apply to such repeal.'

RULE3 clearly lays down that in case of persons appointed in a substantive or officiating capacity to a grade prior to the enforcement of 1965 Rules shall retain the relative seniority already assigned to them or 'such seniority as may hereafter be assigned to them under the provisions of Delhi State Service (Seniority) Rules, 1954'. It follows, thereforee, that 1954 Rules would continue to govern the determination of seniority in relation to substantive or officiating appointments to a grade made prior to the enforcement of 1965 Rules. It is a common case of the parties that no seniority had been assigned to the petitioners in relation to the ad hoc appointment under the 1954 Rules nor can any seniority be assigned until they had been duly selected. The formal selection was admittedly made on August 14, 1970. The petitioners could claim to be governed by the 1954 Rules in relation to regular appointments, either on a substantive or an officiating capacity, to a grade, if made prior to the promulgation of the 1965 Rules, but in relation to appointments made subsequent thereto, they would be clearly regulated by the 1965 Rules. The only exception to it would be if the case was covered by the proviso to Rule 14, and the case of the petitioners obviously could not be covered by the proviso. The 1965 Rules, to an extent bring within its sweep the pre 1965 entrants into service as well. The petitioners are unable to derive any benefit from the decision of the Supreme Court in the case of Ravi Verma (supra) because on the plain language of December 1959 Memorandum, it was held that it was prospective and not retrospective. The expression 'hereafter' used in the Memorandum which was the basis of the decision does not find place in the 1965 Rules. It may be pointed out that in the case of Ravi Verma (supra) the December 1959 Memorandum was held to be prospective not because of the language in which the general principles enunciated in the Memorandum had been couched but because of a clear direction in the Memorandum which preceded the Annexure, in which the general principles were set out, to the effect that 'hereafter the seniority of all persons appointed to the various central services after the date of these instructions should be determined in accordance with the general principles annexed hereto'. This was reiterated in the next para of the communication which contained an unequivocal declaration that 'the revised general principles embodied in the annexure will not apply with retrospective effect'. Rule 3 of the 1965 Rules is an exact reproduction of para 2 of the general principles Set out in the annexure to the Memorandum and, but for the limitation imposed in the Memorandum, would have to an extent given retrospective operation to the principles. Rules 3 and 14 referred to above make the Rules retrospective to an extent with a view to deal with the problem of determinadon of seniority of persons already in service in relation to appointments, promotions, etc. to be made after the promulgation of the 1965 Rules. It is, thereforee, not possible to hold that the matter of determination of seniority of the petitioners and the affected officers would continue to be governed by 1954 Rules, and that the 1965 Rules would have no application.

(20) In the result, the petition fails and is hereby dismissed, but in the peculiar circumstances, without costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //