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Shankar Lal Sharma, Etc. Vs. Municipal Corporation of Delhi - Court Judgment

LegalCrystal Citation
SubjectService
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 1256 of 1979
Judge
Reported in18(1980)DLT465; ILR1981Delhi506
ActsConstitution of India - Article 226; Delhi Municipal Corporation Act, 1957 - Sections 59
AppellantShankar Lal Sharma, Etc.
RespondentMunicipal Corporation of Delhi
Advocates: G.N. Aggarwal and; R.K. Maheshwari, Advs
Cases ReferredMotilal Padampat Sugar Mills Co. Ltd. v. The State of Uttar Pradesh and
Excerpt:
.....it from filling up the posts of valid/hakim/homoeopathic doctors in the corporation though direct recruitment only against its own resolution. the respondents took the stand that the recruitment regulation framed by the corporation had not become statutory regulations as they had not been approved by the union public service commission and had not been published in the official gazette as required by section 98 and section 480 of the delhi municipal corporation act. their further plea was that until the recruitment regulations were finalised, the work of the corporation or the government cannot remain at a stand still and must be carried on by executive instructions. the respondents' case is that there being no statutory rules, the commissioner, under section 59 of the act, has..........2-5-1975 will . stand amended as follows : method of recruitment 50% through direct percentage for direct recruitment recruits and through 50% through depart other methods of filing mental promotions.' vacant posts. (3) there is no dispute to the above mentioned facts. the corporation issued a circular dated august 21, 1979 inviting applications for the post of vaid/hakim/homoeopathic doctors for dispensaries running under the department of indigenous system of medicines, in the corporation in the scale of rs. 650-1200 plus usual allowances. this filling of the posts by direct recruitment only is averred by the petitioners as in violation of the recruitment regulations as well as of principles of law and justice. the petitioners claim to possess the essential and desirable qualifications.....
Judgment:

S.S. Chadha, J.

(1) only. recruitment direct through Corporation the in Doctors Homoeopathic Hakim Vaid of posts filling from Delhi Municipal restraining direction or order writ, appropriate an seeks India Constitution 226 Article under petition 'Resolved that after considering the Commissioner's letter No. 5974/C and C dated 12-12-78 and the report included in it and the proposal No. 99 dated 3-1-79 of the Appointments, Promotions Disciplinary and Allied Matters Committee, Col. 10 of the Recruitment Regulations for the posts of Vaids, Hakims and Homoeopathic Doctors as approved vide decision No. 446/GN/Corp. dt. 2-5-1975 will . stand amended as follows : Method of recruitment 50% through direct Percentage for direct recruitment recruits and through 50% through depart other methods of filing mental promotions.' vacant posts.

(3) There is no dispute to the above mentioned facts. The Corporation issued a circular dated August 21, 1979 inviting applications for the post of Vaid/Hakim/Homoeopathic Doctors for dispensaries running under the department of Indigenous System of Medicines, in the Corporation in the scale of Rs. 650-1200 plus usual allowances. This filling of the posts by direct recruitment only is averred by the petitioners as in violation of the Recruitment Regulations as well as of principles of law and justice. The petitioners claim to possess the essential and desirable qualifications including 5 years' regular service in the grade of compounders and claim to be entitled to promotion in the 50 per cent quota fixed for departmental promotees. The writ petition was filed on September 7, 1979. Rule nisi was issued on September 13, 1979. As an interim relief, it was directed that the recruitment to the 11 posts that were then lying vacant, would be subject to the further orders of this Court and the decision in the writ petition. Subsequently, a Division Bench of this Court on February 11, 1980 allowed the Corporation to fill up only 7 posts out of the 14 posts either from direct recruits or from promotees but it was to be made absolutely clear that the appointments to the 7 posts would be on ad hoc subject to the final decision of the writ petition. The writ petition was directed to be heard early.

(4) In the counter-affidavit filed on behalf of the Corporation, the stand is that the Recruitment Regulations framed by the Corporation have not become statutory Regulations as they have not been approved by the Union Public Service Commission and- have not been published in the official gazette as required by Sections 98 and 480 of the Act respectively. The plea further is that until the Recruitment Regulations are finalised, the work of the Corporation or the Government cannot remain at a standstill and it must be carried on by executive instructions. It is pleaded that there being no statutory Rules, the Commissioner under Section 59 of the Act has full executive power to issue necessary instructions and to make the Recruitment to the vacant posts of Vaid/Hakim/Homoeopathic Doctors. This stand needs close scrutiny.

(5) Section 98(1) of the Act empowers the Corporation to make Regulations to provide for any one or more of the specified matters, (a) the tenure of office, salaries and allowances, provident funds, pensions, gratuities, leave of absence and other conditions of service of officers and other employees, (b) the powers, duties and functions of the Municipal Secretary, (c) the qualifications of candidates for appointment to posts specified in sub-section (1) of Section 89 and to posts dealt with in the first schedule of posts referred to in sub-section (2) of section 90 and the manner of selection for appointments to posts dealt with in the second schedule of posts referred to in that subsection etc. No regulations under clause (c) of sub-section (1) of Section 98 can be made except after consultation with the Commission. Recruitment Regulations for the post of Vaid/Hakim/Homoeopathic Doctors have been framed by the Corporation and have been sent to the Commission for approval but the approval is awaited. It is also true that sub-section (2) of Section 480 of the Act requires that no regulation made by the Corporation under the Act shall have effect until it has been approved by the Central Government and published in the official gazette. This has also not been accomplished as there is no approval of the Central Government and publication in the official gazette. The Recruitment Regulations framed by the Corporation, thereforee, have not achieved the status of statutory Regulations.

(6) It is the own case of the Corporation 'that until the rules are finalised, work of the Corporation or the Government cannot remain at a stand still and it must be carried on by executive instructions'. The framing of the statutory Recruitment Regulations is not a condition precedent to the making of -appointments to the vacant posts such as that of Vaid/Hakim/Homoeopathic Doctors. In the absence of statutory Recruitment Regulations, it is open to the Corporation to issue administrative instructions regarding the method of recruitment or the principles to be followed for making promotions or for making direct appointment to the posts like that of Vaid/Hakim/Homoeopathic Doctors. In 'Sant Ram V. State of Rajasthan' 1967 S.L.R. 906(1), it was held that in the absence of any statutory Rules governing promotions to selection grade posts the Government is competent to issue executive instructions and such administrative instructions may lay down the principles to be followed in promotion of officers concerned. It is true that Government cannot amend or supersede a statutory rule by administrative instructions, but if the rules are silent on any particular point, the Government can fill up the gap and supplement the rules and issue instructions not inconsistent with the rules already Framed. The same principle would be applicable to the Corporation which is a statutory body constituted under the Act to perform the functions and duties relating to the Municipal Government of Delhi. The respondents have themselves equated the Corporation with the Government in the matter of issue of executive instructions and its scope.

(7) The Commissioner exercising the powers of the Corporation under Section 490(2)(b) of the Act had framed the draft Recruitment Regulations. The Corporation by subsequent resolution No. 959 passed in February, 1979 amended the draft Recruitment Regulations for the posts of Vaid/Hakim/Homoeopathic Doctors by .modifying the quota of 50 per cent through direct recruitment and 50 per cent through departmental promotions. The Corporation acts under the Act by its resolutions and resolution No. 959 directed the method of recruitment as 50 per cent through -direct recruitment and 50 per cent through departmental promotions. These were the executive instructions issued by the Corporation and these administrative instructions had to be adhered to in making the appointments to the vacant posts. The Corporation has always been acting upon the draft Recruitment Regulations in other appointments. The non-existence of the statutory Recruitment Regulations. under Section 98 had nothing to do with the failure of the Corporation to act in accordance with their own executive instructions. The Corporation is expected to honour its own resolutions. Their action in refusing to do so is, thereforee, contrary to Article 16(1) of the Constitution guaranteeing equal opportunity in employment.

(8) The affidavit of Shri S. K. Khosla, Assistant Commissioner (Estt.) is that the administration was of the view than to attract best talents, recruitment to the post of Vaids should be done by direct recruits only, more so in view of the importance attached to the Indian System of Medicine to become an integral part of medical care and treatment of the people and that this decision was solely impelled by the motive that the very best of the available staff be recruited as Vaids who should be in charge of the dispensaries and whose main duties to prescribe the medicines needed by the patients. It has, however, not been made clear in the counter-affidavit as to what is the constitution of the administration'. If it is only the Commissioner who has decided it under Section 59 of the Act, then his decision runs contrary to the resolution of the Corporation which directs recruitment in the ratio of 50:50:: promotees:direct recruits. The Corporation's decision even though it does not achieve the status of statutory Recruitment Regulations, has to prevail over the decision of the Commissioner. The Corporation had prescribed the method of recruitment and the Commissioner could not by an arbitrary decision give it a go by. The absence of arbitrary power is the first essential of the rule of law upon which our entire constitutional structure is based. The resort by the Commissioner to only direct recruitment would be vocative of Articles 141 and 16 of the Constitution of India when the Corporation has laid down the quota for the recruitment to the post of Vaid/Hakim/Homoeopathic Doctors. Even though I may take the draft recruitment rules as executive instructions, yet they are required to be followed as a guideline on the basis of executive policy.

(9) Mr. G. N. Aggarwal has also placed reliance on 'Bhim Singh & Ors. v. The State of Haryana & Ors.' 1979 UJ.(S.C.) 829 and 'M/s. Motilal Padampat Sugar Mills Co. Ltd. v. The State of Uttar Pradesh and others', : [1979]118ITR326(SC) laying down -the doctrine of promissory estoppel and has attempted to apply to the recruitment to the posts of Vaids etc. I have not been able to appreciate this argument of the counsel for, there is no material on the record to show that the petitioners have believed the representation made by the draft Recruitment Regulations and have further acted thereupon. However, I am not inclined to express any considered opinion in view of my decision on the first submission.

(10) The result is that the writ petition is allowed. The Corporation shall not fill the posts of Vaids etc. in the Municipal Corporation of Delhi except in accordance with the draft Recruitment Regulations i.e. 50 per cent by promotion and 50 per cent by direct recruitment. It will, however, be open to the Corporation to modify the draft Recruitment Regulations. There will be no order as to costs.


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