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B.L. Sharma Vs. Delhi Transport Corporation - Court Judgment

LegalCrystal Citation
SubjectService
CourtDelhi High Court
Decided On
Case NumberCivil Writ Petition No. 187 of 1979
Judge
Reported in1985(8)DRJ51
ActsDelhi Road Transport Authority (Conditions of Appointment and Service) Regulations, 1952 - Regulation 5; Delhi Road Transport Laws (Amendment) Act, 1971 - Sections 4; Road Transport Corporation Act, 1959 - Sections 45
AppellantB.L. Sharma
RespondentDelhi Transport Corporation
Advocates: B.S. Charya and; S.N. Bhandari, Advs
Cases ReferredThe State of Punjab v. Dharam Singh (supra
Excerpt:
.....regulations, 1952--'officiating basis' has to be equated with 'on probation' according to the standing orders. the purpose of those standing orders was to confirm the employees after the period of one year. the officiation period could in no case exceed one year. where an employee appointed or promoted to a post on probation is allowed to continue in that post after completion of maximum period of probation without an express order of confirmation, he cannot be deemed to continue in that post as a probationer by implication. (paras 6 & 9) - - the orders in each such case will quite clearly lay down this condition and state that the employee concerned can be reverted to his original post any time without assigning any reason thereforee. they will only indicate that the..........is deemed to have been confirmed. (10) in the present case, the petitioner completed his one year officiating period on 21-2-1978 but instead of confirming him the officiating period was extended by an order dated 5-5-1978 with retrospective effect i.e. from 21-2-1978 for six months. this office order was not accepted by the petitioner but even after the expiry of the said order the period was further extended by another six months by another order dated 28-9-1978 till 21-2-1979. the petitioner made various representations against the said order but he received only short replies saying that the period was extended in accordance with rules and no specific rules were mentioned. (11) the petitioner being dissatisfied with the aforesaid two orders filed the present petition for.....
Judgment:

N.N. Goswamy, J.

(1) The short question for determination in this petition under Article 226 of the Constitution is whether the period of officiating promotion could be extended beyond the maximum period provided by the Rules/Standing Orders

(2) The petitioner was appointed as Assistant Store-keeper w.e.f. 2-4-1962 with the erstwhile Delhi Transport Undertaking. The service conditions were governed by the Standing orders and the regulations framed under the Delhi Road Transport Authority Act, 1950 called as D.R.T.A. (Conditions of Appointment and Service) Regulations 1952. Procedure for recruitment to various posts was laid down in Regulation No. 5. In addition to the said procedure, under clause 5, the respondent had issued certain standing orders for recruitment and promotions. In the present case, the relevant memorandum is No. ADMI-2 (127)/58-Vol. IlI dated January 12, 1959. The relevant portions of the said memorandum/standing orders is, as under:

'THE following policy decisions are hereby notified for the information, guidance and compliance of all concerned : 1. Initial Appointments...................... 2. Departmental Promotions: (a) All departmental promotions will hence forward be effected on an officiating basis. The orders in each such case will quite clearly lay down this condition and state that the employee concerned can be reverted to his original post any time without assigning any reason thereforee. The promotion will, thereforee, be conditional even though it is on an officiating basis. (b) Except in the case of officiating promotions affected to fill short term leave vacancies wherein the period of officiating promotion may be mentioned, all other long- term officiating promotions will not state any definite period. They will only indicate that the officiating promotion being ordered would hold good untill orders to the contrary are issued. (c) In the case of officiating promotions also, the procedure laid down under 1 (c), (d) and (f) will mutates Mutandi hold good. In this case, however, the decisions to be taken are whether to allow the employee concerned to remain in the higher post by declaring him as having put in satisfactory work during the period of officiating promotion and as deserving absorption of a long-term basis in the higher post concerned. (d) The officiating period shall in no case exceed one year and if during this period the employee concerned does not show promise and put in good and satisfactory work to deserve the promotion and be retained in the higher post, with the orders of the authority which issued the promotion orders, he will be reverted to his original post. These orders will be communicated to him in the same manner as prescribed under 1(d) above.'

(3) The aforesaid standing orders were re-iterated by another memorandum dated 30-3-1967 (annexure P7 to the petition). Clause 6 of the said memorandum is, as under :

'THE officiating promotion period shall in no case exceed one year and if during '.his period the employee concerned does not show promise and puts in good and satisfactory work to deserve promotion and to be retained in the higher post. he will be reverted to his original post after obtaining orders of the competent authority.'

(4) In yet another memorandum dated 19-10-1967, the aforesaid terms were re-iterated and it was mentioned :

'IN view of this, you are requested to adjudge the suitability of an employee to continue to work on a higher post within a period of one year, so as to ensure that the instructions in question are complied with. If an employee is not fit to continue on the higher post for any reason whatsoever, he can be reverted to the lower post without the need of extending the period of officiating promotion beyond one year. A copy of this memorandum is being endorsed to all T Ss. and A. W. Ms./A. Es. of Depots for their information and guidance.'

(5) The Delhi Transport Undertaking which was a wing of the Delhi Municipal Corporation was taken and set up as Delhi Transport Corporation by virtue of Delhi Road Transport Laws (Amendment Act) 1971 w.e.f. 3-11-1971. Section 4(e) of the said Act provides :

'(E) All Rules, Regulations, Appointments, Notifications. Bye-laws, Schemes, Orders, Standing Orders and forms relating to the Transport Service whether made under the Delhi Road Transport Authority Act, 1950 or under the Delhi Municipal Corporation Act, 1957 and in force immediately before such establishments shall, in so far as they are not inconsistent with the provisions of this Act, continue to be in force and be deemed to be regulations made by the new Corporation under Section 45 of the Road Transport Corporation Act, 1959 unless and until they are superseded by regulations made under that section.'

(6) There is no dispute that Section 4 (e) of the Act had saved the standing orders referred to above since the respondents did not even file a counter affidavit to the writ petition in spite of the fact that the writ petition remained pending in this Court for over five years. All the same, this matter stands concluded by the judgment in D. T. C. v. Surender Kumar, L. P. A. 6/76 decided on September 30, 1977 by a Division Bench of this Court. The Division Bench had the occasion to consider the effect of Section 4 (e) (f) of the Amending Act. The Bench expressed that the effect of Section 4 (e) was that all orders/regulations etc. relating to transport service, whether made under D.RT.A. Act or under the Municipal Corporation Act and in force immediately before the establishment of the new Corporation were to continued to be in force were deemed to be regulations made by the new Corporation under Section 45 of the Act unless and until they were superseded by regulations made under Section 45 of the Act. The effect of Section 4 (e) of the Amending Act is stated in very clear terms. The Legislature in its wisdom by a deeming fiction provided that all regulations and standing orders whether made under the D. R. T. A. Act or the Delhi Municipal Corporation Act and in force immediately before the establishment of the new Corporation continued to be in force. The Legislature further wanted to remove a distinction between the rules, regulations, bye-laws, standing orders or orders and elevated them to the status of regulations by a deeming fiction.

(7) It is alleged in the petition that the petitioner and several other persons working as Assistant Store-keepers were subjected to considerable harassment. humiliation and mental torture inasmuch as the respondent had not been observing rules and procedure as required under law for promoting the petitioner and other concerned Assistant Store-keepers to the post of Store-keeper although all of them including the petitioner had put in long tenure of service as Assistant Store-keepers ranging between 3 to 15 years. The Assistant Store-keepers accordingly formed a union and the petitioner was its General Secretary. The matter was taken up with the appropriate government and the dispute was referred as an industrial dispute to the Industrial Tribunal. The Industrial Tribunal made the award in favor of the workmen in 1976. After the award was made the respondent released an order dated 17-11-1976 whereby as many as 42 candidates including the petitioner were to appear before the Staff Selection Committee for interview for promotion to the post of Store-keepers on 24-11-1976. The name of the petitioner found place at Seriall No. 13 of the said list. The Staff Selection Committee selected 14 persons and the Deputy Personnel Officer released an order dated 21-2-1977 to the effect that the petitioner and 13 others were promoted as Store-keepers w.e.f. 22-2-1977. The name of the petitioner finds mention at Seriall No. 2 of the said order Thereafter another order was passed on 22-2-1978 to the effect that the persons mentioned in the said order who were promoted on ad hoc basis were to be treated as having been promoted on officiating basis from the same dale. The name of the petitioner was again at Seriall No. 2 in the latter order.

(8) It is an admitted fact that the petitioner and 13 others mentioned in the order were promoted as Store-keepers on officiating basis against regular vacancies. It has also not been denied that except the petitioner and Ram Singh who was at Seriall No. 9, the other 12 persons were treated as having been confirmed after the expiry of one year from 21-2-1977. The standing orders reproduced above and read as a whole leave no manner of doubt that the term of 'officiating basis' has to be equated with 'on probation'. The aforesaid standing orders in terms mentioned that in order to avoid any disciplinary proceedings, it is necessary that the reports of the persons on officiating basis should be sent to the authorities concerned within the period of one year so that action, if any, can be taken without resorting to disciplinary proceedings. This clearly indicates that the purpose of those standing orders was to confirm the employees after the period of one year. The officiating period could in no case exceed one year and if during that period the employee concerned did not show promise and put in good satisfactory work to deserve promotion he could be reverted within that period. This indicates that he could not be reverted after the expiry of the said period of one year.

(9) It is true that the Supreme Court has consistently held that when a first appointment or promotion is made on probation for a specific period and the employee is allowed to continue in the post after the expiry of the period without any specific order of confirmation he should be deemed to continue in his post in the absence of any indication to the contrary in the original order of appointment or promotion or the service rules. In such cases express order of confirmation is necessary to give the employee a substantive right to the post and the mere fact that he is allowed to continue in the post after the expiry of specific period of probation it is not possible to hold that he should be deemed to have been confirmed. However, in the case of State of Punjab v. Dharam Singh, : [1968]3SCR1 . The Supreme Court considered the relevant rule which forbids the extension of period of probation beyond three years In that case it was held that where an employee appointed or promoted to a post on probation is allowed to continue in that post after the completion of maximum period of probation without an express order of confirmation he cannot be deemed to continue in that post as a probationer by implication. The reason given was that such an implication is negatived by the service rules forbidding extension of the probation period beyond the maximum period fixed by it. It was held that in those circumstances the employee was deemed to have been confirmed on the expiry of maximum period of probation. The same principle would apply to the facts of the present case wherein repeatedly it was provided in the standing orders that officiating period was in no case to go beyond one year. It has to be held that after the completion of that one year the employee is deemed to have been confirmed.

(10) In the present case, the petitioner completed his one year officiating period on 21-2-1978 but instead of confirming him the officiating period was extended by an order dated 5-5-1978 with retrospective effect i.e. from 21-2-1978 for six months. This office order was not accepted by the petitioner but even after the expiry of the said order the period was further extended by another six months by another order dated 28-9-1978 till 21-2-1979. The petitioner made various representations against the said order but he received only short replies saying that the period was extended in accordance with rules and no specific rules were mentioned.

(11) The petitioner being dissatisfied with the aforesaid two orders filed the present petition for quashing of the aforesaid two orders. He also filed an application under section 151 of the Code of Civil Procedure for maintaining status quo during the pendency of the writ petition as it was alleged that the purpose of extending officiating period was to revert the petitioner. Notice of the application for stay was issued to the respondent- corporation. The counsel for the respondent-corporation appeared before this Court on 16-2-1979 and sought one week's time to file reply to the application. The time, prayed for, was granted, but it was directed that in the mean time, any reversion, that may be made, will be subject to the result of the writ petition. The case was adjourned to 28-2-1979. Instead of waiting for the said date the respondent-corporation passed an order on 20-2-1979 whereby the petitioner was reverted to the post of Assistant Store-keeper. The petitioner, on receipt of the said order, filed an application for granting stay of the said order, but this Court (S.S. Chadha, J.) observed that he had already directed on 16-2-1979 that any reversion that may be made, will be subject to the result of the writ petition and because of that observation, the application was dismissed, as infructuous.

(12) As I have already said above, it was not disputed that the rules governing the promotion were as given in the standing order dated January 12, 1959. According to clause 2(d) of the said standing orders the officiating period could not exceed one year and the petitioner if had to be reverted could be reverted only during that period. After giving my careful consideration to the facts of this case, I am of the view the the ratio of the cases The State of Punjab v. Dharam Singh (supra), fully applies to the facts of the present Case. The order, in any case, is discriminatory inasmuch it was not disputed that 12 persons out of 14 mentioned in the older of appointment were treated as having been confirmed after the expiry of one year from 21-2-1977. The allegations of the petitioner in the petition as also in the various representations that he was being treated discriminately because of the fact that he was taking active part in the trade union activities seems to be correct. The respondent did not produce before this Court any adverse entries made against the petitioner during the period of one year when he was to be on officiating basis. In fact,the respondent has not even filed a counter affidavit to the writ petition which remained pending for about five years. In the circumstances I have no option but to quash orders dated 5-5-1978, 28-9-1978 extending the officiating period and the order dated 20-2-1979 whereby the petitioner was reverted as Assistant Store-keeper.

(13) For the reasons recorded above, the rule is made absolute in terms indicated above and the petitioner will be deemed to have been confirmed as Store-keeper on the expiry of one year from 21-2-1977. The petitioner will be entitled to his costs. Counsel's fee Rs. 500.00 .


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