# H.C. SHARMA v. MUNICIPAL CORPN - **Citation:** [1983] 3 S.C.R. 372 - **Court:** Supreme Court of India - **Decided:** 1983-07-13 - **Case number:** writ petition No. 221 of 1979 - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/h-c-sharma-v-municipal-corpn-8369 - **Pages:** 41 ## Headnote A .B c D E F G H 372 H. C. SHARMA AND OTHERS. v • . MUNICIPAL CORPORATION OF DELHI AND OTHERS July 13, 1983 V.D. TU,LZAPURKAR AND A. VARADARAJAN, JJ. ConstitutiOn of India-Arts. 14 and 16-Scope of-Carving out two classes in· the sa1ne category on the ~asis nierely of qualification- n~t perniissib!e. Deihl Municipal Corporation Act, 1957-Secs. 47 and 480(2)-sCope ofDelhi Municipal Corporatioit-A statutory authorUy-Not bound by policy of C.P.1V.D. unless adopted by its resolution. Recruitment ·Regulations dated 27.6.19?0 made with approval of Central_ Government under sec. 480(2) Applicable prospectively, Appointment" of Assistant Engineers (Civil)-Quota rule50 per cent by pro1notion and 50 per cent by direct recruittnent-Validity of. Appoint1nent of Jr. Engineers as Assistant Engineers on curre.nt duty charge basis for long periods.-:-lrregu/ar. TI1e first respondent, Municipal Corporation of Delhi, put up an advertisen1ent in the press on 30·12~1978 for filling up 8 posts of Assistant Engineers (Civil) by direct recruitment. PUrsuant to the interviews held in this \"Jehalf a list of selected candidate3 out of Graduate Junior Engineers was prepared and approved On 2.5.1979. The list was pending final decision about the appointment of the direct recruits selected for these 8 posts. By its office order dated 10.4.1978 the first respondent entrusted 6 diploma holders Junior. Engineers with current duty charge of the posts of Assistant Engine"ers and by office order dated 21.6.1979 pron1oted two diplon1a holder Junior .Engineers as Assistant Engineers on current duty charge. Feeling that the proposed direct recruitment would be detrimental to their interest, the petitioners, who were diploma holder Junior Engineers of the first respondent, filed writ petition No. 221 of 1979 under Art. 32 of the Constitution, praying for dfrections to be issued to the first respondent to restrain the first respondent from recruiting Assi~tant Engineers directly; to give effect to the recomn1endations of the.Third Pay Commission regarding the rules and policy of promotion etc; to reckon the seniority of the petitioners with their length of service and not to affect in any manner all those holding adhoc charge a:nd current duty cha"rge. The petitioners also_ prayed for quashing the seniority list dated 2.9.1978 (Annexure Gin writ petition 1194 of 1979), The petitioners contended that the first respondent should have suspended the direct recruitment of Assistant Engineers and that the rule prescribing a quota of 50 per cent by promotion and 50 per cent by direct recruitment laid down in the recruitment regulations dated 27.6.1970 should not be followed. The petitioners submitted that the first respondent Corporation had been following the pattern of functioning current in the Centcal Public Works Department (C.P.W.D.) in all matters of recruit· μientf ?roμiotion anQ - . . . ... ...... • H.C. SHARMA V. MUNICIPAL CORPN. 375 neers and consequently th.ey cannot question. the correctness of the seniority Iist"dated 2.9.1978 relating to Assistant Engineers. As they have not yet been regularly appointed or promoted aS Assistant Engineers they cannot have any grievance about their names not being mentioned in that seniority list. Therefore, there is no need to quash the seniority list dated 2-9-1978 or to give any direction to respondent I to reckon the· seniority of the petitioners with the length of their services. (401 C.E, 410 H,,411 A-BJ Continuin,:? Current Duty Charge and Adhoc appointments for period exceeding the period of one year mentioned in the memorandum dated 30.12.1976 of the Government of India is irregular though that ?viemorandum could not be stated to be automatically binding on respondent I. What is ·totally w~ong is that appointment of Junior Engineers on Current Duty Charge as Assistant Engineers has been made by the impugned order dated 21.~.1979 even after the approval of the select list prei:ared for the appcintmcnt of 8 Assistant Engineers without issuing orders for appointment even to 8 out of those, persons who are in the select list. The appointment of 6 Diploma Holdei- Junior Engineers by the order dated 10.4.1978 (Annexurc;: J) and of 2 such Junior Engineers by the order 21.6.1979 (Annexure ~1) as Junior Engineers on Current riuty Char&e for periods which are proved to be too long is irregular and the same is quashed. Respondent I shall issue orders of .appointment to 8 De&ree holder Junior Engineers out of those in the select list approved on 2.5.1979 within one month from this date and complete the appointment of A~sistant Engineers fbr the remaining posts on regular basis in accordance with the quota fixcP.in the Recruitment Regulations within six months fro~ this date until which t{D!e the Current Duty Charge holder and Adhoc appointees according to seniority A B c D · will continue to n1an the remaining posts. Respondent I shall not make ,E Current Duty Charge/Adhoc appointments and promotions except strictly and truly in accordance with the instructions and Regulations and other instructions, ir any, issued in that regard. [408 H, -109 A-EJ Declaring the petitioners Graduate Engineers as a separate category amongst Junior Engineers and giving them equal quota like the .Qiploma. holder Junior Engineers out of the 50 per cent for proniotion cis Assistant Engin.;:ers, cannot be done except by carving out two classes in the ~a~e category of Junior Engineers on the basis merely of thCir qualification which is not permissible in law though the creation of selection grade in the same category on the basis of merit and seniority is well known and- pcrmisslbl~. The Junior Engineers do the same kind of work and bear the same responsibili· ties whatever their qualification.whether they are, degree holders or diploma holders. (411 C-E] · S. B. Patwardhan v. Maharashtra, (1977) 3 SCR 775 referred to. F G The petitiOI_lers in Writ Petition 1194 of 1979 cannot be allowed to blow hot and cold. In regard to the policy of suspension of direct recruitment H of Assistant Engineers (fo'r ?_years w.e.f. 1.4.1972) their contentioh is that the ?o!icy of the C.P.W.D. c~nnot apply automatically to the Corporation until •t 1s adopted b~ a resolution. Now ~n re~ard to the plannin~ allowance thef A 376 SUPREME COURT REPORTS (1983) 3 S.C.R. cannot be heard to say"that the revision should be made automatically from J.1.1979 following the C.P.W.D. pattern. Evidently, the Corporation has resolved to grant the upward revision only from 19.5.80. The petitioners are nOt entitled to claim the revjsion ftom 1.1.1979 itself and they have to be satisfied with the revision effected from 19.5.80. [410 C-E] ORIGINAL JURISDICTION: . Writ Petition Nos. 221 & 1194 of B 1979. c D E F G H Under article 32 of the Constitution of India. (Jn WP. 221 /79) : Mrs. Shyam/a Pappu and A. _Minocha for the Petitioner. U.R. La/it, B.P. Maheswari, Suresh Sethi and Miss Asha Rani Jain, for the Respondents Nos. 1-2. R.P. Sharmafor the Respondents 9, 13 and 28. G.L. Sanghi, Miss Kamini Jaiswa/ and Miss Nishi Puri for Mrs Urmi/a Kapur for the Respondents Nos. 3,4,6,10, 12,13,20,38,44 ahd ,45. (Jn WP. No. 1194/79) : V.M. Tarkunde, Miss Kamini Jaiswa/ "and Miss Nishi Puri for· the Petitioners I to I 0. . - . G.L. Sanghi, Miss Kamini Jai•wa/ and Miss Nishi Puri for the Petitioners 11-21. U.R. La/it, B.P. Maheshwari and· Suresh.Sethi for Respondents . land 2. S.C. Gupta and Ramesh Chand for Respondents Nos.· 13,25 and 27. '. The Judgment of the Court was delivered by VARADARAJAN, J. The petitioners in these two Writ Petitions fil~d under Article 32 of the Constitution, are Junior Engineers of the first respondent, Municipal Corporation of Delhi. W.P: No. 221 Qf 1979 has been, filed by Diploma-jiolders a1I1on8st the Junior +- \,.. . .. _ _, it.c. SHARMA v. MUNICIPAL CORPN. (Varadarajan, J.) 3j7 Engineers for the issue of Writ of mandamus or other appropriate writ to : A (I) Restrain respondent I from .. recruiting Assistant Engineers directly and filling up the posts of Assistant Engineers; (2) Direct respondent I to give ·effect to the recommendations of the Third Pay Commission · regarding the rules and policy of promotion etc; (3) Quash the seniority list (Annexure G) prepared by respondent I; (4) Direct respondent I to reckon the senwnty of the petitioners with their length of service; and B c (5) Direct respondent 1 not to affect in any manner air D those holding adhoc charge and current duty charge. W.P. No. 1194 of 1979 has been filed by Graduate Junior Engineers as well as Graduate Junior Engineers selected for appointment directly as Assistant Engineers for the issue of a writ of mandamus, certiorari or any other appropriate writ to : (1) Direct respondent I to fill up eight posts of Assistant Engineers amongst those in the Select Panel; (2) Quash Office Order dated 10.4.1978 (Annexure I) entrusting Junior Engineers with current duty charge of the posts -of Assistant Engineers and the . Office· . Order dated 21.6.1979 (Annexure M) promoting two Junior Engineers as Assistant Engineers on current duty charge on their own pay scale; (3) Direct respondent 1 to fill up the remaining posts of ·Assistant Eμgineers in the direct ·recruitment quota from amongst the empanelled petitioners who are E F G Graduate Junior Engill,l'ers; H (4) Declare the petitioners-Graduate Junior Engineers . as a separate category and give them equal quota · A B c D li1 F G H 378 s\JpiulMI! COURT REPORTS (19S3j ~ s.c.R. under the departmental promotee quota in the .posts of Assistant Engineers; (5) Restrain respondent 1 from giving adhoc promotions to current duty charge holders amongst Junior Engineers; (6) Declare that the petitioners Graduate Junior Engineers in the service of respondent I are entitled to be put on par with their counter-parts in ·other governinent departments; ' (7) Direct respondent 1 to grant revised pay scales . of Rs. 550-900 to the petitioners and other Graduate Junior Engineers as in the 'case of Graduate Engineers in Class III service in other government departments with effect from the date it is made applicable in the Central Public Works Department in view of the decision in Ram Kumar and Ors. vs. Union of India; and (8) Direct respondent I to revise special pay from Rs. 40 to Rs. 75 per mensem to the petitioners and other Graduate Junior Engineers entitled thereto from 1.1.1979. The case of the petitioners in W.P. 221· of 1979. (Diploma· holders Junior Engineers) is that they are holding the posts of Junior Engineers in the service of respondent I for 16 to 18 years having joined service as Junior Engineers during 1967.to 1970. while respondents·.3 to 46 are those who have been directly recruited as Assistant Engineers during 1974-78 in contravention of the de.clared policy of . of the Government barring direct recruitment. The next promotional posts to the petitioners are Assistant Engineers. The first respon- . dent has been resorting to direct recruitment to the posts of Assistant Engineers to the extent of 50 per cent resulting in stagnation of the petitioners in the grade of Junior Engineers. It has been following the pattern of functioning current in the Central Public Works Department, herein.after referred to as 'CPWD' in all matters of recruitment, proinotion and other conditions of service. The CPWD had decided to suspend direct recn'iitment to the Central Engineering Service because no· promotional chances were available to the Central )3ngineering/Electrical Engineering Service (Class II). That decisiol) • itc. S)IARMA v. MUNICIPAL CORPN. (Varadarajan, J.) 379 taken in Angust 1975 became effective from 1.4.1972 (Annexure 'B'). The first respondent has taken a decision by Resolutions Nos. 416 ·A and 78 dated 27.7.1970 and 21.2.1971 to the effect that all fundamental rules and supplementary rules including amendments and orders issued by the Central Government shaU be treated as rules etc. of the first respondent Corporation. Similarly, the Central ' . Services Conduct Rules as applicable to Central Government and the . general fundamental rules including amendments and orders issued by tl•e Central Government have been made applicable to the first respondent Corporation. As soon ·as ·the petitioners learnt that there is suspension of direct recruitment in the CPWD the petitioners invited the attention of the first respondent to that fact in November 1975 and requested for banning of direct recruitment of Assistant Engineers and were given an assurance that their rights will not be over-looked. The petitioners made several representations . including _the last one dated 24.1.1979 (Annexure 'E'). The then Commissioner of the first respondent assured the petitioners orally that the practice adopted by the CPWD will be.followed by the first respondent, but he however, wrote to the petitioners saying that the matter was under consideration. The petitioners met the Deputy Commissioner of the first respondent on 23. Li 979 and protested against the advertisement made in the Press to fill up eight posts of Assistant Engineers by direct recruitment, and as he accepted the suggestion of the petitioners they expected ·that the advertisement will be withdrawn. Respondent 1 is, however, bent upon going ·ahead with the direct recruitment though more than 275 out of 400 Junior Engineers aspiring for promotion as Asst!. Engineers are eligible for consideration. The Central Government . has power of general superintendence over the first respondent and it .. has informed the Jl.fsf respondent by letter dated 23.2.1976 (Al\nexure 'F') that consequent on the recommendation of the Third Pay Commission the first respondent may ban direct recruitment as has been done by the CPWD. ·The Director in the Office of the Director-General of Works, Government of India informed the Assistant Commissioner (Establishment) of . the first respondent by letter dated 16.2. !978 (Annexure 'Fl') that direct recruitment to CES/CEES Group B was still under suspension. Though no specific reference has been made in the Third· Pay Commission's Report to Junior Engineers of the first r~spondent Corporation, its recommendations have been followed _by the first respondent, and its employees are treated in the same manner as employees of the Central Government are treated by the Government, their pay scales and service conditions being the same. The proposed direct recruitment · B c D E F G A B c D E F G 3~0 SUPRllMB COURT REPORTS (1983) l ~.C.R. to eight posts. of Assistant Engineers is detrimental to ihe interests of the petitioners in the light of the Central Government's memorandnm ·of the year 1959 relating to seniority. The first respondent should, therefore, be directed to follow the same policy as is being followed . by . the Engineering Department· of the Central Government. The details of the appointments of respondents ·3 to 46 who have been directly recruited as Assistant Engineers dutin~ the years 1974-78, given in Annexure A-1, would show that the direct recruits of the year 1974 rank higher and above· the petitioners who are. ·recruited much earlier. Of the 400 Junior Engineers in the service of respondent I, 36 are holding current duty charge as Assistant Engineers from 1978 and· several others are holding charge as Assistant Engineers on adhoc basis. Those Junior Engineers who are officiating as.Assistant Engineers ought to be. treated as regularly. appointed Assistant Engineers. However, their names are not shown In the seniority list (Annexure 'G' circulated on 2.9.1978. That seniority list has been prepared on the basis of the memorandum issued by the Central Government in December 1979 which is similar to the seniority rules which has been struck down qy this Court in the case of S. B. Patwardhan and Ors. etc. etc. v. State of Mahrashtra & Ors.(') Respondent I is drawing the seniority list without any authority of law by putting one promotee and one direct recruit thereafter and so on in accordance with the .instructions of the Central Government; according to which those confirmed earlier would rank senior to those confirmed later. The conferment of artificial seniority by respondent I deprives the petitjoners of their actual seniority and is destructive of the fundamental right to equahty. The first respondent-Corporation has filed counter-affidavit contenjing that the Corporation has to be guided by its own rules relating to its Engineering Service though the conditions of service under it could not be less attractive than those prevailing in the CPWD in order that it may attract proper ·engineering talents. All appointments in the Corporation carrying a minimum salary of less than Rs. 700 per mensem could be made by the Commissioner of the Corporation since 10.1.197 5 · in accordance with the recruitment rules which have been framed in consultation with the Union Public Service Commission though prior to· that date consultation with Union Public Service Commission was essential in the matter of (1) A.l.R. 1977 S.C. 2051. . -i H.c. SHARMA v. MUNICIPAL CORPN. {Varadarajan, J.) 381 appointnient to posts carrying a minimum salary of Rs. 350 and above per mensem. After from Executive Engineers and Superintending Engineers, the Engineering Service (Civil) in the first respondent-Corporation consists of: (I) 450 Junior Engineers in the pay scale of Rs. 425-700; of which 80 per· cent is filled by direct recruit· ment with the minimum qualification of Diploma in Civil Engineering and 20 percent is filled by promofon from amongst Works Assistants already in the service of the Corporation with Diploma in Civil Engineering and minimum ·experience of two years; (2) 13 Selection Grade Junior Engineers in the pay scale of Rs. 550-900 to be filled oy promotion of Junior Engineers on completion of 12 years of service on the basis of seniority and.(3) 99 Assistant Engineers in the pay scale of Rs. 650-1200, of which 50 per cent is to be filled by promotion and 50 per cent by direct recruitment. A Degree in Civil Engineering and two years of professional experience are essential for direct recruits . while for promotees from the cadre of Junior Engineers a minimum experience of three years of service for Degree-holders and five years of service for Diploma-holders in the grade of Junior Engineers are ess.ential. Higher posts of_ Executive Engineers. and Superimending Engineers were primarily filled up by promotion of Assistant Engineers and Executive Engi· neers. respectively. These higher posts require better qualifications and experience. For that purpose 50 per cent of posts of Assistant Engineers are reserved for direct recruitment for which a Degree in Civil Engineering and two years of professional experience ar_e essential qualifications. \ . All posts to be filled by direct recruitment have to be advertised and the candidates have to be called for interview and the selection made has to be approved by the Corporation. Even for promotion, a Departmental Promotion Committee with a member of' the Union Publice Service Commission has to be· constituted and a list of eligible candidates has to be prepared and they have to be screened before the selection is made. All this takes time and the work of the Corporation ca~not remain unatteuded in the meanwhile. Therefore, senior personnel from the imme· diate lower category of officers are drafted to the vacant posts on adboc basis with pay and· other emoluments due to the posts )leld under current duty charge, but without any right to that post which has·to be filled by either promotion or direct recruitment as per the rules. The recruitment to higher grades of Executive Engineers aud Superintending Enginee\S being primarily by promotion from Assis· \ant Engineers and. Executive· Engineers respectively, the only. avenue A B c D E F G H A B c D E F G H SUPREMll COURT REPORTS (1983J 3 S.C.R. to have engineers with better qualifications is by direct recruitment of Assistant Engineers to the extent of 50 per cent. If that avenue of direct recruitment is closed, there will be no source from which better qualified Engineers with higher Degree qualifications will become available. The Corporation considered the question of suspending direct recruitment of Assistant Engineers· on several occasions, but it came to the conclusion .that it is neither feasible nor desirable to do so in the ·interests of the Engineering Department. The Writ Petition has net disclosed any violation of any right much less a fundamental right of the petitioners. The petitioners have no right to force the first respondent-Corporation, a statutory body, to exercise its discretion in particular manner which is against the rules. The Municipal Corporation, Delhi is a statutory authority, which is no doubt controlled bY· the Central Government to the extent mentioned in s. 487 o(the Delhi Municipal Corporation Act, 1957. The Recruitment Regulations for the posts of Assistant Engineers (Civil) were notified in the Official Gazette on 27.6.1970 (Annexure 'Rl'J. They provide for recruitment Df Assistant Engineers to the extent of 50 per cent by promotion of Junior Engineers and to the extent of 50 per cent by direct recruitment. The CPWD had decided to .suspend direct recruitment to the Central Engineering Service Class II for seven years from 1972. The first respondent has resolved by Resolution No. 50 dated 20.7.1964 to adopt the CPWD patten of work with regard to execution of works alone and not with regard to the mode of recruitment and other service matters. The Central Government rules ar~ made applicable to the employees of respondent- I only on their adoption and approval by . the Corporation; otherwise its employees are governed by the rules and regulations framed by the Corporation itself under s. 98 of the Delhi Municipal Corporation Act, !957. The representations re· ceived from time to time for suspension of direct recruitment of Assist~nt Engineers were duly considered but it .was found that there is ·no justification to comply with the request, and a decision in that regard was taken by the Council of the Corporation on 19.4.1978 (Annexure 'R2'). Out of 401 Junior Engineers, one is unqualified; 343 are Diploma-holders and only 57 are .Graduates in Civil Engi-· neering. The decision to fill up eight posts of Assistant Engineers by direct recruit was taken in view of the short-fall in the direct recruitment quota compared to the promotion quota in accordance with Recruitment Regulations which provide for filling up 50.per Ii.c. SHARMA v. MUNI~IPAL CORPN. (VaraJarqjan, J.) 383 cent by promotion and 50 per cent by direct recruitment of Assistant Engineers though sufficient number of Junior Engineers amongst Diploma-holders had become eligible for the posts of Assistant Engineers. The practice of suspending direct recruitment followed by other departments of the Central Government cannot, therefore, be followed 'by respondent I. Section 47 of the Delhi Municipal Corporation Act provides for directions being given by the Central Government. But the Central Government's letter dated 23.2.1976. to the effect that consequent on the recommendations of the Third Pay Commission, respondent I may !:>an direct recruitment as has been done by the CPWD was not written in a~cordance with power conferred by Section 47 of the Delhi Municipal Corporation Act and it cannot, therefore, be taken as a directive from the Central Government. The relative seniority of direct recruits and promotees has been determined in accordance with the instructions contained in the Ministry of Home Affairs' Office Memorandum No, 9/11/55-RPS dated 22.12.1959. Out of 401 Junior Engineers, 36 persons are holding the posts of Assistant Engineers on adhoc · basis in the Junior Engineer's pay scale and they are liable to be reverted as Junior Engineers as and when the posts are filled up on a regular basis in accordance with the Recruitment Regulations. The officers appointed on adhoc basis and current charge basis cannot be treated as regular appointees in the absence of appointments in accordance with the Recruitment Regulations, and, therefore, their names have been rightly not included in the seniority list. The persons confirmed earlier are ranked as seniors to persons who are officiating in the grade in accordance with para 3 of the Home Ministry's Office Memorandum dated.22.12.1959 and there is no infringement of any fundamental right of the petitioners. Respondents 3 to JO and 12 to 15 have filed counter-affidavit contending that prayers Nos. 1, 2 and 4 in W.P. No. 221 of 1979 . are in direct violation of the Recruitment Regulations relating to Assistant Engineers. Respondents 3 to 7 appeared before the Union Public Service Commission and were duly selected as Assistant Engineers on 2.1.1974 as mentioned in the Office order dated 4.6.1975 of the Assistant Commissioner (Establishment) of the first ·respondent (Annexure 'RA-I'). Repondents 8 to 18 of whom respondent 11 bad died a few years ago also were appointed as Assistant Engineers with effect from 2,J.19.74 in the direct recruitment quota. Respondents 19 to 46 also were appointed as Assistani Engineers on various A ' B c D E F G I A ' B c D E F IH SUPREME COURT REPORTS · [!98JJ 3 s.c.R. dates after 2. l.1974 in the direct recruitment quota .. Therefore, it is not open to the petitioners to question the seniority of respondents 3 to 4~ fixed long ago in according with statutory rules. Respondents 3 to 10 and I 2 to 17 are working as Executive Engineers on adhoc . basis for over four years. The promotional policy of respondent l is in accordance with the statutory rules approved in 1970 in consultatiOn with· the Union Public Service Commission and are neither a;bitrary nor without . authority of Jaw. There has been no ban on direct recruitment to. 50 per cent of the posts of Assistant Engineers as.per the Recruitment Regulations. Respondents 3 to 46 are Graduates in Civil Engineering and more qualified than the petitioners who are only Diplomaholders. The petitioners are eligible to promotion as Assistant Engineers in the 50 per cent promotion quota. The first respondent . ' is not following the pattern of the current functioning of the;:'CPWD in the matter of recruitment and other service conditions but has its own Recruitment Regulations which have been approved by the Union Public Service Commission and duly notified on 27.6.1970. The CPWD has suspended direct recruitment of Assistant Engineers in Class II temporarily for seven years from 1.4.1972. Direct recruit· ment of Assistant Engineers is resorted to by respondent 1 for having ~ighly qualified and talented Engineers and maintaining standards and efficiency. The petitioners cannot have any grievance against direct recruits ofT