Full Judgment Text
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PETITIONER:
D.M. BHARATI
Vs.
RESPONDENT:
L.M. SUD AND ORS.
DATE OF JUDGMENT19/09/1990
BENCH:
RANGNATHAN, S.
BENCH:
RANGNATHAN, S.
AHMADI, A.M. (J)
CITATION:
1991 AIR 940 1990 SCR Supl. (1) 580
1991 SCC Supl. (2) 162 JT 1990 (4) 622
1990 SCALE (2)677
ACT:
Service Law: Bombay Municipal Corporation--Deputation
from one Establishment to another--Promotion obtained in the
Establishment deputed to--Whether confers any right for
higher posts in the parent department, on reversion.
HEADNOTE:
The appellant was appointed as a Tracer in the Municipal
Corporation in 1955. with the appointment of a Town Planning
Officer in 1957. the appellant came to be appointed as a
Tracer in the Town Planning Establishment. Later, the post
of Junior Draftsman fell vacant in the Town Planning Estab-
lishment. Respondent No. 6 was posted to fill the vacancy.
However, his appointment was cancelled shortly thereafter
and the appellant was appointed as Junior Draftsman with
effect from 4.12. 1959.
The next higher post of Surveyor-cum-Draftsman fell
vacant in 1962.. Meanwhile, the appellant was suspended. The
Industrial Court granted approval for his removal from
service, but suggested that he may be reappointed. Accord-
ingly. the appellant was appointed afresh as junior Drafts-
man in the Estates Department of the Municipal Corporation
where he was previously working.
Aggrieved, the appellant filed a writ Petition before
the High Court. Setting aside the order. the High Court
remanded the matter to the Industrial Court for fresh dis-
posal. The Special Leave Petition preferred by the employer,
viz., the Municipal Corporation against the High Court’s
order was dismissed.
The Industrial Court reheard the matter and declined
approval for the removal of the appellant from service. The
appellant was reappointed as Junior Draftsman in the Town
Planning Establishment which was abolished subsequently, and
he was reverted to the service of the Municipal Corporation
as a Tracer, and not as a Junior Draftsman. The appellant
filed an appeal against the said order. but it was rejected
on the ground that direct recruits were already working as
Junior Draftsmen and that there was no vacancy against which
the appellant could be appointed.
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The appellant moved the High Court by way of a Writ
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petition. contending that since he had been appointed as
junior Draftsman in the Town Planning Establishment, he
could not be repatriated to a lower post, viz.. Tracer in
the Municipal Corporation. It was also contended that the
Deputy Municipal Commissioner, was a person lower in rank
than the appointing authority viz., the Municipal Commis-
sioner and hence the order passed by him was without juris-
diction.
The High Court proceeded on the footing that the appel-
lant was on deputation from Municipal Corporation to the
Town Planning Establishment and dismissed the writ Petition.
The appellant has preferred this appeal against the High
Court’s order dismissing his Writ Petition.
Dismissing the appeal, this Court.
HELD: 1. I The appellant’s promotion as junior Draftsman
and proposed promotion as Surveyor-cum-Draftsman in the Town
Planning Establishment cannot confer any rights on him in
his parent department. When he left the Municipal Corpora-
tion and joined the Town Planning Establishment he was a
Tracer and he can go back to the Estate Department or any
other Department of the Municipal Corporation only to his
original post i.e.. as Tracer, subject to the modification
that, if in the meantime he had qualified for promotion to a
higher post. that benefit cannot be denied to him.
1.2 The order dated 16.8. 1965 was passed in pursuance
of the recommendation of the Industrial Court, while approv-
ing the appellant’s removal, that he may be reconsidered for
appointment. In view of this order of the Industrial Court,
the appellant had to be given a posting and since he had
been discharged from service when he was a Junior Draftsman.
orders were passed appointing him as junior Draftsman. This
again was made as an order of fresh appointment and the
appellant’s representation that he should be given seniority
was rightly not accepted. There is also the further fact
that the appellant was relieved from this post with effect
from October 1, 1967. There has been, apparently, no chal-
lenge to this order. Moreover, theses orders lost their
basis once the petitioner was restored to his post in the
Town Planning Establishment. In these circumstances the
order dated 16.8.65 or the determination of his seniority in
1966 are of no relevance to the present case.
2.1 What the appellant is really attempting is to challenge
the
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appointments of Respondents 6 to 11, which had been made in
1963-64, by a Writ Petition filed in 1978, more than a
decade after the above selections and appointments had been
made. It is true that, at that time the appellant, was under
a cloud because he had been suspended and subsequently
removed from service. But all the same, if he had desired to
challenge those appointments, he should have taken immediate
steps. Anyhow, these obstacles had disappeared when the
tribunal, on remand by High Court, had and disapproved the
appellant’s removal from service by the order dated
13.5.1964. Atleast in 1971, when the order was passed re-
storing him to the position of Junior Draftsman in the Town
Planning Establishment, he could and should have taken steps
to Obtain his "pro-forma" promotion in the parent depart-
ment. The fact remains that he took no effective steps to
challenge the appointment of respondents 6 to 11 from 1963-
64 right upto 15.2.1978, when he filed the Writ Petition or
atleast upto 1.10.1976, when he made a representation
against the order of reversion.
2.2 S. 54(2) of the Municipal Act, dispenses with the
Staff Selection Committee when it is proposed to fill the
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appointment from among persons already in municipal service.
But the nature of the recruitment that took place is not
known. That apart, the constitution of a Staff Selection
Committee to decide upon the selections cannot be said to be
illegal even though not mandatory in the situation. The High
Court has found that respondents 6 to 11 had been directly
selected as Junior Draftsmen after proper scrutiny by the
Staff Selection Committee. Admittedly there was a circular
among the Municipal employees in regard to these appoint-
ments and selections. The appellant should have made an
application for selection at that time or, if he thought it
more appropriate, should have challenged the constitution of
Staff Selection Committee and the direct recruitment and put
forward his claim for promotion as Junior Draftsman by
virtue of his seniority. That he tailed to do at the crucial
time. It may be that this was because he had certain diffi-
culties facing him by way of suspension and subsequent
expulsion from service. But even in 1971, after his original
order of suspension and removal had been set aside, he took
no immediate steps to claim his rights in the parent depart-
ment. He.was apparently satisfied with his restoration as
Junior Draftsman in the Town Planning Establishment. Having
regard to the circumstances of the appointment of respond-
ents 6 to 11, the appellant was not entitled to any promo-
tion in preference to them and he cannot claim appointment
as Junior Draftsman when there was no such post in 1976 to
which he could he appointed.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1213 of
1979.
583
From the Judgment and Order dated 24.4. 1978 of the
Gujarat High Court in L.P.A. No. 97 of 1978.
Appellant in person.
H.S. Parihar for the Respondents.
The Judgment of the Court was delivered by
RANGANATHAN, J. The appellant, D.M. Bharati, challenges
the validity of an order dated 30.9. 1976 passed by the
Deputy Municipal Commissioner of the Municipal Corporation
of the City of Ahmedabad. By the said order, the Deputy
Municipal Commissioner, consequent on the staff of the
Municipal Corporation working in the Town Planning Estab-
lishment having to be absorbed in the Municipal Corporation,
"reverted" the appellant from the post of junior draftsman
in the Establishment and appointed him to act in the post of
a tracer in the Town Development Department of the Corpora-
tion. The High Court rejected his writ petition and hence
the present appeal.
It is necessary to state the relevant facts. The appel-
lant had been appointed as a tracer in the Estate Department
of the Municipal Corporation on 26.6. 1955 and worked there
till 18th February, 1957. It appears that the Government
appointed a Town Planning Officer under the provisions of
section 31 of the Bombay Town Planning Act. 1954. The Town
Planning Officer had to be supplied with an establishment.
The establishment of the Town Planning Officer was admitted-
ly temporary. An arrangement was entered into between the
two authorities that the arbitrator in the planning office
could select such persons from the Corporation for his
establishment as he thought fit. The Town Planning Officer
demanded the services of the appellant and he was appointed
as a tracer in the Town Planning Establishment on 22.2.
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1957. It is not clear whether the appellant went therein by
way of transfer or by way of deputation as the original
order dated 22.2. 1957 is not available with us. However,
the High Court and the appellant have proceeded on the
footing that the appellant was deputed from the Municipal
Corporation to the Town Planning Establishment.
Sometime later, the post of a junior draftsman fell
vacant in the Town Planning Establishment. The appellant
tells us that he was asked to take charge of that post on
4.12. 1959. It appears that Mr. Yevla (Respondent No. 6 in
the W.P.) was posted to fill in that vacancy but,
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on 21.4. 1960, his appointment was cancelled and the appel-
lant was appointed as junior draftsman in the Town Planning
Establishment w.e.f. 4.12. 1959. The appellant tells us that
he had also been subsequently recommended for appointment to
the post of Surveyor-cum Draftsman, which was a higher post
and which had fallen vacant on 28.2. 1962. But before this
proposal could materialise the appellant was suspended on
5th December, 1962 by the Corporation and was removed from
service on 13.5.64. The Industrial Court granted approval to
the removal of the appellant from service but made certain
observations suggesting that he may be re-appointed to the
said post. The appellant filed a writ petition against the
order of the industrial court. The High Court eventually,
set aside the order of the industrial court on 1.2. 1969 and
remanded the matter for fresh disposal to the industrial
court. The Municipal Corporation preferred S.L.P. 48/71 in
this Court which was dismissed on 27.1.71. The industrial
court re-heard the matter pursuant to the order of the High
Court and declined approval to the order of removal of the
appellant from service with the result that the order of
removal dated 13.5.64 stood vacated and an order was passed
on 3.3.71 by the Municipal Commissioner that the appellant
was reappointed as a junior draftsman in the Town Planning
Establishment.
In the meantime, on 16.8. 1965, consequent on the recom-
mendations of the industrial court, the appellant was ap-
pointed as junior draftsman in the Estates Department of the
Municipal Corporation where he had been previously working.
This purported to be a fresh appointment and so the appel-
lant made a representation that he should be appointed in
this post according to his seniority. No orders were passed
on this representation except a direction that the appellant
should join service within a week of receipt of the memo and
then represent his case for seniority, if he so desired.
Thereupon the appellant accepted the order re-appointing him
as junior draftsman in the Estates Department and took
charge of his office. The order of the High Court has found
that the appellant was relieved from service on 1.10.1967
because of retrenchment.
When the above proceedings in the case of the appellant
were taking place respondents 6 to 11 were directly selected
as junior draftsmen by the Staff Selection Committee and
promoted to the said post. The appellant did not appear
before the Staff Selection Committee perhaps because of the
various proceedings above referred to, as a result of which
he was under suspension from 5.12. 1962 to 13.5. 1964, when
he was removed and then again till 16.8.65, when he was re-
585
appointed as a draftsman. Once the proceedings against the
appellant came to a close, the Municipal Commissioner passed
order on 3.3. 1971, cancelling the order dated 13.5. 1964
removing the appellant from service. He was re-appointed as
a junior draftsman in the Town Planning establishment.
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Subsequently, however, the Town Planning Establishment was
abolished, and the appellant was served with the order dated
30.9. 1976, by which he was reverted to the services of the
Municipal Corporation. On such reverter, however, as we have
seen, he was posted as a tracer and not as a junior drafts-
man. The appellant filed an appeal against the said order
before the Standing Committee but his appeal was rejected on
15.3. 1977 on the ground that in the Corporation direct
recruits were already working as junior draftsmen, and that
there was no post of junior draftsman vacant in the Corpora-
tion, to which the appellant could be appointed. The appel-
lant thereupon filed a writ petition and, as already stated,
he was unsuccessful therein and hence this present appeal.
The appellant’s contention before the High Court was two
fold. The first contention was that since he had been ap-
pointed as junior draftsman in the Town Planning establish-
ment by the order dated 21.4. 1960, he could not be repatri-
ated as a tracer in the Municipal Corporation, that is, to a
lower post. It was also contended that the order dated 30.9.
1976 has been passed by the Deputy Municipal Commissioner,
who is a person lower in rank than the person who appointed
him, namely, the Municipal Commissioner and that, therefore,
the order dated 30.9.76 was passed by an officer without
jurisdiction. These two arguments have been reiterated
before us also. So far as the second contention is concerned
it may at once be pointed out that if the order dated
30.9.76 is an order of reversion by way punishment, the
appellant’s contention may be correct in view of the provi-
sions contained in sections 53 and 56 of the Bombay Provin-
cial Municipal Corporation Act. However, if the order dated
30.9.76 has merely given effect to the abolition of the Town
Planning establishment and restored the appellant to the
post he can properly hold in the Municipal Corporation then
no element of reversion would be involved and the Deputy
Commissioner would be quite competent to pass the order in
question. The only question therefore that survives for
consideration is regarding the validity of an order dated
30.9.76 in so far as it purported to appoint the appellant
as a tracer in the Municipal Corporation instead of as a
junior draftsman. We may mention here that a point was also
made that the appellant should not have been appointed as an
"acting" tracer but it has been explained by the Corporation
that it was a verbal inaccuracy and that the appointment
586
of the appellant in the Municipal Corporation is not an
acting but a substantive one. This point, therefore, does
not survive.
We shall proceed on the assumption that the appellant
went to the Town Planning establishment (which was a tempo-
rary one) by way of deputation from the Municipal Corpora-
tion. There is some controversy as to whether the appellant
was properly promoted as junior draftsman in the Town Plan-
ning establishment. There is a suggestion that both the
demand by the Town Planning establishment for the services
of the appellant as well as his promotion therein were not
acceptable to the Corporation and that they were the conse-
quence of undue favour shown to the appellant by the Arbi-
trator who was the appointing authority. We do not think it
is necessary to go into this controversy here because it is
quite clear that the appellant’s promotion as junior drafts-
man and proposed promotion as Surveyor-cum Draftsman in the
Town Planning Establishment cannot confer any rights on him
in his parent department. When he left the Municipal Corpo-
ration and joined the Town Planning establishment he was a
tracer and he can go back to the Estate Department or any
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other Department of the Municipal Corporation only to his
original post i.e., as tracer, subject to the modification
that, if in the meantime he had qualified for promotion to a
higher post, that benefit cannot be denied to him. In the
present case, unfortunately, what happened was that when
junior draftsmen were recruited by the Municipal Corporation
in 1959-60 and in 1963-64, persons were selected and ap-
pointed to the said posts through the machinery of a Staff
Selection Committee. The appellant submits that he had been
wrongly overlooked and that the respondents had been wrongly
promoted as junior draftsmen. He points out that, under the
regulations, junior draftsmen had to be appointed by promo-
tion on the basis of seniority-cure-fitness and that the
question of Staff Selection Committee did not at all arise.
According to him, the procedure for selecting by Staff
Selection Committee would not come into force when the
recruitment was restricted to persons in the municipal
service. In the present case, however, all the persons, who
were appointed as junior draftsmen during the appellant’s
absence were from the municipal service. The appointment
should, therefore, have been made directly by promotion
without the intervening machinery of the Staff Selection
Committee and the appellant being the seniormost tracer
should have been appointed as junior draftsman in preference
to respondents 6 to 11.
There are considerable difficulties in accepting this
case of the appellant. In the first place, what he is really
attempting is to challenge
587
the appointments of respondents 6 to 11, which had been made
in 1963-64, by a writ petition filed in 1978, more than a
decade after the above selections and appointments had been
made It is true that, at that time the appellant, was under
a cloud because he had been suspended and subsequently
removed from service. But all the same, if he had desired to
challenge those appointments, he should have taken immediate
steps. Anyhow, these obstacles had disappeared when the
tribunal, on remand by High Court, had disapproved the
appellant’s removal from service by the order dated 13.5.
1964. At least in 1971. when the order was passed restoring
him to the position of junior draftsman in the Town Planning
establishment, he could and should have taken steps to
obtain his "pro-forma" promotion in the parent department.
The appellant says he was making some representations but
this was not enough. The fact is that he took no effective
steps to challenge the appointment of respondents 6 to 11
from 1963-64 right upto 15.2.1978, when he filed the writ
petition or atleast upto 1.10.1976, when he made a represen-
tation against the order of reversion.
Quite apart from the above consideration, there is no
material before us to show that the appointments of respond-
ents 6 to 11 were made irregularly and that the constitution
of a Staff Selection Committee for selecting junior drafts-
men did not conform to the regulations and the provisions of
the Bombay Provincial Municipal Corporations Act. The Corpo-
ration has stated that they have been directly recruited.
The High Court has pointed out that the relevant regulation
gave a discretion to the Commissioner to make the appoint-
ments by promotion or by direct recruitment. S. 54(2) of the
Municipal Act, on which the petitioner relies, no doubt
dispenses with the Staff Selection Committee when it is
proposed to fill the appointment from among persons already
in municipal service. But the nature of the recruitment that
took place is not known. That apart, the constitution of a
Staff Selection Committee to decide upon the selections
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cannot be said to be illegal even though not mandatory in
the situation. The High Court has found as a fact at more
than one place in the judgment that the respondents 6 to 11
had been directly selected as junior draftsmen after proper
scrutiny by the Staff Selection Committee. Even the appel-
lant stated before us that there was a circular among the
municipal employees in regard to these appointments and
selections. The appellant should have made an application
for selection at that time or, if he thought it more appro-
priate, should have challenged the constitution of Staff
Selection Committee and the direct recruitment and not
forward his claim for promotion as junior draftsman by
virtue of his
588
seniority. That he failed to do at the crucial time. It may
be that this was because he had certain difficulties facing
him by way of suspension and subsequent expulsion from
service. But even in 1971, after his original order of
suspension and removal had been set aside, he took no imme-
diate steps to claim his rights in the parent department. He
was apparently satisfied with his restoration as junior
draftsmen in the Town Planning establishment. We are in
agreement with the High Court that, having regard to the
circumstances of the appointment of respondents 6 to 11, he
was not entitled to any promotion in preference to them and
that he cannot claim appointment as junior draftsman when
there was no such post in 1976 to which he could be appoint-
ed. It is not his case that any posts of junior draftsmen
became vacant after his reversion to the parent department
to which he could have been promoted.
The appellant contends that the fact that his eligibili-
ty for appointment as a junior draftsman in the parent
department had been accepted by the order dated 16.8.1965
referred to earlier. It is also pointed out that subsequent-
ly a question arose of the seniority as between the appel-
lant and one Kavadia. This was gone into and the Municipal
Corporation accepted the position that the appellant pos-
sessed qualifications required for the post of junior
draftsman and that he was senior to Mr. Kavadia. This was
sometime in 1966. We, however, find that this aspect of the
matter does not help the appellant because the order dated
16.8. 1965 was passed in pursuance of the recommendation of
the industrial court, while approving the appellant’s remov-
al, that he may be reconsidered for appointment. In view of
this order of the industrial court, the appellant had to be
given a posting and since he had been discharged from serv-
ice when he was a junior draftsman, orders were passed
appointing him as junior draftsman. This again was made as
an order of fresh appointment and the appellant’s represen-
tation that he should be given seniority was not accepted,
rightly, for the reason mentioned above. There is also the
further fact that the appellant was relieved from this post
with effect from October 1, 1967. There has been, apparent-
ly, no challenge to this order. Moreover, these orders lost
their basis once the petitioner was restored to his post in
the Town Planning Establishment. In these circumstances the
order dated 16.8.65 or the determination of seniority be-
tween appellant and Kavadia in 1966 do not help the appel-
lant’s case.
Learned counsel for the Municipal Corporation submitted
to us that the appellant had not joined his post as a tracer
in compliance
589
with the order dated 30.9.76 and that by now he has also
reached the age of superannuation. We are not here concerned
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in this appeal with the consequences of "non acceptance" of
the order dated 30.9.76 by the appellant. We are only con-
cerned with the question whether the appellant was rightly
appointed as tracer on his reverter to the Municipal Corpo-
ration and that question we have answered in the affirma-
tive. We do not express any opinion on the questions raised
by the learned counsel for the respondent.
In the circumstances, we are of the opinion that there
are no grounds to interfere with the order of the High
Court. We, therefore, dismiss this appeal but, in the cir-
cumstances, we make no order as to costs.
G.N. Appeal dis-
missed.
590