http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8

PETITIONER:

DR. ANURADHA BODI & ORS. ETC. ETC.

Vs.

RESPONDENT:

MUNICIPAL CORPORATION OF DELHI AND OTHERS

DATE OF JUDGMENT: 08/05/1998

BENCH:

S.C. AGRAWAL, M. SRINIVASAN

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

SRINIVASAN, J.

There are nine petitioners in the earlier writ petition

and one petitioner in the later writ petition. They were

appointed by the first respondent as General Duty Medical

Officer Grade II between 1982 and 1985. The first petitioner

in the Civil Writ Petition 60 of 1994 and petitioner in Writ

Petition No. 8 of 1997 were appointed in 1982. Petitioners 2

and 3 in the earlier writ petition were appointed din 1083.

Petitioners 4 and 5 were appointed in 1984 whereas

petitioners 6 to 9 were appointed in 1985. It is not in

dispute that all of them were appointed on purely ad hoc

basis on the same terms and conditions. In the appointment

orders, Clause 1 stated that the appointment would be purely

on an ad hoc basis as a stop gap arrangement for a period of

six months or till such time the posts were filled up on

regular basis through Union Public Service Commission (for

short `UPSE') or till further orders whichever was earlier.

Clause 2 provided that the ad hoc appointments could be

terminated at any time by the competent authority without

assigning any reason whatsoever and without giving any prior

notice. According to Clause 3, the appointment will not

confer any right whatever on the appointee for

regular/permanent appointment. Under Clause 9 the appointees

were advised for regular appointment to pass the U.P.S.C.

examination in normal course in the direct competition.

2. There is a specific averment in the counter-affidavit

filed by the first respondent that inspite of several

opportunities available to the petitioners, they preferred

not to apply to the UPSC for direct competition entitling

them to be appointed on regular basis. The petitioners have

not filed any rejoinder controverting the same.

3. The Recruitment Rules, called "The Delhi Municipal

Corporation Health Service Recruitment Regulation, 1982"

(herein after referred to as `the Rules') were made by the

Municipal Corporation of Delhi under Section 98 of the Delhi

Municipal Corporation Act, 1957 and notified under

Notification No. R-9/38/82-LSG/5686 dated 6.8.82. As per the

rules, the posts in question were to be filled up through

the U.P.S.C. Admittedly, the petitioners were not selected

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8

through U.P.S.C. but according to the petitioners they were

selected by a high-profile Selection Committee consisting of

Deputy Commissioner and Director (Personnel) of M.C.D.,

Medical Superintendent of the hospital concerned and two

specialists in Clinical Medicine from two renowned

hospitals.

4. Though the appointments of the petitioners were

initially for a period of six months, they were being

continued periodically by subsequent orders issued by the

first respondent. One such order has been filed as a sample

by the petitioners bearing dated 15.2.90. The preamble to

the order reads as follows :

"The Chief Secretary, Delhi

Administration, exercising powers

of the Corporation under Section

490 (2)(b) of the D.M.C. Act, 1957

vide Decision No. 211/CW/Corp.

dated 2.2.1990 has approved the

continued ad hoc appointment of

following GDMOs Grade II in the pay

scale of Rs, 2200-4000 plus the

usual allowances with effect from

13.7.1989 for a period of one year

or till such time the posts are

filled up on regular basis,

whichever is earlier"

5. By a similar order dated 24.7.1990 the services of the

petitioners were extended for a period of one year with

effect from 13.7.1990. The petitioners were making

representations to regularise their services even without

appearing before the U.P.S.C. but in vain.

6. They filled a writ petition in this Court under Article

32 of the Constitution in Writ Petition (Civil) No. 47 of

1991 praying that their services should be treated as

regular from the respective dates of their induction into

the service and to consider them for promotion to Grade I,

that their initial appointment be treated as regular

appointment with effect from the date of their induction of

their service and to grant them consequential seniority, to

declare that the Corporation should absorb them first before

offering the existing vacancies to the new recruits who

might be selected in pursuance of the combined Medical

Service Examination 1991 and to restrain the respondents

from terminating the services of the petitioners pending the

disposal of the petition. The said petition was disposed of

vide order dated 29.7.1991 in the following terms :

"We are informed that all the

petitioners have been called for

interview by Union Public Service

Commission. In view of this no

further relief requires to be

granted in the petition. The

petitioners certainly can not claim

that they are entitled to be

regularised even though they are

not selected. The Writ Petition is

dismissed as infructuous. If the

petitioners have not been selected

and they have any grievance in that

connection with the selection the

remedy for them is to file separate

proceedings"

7. Thereafter, the petitioners appeared before the

U.P.S.C. and were selected. Consequently, the first

respondent passed an order on 17.8.1992 appointing the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8

petitioners on regular basis to the grade of G.D.M.O. II

with effect from 27.6.91, the date when the U.P.S.C.

recommended the appointment of the petitioners.

8. The petitioners are aggrieved by the date from which

they are appointed on regular basis namely, 27.6.91.

According to the petitioners they should have been

appointed on regular basis with effect from the initial

dates of appointment respectively. Hence they have filed the

present writ petition with prayers for declaration that the

respondents should treat them as holding their respective

posts regularly from the respective dates of their initial

appointments which stand now regularised by U.P.S.C. and

grant them their due seniority with consequential benefits

such as promotion to higher grade notwithstanding the order

dated 17.8.92 which may be suitably amended, declaration

that the action of the respondents in not treating them as

regular employees of the Corporation since the date of their

initial appointment is unwarranted, arbitrary and violative

of Articles 14 and 16 of the Constitution and for

declaration that the petitioners are entitled to be treated

as having been appointed on regular basis as G.D.M.Os from

the date of respective initial appointment as has been done

in the case of other employees vide order dated 31.12.86.

9. A preliminary objection was raised by the learned

counsel for first the respondent that the writ petition is

not maintainable in as much as the claim for regularisation

has been negatived by this Court in Writ Petition (Civil)

No. 47 of 1991 the order in which has already been extracted

by us. Though the prayers in the two writ petitions are

almost the same and the petitioners are seeking once again

to claim that their initial appointments should be

considered to be on regular basis. This writ petition has to

be considered in so far as it relates to question of

seniority. In view of the order dated 27.9.91 in Writ

Petition 47 of 1991 the petitioners cannot claim that they

are entitled to be treated as having been regularly

appointed with effect from the date of their initial

appointment. But the petitioners are placing reliance on the

judgment of the Constitution Bench of this Court in Direct

Recruit Class II Engineering Officers' Association Versus

State of Maharashtra & Ors . (1990) 2 S.C.C. 715 and are

contending that their services from the dates of initial

appointment till the date of regularisation have to be taken

into consideration for purposes of fixing their seniority.

In fact on an earlier occasion when this case was heard on

27.10.94 the Court took note of the said contention and

directed the impleadment of persons who were regularly

appointed after selection by the U.P.S.C. and were in

service during the period 1982 to 1991. Thus the regular

appointees have been impleaded as respondents in the present

case. Hence, the question which has to be considered is

whether the petitioners are entitled to get any benefit on

the basis of the decision rendered by the Constitution Bench

in the Direct Recruit case (supra).

10. The propositions laid down by the Constitution Bench in

the aforesaid case are set out in Paragraph 47 of the

judgment. We are concerned with only Conclusions (A) and (B)

which read as follows :

(A) Once an incumbent is appointed

to a post according to rule, his

seniority has to be counted from

the date of his appointment and not

according to the date of his

confirmation. The corollary of the

above rule is that where the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8

initial appointment is only ad hoc

and not according to rules and made

as a stop gap arrangement, the

officiation in such posts cannot be

taken into account for considering

the seniority.

(B) If the initial appointment is

not made by following the procedure

laid down by the rules but

appointed continues in the post

uninterruptedly till the

regularisation of his service in

accordance with the rules, the

period of officiating service will

be counted".

11. These two clauses have been explained in a subsequent

judgment in State of West Bengal and others etc. etc. versus

Aghore Nath Dey and others etc. etc. (1993) 3 S.C.C. 371

The relevant passages in the said judgment read as follows :

"21. We shall now deal with

conclusions (A) and (B) of the

constitution bench in the

Maharashtra Engineers case quoted

above.

22. There can be no doubt that

these two conclusions have to be

read harmoniously, and conclusion

(B) cannot cover cases which are

expressly excluded by conclusion

(A). We may, therefore, first refer

to conclusion from the date of

initial appointment and not

according to the date of

confirmation, the incumbent of the

post has to be initially appointed

`according to rules'. The corollary

set out in conclusion (A), then is,

that `where the initial appointment

is only ad hoc and not according to

rules and made as a stopgap

arrangement, the officiation in

such posts cannot betaken into

account for considering the

seniority'. Thus, the corollary in

conclusion (A) expressly excludes

the category of cases where the

initial appointment is only ad hoc

and not according to rules, being

made only as a stopgap arrangement.

The case of the writ petitioners

squarely falls within this

corollary in conclusion (A), which

says that the officiation in such

posts cannot be taken into account

for counting the seniority.

23. This being the obvious

inference from conclusion (A), the

question is whether the present

case can also fall within

conclusion (B) which deals with

cases in which period of

officiating service will be counted

for seniority. We have no doubt

that conclusion (B) cannot include,

within its ambit, those cases which

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8

are expressly covered by the

corollary in conclusion (A), since

the two conclusions cannot be read

in conflict with each other.

24. The question, therefore, is of

the category which would be covered

by conclusion (B) excluding

therefrom the cases covered by the

corollary in conclusion (A).

25. In out opinion, the conclusion

(B) was added to cover a different

kind of situation, wherein the

appointments are otherwise regular,

except for the deficiency of

certain procedural requirements

laid down by the rules. This is

clear from the opening words of the

conclusion (B), namely, `if the

initial appointment is not made by

following the procedure laid down

by the `rules' and the latter

expression `till the regularisation

of his service in accordance with

the rules'. We read conclusion

(BH), and it must be so read to

reconcile with conclusion (A), to

cover the cases where the initial

appointment is made against an

existing vacancy, not limited to a

fixed period of time or purpose by

the appointment order itself, and

is made subject to the deficiency

in the procedural requirements

prescribed by the rules for

adjudging suitability of the

appointment on the date of initial

appointment in such cases. Decision

about the nature of the

appointment, for determining

whether it falls in this category,

has to be made on the basis of the

terms of the initial appointment

itself and the provisions in the

rules. In such cases, the

deficiency in the procedural

requirements laid down by the rules

has to be cured at the first

available opportunity, without any

default of the employee, and the

appointee must continue in the post

uninterruptedly till the

regularisation of his service, in

accordance with the rules. In such

cases, the appointee is not to

blame for the deficiency in the

procedural requirements under the

rules at the time of his initial

appointment, and the appointment

not being limited to a fixed

remaining procedural requirements

of the rules being fulfilled at the

earliest. In such cases all

appointee is not to blame for the

initial appointment, and the

appointment not being limited to a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8

fixed period of time is intended to

be regular appointment, subject to

the remaining procedural

requirements of the rules being

fulfilled at the earliest. In such

cases also, if there be any delay

in curing the defects on account of

any fault of the appointee, the

appointee would not get the full

benefit of the earlier period on

account of his default, the benefit

being confined only to the period

for which he is not to blame. This

category of cases is different from

those covered by the corollary in

conclusion (A) which relates to

appointment only on ad hoc basis as

a stopgap arrangement and not

according to rules".

12. If the facts of these two cases are analysed in the

light of the aforesaid decisions, there can be no doubt

whatever that the petitioners fall within the corollary in

Conclusion (A). The orders of appointment issued to the

petitioners are very specific in their terms. Though the

Recruitment Rules came into force on 6.8.82, the

appointments were not made in accordance therewith. They

were ad hoc and made as a stop gap arrangement. The orders

themselves indicated that for the purpose of regular

appointment the petitioners were bound to pass the U.P.S.C.

examination in normal course in the direct competition.

Hence the petitioners will not fail under the main part of

Conclusion (A) or Conclusion (B) as contended by the learned

counsel for the petitioners.

13. A strange contention has been urged by the learned

counsel for the petitioners by referring to Section 96 of

the Delhi Municipal Corporation Act. Under that Section no

appointment to any category A post shall be made except

after consultation with the U.P.S.C. but under the proviso

no such consultation shall be necessary in regard to the

selection for appointment to any acting or temporary posts

for a period not exceeding one year. According to learned

counsel for the petitioners, the appointment of the

petitioners was for a period of six months only and there

was no necessity to consult the Commission. Consequently,

according to her the appointments were in accordance with

the statutory provisions. There is no merit in this

contention. If this contention is accepted the main

provision contained in Section 96 prohibiting any

appointment without consulting the Commission can be easily

defeated. Appointments can be made for periods lesser than

one year and after continuing such appointments for some

years, the appointees could be made permanent. That will

only lead to nepotism and anarchy. The Statute has not

provided for any such situation. In fact a note of warning

has been issued by this Court in Dr. M.A. Haque and others

Versus Union of India & Ors. (1993) 2 S.C.C. 213 in the

following words :

"As against this, however, we

cannot lose sight of the fact that

the recruitment rules made under

Article 309 of the Constitution

have to be followed strictly and

not in breach. If a disregard of

the rules and the by-passing of the

Public Service Commission's are

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8

permitted, it will open a back door

for illegal recruitment without

limit."

With respect, we adopt that reasoning and reject the

contention of the learned counsel for the petitioners.

14. Learned counsel attempted to contend that the posts of

GDMOs Grade II were in category B within the meaning of

Section 90 of the Delhi Municipal Corporation Act and they

did not fall within the ambit of U.P.S.C. There is no such

plea in the writ petition. In the absence of any specific

pleading in that regard we cannot permit the petitioner's

counsel to raise such a contention at the stage of

arguments. However, it must be pointed out that in the writ

petition there is an averment by the petitioners in

Paragraph 12 that since the petitioners have been in service

for periods ranging between 5 to 9 years, it is to be

presumed that consultation with the approval of U.P.S.C. was

obtained for their continued appointment. That averment is

on the footing that the posts fell within the ambit of

U.P.S.C.. Hence, it is not open to the petitioners to

contend to the contrary.

15. The next contention of the petitioners' counsel is that

they have been in service for such a long time enjoying the

benefits of revised pay scales as well as allowances

periodically and have been prevented from carrying on

private practice of any kind whatsoever and therefore they

should be treated as regular appointees from the inception.

Support is sought from the judgment of this Court in Jacob

M. Puthuparambil and others etc. etc. versus Kerala Water

Authority and others (1991) 1 S.C.C. 28 in which this Court

on an interpretation of the relevant rules held that long

continuous service of temporary appointees should not be

terminated but should be regularised by the authority

concerned. The ruling has no application in the present

case. Our attention is also drawn to the judgment in I.K.

Sukhija and others versus Union of India and others (1997) 6

S.C.C. 406. The contention put forward by the counsel in

that case was that the appellants were governed by the

corollary of Conclusion A in the Direct Recruit case

(supra). The Court found on the facts that the appellants'

promotions were not contrary to any statutory recruitment

rules, they were duly considered by the D.P.C. and

promotions were made according to their placement in t he

merit list. It was also found that the only reason for ad

hoc promotion instead of regular promotion was that the

draft rules had not been finalised. In that situation, the

Court held that the appellants fell within the scope of

Conclusion B in Direct Recruit case (supra) and were

entitled to the benefit of the period of officiating

service. That ruling will not apply in the present case.

16. The next contention of the learned counsel is that by

an order dated 31.12.86 the Corporation regularised the

services of several appointees on the recommendation of the

Union Public Service Commission with effect from 27th

December 1980 or the date of appointment whichever was

later. According to the learned counsel hostile

discrimination is made against the petitioners who were in

a similar situation. There is no merit in this contention.

In the counter-affidavit it has been clearly stated by the

respondents that those persons were appointed prior to

20.6.78 during the period of strike of Municipal doctors and

non-availability of the recommended doctors from the

U.P.S.C. and there was an agreement between the

representatives of those doctors pursuant to which they were

regularised and such regularisation was with effect from

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8

27.12.80 i.e. the date of recommendation by the U.P.S.C. It

should be noted that those appointments were long prior to

the passing of the recruitment rules and the petitioners

cannot claim that they are on the same platform as those

appointees.

17. The petitioners have been regularised with effect from

27.6.91 the date on which the U.P.S.C. recommended their

appointments. Hence there is nothing illegal or arbitrary in

the office order dated 17.8.92 appointing the petitioners on

regular basis with effect from 27.6.91. The said

regularisation is in accordance with the rules.

18. We hold that the order of regularisation made by the

first respondent on 17.8.92 with reference to petitioners is

valid and not arbitrary. The petitioners cannot have any

grievance against the same. Consequently the writ petitions

have to fail and they are hereby dismissed. There will be no

order as to costs.