Vireshwar Singh v Municipal Corporation of Delhi & Ors.

## [2014] 10 S.C.R. 372 A ## VIRESHWAR SINGH & ORS. ## _v._ MUNICIPAL CORPORATION OF DELHI & ORS. (Civil Appeal Nos. 8414-8415 of 2014) SEPTEMBER 2, 2014. ## B [RANJAN GOGOi AND M. Y. EQBAL, JJ.] - _Service law: Appointment/Selection Post of General Duty Medical Officers (GDMO) governed by the Delhi_ c _Municipal Corporation Health Service Recruitment_ - _Regulations, 1982 Under said Regulations, appointment to_ - _be made through the UPSC Between 1982 and 1986_ - _(Phase-I), 82 GDMOs appointed on ad hoc basis Between 1986 and 1989 (Phase II), another 69 GDMOs appointed on_ o _ad hoc basis on terms similar to the appointments made in_ - _Phase I Both set of appointments not through the UPSC but made on the basis of a selection held by a Selection_ - _Committee Regularization of Phase-I GDMOs made with_ - _effect from the date of recommendation of the UPSC Claim_ E _of Phase-II GDMOs for regularization from date of initial_ - _appointment Held: Similar circumstanced employees have to be treated equally and evenly for the purpose of_ - _regularization Phase II GDMOs are similarly circumstanced_ as _Phase I GDMOs and, therefore, have to be treated_ F _similarly and therefore their claim to regularization with effect from the date of their initial appointments cannot be countenanced._ ## Dismissing the appeals, the Court G HELD: 1. Both sets of GDMOs i.e. in Phase-I and Phase-II were not appointed on the basis of a selection held by the UPSC as mandated by the Regulations in force. Their appointments were recommended by a Specially Constituted Selection Committee. Their H 372 VIRESHWAR SINGH _v._ MUNICIPAL CORPORATION 373 OF DELHI appointments were _ad hoc;_ initially for a period of six A months which was subsequently extended from time to time. Being similarly circumstanced, undoubtedly, both sets of GDMOs will have to be treated equally and evenly for the purpose of regularization. [Para 13] [378-A-C] B 2. If the GDMOs appointed in Phase-II are similarly circumstanced as _*Dr. Anuradha Bodi and others,_ their claim to regularization with effect from the date of their initial appointments cannot be countenanced except perhaps if a view contrary to that has been recorded in C _*Dr. Anuradha Bodi_ is taken. Any departure from the views expressed and conclusions reached in _*Dr. Anuradha Bodi_ will not be necessary or justified. [Para 14] [379-C-D] _*Dr. Anuradha Bodi and Ors vs. Municipal Corporation_ D _of Delhi and Ors._ (1998) 5 sec 293: 2010 (12) SCR 413 - relied on. _Direct Recruit Class II Engineering Officers' Association Vs. State of Maharashtra and Ors._ (1990) 2 SCC 715: 1990 E (2) SCR 900; _State of West Bengal and Others Vs. Aghore Nath Dey and Ors._ (1993) 3 SCC 371: 1993 (2) SCR 919; _Narender Chadha and Ors. Vs. Union of India and Ors._ (1986) 2 SCC 157: 1986 (1) SCR 211; _Keshav Chandra Joshi and Ors. Vs. Union of India and Ors._ 1992 Supp (1) SCC 272: F - 1990 (2) Suppl. SCR 573 referred to. ## Case Law Reference: 2010 (12) SCR 413 Relied on Para 6 1990 (2) SCR 900 Referred to Para 13 G 1993 ( 2) SCR 919 Referred to Para 13 1986 (1) SCR 211 Referred to Para 15 1990 (2) Suppl. SCR 573 Referred to Para 15 H 374 SUPREME COURT REPORTS [2014] 10 S.C.R. A CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 8414-8415 of 2014. From the Judgment & Order dated 05.07.2007 of the High Court of Delhi at New Delhi in Writ Petition (Civil) No. 2357 of 2011 and impugned order dated 05.09.2011 of the High Court 8 of Delhi at New Delhi in Review Petition No. 486 of 2011 in Writ Petition (Civil) No. 2357 of 2011. Vikas Singh, Garima Prashad, Vinay Gupta, K.K. Mishra for the Appellants. c Sudarshan Rajan, Dr. Kailash Chand, P. Parmeswaran, Deepak Goel for the Respodents. The Judgment of the Court was delivered by ## D **RANJAN GOGOi, J.** 1. Leave granted. 2. The appellants are General Duty Medical Officers (GDMO) Grade-II who were appointed on _ad hoc_ basis between 1986 and 1989. They are aggrieved by the denial of E their claim to regularization with effect from the dates of their initial appointments. Regularization granted from the date of the recommendations of the Union Public Service commission (for short 'UPSC'), namely, 24.07.1998 as approved by the High Court of Delhi by means of the impugned order dated 05.07.2011 has been called into question in the present appeal. F 3. The relevant facts are as follows. The post of GDMO Grade-II is a Group 'A' post governed by the Delhi Municipal Corporation Health Service Recruitment G Regulations, 1982 (hereinafter referred to as 'the Regulations'). Under the said Regulations appointment in the post of GDMO Grade-II is required to be made through the UPSC. Between 1982 and 1986 (for convenience may be referred to as the Phase-I) 82 GDMOs were appointed on _ad hoc_ basis for an H initial term of six months which was subsequently extended from VIRESHWAR SINGH _v._ MUNICIPAL CORPORATION 375 OF DELHI [RANJAN GOGOi, J.] time to time. In what may be again conveniently referred to as the Phase-II, between 1986-1989, another 69 number of GDMOs were appointed on _ad hoc_ basis on terms similar to the appointments made in Phase-I. Both sets of appointments were not through the UPSC but were made on the basis of a selection held by a Specially Constituted Selection Committee. A B 4. The cases of the GDMOs appointed on _ad hoc_ basis in Phase-I were referred to the UPSC for its recommendations for the purpose of regularization. The UPSC approved 63 cases while holding 10 candidates to be unfit for regularization. The recommendations of the UPSC were communicated to the Municipal Corporation of Delhi on 27.06.1991'. Accordingly, by order dated 17.08.1992 the Municipal Corporation regularized the services of the 63 GDMOs recommended by the UPSC with effect from the date of recommendation i.e. 27.06.1991. Aggrieved by their regularization with effect from the date of the recommendation of the UPSC, the GDMOs appointed in the Phase-I approached this Court under Article 32 of the Constitution claiming regularization from the date of their initial appointments. C D E 5. While the aforesaid writ petition was pending, the Municipal Corporation of Delhi sent the cases of the GDMOs appointed in Phase-II to the UPSC for its recommendations for regularization of the incumbents. The UPSC refused to consider any of the cases on the ground that the 10 GDMOs appointed in Phase-I, who were found by it to be unfit, had not been dismissed from service. This had led the GDMOs appointed in Phase-II to file a writ petition (Writ Petition (C) No. 1550/ 1996) before the Delhi High Court. - F 6. The writ petition filed by the Phase-I GDMOs before this G Court under Article 32 was decided on 8.5.1998 holding that their regularization with effect from the date of recommendation of the UPSC was validly made and they were not entitled to such regularization from the dates of their initial appointments. The judgment of this Court is reported as _Dr. Anuradha Bodi_ Ii 376 SUPREME COURT REPORTS [2014] 10 S.C.R. A _and Others Vs. Municipal Corporation of Delhi And Others[1 ]_ and will be specifically referred to at a later stage of the present order. 7. Six days after the judgment was rendered by this Court in _Dr. Anuradha Bodi_ (supra) the Delhi High Court on 8 14.05.1998 allowed the writ petition (Writ Petition (C) No. 1550/ 1996) filed by Phase-II GDMOs by directing the UPSC to consider their cases for regularization from the dates of their initial appointments. In compliance of the aforesaid order of the Delhi High Court, the UPSC recommended regularization of the C said GDMOs from the dates of their initial appointments by its communication dated 24.07 .1998. 8. There being an apparent conflict with regard to regularization of the GDMOs appointed in Phase-I and PhaseD II, though made in identical circumstances and on the same terms, the Municipal Corporation of Delhi by its Resolution dated 17.01.2000 decided to regularize the services of both sets of GDMOs with effect from the date of their initial appointments. On the basis of the said Resolution dated E 17.01.2000 a formal Order dated 16.08.2000 was passed to the said effect. 9. The Resolution dated 17 .01.2000 and the formal Order dated 16.08.2000 came to be challenged by the regularly appointed GDMOs before the Delhi High Court. The writ F petition filed was, however, withdrawn and instead the order dated 14.05.1998 passed by the Delhi High Court in Writ Petition (C) No. 1550/1996, which has led to the alleged Resolution dated 17.01.2000 and the formal Order dated 16.08.2000, were challenged in a Letters Patent Appeal by the G regularly appointed GDMOs. It is at this stage that the Municipal Corporation of Delhi issued another Order dated 15.06.2007 and a Corrigendum dated 18.06.2007 to the effect that the regularization of both sets of GDMOs would be effective from H 1. (1998) 5 sec 293. ## VIRESHWAR SINGH _v._ MUNICIPAL CORPORATION 377 OF DELHI [RANJAN GOGOi, J.] the date(s) of communication of the recommendation of the A UPSC. The said action of the Municipal Corporation was challenged in a writ petition (Writ Petition (C) No. 4619/2007r before the Delhi High Court by the present appellants. 10. The Letter Patent Appeals (LPA Nos. 708/2001 and 8 138/2003) filed by the regularly appointed GDMOs against the order dated 14.05.1998 passed in Writ Petition (C) No. 1550/ 1996 were disposed of by the Division Bench of the High Court .on 05.02.2008 by holding that the challenge made in the appeals stood answered by the subsequent order of the Municipal Corporation of Delhi dated 15.06.2007. The Division C Bench also took note of the fact that the said order dated 15.06.2007 was under challenge in Writ Petition (C) No. 4619/ 2007 and directed that the views expressed in the order dated 14.05.1998 in Writ Petition (C) No. 1550/1996 would have no relevance or bearing while deciding Writ Petition (C) No. 4619/ D 2007. 11. Writ Petition (C) No. 4619/2007 was thereafter transferred to the Central Administrative Tribunal and numbered as T.A. No. 398/2009. By order dated 09.12.2010 the learned E Tribunal decided the aforesaid case (T.A. No. 398/2009) alongwith a connected matter holding that the Resolution dated 17.01.2000 with regard to regularization of GDMOs appointed in both phases from the dates of their initial appointments was contrary to the decision of this Court in _Dr. Anuradha Bodi_ F (supra). Accordingly, while the Resolution dated 17.01.2000 was quashed, the subsequent Order of the Municipal Corporation of Delhi dated 15.06.2007 was upheld. The aforesaid order has been confirmed by the Division Bench of the High Court by means of the impugned order dated G 05.07.2011. It is the said order dated 05.07.2011 as well as the order dated 05.09.2011 refusing to review the order dated 05.07.2011 that have been challenged in the present appeals. 12. We· have heard learned counsefa for the parties. H 378 SUPREME COURT REPORTS [2014] 10 S.C.R. A 13. An elaborate recital of the facts had been considered necess1ry to trace out the core issue in the case. Both sets of GDMOs i.e. in Phase-I and Phase-II were not appointed on the basis of a selection held by the UPSC as mandated by the Regulations in force. Their appointments were recommended B by a Specially Constituted Selection Committee. Their appointments were _ad hoc;_ initially for a period of six months which was subsequently extended from time to time. Being similarly circumstanced, undoubtedly, both sets of GDMOs will have to be treated equally and evenly for the purpose of c regularization. In _Dr. Anuradha Bodi_ (supra) after noticing the precise terms of appointment of the Phase-I GDMOs, the entitlement of the said GDMOs (Phase-I) to regularization with effect from the date of their initial appointments was considered by this Court in the light of the decision of the Constitution Bench in _Direct Recruit Class II Engineering Officers'_ 0 _Association_ Vs. _State of Maharashtra and Others2,_ particularly, in the backdrop of the two propositions (A) and (B) set out in paragraph 4 7 of the Report. A subsequent judgment of a three Judges Bench in _State of West Bengal and Others_ Vs. _Aghore Nath Dey and 0thers[3 ]_ throwing further light and clarity on the E contents of propositions (A) and (B) laid down in _Direct Recruit Class II_ (supra) had also been considered to come to the conclusion that the cases of doctors appointed on _ad hoc_ basis in Phase-I fall within the corollary to conclusion (A) of _Direct Recruit_ (supra) and therefore they are not entitled to the benefit F of service rendered on _ad hoc_ basis. Paragraph 12 of the report in _Or. Anuradha Bodi_ (supra) may be conveniently noticed at this stage. A _"12. If the facts of these two cases are analysed in the_ G _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_ 2. (1990) 2 sec 715. H 3. (1993) 3 sec 371. ## VIRESHWAR SINGH _v._ MUNICIPAL CORPORATION 379 OF DELHI [RANJAN GOGOi, J.] _petitioners are very specific in their terms. Though the recruitment rules came into force on 6-8-1982, the appointments were not made in accordance therewith. They were ad hoc and made_ as a _stopgap arrangement. The orders themselves indicated that for the purpose of regular appointment the petitioners were bound to pass the UPSC examination in the normal course in the direct competition. Hence the petitioners will not fall under the main part of Conclusion (A) or Conclusion (B)_ as _contended by the learned counsel for the petitioners."_ 14. If the GDMOs appointed in Phase-II are similarly circumstanced as Dr. Anuradha Bodi and others, we fail to see how their claim to regularization with effect from the date of their initial appointments can be countenanced except perhaps if we take a view contrary to that has been recorded in _Or. Anuradha Bodi_ (supra). > 15. Learned counsel for the appellants has tried to persuade us to charter the aforesaid course by placing reliance on two decisions of this Court in _Narender Chadha and Others Vs. Union of India and Others[4 ]_ and _Keshav Chandra Joshi and Others Vs. Union of India and Others[5 ]_ It is contended that the denial of benefit of long years of _ad hoc_ service, in view of the ratio of the law laid down in the aforesaid two decisions, would be contrary to Articles 14 and 16 of the Constitution. > 16. it is the view expressed in _Narender Chadha_ (supra) which would require a close look as _Keshav Chandra Joshi_ (supra) is a mere reiteration of the said view. In _Narender Chadha_ (supra) the lis between the parties was one relating to counting of _ad hoc_ service rendered by the promotees for the purpose of computation of seniority qua the direct recruits. The basis of the decision to count long years of _ad hoc_ service for the purpose of seniority is to be found more in the peculiar A B c D E F G 5. 1992 Supp (1) sec 272. 4. (1986) 2 sec 157. H 380 SUPREME COURT REPORTS [2014] 10 S.C.R. A facts of the case as noted in para 20 of the report than on any principle of law of general application. However, in paragraphs 15-19 of the report a deemed relaxation of the Rules of appointment and the wide sweep of the power to relax the provisions of the Rules, as it existed at the relevant point of time, B appears to be the basis for counting of the _ad hoc_ service for the purpose of seniority. 17. The principle laid down in _Narender Chadha_ (supra) was approved by the Constitution Bench in _Direct Recruit Class II_ (supra) as the promotion of the officers on _ad hoc_ basis C was found to be "without following the procedure laid down under the Rules." That apart, what was approved in the _Direct Recruit Class II_ (supra) is in the following terms. _"We, therefore, confirm the principle of counting towards_ D _seniority the period of continuous officiation following an appointment made in accordance with the rules prescribed for regular substantive appointments in the service."_ {Para 13} E 18. In _State of West Bengal and Others Vs. Aghore Nath Dey and Others_ (supra) a three Judges Bench of this Court has held that in view of the _/is_ involved in _Narender Chadha_ (supra) i.e. _inter se_ seniority of direct recruits and promotees, the said decision cannot be applied to cases where the initial appointment was not according to the Rules. Paras 19 and 20 · F of the decision in _State of West Bengal_ (supra) may be usefully extracted hereinbelow. _"19. The constitution bench in Maharashtra Engineers case, while dealing with Narender Chadha emphasised_ G _the unusual fact that the promotees in question had worked continuously for long periods of nearly fifteen to twenty years on the posts without being reverted, and then proceeded to state the principle thus:_ (SCC _p. 726, para 13)_ H VIRESHWAR SINGH _v._ MUNICIPAL CORPORATION 381 OF DELHI [RANJAN GOGOi, J.] _"We, therefore, confirm the principle of counting towards_ A _seniority the period of continuous officiation following an appointment made in accordance with the rules prescribed for regular substantive appointments in the service."_ _20. The constitution bench having dealt with Narender Chadha in this manner, to indicate the above principle, that decision cannot be construed to apply to cases where the initial appointment was not according to rules."_ 8 19. All the aforesaid discussion would leac:f us to the C conclusion that any departure from the views expressed and conclusions reached in _Dr. Anuradha Bodi_ (supra) will not be necessary or justified. Accordingly, we do not find any merit or substance in the appeals under consideration. They are, therefore, dismissed but without any order as to costs. D D Devika Gujral Appeals dismissed.