2014(3) ALL MR 572
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
B.P. DHARMADHIKARI AND A.S. CHANDURKAR, JJ.
Azizulrahaman s/o. M.A. Rafique & Ors. Vs. The Nagpur Municipal Corporation & Ors.
Writ Petition No. 3795 of 1997,Writ Petition No. 667 of 1999
4th December, 2013
Petitioner Counsel: Shri M.G. BHANGDE, Shri R.M. BHANGDE, Ms. K.K. PATHAK
Respondent Counsel: Shri C.S. KAPTAN, Shri CHAWHAN, J.B. KASAT, Shri A.S. JAISWALShri V.A. DHABE
Service Matter - Promotion - Promotion to the post of Deputy Engineers employed in Municipal Corporation - Resolution of Corp. providing for 50% selection from Asst. Engineers and 50% from Sectional Engineers - Challenge - Ground that there has to be a common seniority list for all junior Engineers and no separate list is required for Asst. and Sectional Engineers - Facts of case show that already by a Resolution of 1984, cadre of junior Engineers divided into Asst. Engineers (Graduates), Sectional Engineers (Diploma holders) and Junior Engineers (less qualified) - Different pay scales were also prescribed - It can be said that separate posts were created thereby - Therefore, it is necessary to have separate seniority lists for promotion - Impugned Resolution providing for 50 : 50 ratio also objected on ground of competency of Corp. to pass the same without framing Rules for promotion - As the Rules were framed but later on quashed by Industrial Court, said objection not sustainable - Promotion directed to be completed within prescribed time. (Paras 26, 27, 30, 31, 32, 38)
B. P. DHARMADHIKARI, J. :- The challenge in Writ Petition No.3795 of 1997 filed by three individuals is to the Resolution dated 2/12/1997 thereby promoting the Junior Engineers as Deputy Engineers. It is not in dispute that the present petition came to be filed on 26/12/1997 and the said Resolution promoting the eight persons came to be implemented on 1/1/1998. The petitioners also challenge the seniority list on the basis of which these eight persons have been promoted and seek direction to respondent No. 1/Nagpur Municipal Corporation to prepare a cadre-wise seniority list of Assistant Engineer-II and Sectional Engineer independently based upon the length of service at a particular post w.e.f. 1/4/1981. On 7/10/1998 the petition has been amended to add prayer to direct the Corporation to act upon the office note dated 1/1/1998. The persons promoted have later on been impleaded as Intervenor/respondent Nos. 2 to 9.
2. In Writ Petition No.667 of 1999 the petitioners seek a declaration that the action of the Corporation in not following the Resolution dated 5/10/1984 in toto is illegal. They also seek a direction to restrain it from dividing the seniority list of different cadres like Junior Engineers, Assistant Engineers-II and Sectional Engineers. The prayer obviously is not to subdivide the seniority list of Junior Engineers into these different cadres. They also sought expressly a direction to the Corporation to continue with the old policy of maintaining the seniority list of Junior Engineers, Assistant Engineers-II and Sectional Engineers.
"Heard. As the respondent Municipal Corporation vide their Resolution No.65 dated 5.10.1984 have adopted and accepted Government Resolution dated 16.4.1984 of the State of Maharashtra, they are required to prepare three separate seniority lists as prayed for, in accordance with the Resolution of the Corporation. The application is allowed in terms of prayer clause (a). Other reliefs sought would be considered after separate seniority lists as directed is prepared."
There is no objection to the C.A.No.932/99 for directions by the respondent Corporation. C.A.No.932/99 is allowed. Future promotions, ad-hoc or otherwise to the post of Deputy Engineer from the post of Assistant Engineer-II shall be made only on the basis of final seniority list published on 6.2.1999."
5. Thus, this Court on that day ordered that the future promotions to the post of Deputy Engineer from the post of Assistant Engineer-II shall be made by following the seniority list dated 6/2/1999. It is, in this background, we have heard the Senior Advocate Shri M.G. Bhangde with Advocate Shri R.M. Bhangde appearing for the petitioners in Writ Petition No.3795 of 1997, Advocate Ku. K.K. Pathak, appearing for the petitioners in Writ Petition No.667 of 1999, Senior Advocate Shri Kaptan with Advocate Shri Chawhan and Advocate Shri J.B.Kasat, appearing for respondent/Corporation, Advocate Shri V.A. Dhabe, appearing for respondent No.9/intervenor in Writ Petition No.3795 of 1997 and Advocate Shri A.S. Jaiswal, appearing for intervenor/respondent No.8 in Writ Petition No.3795 of 1997.
6. It is to be noted that there are few other writ petitions placed for consideration along with these two petitions. However, those petitions challenge the preparation of seniority list published on 6/2/1999 by following the directions of this Court issued on 6/10/1998. Thus, norms followed for the said purpose are questioned in those petitions and, hence, those petitions have been separated presently from this petition.
7. The learned Senior Advocate Shri Kaptan, appearing on behalf of the Corporation as also the Advocate Shri Jaiswal, appearing on behalf of respondent No.8/intervenor have made their stand clear by submitting that the respective respondents are not opposing the directions issued on 16/10/1998.
8. Learned Senior Counsel Shri Bhangde with Adv. R.M. Bhangde urged that the basic qualifications for recruitment to the post of Junior Engineer or then for promotion from that post to the post of Deputy Engineer are prescribed vide Resolution of Corporation having No. 31 dated 12/4/1976.
9. The State Government on 16/4/1984 awarded gazetted status to the Graduate and other Junior Engineers with effect from 1/4/1981. This Resolution of State Government has been adopted by the Corporation vide Resolution No. 65 dated 5/10/1984 passed by its Administrator. Because of this adoption, the Graduate Junior Engineers working with Corporation secured gazetted Class II status. Junior Engineers with three years' Diploma became gazetted Officers after experience of five years. Those with two years' Diploma are entitled to become gazetted Officers after seven years and other Junior Engineers mentioned as unqualified Junior Engineers qualify for that status after ten years of service. The Graduate Junior Engineers were then designated as Assistant Engineers (Class-II) and their cadre's strength was determined at 25% of the total number of posts of Junior Engineers. The Diploma Holders or others became Sectional Engineers (Class-II). Thus, cadre of Assistant Engineer (Class-II) surfaced as immediate next below cadre for the post of Deputy Engineer followed by cadre of Sectional Engineer and lastly the cadre of Junior Engineer. Different pay scales were prescribed for these cadres.
10. He invites attention of the Court to revised pay scales sanctioned in 1996 on the eve of Vth Wage Revision and states that accordingly different pay scales were prescribed and maintained. Graduate Engineers took objection to common seniority list of all these cadres on 15/5/1997. One of the petitioners, who is Assistant Engineer (Class II) also raised objection on 29/5/1997. It is in this background that the impugned Resolution came to be passed on 2/12/1997 and eight Junior Engineers out of common seniority list were promoted as Deputy Engineers. Writ Petition was filed on 26/12/1997 and the orders were issued and implemented on 1/1/1998. He points out that those orders specifically mention the promotion to be temporary. He contends that thus, without preparing separate seniority list or otherwise distinct cadres, the promotions could not have been ordered. It is in this background that he has invited Court's attention to order dated 16/10/1998 passed by it in the present matter and later order dated 26/2/1999.
12. Learned Senior Counsel Shri Kaptan while accepting the contention that three separate cadres emerged pointed out the modification effected on 18/10/1999 in the ratio for the promotion to the post of Deputy Engineer. 50% of the vacancies in the cadre of Deputy Engineer are to be filled in through Assistant Engineers while remaining 50% are to be filled in through Sectional Engineers.
13. Adv. Dhabe appearing for respondent no.9/ intervener and petitioner in Writ Petition No. 1592/1999 has urged that through various Resolutions mentioned supra, there was no creation of any separate post or cadre. The cadre remained a cadre of Junior Engineers. He has further submitted that though referred to as Service Rules, the qualifications and ratio are prescribed only through Resolutions and basic document dated 31/12/1976 is nothing, but a Resolution of the General Body. He has relied upon reply-affidavit to point out previous history. He contends that as the said previous history was not pointed out to this Court when it passed order dated 16/10/1998, the direction to prepare a common seniority list came to be issued. He has invited our attention to paragraph (7) of the counter affidavit filed by respondent no.9 for this purpose. He has further stated that vide General Body's Resolution No.80 dated 28/11/1985, the requirement of educational qualification for promotion has been dispensed with. He, therefore, submits that common seniority list of Junior Engineers as prevalent in 1984 must continue and petition must be dismissed.
14. Adv. Pathak appearing for petitioner in Writ Petition No. 667/1999 has adopted the arguments of Adv. Dhabe. She asserts that policy framed vide Resolution No.31 dated 12/4/1976 must be implemented. She has invited our attention to Circular dated 19/10/1984 issued by Additional Deputy Municipal Commissioner to urge that even as per the said Circular, preparation of three different seniority lists is not necessary though it speaks of separate pay scales. A common seniority list of all Junior Engineers must be used while effecting promotions to the post of Deputy Engineer. She contends that there is no creation of separate post or cadre and it is only re-designation, which does not necessitate preparation of different lists.
15. A communication dated 18/2/1992 sent by the Deputy Municipal Commissioner to Graduate Engineers rejecting their representation for separate seniority list is also pressed into service with contention that there is no challenge to the same. Our attention is also drawn to the stand of Nagpur Municipal Corporation in reply dated 22/12/1992 filed before Lokayukta. She states that even in the said reply, the cadre of Junior Engineers as a whole has been accepted as next below cadre for the promotions.
16. The orders passed on 25/6/1999 in Writ Petition No. 3795/1997 are also pressed into service to show that there is a direction to respondent no.1 Corporation to frame rules for promotions for Junior Engineers, Sectional Engineers and Assistant Engineers expeditiously. It is contended that unless and until such Rules are framed, the existing practice cannot be changed and Resolutions also cannot be altered. She, therefore, prayed for allowing Writ Petition No. 667/1999 by directing Corporation to follow Resolution dated 5/10/1984 and to continue to maintain a common seniority list.
17. Learned Senior Counsel Shri Kaptan while replying to arguments in Writ Petition No. 667/1999 has urged that a Resolution can be altered by later valid Resolution and all changes in basic Resolution No.31 dated 12/4/1976 are already on record. He, therefore, prays for dismissal of Writ Petition No.667/1999.
18. Learned Senior Counsel Shri Bhangde in his reply arguments has stated that reliance upon three documents by petitioners in Writ Petition No. 667/1999 is misconceived. Letter dated 18/2/1992 of Nagpur Municipal Corporation or stand taken by it in reply dated 22/12/1992 before Lokayukta are subject to adjudication of Writ Petition No.3795/1997. The Circular dated 19/10/1984 is complete in itself and has been rightly implemented. Options were invited earlier on 5/10/1984 and Circular dated 19/10/1984, therefore, only deals with the said facet. He further contends that in view of adoption of Government policy, later on heterogeneous groups emerged, which necessitated a balancing act while effecting promotion to the post of Deputy Engineer. The said equilibrium or balance has been struck by providing 50% reservation each for Assistant Engineers (Grade-II) as also for Sectional Engineers as per modification effected by Mayor on 18/10/1999 according to Resolution No.100 dated 21/10/1997 of Municipal Corporation.
19. The prayers in Writ Petition No.667/1999 need to be looked into first. There the first prayer is to direct Corporation to declare that action of respondent Corporation in not following Resolution dated 5/10/1984 in toto is illegal. Second prayer is to direct respondents to continue the old policy of maintaining common seniority list of Junior Engineers, Assistant Engineers (Grade-II) and Sectional Engineers till appropriate Rules are framed and approved. The petition has been filed on 7/12/1998 and on that day, petitioner no.1 Ashok Sathawane therein was working as Deputy Engineer. He is a Diploma Holder. The other five petitioners therein are also Diploma Holders and in para (1) they state that after completion of five years of service, they came to be designated as Sectional Engineers and thereafter they were promoted as Deputy Engineers.
20. The Resolution dated 5/10/1984 is thus claimed as not fully implemented in Writ Petition No.667/1999 while petitioners in Writ Petition No. 3795/1997 attempt to point out that it has been completely executed. The fact that it has been implemented from 1/4/1981 by following Government Resolution dated 16/4/1984 is not in dispute. The petitioners before this Court are the beneficiaries of the decision dated 5/10/1984. This Decision No.65 dated 5/10/1984 taken by Corporation in the regime of Administrator states that from 1/4/1981 Graduate Junior Engineers working in Corporation shall be given the status of Officers (Class II). Junior Engineer holding three years' Diploma becomes eligible for getting status of Officer after five years' service, Junior Engineer holding two years or equivalent Diploma becomes eligible for that status after seven years and other Junior Engineers become eligible for that status after ten years. Perusal of Item No.11 of Resolution No.31 dated 12/4/1976 dealing with Rules for recruitment and promotions show that even Certificate Holders were eligible to become Junior Engineers. This was later on modified to relax educational qualification for Timekeepers and Mistry already in employment with Corporation. For them, educational qualification of X Standard pass with ten years' experience of working in P.W.D. was held sufficient. This modification effected on 31/12/1980 was later on cancelled on 31/7/1982. Thus, for sometime, employees like Time Keepers and Mistry working in P.W.D. were also eligible to aspire for the post of Junior Engineer.
21. The Resolution No. 65 dated 5/10/1984 points out Assistant Engineer (Class - I) in pay scale of Rs.660-Rs.1250/- as the post at top. The post of Deputy Engineer in the pay scale of Rs.600-Rs.1150/- is below it. Thereafter, in hierarchy, the post of Assistant Engineer (Class-II) in the pay scale of Rs.650-Rs.950/-, post of Sectional Engineer in the pay scale of Rs.650-Rs.950/- and then post of Junior Engineer in the pay scale of Rs.395-Rs.900/- appear. Paragraph (5) of this Resolution mentions that appointments to these posts would be made as per rules of recruitment. The incumbents holding posts of Assistant Engineer (Grade-II) and Sectional Engineers were to perform their existing duties and possess same powers. Paragraph (6) thereafter stipulates that independent orders for creation of posts to be sanctioned in specified proportion for cadres of Assistant Engineer (Grade-II) and Sectional Engineer as also about appointments to those posts would be issued. The Circular dated 19/10/1984 is issued by Additional Deputy Municipal Commissioner and it refers to Government Resolution dated 16/4/1984 and states that all incumbents satisfying requirements as stipulated therein would be designated as either Junior Engineers or Sectional Engineers or Assistant Engineers (Grade-II). It also stipulates that total number of posts of Assistant Engineers (Grade-II) would be restricted to 25% of total number of Junior Engineers in Corporation. Option has been given to Junior Engineers to come over to new scales or to retain existing scales. Thus, this Circular dated 19/10/1984 is issued in terms of paragraph (6) of the Resolution No. 65 dated 5/10/1984.
22. In this background when the revised pay structure sanctioned to Junior Engineers and Sectional Engineers or Assistant Engineers (Class-II) is looked into, it shows that prior to 1/11/1996 pay scale of Junior Engineer was Rs.1400-2300/- and they were given revised pay scale of Rs.1640-2900/- . Sectional Engineers/Assistant Engineers (Class-II) were in the pay scale of Rs.2000-3200/- and revised pay scale of Rs.2000-3500/- with Class II status has been sanctioned to them by order dated 1/11/1996. The orders stipulate that arrears becoming due and payable for the period from 1/1/1986 to 31/12/1995 would not be paid. The pay so fixed from 1/1/1986 as per revised pay scale and salary becoming payable accordingly was to be released from 1/1/1996. Thus, even when Resolution was passed by Administrator on 5/10/1984 or when it was implemented on 19/10/1984 and thereafter on 1/11/1996 when Municipal Commissioner sanctioned revised pay scales, it became clear that those Junior Engineers with gazetted Status were treated separately while others were continued as Junior Engineers. Junior Engineers with gazetted status either became Assistant Engineers (Class-II) or Sectional Engineers depending upon their educational qualification.
23. Insofar as post of Deputy Engineer is concerned, Resolution No.31 dated 12/4/1976 prescribes that the said post would be filled in from next below cadre (Junior Engineer) by following principle of seniority and merit through promotion. The fact that promotion to this cadre was to be made in proportion of 50% through Sectional Engineers and remaining 50% from Assistant Engineers is disclosed on record in additional affidavit by Corporation. Because of above position, on 21/10/1997 General Body of Municipal Corporation passed Resolution No. 100 and gave authority to Mayor to take a decision regarding policy of promotion and appropriate decision. Mayor first decided the ratio of 33:67 between Assistant Engineers (Grade-II) and Sectional Engineers. However, it has been later on modified on 18/10/1999 to 50% each. This ratio is still stated to be in force. The rival contentions need evaluation in this factual background.
24. Thus, discussion above clearly shows the fact that none of the petitioners are against the adoption of the Government Resolution vide Administrative Resolution No.65 dated 5/10/1984. On the contrary, they have also been benefited because of that adoption. Some of the Junior Engineers, working in earlier cadre with Diploma, became officers with gazetted status after five years of service or seven years of service, as the case may be. Hence, on a given time, in erstwhile cadre, one could get graduate Junior Engineers, Junior Engineers who have secured Diploma and then the Junior Engineers with other qualifications. After adoption of said policy, graduate Junior Engineers became Assistant Engineers (Class-II). The Junior Engineers, holding Diploma qualification, got the same status but after putting five years of service or seven years of service. Hence, it is only so called unqualified Junior Engineers, who could not improve their status. None of such unqualified Junior Engineers are before this Court in Writ Petition No.667/1999. Even an unqualified Junior Engineer, after ten years of service, could improve his status. The Diploma holders are not before this Court with a grievance that discrimination has been made by designated Junior Engineers, holding graduate qualification as Assistant Engineers (Class-II). The classification introduced in the old cadre of Junior Engineers is not being assailed in these petitions by anybody.
25. Hence, unqualified Junior Engineers in pay scale of Rs.395-900/- were at the bottom in the erstwhile cadre, where the Sectional Engineers, who got that status after fives years and seven years of service and thereafter the Assistant Engineers (Class-II). Pay scales of both these cadres after re-designation were same. The next higher pay scale is available in the cadre of Deputy Engineer. Insofar as that cadre is concerned, Resolution No.31 dated 12/4/1976 prescribes that it has to be filled in by promotion through immediately next below cadre.
26. The next below cadre for the post of Deputy Engineer therefore is that of Sectional Engineer or Assistant Engineer (Class-II). We have already noted above that 50% of the posts of Deputy Engineers are to be filled into Sectional Engineers while remaining 50% are to be filled in by promoting Assistant Engineers (Class-II). Thus, both Diploma holders and Degree holders have been given equal treatment and weightage for the purpose of said promotion. We again reiterate that no unqualified Junior Engineer is before this Court. In any case, an unqualified Junior Engineer gets the status of an officer after ten years of service. Hence, in the cadre of Sectional Engineers, the length of service is important.
27. In this situation, we find that the Junior Engineers upgraded as Sectional Engineers and Junior Engineers upgraded as Assistant Engineers (Class-II) have been treated equally also for the purpose of promotion to the post of Deputy Engineer.
29. The contention that posts have not been created is equally misconceived. The Resolution dated 5/10/1984 itself specifies different designation with pay scales. Its implementation vide Circular dated 19/10/1984 is again on same lines. Both these documents also state that strength of cadre of Assistant Engineer (Grade - II) shall be 25% of the total number of posts of Junior Engineers. The Circular dated 19/10/1984 also restricts the posts of Assistant Engineers (Grade-II) to 25%. Existing posts, to the extent proposed, get converted into better posts. At this stage, Advocate Shri Jaiswal, who appears for the petitioners in Writ Petition No.1398/1999, states that as a particular post in the erstwhile cadre of Junior Engineer is not earmarked either for Assistant Engineer (Class-II) or then for Sectional Engineer, observations of this Court in the present judgment may prejudice the contentions of the petitioners. It is apparent that the argument can be considered on its own merit in the said writ petition as and when it is taken up for hearing.
30. In Writ Petition No.667/1999, a prayer is to direct the Corporation to continue common seniority list of Junior Engineers till appropriate Rules are framed and approved. There is no prayer to direct the Corporation to frame such Rules. Even in Writ Petition 3795/1997 there is no such prayer. However, in that writ petition on 25/6/1999, while passing orders on Civil Application No.4482/1998, this Court has called upon the respondent - Corporation to frame Rules for promotion. The recruitment Rules were framed by the Corporation on 23.11.2001, but the same were challenged before the Industrial Court in ULPA No.462/2002 and the Industrial Court has quashed those Rules on 30/7/2007. The Resolution No.31 dated 12/4/1976, therefore, continues to hold the field. It is, therefore, apparent that when the situation is still governed by the said Resolution and impugned order of promotion is also issued in terms thereof and parties have acted upon it, the objection that unless and until Rules are framed the Resolution cannot be changed, is misconceived. The General Body which has passed the Resolution is competent to change it in accordance with law. No other objection to the changed Resolution has been raised before this Court.
31. The relevant Clause regulating promotion to the post of Deputy Engineer in Resolution No.31 dated 12/4/1976 shows that promotions are to be effected from next below cadre. The words "Junior Engineer" are mentioned in bracket after the word "cadre". As we have noted above, in the erstwhile cadre of Junior Engineer itself, one gets post of Assistant Engineer (Class-II), Sectional Engineer and thereafter unqualified Junior Engineer. The later Resolution of Corporation also prescribes the ratio of 50 : 50 and insofar as zone of consideration stipulated therein is of Sectional Engineer and Assistant Engineer. There is no challenge to this change before us.
32. In this situation, all these developments necessitate maintenance of separate lists insofar as Assistant Engineers (Class-II) or Sectional Engineers are concerned. Unless and until there are such separate lists, the above mentioned ratio or then requirement of effecting promotion on the basis of seniority and merit cannot be fulfilled.
33. The stand of Nagpur Corporation before Lokayukta in reply or then a letter sent by its Deputy Municipal Commissioner cannot be of any assistance, when the Court of law has to construct the provisions made vide Resolution No.31 dated 12/4/1976 as amended.
34. Advocate Shri Dhabe has pointed out a General Body Resolution No.80 dated 28/11/1985. Copy of the said Resolution is produced on record. Copy of the same is also available as Annexure-XII in Writ Petition No.5112/1999 filed by Advocate Shri Dhabe on behalf of intervenor - respondent no.9.
35. Perusal of the said Resolution shows that General Body of Corporation unanimously resolved and approved that educational qualification, prescribed for the post to be filled in by direct appointment, shall be mandatory. However, for the posts to be filled in by promotion from amongst the employees of Corporation, those qualifications will not be necessary. The said Resolution has no application in the present facts. The post of Deputy Engineer is to be filled in by promotion from amongst the Corporation employees. The educational qualification for Junior Engineer is already prescribed and that post is to be filled in by direct recruitment. Only for two years the post was permitted to be filled in through Mistry and Timekeepers. Even if it is held that no educational qualification was necessary for Mistry or Timekeepers to become Junior Engineer, that by itself will not further the cause of objectors. Here, the Corporation is not giving any additional weightage to the Diploma holder, Junior Engineers or to graduate Junior Engineers and on the strength of their seniority and merit in the proportion of 50:50, promotions are being effected to the post of Deputy Engineer. Hence, deletion of requirement of a particular educational qualification is not relevant and decisive here.
37. Insofar as the prayers in Writ Petition No.3795/1997 are concerned, the promotions made are on 1/1/1998 and in terms of the Resolution dated 2/12/1997. These promotions were on temporary basis. During the pendency of this petition, the Corporation itself has accepted the directions issued by this Court on 16.10.1998 while deciding Civil Application No.4740/1998 as final and binding upon it. The different seniority lists were accordingly prepared and on 26.2.1999, this Court directed that future promotions, ad hoc or otherwise to the post of Deputy Engineer from the post of Assistant Engineer (Grade-II) shall be made only on the basis of final seniority list published on 6.2.1999. The respondent - Corporation is also not opposing this arrangement.
38. In this situation, it is apparent that the temporary promotions made cannot be sustained. The Corporation has to consider the Assistant Engineers (Class-II), Sectional Engineers as per their seniority in their respective seniority lists and promote them against the vacancies in the cadre of Deputy Director. We direct that the said exercise be completed within a period of three months from today.