VIRESHWAR SINGH & ORS.versusMUNICIPAL 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        A
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.        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       C
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    D
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.
                                                                      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             F
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.

     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 Phase-
D 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 0thers3 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.

          "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        A
       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          B
       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
                                                                       c
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).                                                          D

     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 Others4 and Keshav Chandra Joshi                E
and Others Vs. Union of India and Others5 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.
                                                                       F
      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.       G
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

4.    (1986) 2 sec 157.
5.    1992 Supp (1) sec 272.                                           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."
                                                                   8
     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."

     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

Devika Gujral                                 Appeals dismissed.