JUDGMENT
S. Ravindra Bhat, J.
1. The petitioners were, at the relevant time, working as surveillance inspectors from some time in the year 1963 in the Municipal Corporation of Delhi (MCD). Upon reorganization in the corporation, they were shifted to the post of surveillance workers in the pay scale of Rs. 110-180/- with effect from 1.8.1964. In both these writ petitions, the petitioners claim that they had to be treated as entitled to the post of Surveillance Inspector (which at the relevant time carried pay scale of Rs. 110-290) with effect from the dates when they acquired educational qualifications prescribed for the post namely a diploma as Sanitary Inspector or alternatively from the date they were appointed as surveillance workers namely 1.8.1964.
2. The petitioners have relied heavily on two decisions of this court. The first one was delivered on 15.10.1971 by learned Single Judge of this Court in CWP No. 1250/1967 and 1216/1967. The court was considering the case of persons who had been appointed initially in the Surveillance Inspector Category by the MCD in connection of its anti- malaria operations. It noticed that 50 posts of Surveillance Inspectors were created in 1960 which were subsequently raised to 72. After noting that the qualification initially indicated was matriculation, preferably with some experience in malaria, the court upon examination of pleadings and materials on record, held as follows:-
The post of Surveillance Inspectors were created after the petitioners had become employees of the Corporation and the suggestion made regarding the qualifications in the National Malaria Eradication Programme Guide was intended to be by way of guidance. It did not lay down any rigid qualifications. It will be noticed that what was suggested was that the Surveillance Inspectors should be at least Matriculates preferably with some experience in Malaria work and, therefore, imposing the condition of passing the Malaria Inspectors course or the Sanitary Inspectors course was not contrary even to what was mentioned in the National Malaria Eradication Programme Guide. There also seems to be no substance in the allegations that the qualifications required were fixed with any ulterior motive or that Lt. Col. Boparai or his successor were beneficiaries from the All India Institute of Local-self Government. It was affirmed in the counter-affidavit filed on behalf of the Corporation that the above mentioned members never received any benefit except conveyance charges for the lectures delivered by them. It was also denied that in sending departmental candidates for training in Malaria Inspectors Course seniority was not adhered to. It was stated as under:-
The departmental candidates sent up for training were from different Committees which formed part of the Municipal Corporation of Delhi. The Municipal Corporation though formed w.e.f. 1-4-58 was still working through channel of different Committees such as N.E.C. Shahdara, T.A. Zone, West Zone Antimalaria Operations and Delhi Municipal Committee. The integrated seniority could only be determined by 1963. The candidates sent up for training from anti-malaria operations are in order of seniority.
Admittedly the petitioners qualified in the year 1964, one of them in the month of October and the other one in the month of December. Shri Bishamber Dayal, learned counsel for the respondents, produced the departmental record to show that it had been suggested to the Health Officer by his own office that the petitioners should be promoted to the posts of Surveillance Inspectors and they being the senior most should be considered for promotion from the date the other candidates were appointed. It was also stated that probably no action was taken due to the pendency of the writ petitions in the High Court but as eight posts of Surveillance Inspectors are still lying vacant and no promotions have been made after the year 1964 as such there would be no difficulty in promoting the petitioners as Surveillance Inspectors within a period of one month. The right of the petitioners to be promoted accrued on their qualifying in the Sanitary Inspectors course. The petitioners are, therefore, not entitled to be considered for promotion as Surveillance Inspectors from the year 1960. Thy, however, have a right to be promoted as Surveillance Inspectors as they have already qualified in the Malaria Inspectors course and it would be appropriate to consider them for promotion from the dates they qualified, keeping in view their seniority.
In view of what has been stated above the writ petitions are accepted to the extent that the matter regarding promotions of the petitioners as Surveillance Inspectors be settled by the respondents in a period of not more than one month and while doing so it may also be considered whether they should be given promotion from the dates of their qualifying in the Sanitary Inspectors Course consistent with their seniority. In the circumstances of the case there will be no order as to costs.
3. After the judgment in Virender Kumar’s case (supra) was delivered, the MCD accepted the decision and appointed four persons namely Mr. Ram Kumar Dabas, Mr. S.P. Mehta, Mr. Om Prakash and Mr. N.B. Lal as Surveillance Inspector with effect from date when they acquired the requisite qualifications as sanitary Inspector. It is not disputed that those persons had not approached the court.
4. It is contended that in the meanwhile another employee Sh. P.S. Lamba approached this court and filed WPC 334/1972 claiming a relief similar to what was granted in the Virender Kumar’s case. A Division Bench of this court disposed off the petition endorsing the view of the Single Bench Judgment in WPC No. 1215-16/1967. The judgment of the Division Bench reads as follows.:-
The petitioner has relied on a judgment of this Court dated 15.10.1971 in C.W. Nos. 1215 and 1216 of 1967 where a similar question was decided by this Court. In that case, this Court had directed the respondent Corporation to give promotion to the petitioners in that writ petition as Surveillance Inspectors from the date they qualified in the training.
It has been brought to my notice that subsequently also by an office order No. 15/DHO/(MAL) ESTT/75/3097 dated 13.1.1975 the respondent Corporation itself had given retrospectively to the promotions of certain Surveillance Inspectors from the date they had qualified.
Since the petitioner had admittedly qualified in 1966, I see no reason why he should be discriminated against and should not be given promotion to the post from the date he qualified. I, therefore, allow the writ and direct the respondent to give promotion to the petitioner as Surveillance Inspector from the date he qualified and became entitled to the said post. In the circumstances of the case, I leave the parties to bear their own costs.
5. The petitioners relying upon the order dated 31.10.1985 by which Shri Lamba was granted benefits and his date of appointment which originally was in the year 1973 was pushed back on 10.10.1966. By that order another official Sh. J.K. Prasad who was also working as Malaria Inspector and was senior to Sh. Lamba was also given benefit of retrospective promotion with effect from 10.10.1996. Learned counsel for the petitioner submits that the two decisions namely Virender Kumar’s case as well as P.S. Lamba’s case were not appealed against and were given effect to by MCD. The declaration or the interpretation given to the conditions therefore, crystallised in favor of the entire class of employees who had acquired qualification as prescribed for the purpose of filling the post of Surveillance Inspector, and therefore, the petitioners were likewise entitled to be considered as having been appointed from the date when they acquired such qualifications. It was contended that withholding of the benefit was contrary to law; in spite of repeated representations, the respondent did not take any action.
6. Learned counsel for respondent has refuted the allegations of arbitrariness. She contends that in the year 1973, Recruitment Rules for various class III posts in the Anti Malaria Operations of the MCD were formulated. They introduced a quota of 75% promotions from amongst the category inter alia, surveillance workers, and a 25% quota for direct recruitment. Counsel contends that as per rules, promotional quota was to be filled by selection form the feeder category and the eligibility criteria indicated was as follows:-
From amongst Malaria Supervisors, Insect Collectors, Laboratory Asstts. Lab. Technicians, Basic Health Workers, Surveillance Workers with 5 years service in the respective grades.
7. Learned counsel contended that by virtue of the change in the rule position, it was no longer possible for any employee to contend that he should be automatically given pay scale of Sanitary Inspector from the date of his having acquired qualifications; the department also had to take in into account the experience prescribed in that regard.
8. The undisputed facts of this case are that prior to the formulation of the rules in the year 1973, the qualifications prescribed for the post of Surveillance Inspector at different stages were nebulous. This was noticed by the Single Judge who decided Virender Kumar’s case and on the basis of such reasoning it was held that those among the eligible candidates who acquired qualifications to hold higher post, had to be treated as Surveillance Inspectors from the date of their acquiring the qualification. This reasoning was adopted by the Division Bench in the year 1985. However there is one singular difference between those two cases and the present petitions. Those judgments were delivered in respect of claims that were raised prior to the coming into force of the recruitment rules in the year 1973.
9. Learned counsel for the respondents had submitted that after the 1973 rules it was no longer open for the petitioners or for that matter any class employees to argue that automatic promotion/appointment could be given from the date of the incumbent having acquired the qualifications relating to the higher post. To a certain extent she is right. Once the rules are brought into force, the executive agency or the corporation, as the case may be, is bound to apply them uniformly, and even handedly. It cannot make any departure. The facts in this case are somewhat to the contrary. The MCD while issuing orders in respect of the four employees in the year 1975 as also in the case of Sh. Prasad understood the correct position differently. No attempt was made to explain as to how such employees were given retrospective promotions apart from the statement that such employees were existing employees even before 1964 whereas the petitioners had acquired higher qualifications before they joined the corporation.
10. After considering all the circumstances, I am of the opinion that even though the respondent corporation has not been able to establish the rationale for promotion to five employees including Mr. Prasad nevertheless, the contention that it is bound by the rules and had to apply the requirement of insisting the employee having the prescribed experience cannot be lost sight of. By such reckoning, it cannot be and was not disputed that the petitioners became entitled to be considered as Surveillance Inspector with effect from 1.8.1969, since they had completed five years of service as Surveillance workers by then.
11. Under normal circumstances, once the legal right is established, the court while granting relief is entitled to direct full consequential benefits. In this case once circumstance which the court has to weigh and consider appropriately would be the fact that the petitioners approached this court and filed Writ Proceedings in June 1988 (in the case of CW 205/1988) and in July 1990 (in CW No. 2509/1990). All the petitioners have averred that they approached authority and claimed the relief administratively through representations. The petitioners could admittedly have approached the court immediately after 31.10.1985, when Sh. P.S. Lamba, and J.K. Prasad were given benefits of retrospective promotion with effect from the date they acquired qualifications.
12. Taking into account all these circumstances I am not inclined to direct full consequential benefits. In view of the above discussion, these Writ Petitions are allowed to the extent that a direction is issued to the MCD to promote the petitioners as Surveillance Inspectors in the grade of Rs. 110-290/-,(following the decision of the Division Bench in CWP 334/72 dated 24.1.1985) after they completed the five years eligibility service in the grade of Surveillance Workers and consequently fix their pay in the regular grade and give notional increments along with revision of pay scale etc. at all relevant points in time from 1.1.1988. The petitioners shall be entitled to arrears of salaries from 1-1-1988. The petitioners shall also be entitled to consequential pension fixation/revision on the basis of pay revisions and revised pay fixation orders as per directions of this court. All the relevant pay fixation and the consequential orders pursuant to directions of this court shall be issued within eight weeks from today and the amounts to be paid to the petitioners shall be released within four months from today. Rule made absolute in the above terms. No costs.