JUDGMENT
Markandeya Katju, C.J.
1. This writ appeal has been filed against the impugned judgment of the learned Single Judge dated 25.1.2006 by which the petition was dismissed.
2. Heard learned counsel for the appellants and perused the record.
3. The facts in detail have been set out in the judgment of the learned Single Judge and hence we are not repeating the same except where necessary.
4. The appellant is the petitioner No.2 in the writ petition. He was selected and appointed as a Senior Sales Assistant on the fixed salary of Rs. 550/- p.m. which was increased in October, 1988 to a fixed salary of Rs. 1,300/- p.m. The place of the petitioners in the seniority list is as mentioned in paragraph 2 of the writ petition. True copy of the seniority list dated 7.11.1985 is annexure P-1.
5. It is alleged in paragraph 3 of the writ petition that along with other senior Sales Assistants working on a consolidated salary, the petitioners were awarded the regular scale of Rs. 330-560/- w.e.f 1.7.1985. It was also decided by the respondent No.1, Delhi State Civil Supplies Corporation Ltd., that those senior Sales Assistant who have completed one to two years service on consolidated salary may be granted one increment in the scale, and those who have completed more than two years should be allowed 2 increments w.e.f. 1.7.1985.
6. In paragraph 4 of the writ petition, it is alleged that at the time of appointment of the petitioners i.e. 16.10.1981 no recruitment, increment or promotions rules were in existence. At the time of the petitioner’s appointment, the respondent was having two categories of staff, one being the regular staff comprising of AG-I, AG-II and AG-III in the regular pay scale of Rs. 425-700/-, Rs. 330-560/-, Rs. 260-400, and the other category being the staff recruited on a consolidated salary comprising of Junior Sales Assistant drawing salary of Rs. 500/- and Sales Officer drawing fixed salary of Rs. 1,000/- p.m.
7. In paragraph 5 of the writ petition, it is alleged that since the beginning the respondent No.1 was maintaining two different categories, namely, clerical/administrative cadre comprising of AG-I, AG-II, AG-III, who were working in the Head Office or branch offices either in clerical or administrative side, and another cadre i.e. Sale Cadre, comprising of Junior Sales Assistant, Senior Sales Assistant and Sales Officer working in the shops. It is alleged that the seniority lists of both the cadres have been maintained separately since the beginning and at the time of the appointment of the petitioners on the post of Senior Sales Assistant, a separate seniority list was drawn on the basis of merit in the interview vide annexure P-1 to the writ petition.
8. On 1.7.1985, the respondent No.1 framed and notified the rules for promotion and recruitment known as the Delhi State Civil Supplies Corpn. Ltd. (Recruitment and Promotion) Rules, 1985. Rule No.9 thereof states:-
Provision for existing staff.
The following categories of staff working on consolidated salaries would stand equated with the post noted against each with the same scale of pay sanctioned for these post provided they are found suitable by the screening committee.
(i) Sales Officer = Assistant Grade-I (ii) Senior Sales Assistant = Assistant Grade-II
(iii) Jr. Sales Assistant = Assistant Grade-III/Jr. Assistant
(iv) Helper, Mazdoor = Class four employees.
The suitability of the persons working on consolidated basis will be determined by the Screening Committee on the basis of the qualification and experience as provided in the recruitment rules. The persons who are not found suitable for placement in a regular scale of any due to known fulfillment of conditions regarding experience/will, continue or consolidated salary till they become eligible for the same within a reasonable period to be decided in each case by the Chairman-cum-Managing Director alternatively. Such officials may be considered for the next lower grade. The age limit in such cases will be counted from the date of appointment on consolidated salary. The date of which the regular pay scale is given to a person will be date of his regular appointment for the post ‘AND THE SERVICE RENDERED BY HIM PRIOR TO THAT DATE ON CONSOLIDATED SALARY IS NOT TO BE TREATED AS QUALIFYING SERVICE FOR THE PURPOSE OF SENIORITY’. The other employees appointed on regular scale till date will be deemed to have been covered under the provisions of these rules.
9. It is alleged in paragraph 9 of the writ petition that even after framing the above rules the respondent no.1 has been maintaining the two separate seniority lists of AG-II coming under the clerical/administrative cadre and the Senior Sales Assistant coming under the sales cadre as is evident from the seniority list dated 7.11.1985.
10. It is alleged in paragraph 10 of the writ petition that the petitioners have been availing all the facilities of a regular employee. It is alleged in paragraph 11 that the nature of job of AG-II and the Senior Sales Assistant are entirely different but only the pay scale is equal. It is alleged that hence the rule mixing up both the cadres for the purpose of seniority is bad in law and violative of Articles 14 and 16(1) of the Constitution. It is alleged that by equating the two cadres in this manner the AG-II who were already in service prior to the petitioners will get all the opportunity of being promoted to the higher scale i.e. Sales Officer and the petitioners who were senior most in the list of Senior Sales Assistant will not get a chance of promotion in the higher scale.
11. By letter dated 15.3.1989 respondents No.1 and 2 has promoted 11 persons from the seniority list of AG-II to Sales Officer in the scale of Rs. 1400-2300/- and 7 Senior Sales Assistant have been promoted against the reserved quota from the list of Senior Sales Assistant. It is alleged in paragraph 13 that the petitioner No.1 is senior most and petitioners No.2 and 3 are at nos. 4 and 8 in the seniority list, while respondents 12 to 18 are lower down. Hence there is violation of Articles 14 and 16(1) of the Constitution. It is alleged that respondents 12, 15 and 18 have been promoted illegally. It is alleged in paragraph 14 that all the employees promoted from the Senior Sales Assistant seniority list belong to reserve quota but not a single candidate belonging to the general category has been promoted. The said act of the respondent is hence alleged to be against the reservation rules.
12. It is alleged that even as per the rules for promotion to the post of Sales Officer or AG-I, 50% seats have to be filled by promotion.
13. A counter affidavit was filed in the writ petition and we have perused the same.
14. In paragraph 2 thereof, it is stated that at the time of the recruitment of the petitioners, recruitment was made on the basis of tentative Rules and Regulations. There were two categories of staff i.e. AG-II who were appointed on regular basis after qualifying in an open competitive test, and the other was of the Senior Sales Assistants who were engaged on consolidated salary basis only. Two seniority lists were maintained, one related to officials who were recruited on regular basis including AG-II, and the second seniority list related to officials who were recruited on consolidated salary. The petitioners were assigned 1st, 8th and 4th place in the second seniority list.
15. In 1985 new Rules and Regulations were adopted and notified by the Corporation. Rule 9 states that ‘the date on which the regular pay is given to the person will be the date of regular appointment for the post and the services rendered by him prior to that on consolidated salary is not to be treated as qualifying service for the purpose of seniority’. Copy of the rules is annexure R-1. The service of the petitioners were regularised w.e.f. 1.7.1985 and thereafter a joint tentative seniority list of Assistant Grade-II and Senior Sales Assistants was made as per the Recruitment and Promotion Policy 1985. After inviting objections from the concerned persons a final joint seniority list of AG-II/SSA was made.
16. In the joint seniority list petitioners were placed at Sl.No. 34,39 and 36 respectively. In paragraph 5 of the counter affidavit the averments of the petitioner that AG-I, AG-II and AG-III were to work in the Headquarter while the Sales Officer, Senior Sales Assistant and Junior Sales Assistant were to work on the ‘sale side’ has been denied. It is alleged that both categories of staff were to work both in the field as well as in the office. There was no such cadre as ‘Sales Cadre’ as claimed by the petitioner.
17. In paragraph 7 of the counter affidavit the averment that increments were granted to those officials who had rendered more than 2 years of service was denied, and it is stated that increments are in no way commensurable to the years of service rendered. It was a purely financial incentive to these officials for increasing their devotion to the service.
18. In paragraph 10, it is stated that the petitioners were no doubt for getting some benefits which were granted to regular employees, but this was simply with a view to mitigate their financial hardship as a welfare measure. The petitioner cannot claim such benefits as of right. It was only the generosity of the respondent to grant such benefits to avoid hardships to them, and such generosity should not be misconstrued.
19. In paragraph 11 of the counter affidavit, it is denied that there was any violation of Articles 14 and 16(1) of the Constitution. The petitioners will get a chance of promotion as and when it comes.
20. The officials who were appointed on short term basis on consolidated salary were not at par with regularly selected employees. Since there was an immediate need of these officials they were not selected through open competition and were appointed for one year.
21. On the facts of the case, we find no merit in this appeal. Though, it is true that initially there were two seniority lists on the basis of Rule 9 of the Rules a Joint Seniority List of Assistant Grade-II, Senior Sales Assistant was made as per Rule 9. We see no illegality or unconstitutionality in Rule 9.
22. In our opinion, the petitioners cannot claim to be at par with regularly selected employees.
23. As regards 7 junior persons they belong to Scheduled Castes and were appointed to complete the back log in the reserved posts belonging to SC/ST quota.
24. In our opinion the promotions of the 18 respondents to the post of Assistant Grade-I/ SO is fair, just and valid and there was no arbitrariness.
25. The promotion of respondent No.1 was made in accordance with the rules and we see no illegality in the same.
26. The learned Single Judge has mentioned in paragraph 18 of the judgment that the petitioners were appointed on consolidated salary against the notice which stated that these appointments were for a limited period only. There was no appointment for any prescribed cadre post. Appointment was on the consolidated salary of Rs.450/- p.m. for one year, only though the petitioners were subsequently allowed to continue. There was admittedly no rules or regulations regarding the said appointment. As pointed out in paragraph 21 of the impugned judgment, neither the appointment letters of the petitioners nor the advertisement mentioned that they were being appointed on permanent or on a regular basis. On the other hand, their engagement was in fact for a short duration of only one year (initially).
27. We find no violation Rule 9 of the Rules.
28. In Suraj Prakash Gupta and Ors. v. State of J and K and Ors. the Supreme Court held that a direct recruit can claim seniority only from the date of his regular appointment, and not from an earlier date.
29. A similar view was taken in M.K. Shanmugam and Anr. v. Union of India and Ors. in which it was held that ad hoc service would not count for seniority.
30. In our opinion, there was no illegality in combining the two categories of employees holding identical pay scales and promoting them to higher post on the basis of the Rules.
31. Thus, there is no force in this appeal and it is dismissed.