JUDGMENT
Vikramajit Sen, J.
1. These Writ Petitions have been filed as a result of the absorption/transfer of the Petitioners from Delhi Development Authority (DDA) to the Municipal Corporation of Delhi (MCD). The DDA was looking after the maintenance of a number of colonies of which forty four were transferred to the MCD in circa 1998. For this reason the DDA did not require a section of its staff. On the other hand since the responsibility of maintenance of these colonies stood transferred to the MCD additional staff was required by the latter. The most logical solution, which adequately protected the rights of the persons concerned, was to take the Petitioners onto the strength of the MCD as has been done. This, however, has resulted in the present dispute pertaining to the intense seniority of these erstwhile DDA employees to the post of Assistant Sanitary Inspector (ASIs) with the persons working in this post who were already on the rolls of the MCD. The Petitioners were work-charged ASIs in the DDA although an attempt has been made by their learned counsel to argue to the contrary. This contention is clearly devoid of merit in view of Prayer (b) in some of these Writ Petitions which prays for the issuance of appropriate writs, directions or orders for considering Petitioners for promotion to the post of Sanitary Inspectors (SIs) by treating the work-charged ASIs including the Petitioners as regular employees. Some of the Petitioners had been employed with the DDA on work-charged basis since 1983-1988.
2. The question of the maintenance of forty four resettlement colonies in Delhi upon their transfer from the DDA to the MCD was discussed on 27.6.1988 on which date the decision inter alia reads as follows:
Since MCD has regularized the services of various categories of daily waged workers up to the end of 1979, while regularization in DDA has been done in respect of employees recruited subsequent to this year, it would not be appropriate to merge them with the existing staff of MCD which may create problems of maintenance of seniorities and other service benefits etc. It would, therefore, be appropriate that the staff coming from DDA should be formed into a separate cadre and their terms and conditions of service are regulated as indicated in Annexure ‘F’.
3. The Terms and Conditions of transfer of the Petitioners is contained in Annexure-F to the Petition which reads as follows:
Terms and conditions of transfer of staff from Delhi Development Authority to the Municipal Corporation of Delhi General:
1. The staff transferred from Delhi Development Authority to the M.C.D. shall be termed as Transferred Cadre.
2. The transferred cadre will be a diminishing cadre and all future recruitments will be made on the General Cadre for the maintenance of services in the colonies.
3. All higher posts created on or after such transfer, directly due to this cadre will be filled up by promotion/as per rules from amongst the staff borne on this Transferred cadre.
4. All the vacancies arising out of the normal incidence of retirement, promotion etc. in the transferred cadre will be transferred to the General Cadre.
5. The number of posts in the higher grades released as a result of retirement, promotion etc. in the transferred cadre minus those transferred to the General Cadre will be utilized for promotion in the transferred cadre.
6. Every employee shall on and from the date of his transfer to the Corporation shall become an employee of the Corporation with such designation as the Commissioner may determine and shall hold office by the same tenure, at the same remuneration and on the same terms and conditions of service as he would have held if he had continued to be in DDA unless and until such tenure, remuneration and terms and conditions are duly altered by the Corporation. However, the same shall not be to his disadvantage without the previous sanction of the Corporation.
7. Any service rendered by any such employee before his transfer to the Corporation shall be deemed to be service rendered under the Corporation.
8. The Commissioner may employ any employee, transferred to the Corporation as he may think proper and every such employee shall discharge those functions accordingly.
9. All rules and service conditions applicable to the General Cadre will be applicable to the transferred cadre.
10. The D.D.A. shall finalise all disciplinary proceedings against officials of the transferred cadre before the transfer actually takes place.
11. The employees of the Transferred Cadre who have not been regularized and are holding posts on Muster Roll would have no claim for regularization automatically as a result of transfer of their services.
12. The employees of the Transferred Cadre who are confirmed prior to their transfer, shall be deemed to have been confirmed in the cadre on transfer to the M.C.D. Pension and Contributory P.F.
1. The D.D.A. shall make payment of pension contribution etc. to the M.C.D. in lumpsum so as to leave no room for ambiguity in future.
2. The terms and conditions of CPF/GPF schemes and other Pensionary schemes existing in the corporation on the analogy of the Govt. of India and made applicable to the employees of the M.C.D. shall apply, mutates-mutants to the Transferred Cadre from till date of their transfer including the amendments, if any, made from time to time by the Govt. of India and made applicable to the employees of the General Cadre.
4. In the Counter Affidavit filed on behalf of the MCD it has been admitted that ASIs of the General Cadre of 1986 were being promoted as SIs but it has been denied that the transferred staff from the DDA had Seniority of 1983 since they were regularised only on their absorption from the DDA into the MCD in 1991. The stand of the MCD in their Counter Affidavit is that the two Cadres are presently in existence, one being the General Cadre and the other being the Transferred Cadre to which the Petitioners belong. An Additional Affidavit has also been filed by the Deputy Commissioner (CAE), Head Quarters, MCD in which it has been reiterated – “that all the employees transferred from the DDA to the MCD, at the time of transfer of 44 resettlement colonies to the MCD by the DDA, have been placed in a separate cadre titled as ‘Transferred cadre’.”
5. Reliance has been placed on the Judgment of the Hon’ble Division Bench in CWP No.647/1991 dated 6.12.1991:
Our attention has been drawn to the Recruitment Rule 1 read with Rule 10 and 11. It appears that work-charge employees like the petitioners can only be recruited against the direct recruitment quota because rule 6(8) postulates relaxation of age in the case of regularisation from work-charge employees. This clearly indicates that work-charge employees will be regarded only as being eligible for direct recruitment. This being so their seniority can only be with effect from the date when they are regulary appointed in the quota of the direct recruits in their regular establishment. The Petitioners have not been regularised in the work-charge establishment. We find no further relief can be granted to the petitioner.
The petition is disposed of. Interim order stands vacated.
6. It has been vociferously contended by learned counsel for the Respondent in the General Cadre that when the Petitioners were absorbed into the DDA in 1991 all of them had been regularised as ASIs, whereas some of those Respondents had been working for longer periods in a non-regularised status. Therefore, the Petitioners had stolen a march over them and for this reason had not remonstrated against the two separate Cadres. Having achieved that preferential status, the Petitioners are now attempting to make inroads into the General Category and claim promotions/seniority over the Respondents in the General Cadre on the strength of their regularisation in 1991. It is contended, therefore, that equity is not in favor of the Petitioners for this reason.
7. On behalf of the Respondents reliance has been placed on Shitala Prasad Shukla v. State of U.P. and Ors., and, in particular, opinion expressed in the following paragraph :
9. An employee must belong to the same stream before he can claim seniority vis-a-vis others. One who belongs to the stream of lawfully and regularly appointed employees does not have to contend with those who never belonged to that stream, they having been appointed in an irregular manner. Those who have been irregularly appointed belong to a different stream, and cannot claim seniority vis-a-vis those who have been regularly and properly appointed, till their appointments became regular or are regularised by the appointing authority as a result of which their stream joins the regular stream. At that point of confluence with the regular stream, from the point of time they join the stream by virtue of the regularization, they can claim seniority vis-à-vis those who join the same stream later. The late comers to the regular stream cannot steal a march over the early arrivals in the regular queue. On principle the appellant cannot therefore succeed. What is more in matters of seniority the Court does not exercise jurisdiction akin to appellate jurisdiction against the determination by the competent authority, so long as the competent authority has acted bona fide and acted on principles of fairness and fairplay. In a matter where there is no rule or regulation governing the situation or where there is one, but is not violated, the court will not overturn the determination unless it would be unfair not to do so. In any view of the matter the appellant who did not even belong to the stream of regularly (he was allowed to teach only in an irregular and unauthorized manner) and lawfully appointed lecturers cannot claim seniority against any one already in the stream before he joined the stream himself. The view taken by the High Court is unexceptionable.
8. A claim similar to that proffered by the Petitioners had arisen in Som Raj and Ors. v. State of Haryana and Ors., which was dealt with as follows:
6. ….It is open to the government to constitute different cadres in any particular service as it may choose according to its administrative convenience and expediency. The office of the director is the apex office obviously to control and oversee the functioning of the Subordinate Offices and the other allied departments under his control monitoring the implementation of the government’s agricultural programmes. It may not be necessary to maintain a common cadre of the employees of the Directorate and the Subordinate Offices. Each cadre is a separate service or a part of the service sanctioned for administrative expediency. Therefore, each may be a separate unit and the posts allocated to the cadre may be permanent or temporary. It is seen from the appendix that in the office of the Directorate there is one Superintendent, three Head Assistants, four Assistants, two Stenographers, seven Senior Clerks, and twelve Junior Clerks. In the Subordinate Offices, there is one Superintendent, seven Head Clerks, seven Head Clerks and two Senior Clerks. This is obviously on the basis of administrative need. No doubt the office of the Directorate and the Subordinate offices have been compendiously shown in Section 6 of the Appendix. That does not by itself mean that office of the Directorate and Subordinate Offices are treated under the Rules as one unit or at par, as contended for by Shri P.P. Rao. As pointed out in the beginning, the Director had committed some irregularities at the time of initial appointments in the year 1973 when he picked up five persons out of the select list of the candidates and appointed them in the Directorate of Haryana Government deviating from the order of merit prepared by the Board. They were selected at a common selection by the recruitment Board along with other candidates who stood higher in the order of merit prepared by the Selection Board. But this was done in the year 1973 and the appointments have not been challenged till date of filing of the writ petition in 1979. Even in the writ petition no challenge was made. This is pressed into service only to show that the appellants are similarly situated with them. After the appointments were made and the candidates joined in the respective posts for consideration for promotion the Rules occupy the field and the claims are to be considered according to Rule 7. Therefore, though we may not agree with the learned counsel for the State that the Director had absolute discretion to pick and choose arbitrarily and make appointment of the posts, yet undoubtedly, he had power to appoint them. Normally the order of appointment would be in the order of merit of candidates from the list and must be in accordance with rules. His exercise of power should not be arbitrarily. The absence of arbitrary power is the first postulate of rule of law upon which our whole constitutional edifice is based. In a system governed by Rule of Law, discretion when conferred upon an executive authority must be confined within clearly defined limits. The Rules provide the guidance for exercise of the discretion in making appointment from out of selection lists which was prepared on the basis of the performance and position obtained at the selection. The appointing authority is to make appointment in the order of gradation, subject to any other relevant rules like, rotation or reservation, if any, or any other valid and binding rules or instructions having force of law. If the discretion is exercised without any principle or without any rule, it is a situation mounting to the antithesis of Rule of Law. Discretion means sound discretion guided by law or governed by known principles of rules, not by whim or fancy or caprice of the authority. We refrain from going into the correctness of the choice made by the Director due to laches in not assailing the correctness of the appointment for well over six years. The validity of the rules have not been questioned. The only question is, as stated earlier, whether the employees working in the Head Office and the Subordinate Offices are entitled to common seniority. The Rules themselves made a distinction between the persons appointed in the Directorate and the Subordinate Offices as separate cadres and the subordinate cadre in some cases is the feeder cadre for promotion to the post in the Head Office. In this view, by no stretch of imagination, the appellants can be considered to be equally placed for treating them at par with the Directorate employees for being treated as being in a common cadre. There is reasonable nexus to differentiate the two cadres. Therefore, the classification cannot be said to be arbitrary violating Articles 14 and 16 of the Constitution.
9. In K. Thimmappa and Ors. v. Chairman, Central Board of Directors, State Bank of India and Anr., (2001) 2 SCC 259 a similar approach was found by the Apex Court to be perfectly in legal order.
10. In these circumstances the Prayers in the present Petition cannot be granted. The Petitioners must seek promotion within their own Cadre. It had been briefly argued that most of the posts of SIs have been assigned/apportioned to the General Cadre with the result that there is stagnation within the Petitioners’ cadre. If this is so, and the Petitioners are being treated unfairly, the matter needs to be looked into by the MCD and remedial action should be taken so that all the ASIs are treated in an equitable manner. This question is accordingly left open.
11. The Petitions are dismissed but there shall be no orders as to costs.