Madan B. Lokur, J.@mdashThe Petitioner is a Superintending Engineer (for short SE) in the Electrical and Mechanical Engineering cadre (for short E&M cadre) of Respondents No. 2 and 3, the Delhi Jal Board (for shor the Board). He was promoted as such in an officiating capacity by Office Order No. 130 dated 4th September, 1998 notionally with effect from 8th November, 1996. He was later regularized in this post with effect from the date, that is, 8th November, 1996.
2. Presently, the seniority of the Petitioner in the E&M Engineering cadre is at Serial number 6. Those senior to him are:
(i) A.K. Gupta, Chief Engineer (or CE) (E&M) on ad-hoc basis since 1995,
(ii) K.C. Jain, CE (E&M) on ad-hoc basis since 1998 presently Member (Water Supply) in the Board scheduled to superannuate on 31st August, 2002,
(iii) Rakesh Seth, SE (E&M) on current duty charge as CE (E&M) since 25th February, 2001 and on ad-hoc basis since 19th April, 2001,
(iv) A.K. Jain SE (E&M) and
(v) S.S. Ahulwalia, SE (E&M).
3. Respondents No. 5 to 9 belong to the Civil Engineering cadre of the JDB. Their relevant career profile is best illustrated by the following chart:
| Respondent No. | Name | SE (Civil) on current duty charge | SE (Civil) on ad-hoc basis | CE (Civil) on current duty charge basis | CE (Civil) on ad-hoc basis AND SE (Civil) on regular basis |
| 5 | G.C. Nandwani | 03/01/95 | 12/06/97 | 01/04/97 | 31.10.2001 |
| 6 | L.N. Kapoor | 03/01/95 | 12/06/97 | 01/11/97 | 31.10.2001 |
| 7 | V.B.Jain | 03/01/95 | 12/06/97 | 10/02/00 | 31.10.2001 |
| 8 | S.C. Gupta | 01/07/95 | 12/06/97 | 22/08/00 | 31.10.2001 |
| 9 | Subhash Chander | 01/03/96 | 12/06/97 | 18/09/01 | 31.10.2001 |
4. The apex of the E&M Engineering cadre has 2 posts of Chief Engineer. These are presently occupied on an ad hoc basis by A.K. Gupta and Rakesh Seth. The Civil Engineering cadre has 6 posts of Chief Engineer. These are occupied by one R.K. Jain and Respondents No.5 to 9 on an ad hoc basis.
5. Respondents Nos. to 9 were earlier working as Chief. Engineer (Civil) on a current duty charge basis for a long period of time, but were drawing their salary in the post of SE (Civil). A proposal was mooted to allow Respondents No.5 to 8 to hold the post of a CE (Civil) on an ad hoc basis and in the pay scale of CE (Civil), that is, Rs. 18400-22400. The justification for the proposal was in the following words:
"From the foregoing it is clear that all the above 4 engineers have completed more than 6 years as Superintending Engineers/Chief Engineers on current duty charge/ad-hoc basis. They have been performing the duties of Chief Engineer but getting the pay scale of the post of Superintending Engineer. Financial upgradration functions as an important motivating factor in one''s career. In case an employee is not paid the wages for the post which he is holding, he feels de-motivated. To keep the morale of the employees it becomes incumbent on the part of the Personnel Administration of the organization to care for the just needs of its personnel. As per notified RRs SE (C) with regular service of 7 years become eligible for promotion to the post of Chief Engineer and as per amended RRS which are pending for notification with Urban Development Department. SE(C) with 8 years regular service or 13 years combined regular service in the grade of EE/SE out of which 4 years regular service as SE (C) becomes eligible for the post of Chief Engineer (Civil).
However, to meet the ends of justice, we need to adopt a pragmatic approach. Since none of the engineers has put in requisite number of years of service as regular Superintending Engineer for elevation to the post of Chief Engineer they cannot be given ad-hoc promotion to the post of Chief Engineer without obtaining relaxation in this regard from the Board. The ad-hoc promotion is normally given on completion of 2/3 of the experience prescribed for regular promotion. We should Therefore look for an incisive approach to extend help in a purposeful manner. Whether we call it current duty charge or ad-hoc or officiating the fact remains that for all practical purposes one does perform the actual functional responsibilities of the post once somebody is appointed to the post.
S/Shri G.C. Nandwani, L.N. Kapur, V.B. Jain and S.C. Gupta have actually put in service for years on the post of both Superintending Engineers and Chief Engineers and whatever term we have given to their nature of service. We should not be oblivious of this basic fact or else there will be frustration down the line. While advocating their cause we also remain alive to similar needs down the line. Taking into consideration all these factors it is proposed that in relaxation of the recruitment rules the above mentioned Chief Engineers (C) may be considered for ad-hoc promotion with approval of the Board. These Chief Engineers have been working on their current assignment satisfactorily. They are also currently clear from the vigilance angle and their CR grading are found to be very good as well.
It is, Therefore, proposed that the above 4 engineers may be allowed to hold the post of Chief Engineer (Civil) on ad-hoc basis in the pay scale of Rs. 18,400-22,400 initially for one year in the first instance or till such time the posts are filled in on regular basis through UPSC whichever is earlier.
The case is Therefore placed before the Delhi Jal Board for approval of the above proposal."
6. A similar proposal was put up in respect of Respondent No.9.
7. Both the aforesaid proposals were accepted by the Board and given effect to by an order dated 31st October, 2001. This is what has upset the Petitioner causing him to challenge the order implementing the proposals by instituting a writ petition under Article 226 of the Constitution. The order dated 31st October, 2001 impugned by the Petitioner reads as under:
"OFFICE ORDER NO: 177 DATED: 31.10.2001
The following Chief Engineers (Civil) working on current-duty-charge basis are hereby allowed adhoc promotion to the post of Chief Engineer (Civil) in the pay scale of Rs. 18,400-22,400 plus usual allowances as admissible under the rule for an initial period of one year with immediate effect or till such time the posts are filled in on regular basis or till further orders whichever is earlier.
1. Sh. Gopi Chand Nandwani 2. Sh. L.N. Kapoor 3. Sh. V.B. Jain 4. Sh. Suresh Chand Gupta 5. Sh. Subhah Chander
This is in pursuance of DJB Resolution No. 1026 dated 19.10.01 and 1105 dated 20.10.01.
This order is subject to the outcome of the Writ Petition No. 6432/01 pending in the Hon''ble High Court of Delhi."
8. The E&M Engineering cadre and the Civil Engineering cadre of the Board form two independent streams. Officers belonging to one cadre have no concern with the seniority or positioning of officers of the other cadre. Consequently, the promotion of Respondents No.5 to 9 as CE (Civil) on current duty charge or later on an ad hoc basis has no direct or immediate impact on the Petitioner. Nor, for that matter should the Petitioner be concerned with the pay that Respondents No.5 to 9 draw while working as CE (Civil). Nevertheless, the Petitioner is aggrieved by Respondents No.5 to 9 being appointed as CE (Civil) on an ad hoc basis and by their getting the higher salary of Rs. 18400-22400 which falls in the same grade as that of a Joint Secretary to the Government of India.
9. The reason why the Petitioner is upset by Respondents No.5 to 9 being appointed as CE (Civil) on an ad hoc basis and their getting a higher salary lies in the constitution of the Delhi Water Board under the Delhi Water Board Act, 1998 (for short the Act).
10. The act provides, as it preamble suggests, for the establishment of the Board "to discharge the functions of water supply, sewerage and sewage disposal and drainage within the National Capital Territory of Delhi and for matters connected therewith."
11. Section 2(b) of the Act defines the Board to mean the Board established u/s 3(1) of the Act and to include any member, officer or employee of the Board to whom the Board may delegate its powers.
12. Section 3(1) of the Act provides for the constitution of the Board while Section 3(2) of the Act, which is of some importance, provides the composition of the Board. Section 3(2) of the Act reads as under:-
"3(2) The Board shall consist of:
(i) to (vi) xxx xxx xxx
(vii) A Member (Water Supply to be nominated by Government who shall be an engineer, drawing pay not less than that of a Joint Secretary to the Government of India, having specialised knowledge and experience in the matters relating to water supply.
(viii) A Member (Drainage) to be nominated by Government who shall be an engineer, drawing pay in scale not less than that of a Joint Secretary to the Government of India, having specialised knowledge and experience in the matters relating to drainage.
(ix) to (xiv) xxx xxx xxx"
13. It is quite clear from the above that a Member (Water Supply) or a Member (Drainage) of the Board is a person nominated as such by the Government (of the NCT of Delhi). Such a nominee must be:
(a) an engineer,
(b) drawing pay not less than that of a Joint Secretary to the Government of India, and (c) having specialised knowledge and experience in mattes relating to water supply or drainage, as the case may be.
14. The Petitioner as well as Respondents No.5 to 9 are all engineers and have specialised knowledge and experience in mattes relating to water supply and drainage. The Petitioner, however, does not draw the pay scale of a Joint Secretary to the Government of India. Respondents No. 5 to 9 were granted this pay scale by the impugned order dated 31st October, 2001 consequent on their ad hoc promotion as CE (Civil). The grievance of the Petitioner stems from his belief that because Respondents No.5 to 9 have been granted the pay scale of a Joint Secretary to the Government of India, they have been allowed to become eligible for nomination as Member (Water Supply) or Member (Drainage) of the Board, while the Petitioner is unjustifiably denied requirement (b) above. Therein lies the rub.
15. The Petitioner, Therefore, filed a writ petition under Article 226 of the Constitution challenging, inter alia, the appointment of Respondents No.5 to 9 as CE (Civil) an hoc basis and for striking down their appointment as such.
16. Learned counsel for the parties were heard on 26th August, 2002 when judgment was reserved.
17. Recruitment to the post of CE (E&M) is governed by the Delhi Water Supply & Sewage Disposal Undertaking (Electrical/Mechanical) Engineering Recruitment Regulations, 1985 notified on 18th December, 1985. A similar set of recruitment rules govern recruitment to the post of CE (Civil).
18. The recruitment rules provide that an SE with 7 years regular service in the grade is eligible for promotion to the post of a CE. If these recruitment rules are adhered to, apparently neither the Petitioner nor Respondents No. 5 to 9 are eligible, even today, for being considered for promotion as CE in their respective streams.
19. After the Act came into force, the Board set out to have its own recruitment rules. Accordingly, the Chief Engineer (E&M), Delhi Jal Board, Recruitment and promotion Regulations, 1999 were drafted for the E&M Engineering cadre. Similar rules were drafted for the Civil Engineering cadre. These rules, however, came to be notified much later, on 19th April, 2002 during the pendency of the writ petition and are now called the Chief Engineer (E&M), Delhi Jal Board, Recruitment and promotion Regulations, 2002 (for short the 2002 Regulations).
20. In terms of the 2002 Regulations, the eligibility requirement for promotion to the post of CE (Civil) is that a person should have worked as an SE (Civil) on a regular basis at least for period of 8 years failing which he should have a combined regular service of 13 years in the grade of SE/Executive Engineer out of which 4 years regular service should be in the grade of SE (Civil). It is the contention of the Petitioner that Respondents No.5 to 9 are not eligible for being promoted as regular or even as ad hoc CE (Civil) either under the 1985 rules or under the 2002 Regulations. Therefore, the Petitioner says that the appointing Respondents No.5 to 9 as ad hoc CE with the pay scale of a Joint Secretary to the Government of India, they have deliberately and unreservedly been given an opportunity to steal a march over him.
21. On these facts, the question raised by the petitioner is this" Could Respondents No. 5 to 0 have been appointed as CE (Civil) on an ad hoc basis in the pay scale of a Joint Secretary to the Government of India, that is, Rs. 18400-22400?
22. In so far as the grant of pay scale is concerned no separate submissions were made by learned counsel for the Petitioner. In other words, it is assumed that if Respondent No. 5 to 9 are entitled to be appointed as CE (Civil) then they are also entitled to the pay scale of a Joint Secretary to the Government of India.
23. The justification note extracted above clearly brings out that Respondents No.5 to 9 have not "put in requisite number of years of service as regular Superintending Engineer for elevation to the post of Chief Engineer....." As such, "they cannot be given ad-hoc promotion to the post of the Chief Engineer without obtaining relaxation in this regard from the Board." This note is quite clear and speaks for itself. Quite naturally, learned counsel for the Petitioner relied upon this in support of her submissions.
24. The question that now arises is whether, in view of the above, relaxation had been granted by the Board to the appointment of Respondents No.5 to 9 as ad hoc CE (Civil). That relaxation had been granted in apparent from the sequence of events and impugned Office Order dated 31st October, 2001.
25. The justification note referred to above put up a proposal for the appointment of Respondents No.5 to 9 as CE (Civil) on an ad hoc basis. It clearly spelt out the fact that these Respondents were not entitled to ad hoc promotion except by a relaxation in the rules, which was sought. The impugned Office Order dated 31st October, 2001 draws attention to Resolutions passed by the Board bearing Nos. 1026 dated 19th October, 2001 and 1105 dated 20th October, 2001. Presumably, these Resolutions were passed to give effect to the proposal in the justification note. This has, in any case, been clarified by Respondents No.2 and 3 in their affidavit in reply to the amended writ petition. It has been stated therein that "Five Superintending Engineers (Civil) have been promoted on adhoc basis in pursuance of the Delhi Jal Board Resolutions No. 1026 dated 19.10.2001 and Resolution No. 1105 dated 20.10.2001." It is, Therefore apparent that relaxation for appointment as ad hoc CE (Civil) was given to Respondent No.5 to 9.
26. There was some debate whether the power of relaxation was properly exercised by the Board inasmuch as there was no consultation with Respondent No. 4, the Union Public Service Commission (UPSC). Reliance in this regard was placed by learned counsel for the Petitioner on Regulation 7 of the 2002 Regulations. This reads as under:-
"7. Power to relax - Where the Government of National Capital Territory of Delhi is of the opinion that it is necessary or expedient so to do, it may by order for reason to be recorded in writing, and in consultation with the Union Public Service Commission relax any of the provisions of there regulations with respect to any class or category of persons."
27. Frankly, I am unable to appreciate how this is applicable to the given facts, even assuming that the 2002 Regulations are relevant and material. Regulation 7 deals with relaxation of the provisions of the 2002 Regulations to any class or category of persons. It is nobody''s case that a general or specific relaxation was given in respect of any class or category of persons, nor is there anything to suggest that any particular requirement of the 2002 Regulations was relaxed to benefit any class or category of persons.
28. The power to appoint Respondents No.5 to 9 is in fact traceable to Sections 51 and 53 of the Act. Section 51(1) of the Act entitles the Board to appoint officers and employees for the efficient performance of its functions. This provision reads as under:-
"51(1) The Board may appoint such officers and employees as it may consider necessary for the efficient performance of its functions."
29. Proviso (a) to Section 53 of the Act enables the Board to dispense consultation with the UPSC in respect of appointments above the rank of Assistant Engineer, if the appointment is in a temporary capacity for a period not exceeding one year. This proviso reads as under:-
"53. No appointment to any post above the rank of Assistant Engineer shall be made except in consultation with the Union Public Service Commission (hereinafter referred to as "the Commission").
Provided that no such consultation with the Commission shall be necessary in regard to the selection for appointment of any person.
(a) in a temporary capacity for a period not exceeding one year.
(b) xxx xxx xxx"
30. A perusal of the impugned Officer Order dated 31st October, 2001 shows that Respondents No.5 to 9 have been appointed as ad hoc CE (Civil) "for an initial period of one year with immediate effect or till such time the posts are filed in on regular basis or till further orders whichever is earlier." Clearly, Therefore, the appointment of Respondents No.5 to 9 conforms to the provisions of the Act and the Board was well within its powers to make the appointments as it did.
31. No fault can be found with the appointment of Respondents No. 5 to 9 as CE (Civil) on an ad hoc basis in the pay scale of Rs. 18400-22400 in terms of the Officer Order NO. 177 dated 31st october, 2001.
32. In further support of her contention that Respondents No.5 to 9 are not eligible for being appointed as CE (Civil) on an ad hoc basis, learned counsel for the Petitioner has relied upon a document dated 6th September, 2000 having the following subject:-
"Sub: Allowing ad-hoc promotion to the post of CE (C) in the grade of Rs. 18,400-22,400 to Shri R.K. Jain, CE (C) on current-duty-charge basis."
33. Reliance has been placed by her on this document to contend that only those who are qualified to be appointed as CE (Civil) on a regular basis are in fact appointed to that post on an ad hoc. The relevant portion of the document dated 6th September, 2000 reads as under:
"There are 6 sanctioned posts of Chief Engineer (Civil) in the pay scale of Rs. 18,400-22,400 in the department. With the voluntary retirement of Shri. B.K. Goel who was ad-hoc C.E.(C), now all the 6 posts are filled in on current-duty- charge basis, due to the reason that none of the officers holding the posts is eligible for promotion to the post of CE (C) in terms of notified RRs.
The RRs for the post of CE(C) have been amended as approved by the Delhi Jal Board and concurred in by the UPSC to the effect that SE(C) with 8 years regular service in the grade falling which SE(C) with 13 years combined regular service in the grade of SE(C)/EE(C) out of which 4 years regular service should be in the grade of SE (C), is eligible for promotion. Amongst the present holders of the posts of CE(C) on current-duty-charge basis, only Shri R.K.Jain fulfills the provisions of amended RRs as stated above, which are yet to be notified. Shri R.K. Jain is a regular EE(C) of 12.9.85 and a regular SE(C) of 25.9.95 and as such, he has rendered more than 4 years regular service as SE(C) and more than 13 years combined regular service as SE(C)/EE(C). Shri R.K. Jain is clear from vigilance angle and his performance too is stated to be very good."
34. While the submission of learned counsel may be justified the sum and substance of this document was put forward in the justification note. Notwithstanding this, the Board resolved to appoint Respondents No.5 to 9 as CE (Civil) on an ad hoc basis for a period not exceeding one year - a resolution which could have been passed in view of Section 51 and proviso (a) to Section 53 of the Act. I am afraid the document dated 6th September, 200 does not help till the balance in favor of the Petitioner and against Respondents No.5 to 9.
35. During the course of her oral submissions, learned counsel for the Petitioner went a step further by contending that Respondents No.5 to 9 were not even eligible to hold the post of CE (Civil) on a current duty charge basis. Reliance in this context was placed upon a Circular dated 14th December, 1973, the relevant portion of which was referred to, which reads as under:-
"Only cases of such official/officer or appointment on current/charge basis should be considered who have rendered 2/3rd of the service prescribed for purposes of regular appointment. In cases, where R. Rs. have been notified for posts, the same should be followed. In cases, there is difference in the recruitment regulations as approved by Commissioner, and those approved by the Standing Committee/Ad- hoc Committee/Corporation, specific orders of the Commissioner should invariably by obtained as to the criteria to be applied in filing up the post." (errors in the original)
36. I am afraid this submission cannot be accepted. For one, the appointment of Respondents No.5 to 9 as CE (Civil) on a current duty charge basis is now history, after their appointment on an ad hoc basis. Even if it is assumed for the sake of argument that these Respondents were not entitled to be appointed as CE (Civil) on a current duty charge basis, it will not advance the case of the Petitioner any further. The exercise is now rendered wholly academic. Secondly, except in the case of Respondent No.9, the other Respondents, that is, 5 to 8 have been working as CE (Civil) on a current duty charge basis for periods ranging from over one year to over four years. Today, any challenge to their appointment on current duty charge basis is hit by culpable delay and laches. There is no reason indicated by the Petitioner why such a challenge was not mounted earlier. The challenge to the appointment of Respondents No.5 to 9 as CE (Civil) on a current duty charge basis appears to be more of a collateral attack rather thana a substantive challenge.
37. Learned counsel for the Petitioner relied upon Office Memorandum dated 23rd July, 2001 issued by the Ministry of Personnel, Public Grievance and Pensions of the Government of India on subject of restriction on regularization of ad hoc appointments. Reliance was placed upon a portion of paragraph 5 of this OM. This reads as follows:-
"It has all along been emphasized in the existing instructions that ad-hoc appointments should be made only in rare case and in real exigency of work, where the post cannot be kept vacant until regular candidate becomes available. It has been emphasized, in particular, that ad-hoc appointment by direct recruitment from the open market should be resorted to only as a last report. This is because, once a person is appointed from outside the Government on ad-hoc basis, such arrangement is generally continued for long periods, either because a regularly selected candidate is not available or some other vacancy in the grade/cadre becomes available against which he is adjusted...."
38. It will be seen that the instruction given in the OM is with reference to making an ad hoc appointment by direct recruitment from the open market. Quite clearly, that is not the position in this case. Even otherwise, the justification note explains the circumstances that necessitated the making of ad hoc appointments to the post of Ce (Civil). The reasons given for making the ad hoc appointments are clearly not justiciable. Whether the reasons are valid or not is entirely for the Board to decide. The Board in its collective wisdom decided to accept the rationale given in the justification note and make ad hoc appointments for a period not exceeding on year to the post of CE (Civil). No fault can be found in this approach, at least in a petition filed under Article 226 of the Constitution.
39. Learned counsel for Respondents No. 5 to 9 contended that the writ petition filed by the Petitioner was speculative in nature. He is right. It is true that the appointment of Respondents No.5 to 9 as CE(Civil) on an ad hoc basis in a pay scale equivalent to that of a Joint Secretary to the Government of India would entitle them to be in the running for the post of Member (Water Supply) and Member (Drainage) in the Board. But this does not, in any manner, mar or hamper the chances of the Petitioner. In fact, when the writ petition was filed in October, 2001 and even when it was heard in August, 2002, the Petitioner was not drawing the pay scale of a Joint Secretary to the Government of India. The Petitioner was not, Therefore, in the running for the post of Member (Water Supply) or Member (Drainage) in the Board. There is no doubt that to this extent the writ petition is purely speculative in character.
40. Learned counsel for the Petitioner says that the Petitioner expects to be soon promoted as CE (E&M). It is true that Respondents No.2 and 3 have requested the UPSC to convene a Departmental Promotions Committee to make regular appointments to the post of CE (E&M). But, in fact is that there are only two such posts available and today the Petitioner is the fifth in the seniority list. He may or may not be found more suitable for selection than his seniors. This is anybody''s guess. In any case, it is quite clear that no existing right of the Petitioner has been violated. Depending on what may happen in the future, the Petitioner''s rights may or may not be affected. All this, as learned counsel for Respondents No.5 to 9 rightly points out, is only in the realm of speculation.
41. In so far as the contention of learned counsel for the Petitioner that Respondents No.5 to 9 have been deliberately given an opportunity to steal a march over him, I find this little difficult to comprehend. If the Board wanted to benefit some of its officers at the cost of the Petitioner, it would have done so in respect of one or two such officers and not in the case of five such officers thereby increasing the competition and the zone of consideration by making several officers eligible for being nominated as Member (Water Supply) and Member (Drainage) of the Board.
42. Learned counsel for Respondents No.2 and 3 contended that no regular promotions could be made to the post of Executive Engineer and above in the Civil Engineering cadre due to multifarious litigation concerning the Civil Engineering cadre. The details of the litigation have been set out in the counter affidavit filed by the Respondents No. 2 and 3. It is not necessary to examine the effect of earlier litigation concerning the Civil Engineering cadre nor does it relate to the reasons why regular appointments could not be made.
43. It was sought to be contended by learned counsel for Respondents No.5 to 9 that the Petitioner is not eligible for being considered for promotion to the post of Ce (E&M). It is not necessary for me to decide this question. It does not arise in the facts of the case nor is it in issue before me.
44. Consequently, I see no merit in the writ petition. It is dismissed but with no order as to costs.
