R K GUPTA Vs. DELHI ADMINISTRATION

JUDGEMENT

(1.) A question of first impression arises in this writ petition, namely, whether the availability of a suit in a civil court to the petitioner is "any other remedy" within the meaning of clause (3) of Article 226 of the constitution and whether it is a bar to the entertainment of a writ petition under Article 226 for such relief as can alternatively be obtained by a suit. A Full Bench of five Judges of the Gujarat High Court in A'bad cotton Mfg. Co. Ltd.. v. Union of India, AIR 1977 Gujarat 113(1), has answered the question in the negative, but a Full Bench of the Andhra Pradesh High Court in The Government of India a'nd others v. The National Tobacco Co. of India Ltd, AIR 1977 A. P. 250 (2), has answered it in the affirmative. With great respect, a totally different approach to the question seems to be called for.

(2.) The contest in this writ petition is between tile petitioner and respondents 3 and 4. All of them. arc Assistant Workshop Superinendents under the Delhi Administration. By the seniority list, dated 2nd March, 1976 issued by respondents 1 and 2, respondents 3 and 4 were shown as being senior to the petitioner. The petitioner claims that he is senior to respondents 3 and 4 or at any rate to respondent No. 4. One of the posts from which promotion is made to the post of Assistant Workshop Superintendent is that of a Foreman Respondent No. 3 was appointed a Foreman on 1st August, 1964. On 8th October, 1964 the petitioner was appointed an Instructor in Engineering, a post claimed by him to be equivalent, to the post of a Foreman. Respondent No. 4 was appointed Foreman on 2nd September, 1965. By memorandum, dated 21st January, 1967, the appointment of the petitioner as Foreman in which post he was already acting, was regularised with effect from 17th November, 1965. The recruitment to the post of Assistant Workshop Superintendent came to be governed later by Recruitment Rules, 1968, Sr. No. 2 column 2 of which stood as follows : (i) Junior Lecturer in Engineering 8 (ii) Senior Drawing Instructor 4 15" (iii) Assistant W/shop Suptd. 3 " Educational and other qualifications required tor direct recruits were Other a degree in Mechanical/Electrical/Civil Engineering with one year's professional or teaching experience or a Diploma in Electrical/ Mechanical or Civil Engineering with five years professional or teaching experience. For promotion, a Foreman or an Instructor in Engineering with three years standing in the appropriate subject was eligible. The recruitment was to be 50 per cent by direct recruitment and 50 per cent by promotion failing which it was also by direct recruitment. Respondents 3 and 4 were appointed Assistant Workshop Superintendents by direct recruitment with effect from 22nd July, 1970. The petitioner was promoted as Assistant Workshop Superintendent from 19th August, 1971. The petitioner claims that according to the quota system which requires rotation of vacancies alternatively to be filled by one direct recruit and one promotes, the petitioner was entitled to be placed above respondents 3 and 4 in seniority even though he was appointed in point of time after them. One Mr. H. S. Tayal had been appointed as a direct recruit Assistant Workshop Superintendent in 1964. If the next post was to go to a promotee, then the petitioner was to be placed above respondents 3 and 4, who were direct recruits. If the vacancy filled by Mr. H. S. Tayal was to be left out of account, as no quota system a'nd rotation of vacancies existed prior to 1968, then under the 1968 Rules, the first vacancy should go to a direct recruit respondent No. 3, and the second vacancy should go to a promotee, the petitioner, who was, therefore, at any rate entitled to rank in seniority above respondent No. 4, who was a direct recruit.

(3.) The defence of respondents 3 and 4 was two-fold. Firstly, the petitioner was not validly appointed as a Foreman and he was not. therefore, entitled to be promoted to the post of Assistant Workshop Superintendent at all. Secondly, the quota system and rotation of vacancies was to be observed not separately for the posts of Assistant Workshop Superintendents, which were three in the beginning, but became five when the parties were appointed to these posts, but for the total number of vacancies of Junior Lecturer in Engineering, Senior Drawing Instructor and Assistant Workshop Superintendent, the total number of which was originally 15 but was increased when the posts of Assistant Workshop Superintendents was increased from three to five and then to six. According to that arrangement, the overall proportion of direct recruits and promotees for the total number of vacancies of all these three posts combined was to be maintained half and half and it was not necessary that after one post of Assistant Workshop Superintendent was filled by direct recruit the next post must go to a promotee.