AI Drafter 
TaxTMI 
TaxTMI 
1978 (1) TMI 174
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....for. (2) The contest in this writ petition is between the petitioner and respondents 3 and 4. All of them. are Assistant Workshop Superintendents 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....
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.... 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. (4) Article 226 Of The Constitution : Before discussing the merits of the case, however, the important preliminary objection raised by the respondents and referred to above beginning of the judgment is to be considered. The respondents contended that in view of clause (3) of the amended Article 226 of the Constitution, the remedy of a suit was available to the petitioner and the writ petition cannot, Therefore, be entertained by this court under Article 226. This contention goes to the root of the case and must be firstly disposed of before the merits of the case can be considered. It raises a very important question of the construction of clause (3) ....
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....uestion of fact or necessity of taking of oral evidence or that the petitioner was guilty of waiver, laches or some other conduct which disentitles him from seeking the extraordinary relief. (7) The question arose for the first time if the words "any other remedy" in clause (3) of Article 226 included the remedy by way of suit after the Constitution (42nd Amendment) Act, 1976. In resolving the question, the material reasoning should, in my opinion,, be as follows: (1) All civil reliefs obtainable by writs under Article 226 could be obtained by a suit prior to the commencement of the Constitution. The relief of habeas corpus was also obtainable under section 491 of the old Criminal Procedure Code. (2) The reason why the High Courts were empowered directly to entertain writ petitions for the grant of these very reliefs must be first understood. The raison d'etre of the Constitution was to strengthen the position of the subject as against the State. Suits had to be instituted in the court of the lowest jurisdiction whose decisions were subject to appeals and revisions and the litigation was notoriously protracted, delay defeating justice. Hen....
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.... of jurisdiction and errors apparent on the face of the record from mere errors of law tended to result in courts being persuaded under Article 226 to entertain writ petitions which sought to impugn orders which were wrong, but could not always said to be without jurisdiction or disclosing an error of law apparent on the face of the record. The result was that the statutory remedies of appeals and revisions were by-passed and the dockets of High Courts were flooded with writ petitions. The necessity of judicial self-restraint and a stricter insistence of many of the writ petitioners being compelled to avail themselves of alternative statutory remedies was obvious (scc Gee Vec Enterprise v. Additional Commissioner of Income Tax, Indian Law Reports (1975) Delhi 53. But judicial self-restraint alone could not stem the tide of writ petitions. (5) This was why at statutory restriction by the insertion of clause (3) in Article 226 replaces what was formerly a judicial self-restraint based on discretion exercised by the courts in each case. The sole intention was to divert writ petitioners to statutory remedies of appeals and revisions when available, before going to ....
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....on under which is the subject of challenge. I repeatedly put to the learned counsel for the respondents to point out any case in which the relief given by Article 226 cannot be obtained by filing a suit. But the learned counsel were unable to point out any. The argument that suit is one of the remedies envisaged by clause (3) would make a dead letter of sub-clauses (b) and (c) of Article 226(2) . The proviso by way of clause (3) would wipe out the substantive rule embodied in sub-clauses (b) and (c) . Such interpretation cannot, Therefore, be accepted. (8) While the suit may be an ordinary remedy for one person against another to prove and establish his right, it can be only a collateral remedy when an administrative or quasi-judicial decision by the Government or a public authority is attacked. When used as an ordinary remedy, the merits of the case are decided in a suit. When used as a collateral remedy, only the validity or legality of the decision is decided, but not the merits. It is in its latter capacity that a suit overlaps the scope of the judicial remedies available under Article 226. A suit not only overlaps the scope and jurisdicti....
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....s to be made to these posts from persons holding certain posts in certain scale of pay with three years standing in the grade in the appropriate subject. The reason for the words "in the appropriate subject" was that the posts of Assistant Workshop Superintendent can be filled only by a person having experience of work in the appropriate subject of mechanical engineering. This is why, though, in column 8 Mechanical, Electrical and Civil Engineering qualifications are all recognised, these qualifications are alternative and not cumulative. Otherwise, the words "in the appropriate subject" would have been meaningless. They show that only Mechanical Engineering qualification and experience would be suitable for the post of Assistant Workshop Superintendent. 4. The Departmental Promotion Committee, which met from time to time for promoting persons to the Posts of Assistant Workshop Superintendents has taken the same view emphasising the words "in the appropriate subject" embodied in the Recruitment Rules of 1968. The proceedings of the four Departmental Promotion Committee are Annexures RX-1 to RX-4. In Annexure RX-1, the Departmental Promotion Committee emphasises the word "i....
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....ee Ramesh Chander v. Delhi Electric Supply Undertaking, etc. 2nd (1970) 1 Delhi 310 and Tejpal and others Vs. Municipal Corporation of Delhi 1971 S.L.R. 552. In the Full Bench decision of this court in Udham Dadhwani, etc. v. U. P. S. C. & others, Cw 556 of 1971, decided on 29th September, 1977(10) , the Corporation held cut promises to certain persons that even though they had been appointed ad hoc, they would be considered for regularisation and for being absorbed regularly in the posts to which they were appointed. It is for that reason that the Full Bench left it to the Corporation to consider whether the period spent by them in holding the ad hoc appointments should be taken into account in calculating their seniority. The facts of the present case are distinguishable. No such promises were held out to Shri Narula and Shri Singhal. On the contrary, the Departmental Promotion Committee was opposed to making of regular appointments and expressly made these two appointments ad hoc. These persons were not, Therefore, entitled to be included in any seniority list. Lastly, Rule 7 of the seniority-rules applies only to holders of regular appointments. The learned counsel for th....
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....difficulty and on one view the seniority could be regarded as a common, they did not yield to that view and treated the seniority of the Assistant workshop Superintendents as separate emphasising the words "in the appropriate subject" in recruiting persons to that post. The Departmental Promotion Committee actually recommended that the Recruitment Rules should be amended so that only a person holding qualifications and experience in Mechanical Engineering should be appointed as an Assistant Workshop Superintendent. This recommendation was put into effect when new Recruitment Rules were framed in 1,971. But, even before the amendment of the Rules in 1971, the interpretation of the 1968 Rules by the succeeding Departmental Promotion Committees and by me above. shows. that the seniority of Assistant Workshop Superintendents was to be separate. It is only because the .number of vacancies in the three kinds of posts was shown separately and also jointly in column 2 of the 1968 Recruitment Rules that some doubt was created and it was to remove this. doubt that 1971 amendment was made. The quota system and rotation of vacancy was, therefore , to be applied to the posts of Assistant Worksh....