Devinder Gupta, J.— Petitioners who are Senior Clerks in M.C.D and were asked to look after the current duty charge as Assistant Accountants without any extra remuneration through office order, Annexure P-7, dated 4.1.1990, in this writ petition filed under Article 226 of the Constitution of India have sought the quashing of circular dated 4.12.1993 by which the respondents had proposed to hold a written examination on 26.12.1993 for filling up of the posts of Assistant Accountant on regular basis and for striking down the Recruitment & Promotion Regulations (hereinafter referred to as ‘the Regulations’) notified on 12.9.1978 as arbitrary, discriminatory and violative of articles 14 & 16 of the constitution of india. A direction was also sought against the respondents not to act upon the impugned Regulations of 1978 for filling up the posts of Assistant Accountant or to hold the test for filling up of the said posts but to regularise the petitioners against the said posts with all consequential benefits.

2. On 22.12.1993 the writ petition came up before the learned Single Judge, who while directing notice to show cause to be issued also made an order on interim application directing that declaration of result would be subject to the decision in the writ petition.

3. The Regulations for the post of Assistant Accountant/Vigilance Inspector (Accounts) in Delhi Electric Supply Undertaking (for short ‘DESU’) (Municipal Corporation of Delhi) were framed and came into force on their publication on 12.9.1978 Being a Class III Selection Post, the Regulations provided the method of recruitment to be by promotion (selection to be made through a limited departmental competitive examination) from amongst the Senior Clerks with three years service or Junior Clerks with eight years service respectively in the grade, rendered after appointment thereto, on a regular basis.

4. It is the petitioners' case that the Regulations were unreasonable and discriminatory and were bound to lead anomalous situation. The Regulations provided promotion to the post of Head Clerk, which was also a Class III post, 50% on the basis of seniority-cum-fitness from amongst Senior Clerks with five years' service in the grade and 50% by selection through limited departmental competitive examination (for short ‘Examination’) open to Senior Clerks with three years' service in the grade. Accordingly, the first test, which was proposed to be conducted in 1979 for filling up of the posts of Assistant Accountant on objection by the Union was not held and on 19.12.1980 a settlement was arrived at with the Employees Union in which it was decided to fill up all the posts of Assistant Accountant by promotion only. To give effect to the settlement, a proposal was made to scrap Regulations of 1978 and to bring in new Regulations in so far as the filling up of the posts of Assistant Accountant was concerned.

5. On 29.12.1989 Resolution No. 920 was passed by the Corporation, purport of which was that since it has not been possible to fill up any post in accordance with the notified Regulations due to resentment by the recognised Unions for the holding of written examination, as such it was porposed to fill up the posts of Assistant Accountant from amongst Senior Clerks only with five years' regular service on the basis of seniority subject to rejection of unfit, purely on ad hoc basis. For regularisation of services of Assistant Accountants, working on ad hoc basis, it was also proposed to impart a short term training and on completion thereof to promote them on regular basis the ad-hoc Assistant Accountants and also to relax the provision of Examination.

6. In the meanwhile, it is the petitioner's case, that 171 additional posts of Assistant Accountants were created by upgradation from amongst the posts of Senior Clerks and as per the settlement, which had been arrived at, pursuant to which a decision had been taken on 29.12.1989 to amend the Regulations, further promotions were made on ad hoc basis through order dated 4.1.1990 Petitioners having thereafter rendered satisfactory service as Assistant Accountants were expecting that they would be duly regularised against the posts for which purpose, as per the decision of the Corporation short term training was to be conducted. But instead of doing so the impugned notification dated 4.12.1993 was issued by the respondents proposing to hold a written test on 26.12.1993 for 171 posts of Assistant Accountant as per the Regulations notified w.e.f 12.9.1978 This method of conducting test for effecting promotion, as envisaged in the Regulations of 1978 already having broken down for various reasons. It was highly unreasonable and an arbitrary action on the part of the respondents to fill up on regular basis the posts by conducting the Examination. In this background aforementioned directions were sought to direct the respondents not to hold the Examination and as a consequence to issue directions to regularise the petitioners on the posts of Assistant Accountants.

7. Respondent-Corporation, purusant to the show cause notice, filed its reply stating that the Regulations though were notified in 1978 but the Examination envisaged therein could not be held since the concerned Employees Union had raised protest and in accordance with the settlement the posts of Assistant Accountant were filled on the basis of seniority cum fitness only on ad hoc basis. This action of the Corporation was challenged in a Civil Suit No. 523/88 filed by some of the Junior Clerks. A decree was passed in the said civil suit directing the Corporation to make appointments to the newly upgraded 171 posts of Assistant Accountants by conducting Examination as envisaged under Regulations 1978 within a period of six months. The judgment and decree in the civil suit was challenged in appeal preferred by the Corporation but the said appeal was dismissed by the Additional District Judge on 2.12.1992 Pursuant to the said judgment and decree in the civil suit, as confirmed in the appeal, the Corporation invited applications from the eligible Junior Clerks and Senior Clerks for filling up the vacancies in the grade of Assistant Accountant on the basis of Examination, which was scheduled to be held on 31.10.1993 but had to be postponed due to elections and festival season. Through another circular dated 29.10.1993 the date for the Examination was fixed as 26.12.1993 The respondents in the reply also clarified that the petitioners had been given only current duty charge of Assistant Accountant without any extra remuneration by making it clear in the order dated 4.1.1990 that the said arrangement was purely a stop-gap arrangement for the purpose of carrying out day to day office work and will not confer any superior claim for seniority or for other purpose in the service. It was also clarified that the arrangement was subject to the outcome of the appeal filed by the Corporation against, the judgment and decree of the Civil Court, which envisaged the filling up of the posts only under Regulations of 1978.

8. There has been further development during the pendency of the petition, Revised Regulations for filling up of the post of Assistant Accountant/Vigilance Inspector (Accounts) in DESU, MCD were notified through notification dated May 10, 1995 making the post a Non-Selection Post and envisaging the filling up of the same by promotion, namely,) 80% from amongst Senior Clerks with 5 years service in the grade rendered after appointment thereto on regular basis, after completing short term training and 20% by Examination open to Senior/Junior Clerks with 3/8 years service in the respective grade.

9. Another development which deserves to be noticed is that, as a result of the Examination notified through the impugned Circular, 79 posts of Assistant Accountant have been filled up during the pendency of the petition on regular basis. Another examination was thereafter proposed to be held under 1978 Regulations on 7th August, 1994 to fill up the remaining unfilled posts. The petitioners applied for stay of the Examination, which was proposed to be held, by moving CM 5614/94. On 29.7.1994 an order was passed that without prejudice to their rights and contentions in the pending writ petition, the petitioners and other similarly situate persons would be permitted to take the Examination and everyone similarly situate would be given call letters for the Examination and that the respondent will ensure that the call letters are received by all, well in time. It is the respondent's version that the Examination, which was scheduled to be held was ultimately postponed since fresh suit had been filed by UB Singh, which is stated to be pending and, thus, remaining 92 vacancies out of 171 vacancies admittedly were not filled on regular basis.

10. The petitioners also sought amendment of the petition and in the amended petition, in addition to the prayers already made, further direction sought is to direct the respondent to regularise the petitioners as Assistant Accountants w.e.f 5.1.1990, the date when they assumed the charge pursuant to order dated 4.1.1990 with further directions to respondent to pay arrears while fixing the same in the scale of Assistant Accountant.

11. In the light of the aforementioned, we have heard Counsel for the parties.

12. Learned Counsel for the petitioner raised number of contentions. Firstly it was contended that the provision contained in 1978 Regulations, envisaging the holding of the Examination for filling up the posts of Assistant Accountant had broken down since under the Regulations envisaged holding of the Examination every year, which was not held. The agreement dated 19.12.1980 with Employees Union made it abundantly clear that the respondent Undertaking decided not to follow the Regulation of conducting the Examination for filling up of the posts and for that reason from 1978 till 1993 no Examination was held. The decision dated 29.12.1989 further confirmed that there was a clear intention not to hold the Examination. The Examination held on 26.12.1993 was defective. Even as per the stand of the respondent, on two occasions when Examination was proposed, namely, 1979 and 1994 the same was not held though candidates gave their names and paid for it. It was contended that since the provision of conducting Examination as contained in the Regulations had broken down, therefore, the normal rule for filling up of the post ought to be resorted to, namely, by promotion on the basis of length of service and since the petitioners had already been given “current duty charge” for the post in question, in view of Regulations of 1995 they deserve to be regularised from the date when they assumed the charge.

13. The second submission made was that as of today when Regulations of 1995 have already been notified and have come into force thereby superseding 1978 Regulations. For different number of vacancies, which arose from time to time in different years it is not now possible to conduct the Examination having retrospective effect, for such of the candidates, who became eligible to appear in Examination in each year in which vacancies arose, as such the only course now open would be to direct the respondent to follow the rule of length of service and make promotions on that basis.

14. The third submission made was that the requirement of appearing in the Examination was harsh. Because of the settlement between the Employees Union and the respondent Undertaking 1978 Regulations stood superseded and this settlement arrived at was also acted upon, till the Examination through the impugned Circular was notified. It was further submitted that the petitioners, who were eligible had already been promoted by the Departmental Promotion Committee by a process of screening and thereafter had continuously been working as Assistant Accountants, though on ‘current duty charge’. They were, thus, entitled to be regularised from the date on which the vacancies arose on the basis of seniority as Senior Clerks and in the facts and circumstances it deserves to be held that there was a deemed relaxation in their favour and doing away with the Examination.

15. Contention on behalf of respondent (DESU) has been that the Regulations were framed in 1978 under Delhi Municipal Corporation Act, 1957, which provided for the filling up of the posts of Assistant Accountants from amongst the Senior/Junior Clerks with 3/8 years regular service through limited departmental competitive examination. Employees Union was agitating against the Regulations, therefore, promotions to the post of Assistant Accountant were made dehors the rules on ad hoc basis. In the meanwhile some of the Junior Clerks filed a civil suit in which a decree was passed against the respondents directing the Undertaking to fill the newly posts of Assistant Accountants as per 1978 Regulations. During the pendency of appeal, in order to cope up with the work andpurely as a stop gap arrangement “current duty charge” for the posts of Assistant Accountant was given to the petitioners on 4.1.1990 Appeal against the said decree was dismissed by the Additional District Judge on 2.12.1992 In order to comply with the decree passed in the Civil Suit and as affirmed in appeal, a competitive Examination was conducted on 26.12.1993, pursuant to which 79 persons have already been appointed on regular basis to the posts of Assistant Accountant. These appointments, as per the interim orders passed by this Court in this petition are subject to outcome of this petition. Submission on behalf of the respondent, thus, has been that no appointment can be made to any post dehors the Regulations and the subsequent coming into force of Regulations of 1995 will have no effect to the present case since vacancies in question arose prior to 1995 and, thus, deserve to be filled up as per 1978 Regulations. Otherwise also the respondent is bound by the decree passed in Civil Suit No. 523/88—U.B Singh v. M.C.D (DESU). It is also the respondent's case that “current duty charge” given to the petitioners with effect from 5.1.1990 also does not confer any right on the petitioners for promotion or regularisation. “Current duty charge” was also given only subject to the outcome of the appeal, which had been preferred by DESU against the decree passed by the Civil Court.

16. Respondents 4 to 7 are those junior clerks who were promoted pursuant to the competitive Examination held on 26.12.1993 They also made their submissions contending that when the process of filling up of 171 newly created posts of Assistant Accountant was initiated by respondent No. 1 only on the basis of seniority alone, in violation of 1978 Regulations, the same was challenged by the Junior Engineers by filing Civil Suit No. 523/88. In view of the decree passed in the said suit, as confirmed in appeal, respondent No. 1 is bound to follow the decree and fill up 171 posts as per the 1978 Regulations. Calling upon 202 Senior Clerks to look after the current duty charge of Assistant Accountants, including 171 posts, which were subject matter of civil suit cannot confer any right on the petitioners for regularisation from the said date even in view of the newly notified Regulations of 1995. In order to give effect to the decree respondent No. 1 invited applications from all eligible Senior Clerks, including those, who were deputed to look after the duties of Assistant Accountant. On 1.3.1993 respondent No. 1 issued a circular in further reference to notice dated January, 1993 clarifying that Senior Clerks, who may not have completed three years of service in the grade of Senior Clerks, but had rendered eight years regular service in the grade of Junior Clerks were also eligible. In order to give a fair and reasonable opportunity to all eligible candidates, various office orders were issued on 9.3.1993, 16.7.1993, 20.10.1993, 29.10.1993 and 4.12.1993 Petitioner No. 1 also applied for appearing in examination and was also issued a roll number. Instant petition was filed on 21.12.1993 on the basis of office order dated 4.12.1993, deliberately concealing various other office orders, which had earlier been issued much prior thereto beginning with 1.1.1993 and 1.3.1993 Petitioners also concealed the fact of the Civil Court's as affirmed in appeal. Since judgment and decree of 19.5.1989 in Civil Suit No. 523/88 had become final, in so far as respondent No. 1 is concerned, it acted perfectly within law in inviting applications and conducting Examination for filling up of 171 posts, as per the then existing Regulations. Examination was held accordingly and having remained successful therein they were rightly and duly appointed. Petitioners had been given ample chance to apply and appear in the Examination. Having failed to do so they cannot now claim any equity and no relief can be granted to them.

17. The submission of the Counsel for the petitioner that rule of limited departmental competitive examination had broken down cannot be accepted. Regulations were notified on 12.9.1978 Though the first examination was scheduled to be held in 1979, the same could not be held because of the agitation of the employees and thereafter because of the proposal, which had been under consideration pursuant to which a meeting was held on 19.12.1980 with DESU Workers Union in the Chamber of Deputy General Manager. The minutes recorded are as follows:

“Action by 1. Scrapping of R&P Rules Framed Arbitrarily: It was suggested by C.S (G) and was agreed to that a Separate Committee may be set up to review the notified R&P Rules with the representatives of the union which should consider the changes proposed by the union. It should complete its work by the end of Jan. ‘81. This Committee is to be headed by C/E(D). It was pointed out by the union that in the category of Asstt. Accountant, Head Clerk/Superintendent promotions are being made on ad-hoc basis and those promotions are made in all technical non-technical sides. The union suggested that only ad-hoc appointment should be made in such categories where R&P Rules are disputed by the Union. This was agreed to.”

18. It appears that pursuant to the aforementioned understanding all further promotions to the posts in question were being made only on ad hoc basis till; amendment/finalisation of the Regulations, when it was envisaged to make regular appointments. On 29.12.1989 amendment to the Regulations was proposed in respect of the posts of Assistant Accountant/Accounts Superintendent. A recommendation was made to the Corporation. The minutes recorded reads:

“According to the R&P Regulations for the post of Asstt. Accountant which were notified on 12.9.78, the posts of Asstt. Accountant are required to be filled up by promotion on the basis of selection being made through a Limited Departmental Competitive Examination which is open to the Senior Clerks/Junior Clerks with 3/8 years service respectively in the grade rendered after appointment thereto on regular basis. However, it has not been possible to fill up any post in accordance with the notified R&P Regulations due to the resentment by the Recognised Union to the holding of written examination. Therefore, the post of Asstt. Accountant is being filled up from amongst the Senior Clerks only with 5 years regular service on the basis of seniority subject to rejection of unfit purely on ad hoc basis after reaching an agreement with the Union.

2. To consider the case of regularisation of the services of Asstt. Accountants who have been working on ad hoc basis and to amend the R&P Regulations it is proposed as under:

(i) A short-term training may be arranged for the Senior Clerks. All the Senior Clerks who complete the training may be promoted to the Post of Asstt. Accountants. However, only those officials who qualify the examination conducted at the end of the training will be eligible for promotion to the post of Superintendent (Accounts) Failures will be eligible to appear for the test upto 5 times. The duration of the training, the location and number of Centres where the training can be conducted is to be finalised by the Finance Department Similarly, the syllabus is also to be specified by the Training Department in consultation with the Finance Department.

(ii) Relaxation in the provision of holding the Limited Departmental Competitive Examination in respect of these who have been promoted to the post of Assistant Accountant on the basis of seniority-cum-fitness on ad hoc basis as the proposed test could not be held as a one time measure.

3. The Delhi Electric Supply Committee is requested to approve the amendment as in Para No. 3 and recommend to the Corporation for their approval. Thereafter, the amendment will be forwarded to the U.P.S.C for their approval as required under Section 98(2) of the DMC Act, 1977.

19. The aforementioned resolution resulted in the amendment being carried out in the Regulations, which became effective on 10.5.1995 and are now known as ‘1995 Regulations’.

20. During the aforementioned process 171 posts of Assistant Accountants were created by upgradation on 22.6.1988 On that date 1978 Regulations were in force. One of the questions for consideration would be that whether in the facts and circumstances Regulations of 1978 will govern the appointments to 171 posts or the new R & P Rules of 1995 would apply. Petitioners' case is that because of various factors mentioned under the first proposal new Regulations should govern and apply and all promotions should be made as per the new Regulations and since they had been promoted by an order passed on 4.1.1990.their promotion be governed as per 1995 Regulations and they have to be accorded seniority from 5.1.1990, since when they are functioning as Assistant Accountants.

21. We need not reiterate the other facts, which have elaborately been stated above. But in the facts and circumstances of the case, we are of the view that for more than one reason, in so far as 79 posts are concerned, which have since been filled up on regular basis as a result of the competitive examination, before coming into force of the new Regulations, the respondents were justified in applying 1978 Regulations. One of the reasons being the subsistence of a valid decree of a Civil Court in Civil Suit No. 523/88. There was no option left after the decree had become final, with respondent No. 1 not to follow the decree. After the decree had been passed and been confirmed in appeal Respondent was obliged to fill up the posts as per 1978 Regulations. Though 171 posts were notified but the respondent could fill up, only 79 posts on regular basis. All the posts could not be filled up and respondent No. 1 has assigned valid reasons in not doing so. It is stated that after the decree had been passed on 19.5.1989, an appeal was preferred and during pendency of the appeal, to cope with the work, only current duty charge was given to the petitioners, making it abundantly clear in the said order that the same was subject to the outcome of the appeal. Appeal was dismissed on 2.12.1992, thus confirming the decree. Pursuant to decree Examination was proposed to be held on 21.10.1993, which could not be held on the scheduled date and was postponed to 26.12.1993 Only 79 posts were then filled up.

22. The proposition of law enunciated in Y.V Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284 : AIR 1983 SC 852 , followed by State of Gujarat v. Patel Naranbhai Nathubai, AIR 1990 SC 1232, will squarely apply to the facts and circumstances of the case, which holds that the vacancies which occurred prior to the amendment of rules would be governed by old Rules and not by new Rules. Reference may also be made to a decision in Dr. P.K Jaiswal v. Debi Mukherjee, (1992) 2 SCC 148. It was in the facts and circumstances of that case that the posts, which fell vacant prior to amended rules were held to be governed by old rules. We are of the view that in the facts and circumstances of the case and on the ratio of the decisions in the above two cases the respondents were justified in filling up the 79 posts under the old Regulations by conducting an Examination, irrespective of the fact that for various reasons, the Examination for filling up of the posts could not be held earlier for number of years.

23. But the above proposition, in the facts and circumstances would apply only to such of the posts, which have already been filled up, namely, 79 posts out of 171 posts and not for the posts which could not be filled up and will have to be filled up now. Once the process of selection had commenced and culminated only in 79 appointments, the same will not now regulate and govern the remaining posts, which could not be filled up but now will have to be filled up and obviously on the basis of the Regulations of 1995.

24. Petitioner No. 1 also applied for and was assigned roll number. In case for one reason or the other, petitioner No. 1 took chance and the other did not avail the opportunity, they cannot now make a grievance in so far as 79 posts are concerned, which the respondents have filled up by declaring the result. Though declaration of the result was made subject to the decision of the writ petition but the very fact that such posts have been filled up by respondents in order to comply with a valid decree of a Civil Court by conducting an Examination in which opportunity was allowed to all eligible candidates to appear, the same cannot be held to be invalid.

25. As of today new Regulations are in force and it may not be equitable now to direct the respondents to fill up the remaining posts by conducting the Examination as envisaged under 1978 Regulations and not to fill up the said posts by resorting to 1995 Regulations. It will also be unfair to exclude all those who have now become eligible for being promoted on the basis of length of service. The purport of decree would be to fill up the posts on regular basis as per the regulations in force and since the Regulations now in force are 1995 Regulations, it will be but equitable to direct the filling up of remaining posts under the new Regulations. 1995 Regulations have prospective application unless it can be shown that by an express or necessary implication that the same be given any retrospective effect. There is nothing in the Rules, which suggests that retrospective effect is to be given to those rules.

26. The petitioner cannot claim any right or equity in their favour on the basis of the order passed on 4.1.1990 by which they were asked to hold current duty charge of the post. Merely calling upon an officer to discharge the duties of a higher post cannot be treated as a promotion, more particularly when he does not get the salary of a higher post. Reference may also be made to decisions of the Supreme Court in Ramakant Shripad Sinai Advalpalkar v. Union of India, 1991 Supp (2) SCC 733 : AIR 1991 SC 1145, and State of Haryana v. S.M Sharma, JT 1993 (3) SC 740. Any appointment/promotion dehors the rules, if made, cannot result in any equity in petitioners' favour. We may also observe that 79 candidates, who have already been appointed on the basis of Examination, pursuant to 1978 Regulations will have to rank senior to those, who were given current duty charge, even if they are now promoted on regular basis in view of the specific rider in the order passed on 4.1.1980, which says:

“2. Against the above 171 upgraded posts of Assistant Accountant the following Senior Clerks working in the pay scale of Rs. 1320-2950 are posted to look after the current duties of the post of Assistant Accountant without any extra remuneration.”

“3. This arrangement is purely stop gap for carrying out the day to day office work and will not accrue any superior claim for seniority or other benefit in the service matter. 4. Further against the upgraded post equal number of posts of Sr. Clerks will be withdrawn after the posting of Asstt. Accountant and as such no substitute Sr. Clerks will be required to be provided.

5. The above arrangement is without prejudice to the outcome of the decision in the matter of appeal filed by the Management against the judgment of the Trial Court pending before the Addl. Distt. Sessions Judge, Delhi.”

27. Reference may also be made to a decision of the Supreme Court in State of U.P v. Rafiquiddin, AIR 1988 SC 162 and to the following passage in State of Orissa v. Sukanti Mohapatra, (1993) 2 SCC 486 : AIR 1993 SC 1650:

“In the present case also the appointments of the employees whose services are sought to be regularised were dehors the Rules. Rule 14 merely permits relaxation of any of the provisions of the Rules in public interest but not the total shelving of the Rules. The orders do not say which rule or rules the Government considered necessary and expedient in public interest to relax. What has been done under the impugned orders is to regularise the illegal entry into service as if the Rules were not in existence. Besides the reasons for so doing are not set out nor is it clear how such regularisation can subserve public interest. Rule 14 has to be strictly construed and proper foundation must be laid for the exercise of power under that rule. The Rules have a limited role to play, namely, to regulate the method of recruitment, and Rule 14 enables the Government to relax any of the requirements of the Rules pertaining to recruitment. The language of Rule 14 in the context of the objective of the Rules does not permit total suspension of the Rules and recruitment dehors the Rules. In the present case, the recruitments had taken place years back in total disregard of the Rules and now what is sought to be done is to regularise the illegal entry in exercise of power under Rule 14. Rule 14, we are afraid, does not confer such a blanket power; its scope is limited to relaxing any rule, e.g eligibility criteria, or the like, but it cannot be understood to empower Government to throw the Rules overboard. If the rule is so construed it may not stand the test of Art. 14 of the Constitution. The proviso to Rule 13 can come into play in the matter of fixation of seniority between candidates who have successfully cleared the examination and a candidate who cleared the examination after availing of the benefit of relaxation. We are, therefore, of the opinion that the Tribunal committed no error in understanding the purport of Rule 14.”

28. On applying the ratio of the above decision, there is no force in the submission made on behalf of the petitioner for regularisation. In so far as the remaining vacancies are concerned other than those for which appointments have already been made pursuant to the Examination, we are not inclined to accept the submission made on behalf of respondents 1 & 2 and by Counsel for respondents 4 to 7 that following the rule in Y.V Rangaiah's case (supra) directions deserve to be issued for holding a fresh Examination under 1978 Regulations to fill up the posts, since holding of examination at this stage will be contrary to the spirit of the new Regulations which have already come into force.

29. In view of the above discussion, we dispose of the writ petition with direction to the respondents to fill up the remaining posts other than 79 posts, which have already been filled up, on regular basis under 1995 Regulations by making promotions within a period of three months from the date of receipt of the writ order.

30. No order as to costs.

31. Interim orders stand vacated.

Writ petition disposed of.