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TMI Blog1978 (1) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... tition 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 (ii) Senior Drawing Instructor 4 15" (iii) As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) of Article 226, which has not yet been apparently resolved because two Full Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ches 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. Hence, the legal right of a subject against the state was picked up for special treatment. The subject was given the right of fili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns 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 the High Courts under Article 226. This was made clear by the Minister for Law & Justice in his speech in Parliament while explaining the purpose of this particular amendment (quoted in paragr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged 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 jurisdiction of Article 226, but extends further to the taking of evidence for deciding questions of jurisdiction of fact also as distinct from law. Since the scope of a proviso cannot be the same as that of the rule, or wider than that of a rule, a suit is not included in clause (3) by the words "any other remedy". (9) I have thought fit to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 "in the appropriate subject". It was not called upon to fill in post of Assistant Workshop Superintendent. But even for the other posts they have taken the qualification and experience in the particular subject only into consideration and disqualified some who did not possess the same. In RX-2 also the Departmental Promotion Committee repeats the words of Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the respondents argued that the words "if for any reason a direct recruit or a promotee ceases to hold the appointment in the grade, the seniority list shall not be re-arranged merely for the purpose of ensuring the proportion concerned" applied to the appointments of Shri Narula and Shri Singhal. They further argued that after the po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Workshop Superintendents separately. The result is as follows : 1. Shri H. S. Tayal having been appointed before the 1968. Rules is to be left out. 2. The first vacancy after the framing of the 1968 Rules goes to Shri R. K. Bhatnagar, respondent No. 3 as a direct recruit. 3. The second vacancy belongs to a promotee and must go to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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