Holding

Promotions earned during deputation do not confer any right to a higher post in the parent department; on reversion the employee is entitled only to his original post, subject to any independently earned promotion.

Summary

The appellant, originally a tracer in the Bombay Municipal Corporation, was deputed to the Town Planning Establishment where he was promoted to junior draftsman and later considered for a higher post. After suspension and removal proceedings, the Industrial Court vacated his removal and he was reappointed as junior draftsman in the establishment, which was later abolished. The Municipal Corporation then reverted him to the corporation, appointing him as a tracer, a lower post than his last position in the establishment. The appellant challenged this reversion, claiming a right to retain the junior draftsman rank and arguing that the Deputy Municipal Commissioner lacked jurisdiction. The Supreme Court held that promotions obtained while on deputation do not confer any entitlement to a higher post in the parent department; on reversion the employee may only return to his original post, unless he has independently qualified for promotion. The Court also observed that the appellant failed to timely challenge the appointments of other junior draftsmen and therefore had no claim to preferential promotion. Consequently, the appeal was dismissed.

Issues considered

Whether a promotion obtained while an employee is on deputation creates a right to a similar or higher post in the parent department upon reversion.
Whether the Deputy Municipal Commissioner had jurisdiction to order the appellant's reversion as a tracer.
Whether the appellant was entitled to seniority or promotion over directly recruited junior draftsmen.

Legislation cited

Bombay Provincial Municipal Corporation Acts. 53, s. 54(2), s. 56
Bombay Town Planning Act, 1954s. 31

Subjects

service lawdeputationpromotionreversionmunicipal corporationstaff selection committeeseniorityindustrial courtjurisdiction

Judgment

D.M. BHARAT!
A
v.
L.M. SUD AND ORS.

SEPTEMBER 19, 1990

B rs. RANGANATHAN AND A.M. AHMADI, JJ.]
Service Law: Bombay Municipal Corporation-Deputation from
one Establishment 10 another-Promotion obtained in the Establish-
ment depuied to-Whether confers any right for higher posts in the
parent department, on reversion.

c The appellant was appointed as a Tracer in the Municipal Corpo-
ration in 1955. With the appointment of a Town Planning Officer in
1957, the appellant came to be appointed as a Tracer in the Town
Planning Establishment. Later, the post of Junior Draftsman fell vacant
in the Town Planning Establishment. Respondent No. 6 was posted to
D fill the vacancy. However, his appointment was cancelled shortly there-
after and the appellant was appointed as Junior Draftsman with effect
from 4.12.1959.

The next higher post of Surveyor-cum-Draftsman fell vacant in " -

1962. '.\leanwhile, the appellant was suspended. The Industrial Court
E granted approval for his removal from service, but suggested that he
may he reappointed. Accordingly, the appellant was appointed afresh
as Junior Draftsman in the Estates Department of the Municipal Corpo-
ration where he was previously working.

Aggrieved, the appellant filed a \\rit Petition before the High
F Court. Setting aside the order, the High Court remanded the matter to
the Industrial Court for fresh disposal. The Special Leave Petition pre-
ferred by the employer, viz., the Municipal Corporation against the
High Court's order was dismissed.

The Industrial Court reheard the matter and declined approval
G for the removal of the appellant from service. The appellant was reap-
pointed as Junior Draftsman in the Town Planning Establishment
which was abolished subsequently, and he was reverted to the service of
the Mufiicipal Corporation as a Tracer, and not as a Junior Draftsman.
The appellant filed an appeal against the said order, but it was rejected
on the ground that direct recruits were already working as Junior
H Draftsmen and that there was no vacancy against which the appellant
could be appointed.
580
)
D.M. BHARAT! c. L.M. SUD 581

The appellant moved the High Court by way of a Writ Petition.
contending that since he had been appointed as Junior Draftsman in the
A
Town Planning Establishment, he could not be repatriated to a lower
post, viz., ]'racer in the Municipal Corporation . .It was also contended
that the Deputy Municipal Cornmissioner, was a pefson lower in rank
than the appointing authority viz., the Municipal CommissiOner.-and
hence the order passed by him was without jurisdiction. .B

The High Court proceeded on the footing that the appellant was
on deputation from Municipal Corporation to the Town Planning
Establishment and dismissed the Writ Petition. The appellant has pre'
ferred this appeal against the High Court's order dismissing his Writ
Petition.
c
Dismissing the appeal. this Court.

HELD: 1..1 The appellant's promotion as Junior Draftsman and
proposed promotion as Surveyor-cum-Drafts1nan in the Town Planning
Establishment cannot confer any rights on him in his parent depart- D
men!. When he left the Municipal Corporation and joined the Town
Planning Establishment he was a Tracer and he can go back to the
Estate Department o.r any other Department of the Municipal Corpora-
tion only to his original post i.e., as Tracer, subject to the mo9,ification
that. if in the meantime he had qualified for promotion to a higher post.
that benefit cannot he denied to him. E

1.2 The order dated 16.8.1965 was passed in pursuance of the
recommendation of the Industrial Court, while approving the appel-
lant's removal, th3t he may be reconsidered for appoinhnent. ln view of
this order of the Industrial Court, the appellant had to be given a
posting and since he had been discharged from service when he was a F.
,Junior Draftsman, orders. were passed appointing him as junior
Draftsman. This again was made as an order of fresh appointment and
the appellant's representation that he should he given seniority was
rightly not .accepted. There is also the 'further _fact that the appellant
was relieved from this post with effect from October I, 1967. There has
been, apparently; no challenge to this ord~r. J\tloreover, theses orders G
lost their basis once the petitioner w3s restored to his post in the Town
Planning Establishment. In these circumstances the order dated 16.8.65
or the determination of his seniority in I966 are of no relevance to the
present case.

2.1 What the appellant is really attempting is to challenge the H.
582 SUPREME COURT REPORTS [1990] Supp. 1 S.C.It

A
appointments of Respondents 6 to 11, which had been made in 1963-64,
by a Writ Petition filed in 1978, more than a decade after the above
selections and appointments had been made. It is true that, at that time
the appellant, was under a cloud because he had been suspended and
subsequently removed from service. But all the same, if he had desired
to challenge those appointments, he should have taken immediaie steps.
B Anyhow, these obstacles had disappeared when the tribunal, on remand
by High Court, had and disapproved the appellant's removal from service
by the order dated 13.5.1964. Atleast in 1971, when the order was

c
passed restoring him to the position of Junior Draftsman in the Town
Planning Establishment, he could and should have taken steps to obtain
his "pro-forma" promotion in the parent department. The fact
remains that he took no effective steps to challenge the appointment of
-
respondents 6 to 11 from 1963-64 right upto 15.2.1978. when he filed
the Writ Petition or atleast npto 1.10.1976, when he made a representa·
lion against the order of reversion.

2.2 S. 54(2) of the Municipal Act, dispenses with the Staff Selec·
D tion Committee when it is.proposed to fill the appointment from among
persons already in municipal service. But the nature of the recruitment
that took place is not known. That apart, the constitution of a Staff
Selection Committee to decide upon the selections cannot be said to be
illegal even though not mandatory in the ·situation. The High Court has
found that respondents 6 to 11 had been directly selected as Junior
E Draftsmen after proper scrutiny by the Staff Selection Committee.
Admittedly there was a circular among the Municipal employees iil
regard to these appointments and selections. The appellant should have
made an application for selection at that time or, if he thought it more
appropriate, should have challenged the constitution of Staff Selection
f
Committee and the direct recruitment and put forward his claim for
F promotion as Junior Draftsman by virtue of his seniority. That he failed
to do at the crucial time. It may be that this was because he had certain
difficulties facing him by way of suspension and subsequent expulsion
from service. But even in 1971, after his original order of suspension
and removal had been set aside, he took no immediate steps to claim his.
rights in the parent department. He .was apparently satisfied with his
G restoration as Junior Draftsman in the Town Planning Establishment.
Having regard to the circumstances of the appointment of respondents
6 to 11, the appellant was not entitled to any promotion in preference to
them and he cannot claim appointment as Junior Draftsman when there
was no such post in 1976 to which he could be appointed.

H CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1213
of 1979.
D.M. BHARAT! v. L.M. SUD IRANGANATHAN. J.] 583

From the Judgment arid Order dated 24.4.1978 of the Gujarat
High Court in L.P.A. No. 97 of 1978. .A

Appellant in person.

H.S. Parihar for the Respondents.
B
The Judgment of the Court was delivered by

RANGANATHAN, J. The appellant, D.M. Bharati, challenges
the validity of an order dated 30.9.1976 passed by the Deputy Munici-
pal Commissioner of the Municipal Corporation of the City of
Ahmedabad. By the said order, the Deputy Municipal Commissioner.
consequent on the staff of the Municipal Corporation working in the c
Town Planning Establishment having to be absorbed in the Municipal
Corporation, "reverted" the appellant from the post of junior drafts-
man in the Establishment and appointed him to act in the post of a
tracer in the Town Development Department of the Corporation. The
High Court rejected his writ petition and hence the present appeal. D

It is necessary to state the relevant facts. The appellant had been
appointed as a tracer in the Estate Department of the Municipal
Corporation on 26.6.1955 and worked there till 18th February, 1957. It
appears that the Government appointed a Town Planning Officer
under the provisions of section 31 of the Bombay Town Planning Act. E
1954. The Town Planning Officer had to be supplied with an establish-
ment. The establishment-of the Town Planning Officer was admittedly
temporary. An arrangement was entered into between the two
authorities that the arbitrator in the planning office could select such
persons from the Corporation for his establishment as he thought fit.
The Town Planning Officer demanded the services of the appellant F
and he was appointed as a tracer in the Town.Planning Establishment
on 22.2.1957. It is not clear whether the· appellant went therein by way
of transfer or by way of deputation as the original order dated
22.2.1957 is not available with us. However, the High Court and the
appellant have proceeded on the footing that the appellant was
deputed from the Municipal Corporation to the Town Planning G
Establishment.

Sometime later, the post of a junior draftsman fell vacant in the
Town Planning Establishment. The appellant tells us that he was asked
to take charge of that post on 4.12.1959. It appears that Mr. Yevla
(Respondent No. 6 in the W.P.) was posted to fill in that vacancy but, H
584 SUPREME COURT REPORTS [1990] Supp. I S.C.R.

on 21.4. 1960, his appointment was cancelled and the appellant was
A
appointed as junior draftsman in the Town Planning Establishment
w.e.f. 4.12.1959. The appellant tells us that he had also been subse-
quently recommended for appointment to the post of Surveyor-cum-
Draftsman, which was a higher post and which had fallen vacant on
28.2.1962. But before this proposal could materialise the appellant was
B suspended on 5th December, 1962 by the Corporation and was
removed from service on 13.5.64. The Industrial Court granted
approval to the removal of the appellant from service but made certain
observations suggesting tha< he may be re-appointed to the said post.
The appellant filed a writ petition against the order of the industrial
court: The High Court eventually, set aside the order of the industrial
c court on 1.2.1969 and remanded the matter for fresh disposal to the
industrial court. The Municipal Corporation preferred S.L.P. 48/71 in
this Court which was dismissed on 27.1.71. The industrial court
re-heard the matter pursuant to the order of the High Court and
declined approval to the order of removal of the appellant from service
with the result that the order of removal dated 13.5.64 stood vacated
D and an order was passed on 3.3.71 by the Municipal Commissioner
that the appellant was reappointed as a junior draftsman in the Town
. Planning Establishment.

In the meantime, on 16.8. 1965, consequent on the recommenda-
tions of the industrial court, the appellant was appointed as junior
E draftsman in the Estates Department of the Municipal Corporation
where he had been previously working. This purported to be a fresh
appointment and so the appellant made a representation that he
should be appointed in this post according to his seniority. No orders
were passed on this representation except a direction that the appel-
lant should join service within a week of receipt of the memo and then t.
F represent his case for seniority, if he so desired. Thereupon the appel-
1ant accepted the order re-appointing him as junior draftsman in the
Estates Department and took charge of his office. The order of the
High Court has found that the appellant was relieved from service on
I. IO. 1967 because of retrenchment.

G When the above proceedings in the case of the appellant were
taking place respondents 6 to 11 were directly selected as junior
draftsmen by the Staff Selection Committee and promoted to the said
post. The appellant did not appear before the Staff Selection Commit-
tee perhaps because of the various proceedings above referred to, as a
result of which he was under suspension from 5.12.1962 to 13.5.1964,
H when he was removed and then again till 16.8.65, when he was re-
... D.M. BHARATI v. L.M. SUD [RANGANATHAN, J.[ 585

appointed as a draftsman. Once the proceedings against the appellant
came to a close, the Municipal Commissioner passed order. on
3.3.1971, cancelling the order dated 13.5.1964 removing the appellant
from service. Be was re-appointed as a junior draftsman in the Town
Planning establishment. Subsequently, however, the Town Planning
Establishment was abolished, and the appellant was served with the
order dated 30.9.1976, by which hew.as reverted to the services of the B
Mu.nicipaJ, Corporation. On such reverter, however, as we have seen,
he was posted as a tracer and not as a junior draftsman. The appellant
filed an appeal against the said order before the.Standing Committee
but his appeal was rejected on 15.3. 1977 on the ground that in the
Corporation direct recruits were already working as junior draftsmen,
and that there was no post of junior draftsman vacant in the.Corpora-
tion, to which the appellant could be appointed. The appellant there-·· C
upon filed a writ petition and, as already stated, he was ursuccessful
therein and hence this present appeal.

The appellant's contention before the High Court wa.s two. fold.
The first contention was that since he had been appointed:as junior D
draftsman in the Town Planning establishment by the order dated
21.4. 1960, he could .not be repatriated as a tracer in the Municipal
Corporation, that is, to a lower post. It was also contended that the
order dated 30. 9. 1976 has been passed by the Deputy Municipal
Commissioner, who is a person lawer in rank than the person .who
appointed him, namely, the Municipal Commissioner and that; there- E
fore, the order dated 30.9.76 was passed by an officer without jurisdic-
tion. These two arguments have b.een rei~erated before us also. So far
as the second contention is con.cerned it 'may at once be pointed out
that if the order dated 30.9.76 is an order of reversion. by. way. of
punishment, the appellant's contention may be correct in view of the
provisions contained in sections 53 and 56 of the Bombay Provincial F
Municipal Corporation Act. However, if the o'rder dated 30.9.76 has
merely given effect to the. abolition of the Town Planning establish-
ment and restored the appellant to the post he can properly hold in the
Municipal Corporation then no element of reversion would be
involved and the Deputy Commissioner would be quite competent to
pass the order in question. The only question therefore that survives G
for consideration is regarding the validity of an order dated 30.9.76 in
so far as it purported io appoint the appellant as a tracer in the Munici-
pal Corporation instead of as a junior draftsman. We may mention
here that a point was also made thanhe appellant should not have
been appointed as an "acting" tracer but it has been explained by the
Corporation that it was a verbal inaccu.racy and that the appointment H
586 SUPREME COURT REPORTS I 19901 Supp. i S.C.R.
of the appellant in the Municipal Corporation is not an acting but a
A
substantive one. This point, therefore, does not survive.

We shall proceed on the assumption that the appellant went to
the Town Planning establishment (which was a temporary one) by way
of deputation from the Municipal Corporation. There· is some con-
B troversy as to whether the appellant was properly promoted as junior
draftsman in the Town Planning establishment. There is a suggestion
that both the demand by the Town Planning establishment for the
services of the appellant as well as his promotion therein were not
acceptable to the Corporation and that they were the consequence of
undue favour shown to the appellant by the Arbitrator who was the
appointing authority. We do not think it is necessary to go into this
c controversy here because it is quite clear that the appellant's promo-
tion as junior draftsman and proposed promotion as Surveyor-cum-
Draftsman in the Town Planning Establishment cannot confer any
rights on him in his parent department. When he left the Municipal
Corporation and joined the Town Planning establishment he was a
D tracer and he can go back to the Estate Department or any other
Department of the Municipal Corporation only to his original post '--
i.e., as tracer, subject to the modification that, if in the meantime he
had qualified for promotion to a higher post, that benefit cannot be
denied to him. In the present case, unfortunately, what happened was
that when junior draftsmen were recruited by the Municipal Corpora-
E tion in 1959-60 and in 1963-64, persons were selected and appointed to
the said posts through the machinery of a Staff Selection Committee.
The appellant submits that he had been wrongly overlooked and that
the respondents had been wrongly promoted as junior draftsmen. He
points out that, under the regulations, junior draftsmen had to be
appointed by promotion on the basis of seniority-cum-fitness and that
F the question of Staff Selection Committee did not at all arise. Accord-
ing to him, the procedure for sel°'cting by Staff Selection Committee
would not come into force when the recruitment was restricted to
persons in the municipal service. In the present case, however, all the
persons, who were appointed as junior draftsmen during the appel-
lant's absence were from the municipal service. The appointment
G should, therefore, have been made directly by promotion without the
intervening machinery of the Staff Selection Committee and the appel-
lant being the seniormost tracer should have been appointed as junior
draftsman in preference to respondents 6 to 11.

There are considerable difficulties in accepting this case of the
H appellant. In the first place, what he is really attempting is to challenge
D.M. BHARAT! v. L.M. SUD [RANGANATHAN, J.l 587

the appointments of respondents 6 to JI,. which had been made in
!963,§4 1 by a writ petition filed in 1978, more than a decade after the A.
above sefe.ctions and appgjntrpents had been made. It is true that, at
a
that !i!De the appellant, .was 4nger ~lcn~d because he had been
suspended and subsequently rempv~d frglT! service. But all the same, if
he had desired to challenge those appoin\me!ll~, he should have taken
immediate steps. Anyhow, these ()bstacles had disappeared wh.en the B
tribunal, on remand by High Court, had disapproved the appellant's
removal from service by the ord.er dated 13.5.1964. At least in 1971.
when the order was passed restoring him to the position of junior
drafsman in the Town Planning establishment, he could and should
h.a¥e ta~e!l s!.eps tp obtain his "pro-forma" promotion in the parent
departlt!ell1· T~e appellant says he was making some representations
but this was not en!»ugh. T!Je fact is that he 'look no effective steps to C
to
challenge the appointment of respondegts 6. 11 from 1963-64 right
upto, 15.2.1978, when he filed the \Vrit petition or atleast upto
1.10.1976, when he made a representation against the order of
reversion.
D
Quite apart from the above consideration, there is· no material
befpre us to show that the appointments.of respondents 6 to 11 were

- lt!iide irregularly an4 that the constitution of a Staff Selection Commit-
tee f()r sele~(ing jy!lior draftsmen did not conform to the regulations
and the provisip[1§ of the J:IPfT' bay Provincial Municipal Corporations
Act. The Corporation has stated that they have been directly recrui- E
led. The High Court has pointed out that the relevant regulation gave
a discreti()p to the cmnrpissiqner to make the appointments PY promo-
tion or by direct re~rnitment. S. 54(2) pf !he ~~pjcipal Act, op \V,hich
•• the petitioner relies, no doubt disp0nses with !he Staff se)~ctio!J Corri,
mittee when it is proposed to fill tl!e app9intlf!ent from am!"ng Persons
already in municipal service, jlut the ·I)ature of the reeruitment that F
took place is not known, That apart, tl]e constiiution of a Staff Selec-
tion Committee to decide µpon· the selectiO!lS .cannot be said to be
illegal even though not mandatory in the situation, Tl]e High C9urt has
found as a fact at more than one place in the judgment that the respon-
dents 6 to 11 had been directly selecte<:! e§ illnior <:!rnfts!f!.rn af!er
proper scrutiny by the Staff Selectipq Cpruinittee, Even the appellant G
stated before us that there was a circular am 0ng the municipal emp-
loyees in regard to these appointments and selections. The appellant
should have made an application for selection at that time or, if he
thought it more appropriate, should have challenged the constitution
of staff sele,tion committee and the direct recruitment and not for-
ward his claim for promotion as jupior draftsman by virtue .of his H
588 SUPREME COURT REPORTS l 1990] Supp. l S.C.R. . ·-
seniority. That he failed to do at the crucial time. It may be that this
A was because he had certain difficulties facing him by way of suspension
and subsequent expulsion from service. But even in 1971, after his •
original order of suspension and removal had been set aside, he took
no immediate steps to claim his rights in the parent department. He
was apparently satisfied with his restoration as junior draftsmen in the
B Town Planning establishment. We are in agreement with the High
Court that, having regard to the circumstances of the appointment of
respondents 6 to 11, he was not entitled to any promotion in prefe-
rence tO them and that he cannot claim appointment as junior drafts-
man when there was no such post in 1976 to which he could be
appointed. It is not his case that any posts of junior draftsmen became
vacant after his reversion to the parent department to which he could
c have been promoted.

The appellant contends that the fact that his eligibility for
appointment as a junior draftsman in the parent department had been
accepted by the order dated 16.8.1965 referred to earlier. It is also
D pointed out that subsequently a question arose of the seniority as
between the appellant and one Kavadia. This was gone into and the
~
Municipal Corporation accepted the position that the appellant pos-

E
sessed qualifications required for the post of junior draftsman and that
he was senior to Mr. Kavadia. This was sometime in 1966. We, how-
ever, find that this aspect of the matter does not help the appellant
because the order dated 16.8.1965 was passed in pursuance of the
recommendation of the industrial court, while approving the appel-
!ant's removal, that he may be reconsidered for appointment. In view
-
of this order of the industrial court, the appellant had to be given a
posting and since he had been discharged from service when he was a
junior draftsman, orders were passed appointing him as junior drafts- •
F man. This again was made as an order of fresh appointment and the
appellant's representation that he should be given seniority was not
accepted, rightly, for the reason mentioned above. There is also the
further fact that the appellant was relieved from this post with effect
from October 1, 1967. There has been, apparently, no challenge to this
order. Moreover, these orders lost their basis once the petitioner was
G restored to his post in the Town Planning Establishment. In these
circumstances the order dated 16.8.65 or the determination of senio-
rity betweet appellant and Kavadia in 1966 do not help the appellant's
case.
lo-. -
Learned counsel for the Municipal Corporation submitted to us
I-
H that the appellant had not joined his post as a tracer in compliance
D.M. BHARAT! v. L.M. SUD [RANGANATHAN, J.I 589

with the order dated 30.9.76 and that by now he has also rea~hed the
age of superannuation. We are no{ here concerned in ttiis appeal with
the consequences of "non acceptance'' of the order datecl 30.9.76 by
the appellant. We are only concerned with the question whether the
appellant was rightly appointed as tracer on his reverter to the Munici-
pal Corporation and that question we have answered in the ;iffipna"
tive. We do not express any opinion on the questions raise<l by the
learned counsel for the respondent.

In the circumstances, we are of the opinion that there are no
grounds to interfere with the order of the High Court. We, therefore,
dismiss this appeal but, in the circumstances, we make no order as to
costs. c
G.N. Appeal dismissed.

-