1997 Supreme(Del) 879

High Court Of Delhi
S.P.AGARWAL - Appellant
Versus
LIEUTENANT GOVERNOR DELHI - Respondent
Civil 1021 of 1997
Decided On : 11/01/1997

Headnote:Delhi Municipal Corporation Act, 1957 - Section 511B(2)(i) — Transfer of employees — Re-designation of post member of Board — Withdrawal of re-designation — Permissibility.

       Held:

       The provisions of Section 511-B(2)(i) does not deal with any particular post or any particular class of posts. thereforee, so far as Section 511-B(2)(i) is concerned it only provided continuity of service which Has been given to the petitioner. In fact reference to Section 511-B(2)(i) by petitioner was only to show continuity of petitioner in the new organisation i.e. the Board. Once it is accepted that the petitioner would hold the same post which he was holding under DESU the continuity is established. It is in fact after the continuity is established that we have to examine what status petitioner has to enjoy i.e. of AGM or of Member. Reading of the notification dated 24th February, 1997 as a whole would show that petitioner was to enjoy the status of Member and exercise the powers as Member. We have to read the provision of Section 511-B with the notification of 24th February, 1997. Continuity of service is provided under Section 511-B of the D.M.C. Act and what designation the incumbent of that part would get is stipulated in the notification issued under Section 5 of the Act.

       There is no provision in the notification under Section 5 of the Act or under the rules giving powers to the Lt. Governor to nominate any member of the Board. thereforee, the indication given in the notification issued under Sub-sections (2) (4) & (5) of Section 5 dated 24th February, 1997 that the posts of Member (Technical) and Member (Admn.) would be filled up by the Competent Authority by nominating some one later, to my mind, cannot be supported under law nor under Section 5 of the Act.

       In the case in hand five top posts which were there in DESU got redesignated on 24th February, 1997 as Chairman and Members Board. The power exercised by the General Manager (Electricity) and the AGMs in the erstwhile DESU had to be exercised by the Chairman and Members of the Board. thereforee, it cannot be said that after the formation of new authority the right, powers and privileges of the petitioner have not been altered to his disadvantage. Merely saying that the post of AGM is still available does not mean that the petitioner will enjoy the same powers and privileges which he had been enjoying as AGM in the erstwhile DESU. As per Clause 4(5) of the Notification dated 24th February, 1997, all powers, privileges and positions financial, administrative etc. which were exercised by the erstwhile AGM in DESU are now to be exercised by Member Board.

       It would not be correct to say that the post of AGM which was held by the petitioner still continues or by implication did not stand abolished. As already observed above it is a case of redesignation. thereforee, separate specific letter of appointment was not required to be issued.

       It is the case of appointment by re-designation. Hence a legal right accrued in favor of the petitioner as on 24th February, 1997. It would be wrong on the part of respondent to contend that notification dated 24th February,1997 was only under Section 5(1) of the Act and not under Section 5(2) of the Act. In fact reading of Notification of 24th February, 1997 as a whole makes it clear that the Lt. Governor in exercise of his powers under Section 5 of the Act issued the notification. It was not restricted either under Sub-section (1) or (2) of the Act. That is the reason in Clause 4(2) it was mentioned that all those persons who were holding the post of G.M. and A.G.Ms would be redesignated as Chairman and Members of the Board. By saying so the Lt. Governor exercised the powers under Section 5(2) of the Act. The intention of the State Government is clear from the reading of the Notification as a whole.

       Petitioners case is neither of promotion nor enhancement and improvement of his status. That the petitioner is not seeking a declaration. His case is based on notification dated 24th February, 1997 by virtue of which his post of A.G.M. got redesignated to Member Board. And that this legal right which accrued to him vide notification of 24th February, 1997 has been taken away vide the subsequent notification dated 27th February, 1997 without following due procedure of law and hence illegal.

       The impugned notification dated 27th February, 1997 which took away the right of the petitioner is, thereforee, arbitrary, illegal and bad in law.