Shri Sri Bhagwan vs Municipal Corporation Of Delhi ...
2001 Latest Caselaw 517 Del

ORDER

Dr. Mukundakam Sharma, J.

1. In the present writ petition the petitioner prays for a direction to the respondents to pay the salary of Clerk/Cheque Writer to the petitioner w.e.f. 11.9.1978 and also for regularisation of his services to the post of Clerk/Cheque Writer with all consequential benefits.

2. The petitioner was appointed to the post of Rat Gang Coolie on 11.9.1978. On 14.9.1984 the respondent passed an order for regularising the services of the petitioner against the post of Rat Gang Coolie. It is alleged in the petition that in addition to his duties as Rat Gang Coolie the petitioner is performing the duties of Clerk/Cheque Writer from the very beginning and on 28.2.1986 the respondents approved the proposal for services of the petitioner to wok on the post of Cheque Writer/Clerk in the diverted capacity. It is alleged that the petitioner continued to work as such and accordingly he submitted a representation to the respondents for giving him regular promotion to the post of Lower Division Clerk as he has fulfillled all the eligibility criteria for the post of Lower Division Clerk. It is also stated that although the petitioner has been working as LDC he is not being given regular promotion nor the pay scale attached to the said post and hence the present petition.

3. The counsel appearing for the petitioner submitted before me that since the petitioner has been working in the post of Clerk/Cheque Writer for the last 21 years he is not only entitled to the salary in the higher pay scale of the said post but is also entitled for regularisation in the said post from the date of his engagement i.e. 11.9.1978. In support of his contention the learned counsel relied upon the decision of the Supreme Court in the case of Selvaraj Vs. Lt. Governor of Island, Port Blair, .

4. The respondents have contested the writ petition by filing a counter affidavit wherein it is stated that the post of Lower Division Clerk is governed by the Recruitment Regulations notified in that behalf and for filling up the said post of Lower Division Clerk a regular examination is conducted. It is stated that since the petitioner never appeared for the selection examination for the post of Lower Division Clerk nor does he hold the essential qualification, therefore, the petitioner is not entitled to an order of promotion to the post of Lower Division Clerk automatically without going through the process of such selection. It is also stated that the petitioner is also not entitled to the pay scale of the said post of Lower Division Clerk inasmuch as the nature of work performed by a Lower Division Clerk is much more than the nature of work which is allegedly being performed by the petitioner as a Cheque Writer. It is also stated that there is no post of Cheque Writer in the establishment of the respondent. It is however, admitted that the nature of work which is allegedly being performed by the petitioner is a part of nature of duties which are performed by the Lower Division Clerks and for doing that work it is stated that the petitioner is being duly paid over-time allowance in the diverted capacity and therefore, he is being adequately compensated.

5. Counsel appearing for the respondents submitted that since the petitioner has been sufficiently compensated in terms of money for the additional work that he is doing in the establishment of the respondents no order could be passed in terms of the relief sought, for the petitioner is not performing the entire duties of a Lower Division Clerk. It was also submitted that the petitioner, in order to be promoted to the post of LDC has to qualify in the selection process and he having not done so there cannot be an order for regularisation of services of the petitioner.

6. The petitioner was engaged as a Rag Gang Coolie in the Health Department, City Zone, Municipal Corporation of Delhi since 1978, and as against the said post he was regularised since 14.9.1984. It is admitted position that his services have been utilised at times in diverted capacity in the Accounts Department. The nothings produced by the petitioner, which could not have been extracted int he manner it is done in the writ petition, indicate that the services of the petitioner were requisitioned in diverted capacity for assisting the Cheque Writer/Clerk.

7. However, no document is placed on record to show that the petitioner was appointed/promoted to the post of LDC by the Competent Authority. In this writ petition a number of disputed questions of facts are involved. The petitioner contends in the writ petition that since the date of his appointment as a Rat Gang Coolie he is working in the diverted capacity in the Accounts Branch as a Cheque Writer/Clerk. The respondents deny the said fact and state that the petitioner is working as a Rat Gang Coolie in the Health Department of City Zone and has been drawing the salary of the said post to which he is posted although at certain point of time the petitioner has also been working in the Accounts Branch in the diverted capacity and is being paid additional compensation for such assistance and work. No order was passed by the respondent either giving him work charge in the post of Lower Division Clerk or ad hoc or temporary promotion to the said post. No document is also placed on record to prove and establish that a proposal of working in diverted capacity in respect of petitioner was even approved by the Competent Authority. The petitioner is claiming payment of the regular pay scale of a Lower Division Clerk as he is discharging and functioning as LDC from the date of his joining in 1978. The writ petition was filed in 1999 i.e. after expiry of about 21 years of such alleged functioning in the post of LDC. The decision in the case of Selvaraj (supra) also is distinguishable on facts. In the said case there was an order specifically mentioning that the employee shall draw pay against higher post and therefore, it was held that he is entitled to pay of the higher post. In the present case there was no such order passed by the Competent Authority.

8. The respondents have alleged that they have adequately compensated the petitioner by making over-time payment to the petitioner for the additional work that he has done from time to time. Thus, so far the claim for payment of the salary in higher capacity is concerned there is a valid factual dispute raised by the respondent that certain allowances have been paid to the petitioner for the period for which he had done additional work. When disputed questions are involved it would not be appropriate for this court to decide such disputed questions in exercise of its writ jurisdiction, for this court is not competent to examine and decide such disputed questions of fact.

9. The respondents have stated in the counter affidavit that an efficacious alternative remedy is available to the petitioner under the provisions of Industrial Disputes Act. The respondents have also stated that the Tribunal created under the said Act is the appropriate forum to go into the disputed questions of fact after looking into the evidence that may be adduced by the parties. It cannot be denied that when disputed questions are involved the wit court should not exercise to resort to the efficacious alternative remedy which is available to the parties. It cannot be denied that alternative remedy is available to the petitioner where the disputed questions raised herein could be more appropriately and effectively decided. Whether the petitioner was discharging the duties of Lower Division Clerk and if so for which period and whether the respondents have paid additional amount to the petitioner for taking such additional work from him are all questions of facts which need consideration and they being disputed questions are required to be decided in a more appropriate forum, for which remedy is available to the petitioner.

10. In that view of the matter, I am not inclined to entertain this writ petition and direct the petitioner to take resort to the effective alternative remedy available to the petitioner. The writ petition stands disposed of in terms of the aforesaid observations and directions.