Municipal Corporation Of Delhi vs Ram Kishan And Ors.
2006 Latest Caselaw 1437 Del

JUDGMENT

Mukul Mudgal, J.

1. This appeal is directed against the judgment dated 20.2.2006 of the learned Single Judge allowing the Writ Petition (C) 1610-1618/2005 filed by the respondents herein and directing the appellant-Municipal Corporation of Delhi (MCD) to fix the respondents in the pay-scale (pre-revised) of Rs. 210-250, with effect from 1.1.1986, along with notional increments and fit them in the appropriate grade, after taking account revisions, etc. The respondents were also directed to be paid arrears, on the basis of such revised salary, for the period 1.4.2002 till the date of the judgment and the said directions were to be complied with within ten weeks.

2. The respondents, all of whom are ex-servicemen, were sponsored by the employment exchange for the post of Security Guards/Gunmen in the MCD in its health department. They were first appointed in the health department in the years 1984-1985 on an ad hoc basis on a pay scale of Rs. 196-232. Later, they were posted as Chowkidars/Gunmen in the caretaker department. By a resolution dated 17.5.1985 the proposal made by the Commissioner, MCD to create 79 posts of Security Guards/Gunmen in the pay scale of Rs. 210-250, plus allowances were approved. There was to be an interchangeability of postings, i.e., the security guards in the health department could be sent to the caretaker department and other units of MCD. The respondents who were working as Chowkidars/Gunmen filed Writ Petition(C) 1610-1618 of 2005 in this Court praying that they be granted the pay scales fixed for the Security Guards/Gunmen, on the basis that they were performing identical duties.

3. The learned Single Judge, after referring to the judgments of the Hon'ble Supreme Court in Dhirendra Chamoli v. State of Uttar Pradesh , Mewa Ram v. All India Institute of Medical Sciences and State of West Bengal v. Partha Chatterjee , came to the conclusion that the respondents were entitled to the reliefs sought for. The learned Single Judge held as under:

In this case, both categories of employees are under the same employer, they perform similar duties, they are recruited through a constitutionally sanctioned process and there is interchangeability of duties. Yet, they are not given parity in pay scales. The only difference pressed home to justify this disparity is that the security guards in the health department perform duties that are different. No attempt was made to show how the duties were different,; apart from the slight variation in nomenclature, no document was relied upon to show differences in qualifications, experience, or job content, or that security personnel had superior training or achievements. Indeed, the essential function of both kinds of employees is to protect and secure the MCD's assets.

However, while allowing the writ petition, the learned Single Judge restricted the actual grant of arrears to the period from 1.4.2002 onwards since the respondents had approached the High Court only in the year 2005.

4. It requires to be first noticed that there is a delay of 154 days in filing the present appeal. The only explanation offered in the application for condensation of delay is to be found in para 5 which reads as under:

That the impugned order was passed by this Hon'ble Court on 20.2.2006 and wherein the certified copies was obtained by the previous counsel on or about 3rd March, 2006. Thereafter, the previous counsel for MCD informed the department about the passing of the said order and eve since of the intimation of the department that the impugned order has been passed, the department had no stone unturned in moving the file to the Legal Department as well as Finance Department, Caretaker Branch etc. and all these branches on account of pendency of work took little time to forward the file considering the issue involved in the present matter. As such that the delay of 154 days in filing the present appeal.

5. In our view, the above explanation is wholly vague and unsatisfactory and does not constitute a sufficient justification for condensation of delay of 154 days in filing of the present appeal. The appeal deserves to be dismissed on this ground alone.

6. Nevertheless, we have heard the submissions of Mr.Shivinder Chopra learned Counsel for the appellant on merits as well. He submitted that the learned Single Judge erred in coming to the conclusion that the essential function of both the respondents and the security guards were the same, that they performed similar duties and that there was an interchangeability of their duties. He drew our attention to a chart showing the comparison of the recruitment rules for the posts of Chowkidar and Security Guard/Gunman. Mr. Chopra very fairly stated that this chart was not placed by the appellant before the learned Single Judge. Although this by itself is sufficient for us to not to permit the appellant to rely upon the said document, in the interests of justice, we examined it.

7. We find that the so-called differences sought to be pointed out by Mr. Chopra, as regards the educational qualifications and method of the recruitment in respect of the two posts are too superficial and insignificant to warrant any different treatment. There is also nothing to show that the duties of the two are not interchangeable. We may add that the respondents herein who are ex-servicemen are perhaps far better equipped and experienced to perform the essential functions of providing security to the assets of the Appellant-MCD than those who may have to be recruited as Security Guards/gunmen from the open market. We do not see any reason why the Chowkidars/Gunmen like respondents before us, should be treated any differently in the matter of pay scales from the Security Guards/Gunmen.

8. In the circumstances, we are satisfied that no ground is made out to interfere with the impugned judgment of the learned Single Judge. Therefore, both on the grounds of delay as well as merits, this appeal is dismissed.