Ganga Ram vs Municipal Corporation Of Delhi
2009 Latest Caselaw 5207 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


+                       W.P.(C) No. 7869/2002

%              Date of Decision: 15th December, 2009

# MUNICIPAL CORPORATION OF DELHI
                                                             ..... PETITIONER
!                  Through:   Ms. Saroj Bidawat, Advocate.

                                 VERSUS

$ DEVINDER NARAYAN AND ANOTHER
                                                       .....RESPONDENTS

^                  Through:   Mr. Anuj Aggarwal, Advocate.




+                       W.P.(C) No. 8679/2005

%              Date of Decision: 15th December, 2009

# MUNICIPAL CORPORATION OF DELHI
                                                         ..... PETITIONER
!                  Through:   Mr. Mukesh Gupta, Advocate.

                                 VERSUS

$ DEVINDER NARAYAN AND ANOTHER
                                                       .....RESPONDENTS
^                  Through:   Mr. Anuj Aggarwal, Advocate.




+                       W.P.(C) No.s 13288-91/2005

%              Date of Decision: 15th December, 2009

# KARTAR SINGH AND OTHERS
                                                        ..... PETITIONERS
!                  Through:   Mr. Varun Prasad, Advocate.

                                 VERSUS

$ MUNICIPAL CORPORATION OF DELHI
                                                         .....RESPONDENT
^                  Through:   Ms. Liza M. Baruah for Mr. Gaurang Kanth,
                              Advocate.





 +                        W.P.(C) No. 12025/2006

%              Date of Decision: 15th December, 2009

# GANGA RAM
                                                              ..... PETITIONER
!                  Through:    Mr. Varun Prasad , Advocate.

                                   VERSUS

$ MUNICIPAL CORPORATION OF DELHI
                                                          .....RESPONDENT
^                  Through:    Ms. Saroj Bidawat, Advocate.


CORAM:
Hon'ble MR. JUSTICE S.N. AGGARWAL

1. Whether reporters of Local paper may be allowed to see the judgment? YES

2. To be referred to the reporter or not? YES

3. Whether the judgment should be reported in the Digest? YES

S.N.AGGARWAL, J (ORAL)

All these writ petitions are proposed to be decided by this common

order because questions of fact and law involved in all of them are

identical and, in fact, it is so admitted by counsel for the both the parties.

2. The only short question that arises for consideration in these writ

petitions is whether the workmen who were appointed as Mali in

Municipal Corporation of Delhi and were asked to look after the work of

Garden Chowdhary through verbal instructions by Assistant Director

(Horticulture) are entitled to pay of the higher post of Garden Chowdhary

for the period starting from the date they were asked to look after the

work of the said post.

3. There are four awards on the same question which are subject

matter of challenge in these writ petitions. Two are in favour of the

management and two are in favour of the workmen. There are four

petitions filed against these four awards, two by the Municipal

Corporation of Delhi and two by the workmen. However, the question in

all these four petitions is the same whether the workmen are entitled to

pay of higher post of Garden Chowdhary on the basis of their officiation

on the said post while they were holding the substantive post of Mali.

4. Ms. Saroj Bidawat, learned counsel appearing on behalf of the

Municipal Corporation of Delhi, has referred and relied upon two

judgments of the Hon'ble Supreme Court, viz., Mohd. Swaleh Vs. Union

of India and Others, reported as (1997) 6 SCC 200, and State of Punjab

and Others Vs. Arun Kumar Aggarwal and Others, reported as (2007 10

SCC 402.

5. On the other hand, Mr. Anuj Aggarwal and Mr. Varun Prasad,

learned counsel appearing on behalf of the workmen, have relied upon

another judgment of the Hon'ble Supreme Court in Secretary-cum-Chief

Engineer, Chandigarh Vs. Hari Om Sharma and Others, (Civil Appeal

No. 5546/1995 decided on 29.04.1998).

6. Ms. Saroj Bidawat, learned counsel appearing on behalf of the

Municipal Corporation of Delhi, on the strength of the judgment of the

Hon'ble Supreme Court in Arun Kumar Aggarwal's case (supra) and Mohd.

Swaleh's case (supra), contends that the workmen are not entitled to pay

of the post of Garden Chowdhary merely because they were asked to

look after the work of the said post by Assistant Director (Horticulture),

who according to her, was not competent to direct the workmen to look

after the responsibilities of higher post of Garden Chowdhary.

7. Mr. Anuj Aggarwal and Mr. Varun Prasad, learned counsel appearing

on behalf of the workmen, on the strength of the judgment of the Hon'ble

Supreme Court in Hari Om Sharma's case (supra) contends to the

contrary and submits that the workmen are entitled to pay of higher post

on the principle of 'equal pay for equal work' for the period they had

officiated on higher post on the instructions of their immediate superior

being Assistant Director (Horticulture).

8. I have carefully considered the above rival submissions made by

the counsel for the parties and have also gone through the judgments

relied upon by counsel for both the parties. In the opinion of this Court,

the judgment of the Hon'ble Supreme Court in Hari Om Sharma's case

(supra) is not applicable to the facts of the present case. In that case,

the Hon'ble Supreme Court had ordered pay of a higher post to an

employee who was promoted on stop-gap arrangement basis.

9. In the present case, the workmen were admittedly not promoted to

the higher post of Garden Chowdhary in terms of recruitment rules

applicable for the said post. Even the procedure for promotion to higher

post of Garden Chowdhary was not followed by the petitioner and,

therefore, the workmen cannot be extended the benefit of pay of higher

post merely because they were asked to look after the work of Garden

Chowdhary as a temporary measure by Assistant Director (Horticulture).

There is absolutely nothing on record to show the period for which the

workmen had worked on the post of Garden Chowdhary after they were

asked to look after the work of the said post by their immediate superior

being Assistant Director (Horticulture). Admittedly, the Assistant Director

(Horticulture) is not the Competent Authority to consider the workmen for

promotion to higher post of Garden Chowdhary in terms of the

recruitment rules applicable for the said post. In case, the workmen are

granted the benefit of pay scale of higher post of Garden Chowdhary

without their being considered for promotion to the said higher post in

terms of the recruitment rules, it will amount to granting them promotion

from Mali to Garden Chowdhary without following the procedure for

promotion and even without looking their service record required to be

considered at the time of promotion.

10. In Arun Kumar Aggarwal's case (supra), it was held by the Hon'ble

Supreme Court that an employee holding a higher post on current charge

basis is not entitled to pay of the said higher post. In Ramakant Shripad

Sinai Advalpalkar Vs. Union of India, 1991 Supp (2) SCC 733, a 3-Judge

Bench of the Hon'ble Supreme Court has held as under:

"The distinction between a situation where a government servant is promoted to a higher post and one where he is merely asked to discharge the duties of the higher post is too clear to require any reiteration. Asking an officer who substantively holds a lower post merely to discharge the duties of a higher post cannot be treated as a promotion. In such a case he does not get the salary of the higher post; but gets only what in service parlance is called a "charge allowance". Such situations are contemplated where exigencies of pubic service necessitate such arrangements and even consideration of seniority do not enter into it. The person continues to hold his substantive lower post and only discharges the duties of the higher post essentially as a stop- gap arrangement."

11. The ratio of law laid down by the Hon'ble Supreme Court in the

above mentioned case is squarely applicable to the facts of the present

case. In this case also, at best, the workmen can be said to have held

the charge of the post of Garden Chowdhary on current charge basis and

not on regular basis. Therefore, in view of the judgment of the Hon'ble

Supreme Court in Ramakant Shripad's case (supra), the workmen are not

entitled to pay of higher post of Garden Chowdhary. Moreover, the

workmen in the present case, are even otherwise, not entitled to pay of

higher post of Garden Chowdhary as they were allegedly asked to look

after the responsibilities of the said higher post by their immediate

superior being Assistant Director (Horticulture), who was not the

Competent Authority to consider them for promotion to the higher post of

Garden Chowdhary in terms of the recruitment rules.

12. In Mohd. Swaleh's case (supra), the Hon'ble Supreme Court

declined to grant the benefit of pay scale of the post of Registrar to

Deputy Registrar who was asked to officiate as Registrar by the Vice-

Chairman of the Central Administrative Tribunal on the ground that the

Vice-Chairman of the Central Administrative Tribunal was not the

Competent Authority to appoint a Registrar of the Tribunal. The ratio of

law laid down by the Hon'ble Supreme Court in Mohd. Swaleh's case

(supra) also equally applies to the facts of the present case. Since in the

present case, directions were given by the workmen to look after the

responsibilities of higher post of Garden Chowdhary by the Assistant

Director (Horticulture), who was not the Competent Authority under the

recruitment rules, the workmen are not entitled to pay of higher post of

Garden Chowdhary.

13. Accordingly, two awards given by the Tribunal which are in favour

of the workmen and against the management of the Municipal

Corporation of Delhi are hereby set aside. The other two awards which

are against workmen and in favour of the management of the Municipal

Corporation of Delhi are maintained as this Court does not find any

perversity in the said awards for the reasons given hereinabove.

14. All these writ petitions stand disposed of accordingly leaving the

parties to bear their own costs.

A copy of this order be kept in the files of all the writ petitions

which have been disposed of by this common order.

DECEMBER 15, 2009                                     S.N.AGGARWAL, J
'BSR'