Delhi High Court
Municipal Corporation Of Delhi vs Shri Raj Pal & Anr. on 15 December, 2009
Author: S.N. Aggarwal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 2033/2000
% Date of Decision: 15th December, 2009
# MUNICIPAL CORPORATION OF DELHI
..... PETITIONER
! Through: Ms. Amita Gupta, Advocate.
VERSUS
$ SHRI RAJ PAL & ANR.
.....RESPONDENTS
^ Through: Mr. Anuj Aggarwal for respondent No. 1.
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)
The Municipal Corporation of Delhi, in this writ petition, has prayed
for setting aside of an industrial award dated 10.02.1999 (Annexure P-1
at page 7 of the paper book) directing it to grant proper pay scale of the
post of Assistant Sanitary Inspector to respondent No. 1 workman w.e.f.
22.06.1987.
2 Briefly stated the facts of the case relevant for the disposal of the
present writ petition are that respondent No. 1 had joined the service of
the petitioner as daily wager safaikaramchari on 18.07.1974. He was
regularized as safarkaramachari w.e.f. 01.03.1980. In July, 1985 he was
promoted to the post of Sanitary Guide. However, on 22.06.1987, he was
given current duty charge of the post of Assistant Sanitary Inspector vide
office order dated 22.06.1987. At that time, he was holding the
substantive post of Sanitary Guide to which he was promoted in July
1985. As the petitioner did not pay him salary of the post of Assistant
Sanitary Inspector of which he was given current duty charge w.e.f.
22.06.1987, he had raised an industrial dispute for grant of proper pay
scale of the said post w.e.f. 22.06.1987. This dispute raised by him was
referred by the appropriate Government in the Government of NCT of
Delhi to the industrial tribunal for adjudication. The terms of reference
were as follow:-
"Whether Shri Raj Pal is entitled to be regularized as
Assistant Sanitary Inspector w.e.f. 22.06.1987 in proper pay scale
and if so, to what relief is he entitled and what directions are
necessary in this respect?"
3 The industrial tribunal, upon consideration of the evidence
produced by the parties before it vide its impugned award dated
10.02.1999, answered the reference in favour of respondent No. 1
workman and directed the petitioner to grant proper pay scale of the post
of Assistant Sanitary Inspector to him w.e.f. 22.06.1987 in accordance
with the order of his appointment dated 22.06.1987. It is aggrieved by
this award of the industrial tribunal, the petitioner has filed this writ
petition seeking setting aside of the said award.
4 Ms. Amita Gupta learned counsel appearing on behalf of the
petitioner (Municipal Corporation of Delhi) has referred to and relied upon
a judgment of the Hon'ble Supreme Court in State of Punjab & Ors Vs.
Arun Kumar Aggarwal & Ors. 2007 (6) SCALE 593 to contend that
respondent No. 1 workman was not entitled to the pay of post of
Assistant Sanitary Inspector for the period he was given current duty
charge of the said post. Learned counsel appearing on behalf of the
petitioner submits that an employee is not entitled to pay of a higher
post merely because he was given a current duty charge of such higher
post for a short period. However, Mr. Anuj Aggarwal learned counsel
appearing on behalf of respondent No. 1 workman has relied upon
another judgment of Hon'ble Supreme Court in Secretary-cum-Chief
Engineer, Chandiragh Vs. Hari Om Sharma & Ors. (Civil Appeal No.5546
of 1995 decided on 29.04.1998) to contend that an employee is entitled
to pay of a higher post even if he was holding current duty charge or had
officiated on a higher post for temporary period.
5 I have considered the above rival arguments advanced by learned
counsel for both the parties and have also gone through the judgments
relied upon by them referred above.
6 The judgment of the Hon'ble Supreme Court in Hari Om Sharma's
case (Supra) relied upon by counsel for respondent No. 1 workman is not
applicable to the facts of the present case. In that case, the Supreme
Court has held that any agreement between an employer and employee
that if the employee is promoted to the higher post or put to officiate on
that post as stop-gap arrangement would not get higher salary or other
tentative benefits, is contrary to law and unenforceable in view of Section
23 of the Contract Act, 1872. In Hari Om Sharma's case, a Junior Engineer
was promoted as Junior Engineer Grade-I on stop-gap arrangement basis
and it was in that view of the matter, it was held that the employee in
that case was entitled to pay of Junior Engineer Grade-I though his
promotion was on stop-gap arrangement basis. In the present case,
respondent No. 1 workman was not promoted to the post of Assistant
Sanitary Inspector as per recruitment rules of the said post. He was given
only current duty charge by the petitioner w.e.f. 22.06.1987 making it
clear that he would not be entitled to pay of the said post of Assistant
Sanitary Inspector. The procedure required for promotion was not
followed while giving current duty charge to respondent No. 1 workman
w.e.f. 22.06.1987.
7 It was held by a three Judges Bench of the Hon'ble Supreme Court
in Ramakant Shripad Sinai Advalpalkar Vs. Union of India 1991 Supp.
(2) SCC 733 as under:-
"The arrangements contemplated by this order plainly do not
amount to a promotion of the appellant to the post of Treasurer.
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."
8 The ratio of law laid down by the Hon'ble Supreme Court in the
above judgment in Ramakant Shripad Sinai Advalpalkar's case (Supra) is
squarely applicable to the facts of the present case. In view of this
judgment, respondent No. 1 workman was not entitled to pay of a higher
post of Assistant Sanitary Inspector w.e.f. 22.06.1987 as he was holding
only current duty charge of the said post. The impugned award of the
Tribunal is evidently contrary to the law laid down by the Hon'ble
Supreme Court in the abovementioned case. Hence this award cannot
stand the test of judicial scrutiny and is liable to be set aside.
Accordingly, the impugned award is set aside and this writ petition is
allowed leaving the parties to bear their own costs.
DECEMBER 15, 2009 S.N.AGGARWAL, J
'a'
