Delhi High Court

Sh. Yashpal Malhotra & Ors. vs Govt. Of Nct Of Delhi on 3 July, 2009

Author: V. K. Jain

*    IN THE HIGH COURT OF DELHI AT NEW DELHI


+                         W.P.(C) No. 1251/2007


                          Reserved on: 26th May, 2009
%                       Pronounced on:    3rd July, 2009.


Sh. Yashpal Malhotra & Ors.               ........Petitioner


          Through: Mr. Surat Singh, Advocate


                          VERSUS


Govt. of NCT of Delhi               ..........Respondents


          Through: Mr. Amiet Andley, Advocate




CORAM:-


THE HON'BLE MR. JUSTICE A.K. SIKRI
THE HON'BLE MR. JUSTICE V.K.JAIN


     1. Whether Reporters of Local newspapers may

       be allowed to see the Judgment? Yes.

     2. To be referred to the Reporter or not? Yes.



                                                   Page 1 of 11
       3. Whether the Judgment should be reported in

          the Digest? Yes.


V.K.Jain, J.

1. The petitioners were initially appointed as Typist on daily

wages basis. They filed Writ Petition No. 253 of 1988 (Prakash

Chand Jain & Others v Delhi Administrative & Others) for

regularization of their services. Vide order dated 31.10.1988, the

Hon‟ble Supreme Court directed the respondents to frame a scheme

regarding regularization of the services of the petitioners and similarly

situated persons who had been in service for more than one year. In

another Writ Petition (Jag Pal Singh & Others v Delhi

Administration & Others), the Hon‟ble Supreme Court, vide order

dated 28.07.1995, directed the respondents to create sufficient number

of regular posts in Group C, for the petitioners. Pursuant to the above

referred decisions, the respondents created 66 posts of Work

Assistants, Typists and NTS, in the pre-revised Pay Scale of Rs. 950-

1500/-. The post of Typist was classified as Group C and the

petitioners were regularized on the post of Typists in the revised pay

Scale of Rs. 3050-4590/-. For the purpose of granting benefit of

Assured Career Progression Scheme (ACP), the petitioners were

granted First Financial Up-gradation in the Pay Scale of Rs. 3200-85-

4900/-. The case of the petitioners is that since the posts of Typists

and LDCs are comparable and have parity in all respects, they ought

to have been granted First Financial Up-gradation in the pay scale of

Rs. 4000-6000/-, which is the pay scale of the post of UDC. It would

be pertinent to mention here that next promotional post in the cadre of

LDC, being UDC, the petitioners would have been granted First

Financial Up-gradation in the pay scale of Rs. 4000-6000/-, had they

been regularized as LDCs.

2. Since the respondents did not concede the demand of the

petitioners for granting First Financial Up-gradation to them in the

Pay Scale of Rs. 4000-6000/-, they filed O.A. No. 1083 of 2006

before Central Administrative Tribunal (CAT). The O.A. was

dismissed vide order dated 4.5.2006.

3. The case of the petitioners is that the Recruitment Rules for the

post of Typists and LDCs are identical and therefore applying the

principle of "equal pay for equal work", they are entitled to the same

pay scale as are available to the LDCs. This is also the case of the

petitioners that though they were appointed on different dates between

1981 and 1985, they have been regularized only w.e.f. 1.6.1989

whereas they are entitled to be regularized w.e.f. the date of their

initial appointment.

4. A perusal of the office order No. F.31(6)/Estt./CD-

VII/GPC/97/2991 dated 16.8.1997 issued by the respondents shows

that the services of the petitioners were regularized in the pre-revised

pay scale of Rs. 950-1500/- , against the post of Typists. Vide Order

F.2(63)/2001-Estt/ACP/1266 dated 28.6.2005, they were granted First

Financial Up-gradation under Assured Career Progression scheme, in

the pay scale of Rs. 3200-4900.

5. O.A. No. 1083 of 2006 was filed by the petitioners only on

24.5.06. Admittedly, they did not plead for their regularization as

Typists at any time prior to the year 2005. For 9 years, the petitioners

did not even file a representation against their regularization against

the post of Typists. If they were dissatisfied with their regularization

against the post of Typists in the pre revised pay scale of Rs. 950-

1500/-, they ought to have represented against it and then taken their

representation to its logical conclusion by taking appropriate steps

available to them under the law. It is true that First Financial Up-

gradation in the pay scale of Rs. 3200-4900/- was granted on 28.6.05.

But, that would hardly make any difference because the petitioners

knew since 16.08.1997 that they were regularised as Typists and not

as LDCs and therefore the First Financial Up-gradation to them would

be granted in the pay scale of Rs. 3200-4900 and not in the pay scale

of Rs. 4000-6000/- . Therefore, the petitioners are guilty of latches

and their petition has rightly been dismissed by the Tribunal on this

ground.

6. The petitioners are seeking First Financial Up-gradation in the

Pay Scale of Rs. 4000-6000/- which is the pay scale attached to the

post of UDC. Admittedly, the post of UDC is not in the hierarchical

line of promotion for Typists, though, it is in the hierarchical line of

promotion for the LDCs. Since the petitioners were regularized as

Typists and not as LDCs, they cannot be granted First Financial Up-

gradation in the pay-scale attached to the post of UDCs. Admittedly,

for the Typists, placed in the pay scale of Rs. 3050-4590/-, the next

higher scale in the hierarchy is the scale of Rs. 3200-85-4900/- which

has already been granted to the petitioners.

7. It was contended by Ld. Counsel for the petitioners that since

Recruitment Rules for the post of Typists are same as for the post of

LDCs, they are entitled to First Financial Up-gradation in the pay

scale applicable to the post of UDCs. We find that the tribunal has

specifically noted that while appointment to the post of LDCs and

UDCs is done by DSSSB/SSC after proper tests, the petitioners were

appointed as Typists on Muster Roll basis, without any selection

process. Admittedly, the petitioners did not pass the test with the

prescribed speed and were not appointed through open competitive

examination. We have no material before us to hold that the Typists

are performing the same functions as are being performed by the

LDCs. Moreover, alleged identity of Recruitment Rules is only one

of the relevant factors, and not the sole factor for application of the

principle of "equal pay for equal work". There are various other

considerations which have relevance to efficiency in service and may

justify the difference in pay scale. Other relevant factors may include

the extent of responsibility and accountability in discharge of duties

and functions, extent of powers vested in the incumbent, method of

recruitment, level at which the recruitment is made, nature of duties

and public dealings. Fixation of pay and determination of parity,

duties and responsibilities is a complex matter which primarily is for

the executive to discharge and there would be no justification for

interference by the court unless there is clear case of hostile

discrimination. The courts would normally interfere when the decision

taken by the executive is ex facie unreasonable, unjust and prejudicial

to a section of the employees. We, therefore, cannot accept that post

of LDCs and Typists are comparable in all respects. In any case, as

noted earlier, the petitioners were regularized without qualifying in a

test and without competing through the open selection process.

8. The affidavit filed by respondents on 23.3.09 shows that there

is no post of Typist in the regular establishment in the Department of

Irrigation and Flood Control of Government of NCT of Delhi and this

post was specifically created pursuant to the order of Hon‟ble

Supreme Court. There are separate Recruitment Rules, particularly

for Group C and Group D Work-Charged category, in Irrigation and

Flood Control Department of Government of NCT of Delhi. These

rules are annexed as R-2 to the affidavit. Annexure R-3 to the

affidavit are the approved pay scales for grant of first and second

financial Up-gradation to the Work Charged Establishment (Group

C). It is evident from a perusal of these pay scales that the Typist who

is initially placed in the Pay Scale of Rs. 3050-4590/-, will be placed

in the Pay Scale of Rs. 3200-4900/- on initial financial Up-gradation

and in the Pay Scale of Rs. 4000-6000/- on second financial Up-

gradation. The affidavit of the respondents further shows that the post

of Typist as an isolated post, having no promotional avenue, which

was created on Work Charged establishment pursuant to the orders of

the Hon‟ble Supreme Court. The instructions issued by the DOPT on

9.8.1999 in respect of ACP provide as under:

"Group B,C and D services/posts and isolated

"POSTS IN GROUP 'A', 'B' ,'C' AND 'D' CATEGORIES

3.1 While in respect of these categories also promotion shall continue to be duly earned, it is proposed to adopt the ACP Scheme in a modified form to mitigate hardship in cases of acute stagnation either in the cadre or in an isolated post.

Keeping in view all relevant factors, it has, therefore, been decided to grant two financial Up-gradations (as recommended by the Fifth Central Pay Commission and also in accordance with the Agreed Settlement dated September 11, 1997 in relation to Group „C‟ and „D‟ employees) entered into with the Staff Side of the National Council (JCM)). Under the ACP Scheme to Group „B‟, „C‟ and „D‟ employees on completion of 12 years and 24 years (subject to condition no. 4 in Annexure-I) of regular service respectively. Isolated posts in Group „A‟, „B‟, „C‟ and „D‟ categories which have no promotional avenues shall also qualify for similar benefits on the pattern indicated above. Certain categories of employees such as casual employees (including those with temporary status), ad-hoc and

contract employees shall not qualify for benefits under the aforesaid Scheme. Grant of financial upgradation under the ACP Scheme shall, however, be subject to the conditions mentioned in Annexure-I.

Conditions for grant of Benefits under the ACP Scheme

7. Financial upgradation under the Scheme shall be given to the next higher grade in accordance with the existing hierarchy in a cadre/ category of posts without creating new posts for the purpose. However, in case of isolated posts, in the absence of denied hierarchical grades, financial upgradation shall be given by the Ministries/Departments concerned in the immediately next higher (standard/common) pay scales as indicated in Annexure-II which is in keeping with part A of the First Schedule annexed to the Notification dated September 30, 1997 of the Minister of Finance (Department of Expenditure). For instance incumbents of insolated posts in the pay scale S-4, as indicated in Annexure-II, will be eligible for the proposed two financial upgradations only to the pay scales S-5 and S-6. Financial upgradation on the dynamic basis (by without having to create posts in the relevant scales of pay) has been recommended by the Fifth Central Pay Commission only for the incumbents of isolated posts which have no avenue of promotion at all. Since financial upgradations under the Scheme shall be personal to the incumbent of the isolated post, the same shall be filled at its original level (pay scale) when vacated. Posts which are part of a well defined cadre shall not

qualify for the ACP Scheme on „dynamic‟ basis. The ACP benefits in their case shall be granted conforming to the existing hierarchical structure only."

Since the post of Typist on Work Charged Establishment are

isolated post, the benefit of ACP is to be granted to them on

„dynamic‟ basis in the immediate next higher pay scale. The

petitioners have therefore been rightly granted their first Financial Up-

gradation in the revised Pay Scale of Rs. 3200-85-4900/- which is the

next higher Pay Scale, as is evident from Annexure R-4 to the

affidavit.

9. The affidavit also clarifies that the post of LDCs and UDCs are

duty posts of Grade IV and Grade III of DASS cadre respectively and

the Recruitment Regulations for these posts are included in the DASS

Rules, 1967. All posts in Grade III are to be filed by promotion of

officials of Grade IV, having eight years regular service in the Grade