Shri Kartar Singh & Others vs Govt. Of Nct , Delhi & Others
2009 Latest Caselaw 983 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    WP (C) Nos.3374/2007


%                                Judgment delivered on: 25.03.2009


Shri Kartar Singh & others                ...... Petitioner
                     Through: Mr. Lalit Sharma,Advocate

                     versus


Govt. of NCT, Delhi & others             .... Respondent
                     Through: Mr. Gitanjali Malviya, Advocate
                     for R-3 and R-4.


CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.     Whether the Reporters of local papers may               Yes
       be allowed to see the judgment?

2.     To be referred to Reporter or not?                       Yes

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


KAILASH GAMBHIR, J. (Oral)

*

1. By way of this petition filed under Article 226 of the

Constitution of India the petitioners seek directions in the

nature of mandamus to direct the respondents to pay

wages/salary and benefits attached to the post of pump

operators w.e.f. 30.7.2004 in parity with the salaries being

paid to the regular pump operators.

2. Brief facts for deciding the present petition are as

under:-

Initially the petitioners were employees of DDA and

were holding the post of Khalasi. All the petitioners pursuant

to the MOU dated 5.5.1993 of ISBT, Kashmere Gate, were

transferred from DDA to Govt of NCT, Delhi (Transport

Department) (i.e. the respondents) and from that day onwards

they were taken on the strength of Transport Deptt. of

Government of NCT on the post of Khalasi (work charge

regular). Vide office order No. E.O. 10 dated 30.7.2004 the

respondents granted the petitioners charge of current duties of

"pump operators" at ISBT, Kashmere Gate, Delhi with

immediate effect for the period of six months or till regular

arrangement made, whichever was earlier. By this order the

petitioners were directed to attend the routine day to day

nature of work attached to the post of pump operator, however,

they were not entitled for any extra remuneration and other

benefits including promotion on account of current duty

charge. After the expiry of the said six months period the

petitioners are regularly attending routine day to day work

attached to the post of pump operators but the respondents

have not granted them any pay scale or other benefits as are

applicable to the said post. The petitioners submitted

representations dated 22.9.2005 and 27.10.2005 requesting

the respondents to grant them salary and other benefits

attached to the post of pump operators in view of the fact that

they have been working on the said post since 30.7.2004. The

respondents neither replied to nor complied with the legitimate

demands of the petitioners. The petitioners submitted a

written representation dated 17.10.2006 calling upon the

respondents to grant all the benefits, salary , etc. attached to

the post of pump operators w.e.f. 30.7.2004 within a period of

30 days failing which it was made clear that doors of justice

would be knocked. A legal notice dated 5.12.2006 was also

served upon the respondents to call upon them to grant parity

to the petitioners with regular pump operators and pay them

salary/wages attached to the post of pump operators w.e.f.

30.7.2004 but no reply thereof was received. A written

application dated 21.12.2006 under Right to Information Act

was submitted by the petitioners to the respondents in

response whereof vide letter dated 22.1.2007 the petitioners

were denied grant of benefits and salary attached to the post

of pump operators on the ground that the same was not

permissible under FR 49. Aggrieved with the said decision of

the respondents the present petition has been preferred.

3. Mr. M.L. Sharma, counsel for the petitioner submits

that the petitioners were initially employed on the post of

Khalasi with the office of the DDA and pursuant to the MOU

dated 5.5.1993 the services of the petitioners were transferred

to Govt. of NCT Delhi (Transport Department) and the

petitioners were taken on the same post of Khalasi. Counsel

further submits that vide office order dated 30.7.2004 the

petitioners were given charge of current duties of pump

operators at ISBT, Kashmeri Gate, Delhi with immediate effect

for the period of six months or till regular arrangement made,

whichever was earlier. Counsel further submits that although

the six months period expired on 31.12.2004 but the

petitioners are still continuing on the said post of pump

operators and are discharging duties on the said post.

Counsel thus submits that since the petitioners were

discharging their duties on the post of pump operators but they

have been illegally denied the payment of the salary as are

payable to the pump operators. Counsel further submits that

the representations dated 22.9.2005 and 27.10.2005 were

made by the petitioners requesting the respondents for the

grant of salary and other benefits attached to the post of pump

operators but no heed was paid by the respondents to satisfy

the petitioners. Even a legal notice dated 5.10.2006 was also

sent by the petitioners but to no effect. Counsel thus submits

that petitioners are entitled for the payment of salaries as are

payable to the post of pump operators. Counsel for the

petitioner also submits that the conditions as imposed by the

respondent in their office memorandum dated 30.7.2004

stating that the petitioner cannot be given any extra

remuneration and benefit in seniority and promotion on the

said post of pump operators is also questionable and against

the public policy. The contention of the counsel for the

petitioner is that the respondent being a State cannot put such

a condition to deprive the petitioners of the payment of

remuneration and salary on the post on which they have been

discharging their duties to the satisfaction of the respondents.

Counsel for the petitioners in support of his arguments placed

reliance on the judgment of the Apex Court reported in 1998

SCC (L&S) 1273 Secretary Cum Chief Engineer,

Chandigarh Vs. Hari Om Sharma and Others.

4. Refuting the said submissions of the counsel for the

petitioners, counsel for the respondent Nos. 1 and 2 submits

that in the office order dated 30.4.2007 the position was made

clear to the petitioners that they will not be entitled to any

remuneration or benefit of promotion on account of current

duty charge given on the post of pump operators. Counsel thus

contends that once the position was made specifically clear to

the petitioners, then they can not maintain any claim on the

remuneration, benefit in seniority and promotion attached to

the regular appointees on the post of pump Operator/Wireman.

Counsel for the respondents submits that the petitioners are

bound by the terms and conditions of the said office order

which was accepted by the petitioners unconditionally without

any demur or protest. Counsel also submits that simply

working on the post of pump operators/wireman will not make

them entitled for the grant of salary on the said post of pump

operators. Counsel for the respondent has relied on the

judgment of Secy., State of Karnataka Vs. Uma Devi (2006)

4 SCC 1.

5. I have heard counsel for the parties and perused the

record.

6. Vide order dated 30.7.2004 the petitioners were

given the current duty charge of pump operator/wireman

initially for a period of six months or till regular arrangements

are made, whichever is earlier. It is not in dispute that no

remuneration have been given by the respondents to the pump

operators nor any appointments have so far been made by the

respondents to the post of pump operators on regular basis. It

is no doubt true that it is not open for courts to interfere in the

administrative decision of the Govt. when it comes to fixation of

pay scale etc. unless the same is tainted with mala fides,

unreasonableness and irrationality. In this regard the Hon'ble

Apex Court in K.T. Veerappa Vs. State of Karnataka (2006)

9 SCC 406 observed as under:

"13. He next contended that fixation of pay and parity in duties is the function of the executive and financial capacity of the Government and the priority given to different types of posts under the prevailing policies of the Government are also relevant factors. In support of this contention, he has placed reliance on State of Haryana v. Haryana Civil Secretariat Personal Staff Assn.1 and Union of India v. S.B. Vohra2. There is no dispute nor can there be any to the principle as settled in State of Haryana v. Haryana Civil Secretariat Personal Staff Assn.1 that fixation of pay and determination of parity in duties is the function of the executive and the scope of judicial review of administrative decision in this regard is very limited. However, it is also equally well settled that the courts should interfere with administrative decisions pertaining to pay fixation and pay parity when they find such a decision to be unreasonable, unjust and prejudicial to a section of employees and taken in ignorance of material and relevant factors."

7. It is not expected on the part of the government to

take the work from the petitioners on the post of pump

operators and not pay them the salary and other benefits as are

entitled for the said post. The State being an employer cannot

act in such a harsh and draconian manner completely adverse

to the valuable rights of its citizens. Even the condition laid

down in the said office order is questionable and against the

public policy besides being in violation of Section 23 of the

Indian Contract Act. It is not expected from the State to deny

the wages on a particular post when duties have been

assigned to take work from the employees on such a post.

Even in case of a temporary arrangement the employees could

not have been denied the salary but here where continuously

the petitioners are discharging their duties on the post of pump

operators/wireman, the act of not paying salary and other

benefits as per their entitlement is clearly arbitrary and

unwarranted.

8. Be that as it may, the concept of equal pay for equal

work is different from the concept of conferring permanency on

those who have been appointed on ad hoc basis, temporary

basis, or based on no process of selection as envisaged by the

appointment rules. The concept of equal pay for equal work

rests on the principle of equality enshrined in our Constitution

in the light of the directive principles in that behalf. The Apex

Court in the judgment of SBI Vs. M.R. Ganesh Babu-(2002)

4 SCC 556 has also laid down principles governing the

concept of equal pay for equal work and it would be

appropriate to reproduce the following para of the said

judgment:-

"16. The principle of equal pay for equal work has been considered and applied in many reported decisions of this Court. The principle has been adequately explained and crystallised and sufficiently reiterated in a catena of decisions of this Court. It is well settled that equal pay must depend upon the nature of work done. It cannot be judged by the mere volume of work; there may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities make a difference. One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as such value judgment is made bona fide, reasonably on an intelligible criterion which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination. The principle is not always easy to apply as there are inherent difficulties in comparing and evaluating the work done by different persons in different organizations, or even in the same organization. Differentiation in pay scales of persons holding same posts and performing similar work on the basis of difference in the degree of responsibility, reliability and confidentiality would be a valid differentiation. The judgment of administrative authorities concerning the responsibilities which attach to the post, and the degree of reliability expected of an incumbent, would be a value judgment of the authorities concerned which, if arrived at bona fide, reasonably and rationally, was not open to interference by the court."

9. Admittedly, the petitioners were performing the

duties and were handling the responsibilities of pump

operators and therefore, are entitled to the salary and other

benefits as are being given to the other pump operators.

10 . In the light of the above discussion, I am in

agreement with the submissions of the counsel for the

petitioners that the petitioners are entitled for the benefits of

salary and other benefits as are applicable for the post of pump

operators w.e.f. 31.7.2004. It is ordered accordingly.

With the above directions, the present petition is

allowed.

March 26, 2009                         KAILASH GAMBHIR, J.
pkv