Govt. Of Nct Of Delhi & Anr. vs Kartar Singh & Ors.
2010 Latest Caselaw 3270 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     LPA 130/2010

      GOVT. OF NCT OF DELHI & ANR.           ..... Appellants
                    Through: Ms.Anju Bhattacharya, Mr.Ecgin
                              Joh, Advocates

                   versus


      KARTAR SINGH & ORS.                           ..... Respondents
                   Through:           Mr. Madan Lal Sharma with
                                      Mr. Varun Nishal and Mr. S. Dev,
                                      Advocates for R1 to R4

       CORAM:
       HON'BLE THE CHIEF JUSTICE
       HON'BLE MR. JUSTICE MANMOHAN


                ORDER

%               15.07.2010
CM No. 3438/2010

This is an application for condonation of delay in preferring the appeal.

We have heard Mrs. Anju Bhattacharya, learned counsel for the appellants,

and Mr.Madan Lal Sharma, Mr. Varun Nishal and Mr. S. Dev, learned

counsel for the respondents 1 to 4. Upon perusal of the averments made in

the petition and taking note of the submissions canvassed by the learned

counsel for the parties, we are of the considered opinion that the delay in

preferring the appeal deserves to be condoned and, accordingly, it is so

ordered.

The CM stands disposed of.

LPA 130/2010

In this intra-Court appeal, the legal substantiality of the order dated

25.3.2007 passed by the learned Single Judge in WP(C) No. 3374/2007 is

called in question.

The respondents, four in number, invoked the jurisdiction of this Court

under Article 226 of the Constitution of India for issuance of a writ of

mandamus commanding the respondent therein to pay salary and benefits

attached to the post of pump operators with effect from 30 th July, 2004 in

parity with the salaries being paid to the regular pump operators. It is put

forth in the writ petition that they were employees of DDA and holding the

post of Khalasi and pursuant to the MOU dated 5.5.1993 of ISBT, Kashmere

Gate, they were transferred from DDA to the Government of NCT of Delhi

(Transport Department) and from that day onwards, they were taken in the

Transport Department. They were working on the post of Khalasi as regular

employees. Vide Office Order No. E.O.10 dated 30th July, 2004, they were

granted charge of current duties of pump operators at ISBT, Kashmere Gate,

Delhi with immediate effect for the period of six months or till regular

arrangements have been made. The period from time to time was extended

but as they were not extended the pay scale and other benefits as were

applicable to the said post, they submitted representations on 22.9.2005 and

27.10.2005 requesting the respondents therein to grant them salary and other

benefits attached to the post of pump operators. Thereafter, certain further

representations were made and notices were served but their grievance

remained unremedied. The said situation compelled the writ petitioners to

visit this Court with the relief as has been indicated hereinabove. It was

contended before the learned Single Judge that as the petitioners were

working as pump operators with effect from 30th July, 2004, they were

entitled to the payment of remuneration and salary for the post on which they

have been discharging their duties. Reliance was placed on the decision

rendered in Secretary cum Chief Engineer, Chandigarh v. Hari Om Sharma

&Ors., 1998 SCC (L&S) 1273.

The stand put forth by the petitioners was resisted by the respondents

No.1 and 2 contending, inter alia, that while posting the petitioners as pump

operators, it was made clear to them vide memorandum dated 30 th July, 2004

that they cannot be given any extra remuneration and benefit in seniority and

promotion on the post of pump operators and when they had accepted the

same knowing the said aspect fully well, they cannot have any grievance. It

was also urged that simply working on the post of pump operators / wiremen

could not entitle them for the grant of salary on the post of pump operators.

Reliance was placed on the decision in Secretary, State of Karnataka v. Uma

Devi, (2006) 4 SCC 1. The learned Single Judge took note of the factual

scenario and referred to the decision rendered in K.T. Verappa v. State of

Karnataka, (2006) 9 SCC 406 wherein it has been held that a Court of law

can interfere with administrative decisions pertaining to pay fixation and pay

parity when it finds such a decision to be unreasonable, unjust and prejudicial

to a section of employees and taken in ignorance of material and relevant

factors. The learned Single Judge has further held that the State being a

model employer cannot act in such a harsh and draconian manner completely

averse to the valuable rights of the citizens. He also applied the principle of

'Equal Pay for Equal Work'. Reliance was placed on SBI v. M.R. Ganesh

Babu, (2002) 4 SCC 556. Thereafter, the learned Single Judge directed that

the petitioners-respondents herein are entitled to the benefit of salary and

other benefits that are applicable to the post of pump operators with effect

from 31.7.2004.

The learned counsel for the appellant, challenging the order of the

learned Single Judge, has canvassed that the learned Single Judge has fallen

into error by directing that the respondents would be entitled to salary for the

post of pump operators despite the fact that there cannot be parity of payment

in respect of regular employees and employees appointed on

temporary/adhoc/daily wage/casual/contract basis. The learned counsel

further submitted that they were appointed for six months or till regular

arrangement is made with a condition that the respondents would not be

entitled to be given any extra remuneration on account of current duty charge

ignoring the fact that an employee can be paid remuneration on the higher

post only if he is formally appointed to the higher post by the order of the

competent authority. It is his further submission that while applying the

principle of 'Equal Pay for Equal Work', the Court is required to consider

many factors like sources and mode of recruitment, appointment,

qualification, nature of work, etc. but without entering into the same, the

learned Single Judge has directed the pay scale of the pump operators to be

extended to the respondents which is untenable.

The learned counsel for the respondents, supporting the order passed by

the learned Single Judge, contended that though a condition was imposed for

a period of six months, when they continued and are continuing, the said

condition becomes totally onerous and a model employer cannot exploit the

employees in such a manner. It is urged by them that they were given the

duty by the competent authority to work as pump operators and when there is

a difference of pay scale in the Khalasi and pump operators, the same should

be paid to them because an employer cannot take the duty attached to a

particular post from an employee and not pay the pay scale. It is canvassed

by him that the principle of 'Equal Pay for Equal Work' has been correctly

applied by the learned Single Judge inasmuch as there is no extra

qualification or technical expertise involved in the job of a pump operator and

one acquires them with slight concentration and learning.

To appreciate the submissions raised at the bar, we have carefully

perused the documents brought on record and the order passed by the learned

Single Judge. On a perusal of the order dated 30 th July, 2004, it is perceptible

that there is a stipulation that the respondents should attend to the routine day-

to-day nature of work attached to the post of pump operators/wiremen but

they would not be given any extra remuneration and benefit in seniority and

promotion on account of the current duty charge given. The said order has

been passed by the administrative officer, ISBT. There can be no shadow of

doubt that the respondents - writ petitioners can neither be allowed any kind

of seniority nor can they put forth any claim for promotion along with other

employees who are in the cadre of pump operators. There is no dispute that

they were work charged (regular khalasis). Thus, they stand on a different

footing than the daily wagers. They were asked to function as pump

operators. The employer has been taking from them the work of pump

operators. Though they are working on the said post, yet they cannot claim

regularization in the post. There is a distinction between holding a post in a

regular manner and working in a post on an adhoc or temporary arrangement

basis. The learned Single Judge, as is manifest, has directed that the

respondents would be entitled to the benefit of salary and other benefits as are

applicable to the post of pump operators with effect from 31 st July, 2004. The

apprehension of the learned counsel for the appellant is that the other benefits

may include seniority, promotion and other fringe benefits. We are of the

considered opinion that when the respondents cannot be treated to be regular

pump operators, they cannot be allowed the other benefits which are attached

to the post. To workout the equity in a case of this nature and regard being

had to the factum that the State is a model employer, the respondents can only

be entitled to the minimum pay scale relating to pump operators till they hold

the post. As grant of regular pay scale is impermissible, the order passed by

the learned Single Judge has to be modified and, accordingly, we so do and

direct that the respondents-writ petitioners shall only be entitled to the

minimum of the pay scale which is paid to a pump operator and they would

not be entitled to any other benefit. They cannot be given any benefit of

seniority and they cannot claim any promotion.

In the result, the appeal is allowed in part and the order of the learned

Single Judge is modified to the aforesaid extent. There shall be no order as to

costs.

CHIEF JUSTICE

MANMOHAN, J JULY 15, 2010 pk