The Management Of M/S. Municipal ... vs Shri Ram Kishan & Anr.
2010 Latest Caselaw 1496 Del

                 *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             W.P.(C) No.2895/1994

%                                        Date of decision:17th March, 2010

THE MANAGEMENT OF
M/S. MUNICIPAL CORPORATION OF DELHI                     ..... Petitioner
                   Through: Mr. Mukesh Gupta, Advocate.

                                         Versus

SHRI RAM KISHAN & ANR.                                              ..... Respondents
                   Through: None.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                 No

2.       To be referred to the reporter or not?          No

3.       Whether the judgment should be reported         No
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner impugns the award dated 3rd December, 1993 of the Industrial Tribunal on the following reference:-

"Whether Shri Ram Kishan is entitled to be promoted as Garden Chowdhary w.e.f. 13.1.1984 and if so to what relief is he entitled and what directions are necessary in this respect?"

holding the respondent no.1 to be entitled to be promoted as Garden Chowdhary w.e.f. 13.1.1984 but without prejudice to the rights of other Malis who may have been performing the duties of the Garden Chowdhary prior to him.

2. This Court vide ex parte order dated 12th July, 1994 issued Rule in the writ petition. Though the writ petition was accompanied with an application for interim relief but on 24th February, 1995 the counsel for the respondent no.1 informed that the application for interim relief had become infructuous as the respondent no.1 had already received the amount due under the impugned award; the application

for interim relief was dismissed as such. The respondent no.1 who was earlier appearing before this Court through counsel however stopped appearing after 30th October, 2009. The counsel for the petitioner on 15th March, 2010 stated that the matter in controversy is covered by a judgment of this Court.

3. The respondent was working as a Mali (Class-IV) in the Garden Department of MCD. He was w.e.f. 13th January, 1984 assigned the duty of a Garden Chowdhary (Class-III) and continued to do so but was being paid the salary of a Mali only and not promoted as Garden Chowdhary. Contending that the same amounts to an unfair labour practice, industrial dispute was raised on which the reference aforesaid was made. The Industrial Tribunal found that the respondent had been performing the duties of a Garden Chowdhary. It was the case of the petitioner MCD that the respondent had however failed to qualify the trade test prescribed by the rules for the post of Garden Chowdhary and therefore could not be promoted. The Industrial Tribunal however found that up to 1983 there were no rules for promotion of Malis to Garden Chowdhary and they were promoted on the basis of seniority and there was then no direct recruitment of Garden Chowdhary who supervised the work of Malis. The Tribunal held that if the respondent was not eligible for appointment to the post of Garden Chowdhary, he could not be assigned the duties of the said post and the petitioner MCD cannot have it both ways. Merely on that ground the award in favour of the respondent was made.

4. The counsel for the petitioner MCD relies on the judgment dated 15th December, 2009 of this Court in W.P.(C) No.12025/2006 titled Ganga Ram Vs. MCD. This Court held that Malis who were asked to look after the work of Garden Chowdhary had admittedly not been 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 and therefore the said Malis could not be extended the benefit of pay of higher post merely because they were asked to look after the work of higher post as a temporary measure. It was held that orders granting the benefit of pay scale of higher post of Garden Chowdhary to the Malis will amount to granting them

promotion without following the procedure for promotion and which was held to be impermissible as observed in Ramakant Shripad Sinai Advalpalkar Vs. Union of India 1991 (Supp.) 2 SCC 733. Reliance in this regard was also placed on Mohd. Swaleh Vs. Union of India (1997) 6 SCC 200. This Court had accordingly quashed the awards which were similar to the award impugned in the present writ petition.

5. The present case is fully covered by the judgment aforesaid. The counsel for the petitioner has similarly also relied on the order dated 27th November, 2009 of this Court in W.P.(C) No.9854/2005 titled MCD Vs. Sh. Sri Chand to the same effect.

6. The writ petition therefore succeeds.

7. The award impugned in this petition is set aside and/or quashed. However,

no order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 17th March, 2010 pp