Shri Jagdish Rana & Ors. vs Government Of N.C.T. Of Delhi & Ors
2010 Latest Caselaw 1584 Del

                *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             WP(C) No.5686/1998

%                                            Date of decision:22nd March, 2010

SHRI JAGDISH RANA & ORS.                                ..... Petitioners
                   Through: Mr. Sitab Ali Chaudhary for Mr. R.K. Saini,
                            Advocate.

                                         Versus

GOVERNMENT OF N.C.T. OF DELHI & ORS.                 ..... Respondents
                  Through: Mr. V.K. Tandon with Ms. Parul Sharma,
                           Advocates for R-1 & 5.
                           Ms. Avnish Ahlawat, Advocate for District
                           & Sessions Judge.
                           Mr. Atul Nanda, Ms. Rameeza Hakeem, Mr.
                           Gaurav Gupta, Mr. Sumeer Sodhi, Ms.
                           Malika Gahlot, Ms. Sugandha & Mr. Sanjay
                           Bhardwaj, Advocates for UOI.
                           Mr. Chetan Lokur for Mr. Viraj R. Datar,
                           Advocate for R-2/DHC.
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 petitioners seek a mandamus commanding the respondent No.1 Government of NCT of Delhi (GNCTD) to upgrade the posts of LDCs to UDCs in the ratio of 40:60 w.e.f. 1st October, 1979 and in the ratio of 50:50 w.e.f. 1st April, 1994 in the office of District & Session Judge, Delhi (respondent No.3) and in the office of the Judge Small Causes Court, Delhi (respondent No.4), in accordance with the office memorandums dated 16th October, 1979 and 20th March, 1994 respectively and further in accordance with the recommendations already made by the office of the District Judge Delhi and yet further on the basis of similar up-

gradations done in the case of Naib Nazirs in the office of the Administrative Civil Judge, Delhi.

2. The petitioners No.1 & 2 were appointed as and have been working as LDCs w.e.f. 19th July, 1976 and 1st May, 1977 respectively in the office of the Judge Small Causes Court, Delhi. The petitioners No.3 & 4 were appointed as and have been working as LDCs since 26th April, 1986 in the office of the District Judge, Delhi. The service conditions of the petitioners are governed by Chapter 18-A, Volume I of the Punjab High Court Rules framed by the Punjab High Court under Section 35(3) of the Punjab High Courts Act and which are applicable to the subordinate courts under the Delhi High Court. It is also the claim of the petitioners that their service conditions are also governed by all Central Government Rules & Orders framed from time to time by the Government of India.

3. The Department of Personnel, Ministry of Home Affairs Government of India, to provide better avenues for promotion to the LDCs in the Central Secretariat Clerical Services, vide its memorandum dated 16th October, 1979 ordered restructuring of the posts of UDC/LDC in the ratio of 40:60 w.e.f. 1st October, 1979. However since the said restructuring could not remove the stagnation in the LDC grade, the said ratio was vide office memorandum dated 20th March, 1994 changed to 50:50 w.e.f. 1st April, 1994.

4. The District Judge, on the premise that the staff of the subordinate courts were governed by the rules made by the Government of India forwarded a proposal to the GNCTD then known as Delhi Administration, for up-gradation of the posts of LDCs in the office of the District & Session Judge, Administrative Sub Judge and Judge, Small Causes Court to that of UDCs in accordance with the office memorandum aforesaid. The GNCTD also vide letter dated 30th January, 1987 forwarded the said proposal with its recommendation for approval to the Government of India. However no sanction as sought by GNCTD having been received from the Government of India, the proposal remained to be acted upon.

5. It is the case of the GNCTD in the affidavits filed before this Court that the approval with recommendation of the Government of India was sought erroneously under the impression that the office memorandums aforesaid were applicable to the Delhi Administration/GNCTD also; however subsequently on examination by the Finance Department, a view was taken that the office memorandums dated 16th October, 1979 and 20th March, 1994 are meant for the Central Secretariat Clerical Services and are not applicable to the employees of Delhi Administration/GNCTD or for that matter to the employees of the District Courts. The Finance Department of the GNCTD was also of the view that the fact that the office memorandums aforesaid had not been endorsed to Delhi Administration/GNCTD was also indicative of the employees of GNCTD being not part of the Central Secretariat Clerical Services to whom the memorandums were directed. It is also stated in the affidavit verified on 25th November, 1999 of the Dy. Secretary (Law & Justice) of the GNCTD that the aforesaid office memorandums were not adopted or made applicable by the GNCTD to any of its departments.

6. The counsel for GNCTD on 10th March, 1999 sought two months time from this Court, to consider the matter and pass appropriate orders. Vide order of the same date this Court directed GNCTD to issue appropriate orders within two months. The said time was extended subsequently from time to time and in the affidavit verified on 25th November, 1999 (supra) it was stated that the fact that the office memorandums did not apply to the GNCTD was detected only on consideration of the matter pursuant to the directions aforesaid of this Court and the Department of Finance of GNCTD had directed for seeking the view of the Department of Services and the matter would be placed before the Cabinet of Government of Delhi, thereafter.

7. Thereafter also GNCTD sought extension from time to time for awaiting the views of the Department of Services and for placing the matter before the Cabinet of Delhi. However no decision was taken thereafter and on 19th April, 2006 this Court again directed the GNCTD to take a final decision on the issue

within six weeks. On 3rd August, 2006 it was informed that GNCTD was working on the proposal and adjournment was sought. On 13th October, 2006 it was informed that the Delhi Administration had referred the matter to the Government of India and the Government of India had not responded till then. Accordingly the standing counsel for Union of India was directed to seek instructions. On 27th April, 2007 the counsel for the Government of India informed that the Government of India had no role to play in the matter and it was for the GNCTD to take a decision in the matter. The GNCTD was again directed to report the decision within four weeks. Thereafter an affidavit dated 17th September, 2007 of the Dy. Secretary (Law Justice & Legislative Affairs) was filed, not indicating any decision but merely reiterating that the office memorandums dated 16th October, 1979 and 20th March, 1994 were not applicable to the employees of Delhi Administration/GNCTD. This Court again on 24th February, 2010 on the assurance of the counsel for the GNCTD that it was desirous of resolving the matter adjourned the matter from time to time but now finally a copy of the letter dated 19th March, 2010 has been handed over stating that the stand of GNCTD is the same as per the affidavits filed earlier.

8. At this stage, it may be noted that yet another affidavit verified on 27th September, 2008 has also been filed by the Dy. Secretary (Law Justice & Legal Affairs) of GNCTD. It is stated therein that the matter in issue in this writ petition is already pending consideration in W.P.(C) No.1022/1989 titled All India Judges Association & Ors. Vs. Union of India & Ors. before the Hon'ble Supreme Court of India; that the matter in issue was referred to the Shetty Commission; the scope of the said Commission was initially limited to the pay of the Judicial Officers working in the subordinate courts but subsequently the matter regarding the pay scales of staff working in subordinate courts was also referred; the said Commission has submitted its report and in which report recommendation of giving one increment has been made; that the Supreme Court is now seized of the said report. It is further stated that pursuant to the directions of the Supreme Court in the said matter, meetings were held in the office of the Registrar General of this Court and the GNCTD has already conveyed the approval of its Finance

Department to the Registrar General of this Court with respect to the said recommendations. It is also mentioned in the said affidavit that the Shetty Commission report does not make any mention about the applicability of the office memorandums dated 16th October, 1979 and 20th March, 1994 on the clerical cadre of the Delhi District Court. It is stated that since the Supreme Court is seized of the matter, no orders are required to be made in this petition.

9. Before dealing with the contentions of GNCTD, another aspect also forming a basis of the claims of the petitioner may be noticed. It is the case of the petitioners that some of the Naib Nazirs working in the office of the Administrative Civil Judge, Delhi and who are equivalent to the LDCs, approached this Court for enforcement of the office memorandums dated 16th October, 1979 and 20th March, 1994 (supra) by way of W.P.(C) No.907/1996. In the said writ petition titled Rohitashwa Sharma Vs. U.O.I., vide order dated 16th July, 1996 this Court directed the convening of a joint meeting between the District Judge, Delhi, Registrar General of this Court and the Secretary (Law & Judicial) of the GNCTD to finalize the process and expedite the up-gradation of the post of LDCs to UDCs in terms of the aforesaid office memorandums; that a joint report was submitted on 22nd July, 1997 in which it was inter alia stated that some of the LDCs/ Naib Nazirs were already drawing salary exceeding the minimum scale of UDC and as such no major financial implication would be involved if the post of LDCs/ Naib Nazirs is upgraded; accordingly it was recommended in the joint report that up-gradation of the posts of LDCs/ Naib Nazirs to the posts of UDCs/Civil Nazirs in the ratio as set out in the aforesaid office memorandums be affected; that vide order dated 5th December, 1997 passed in CWP No.907/1996 the respondents were directed to consider the case of the petitioners therein for up-gradation on the basis of the aforesaid office memorandums. However instead of giving general directions for up-gradation of all those working as LDCs in terms of the office memorandum to UDC, the directions were confined to the Naib Nazirs only who were petitioners in that case. It is the case of the petitioners herein that on 18th December, 1997 another order was issued in CWP No.907/1996 to expedite the implementation of the up-

gradation of the posts of 75 Naib Nazirs to the post of UDC grade i.e. Civil Naib Nazirs; that upon the order remaining uncomplied CCP No.136/1998 titled Rohitashwa Sharma Vs. Sh. P.V. Jaykrishnan was filed and upon filing whereof the GNCTD upgraded only 75 Naib Nazirs to that of UDCs. It is the case of the petitioners that they are similarly placed as the Naib Nazirs in whose case the office memorandums aforesaid have already been implemented and whose posts have been upgraded but the petitioners have been left out and are thus being discriminated against.

10. The GNCTD in its affidavits mentioned above does not controvert the up- gradation of the posts of Naib Nazirs as aforesaid. Their only stand is that the same has been done pursuant to the orders of this Court.

11. This Court in the order dated 24th February, 2010 in these proceedings had expressed a prima facie opinion that the petitioners herein cannot be deprived of the benefits which have already been provided to others similarly placed as them. Though the counsel for the GNCTD had sought time to take instructions but as aforesaid no response has been received. The counsel for the District Judge supports the case of the petitioners and further contends that the GNCTD has already given approval for such up-gradation and also refutes that the up-gradation is the subject matter of proceedings pending in the Supreme Court. The counsel contends that it is only the matter of pay scale which was the subject matter of the Shetty Commission report and which is pending before the Supreme Court and not the matter of up-gradation. The counsels for the High Court have also not opposed the relief claimed by petitioners. The counsel for petitioners has handed over copy of a letter of October 1989 of Secretary (Law & Judicial) of Delhi Administration which notices that such restructuring will have no adverse effect on the staffing pattern of the Administration.

12. From the aforesaid, a clear lack of will to resolve the controversy which has been raging now for the last 30 years is made out. The GNCTD was itself agreeable to the upgradation as provided in the office memorandums aforesaid and for this reason only had sought sanction therefor of the Government of India. Even

if GNCTD subsequently discovered that the office memorandums were not applicable to it or meant for it, the very fact that the proposals/recommendations therein were found suitable enough to be recommended to the Government of India for according sanction for implementation shows that independently of whether the said office memorandum was applicable to GNCTD or not, the same was found to be reasonable. This is also evident from the fact that the said proposal/recommendation has already been implemented qua the petitioners in CWP No.907/1996. The GNCTD did not choose to challenge the order/directions for implementation of the said recommendations in the said writ petition before a Division Bench of this Court or before the Supreme Court and rather chose to comply with the same. Having done so, it cannot maintain a stoic silence as is evident in the present case. What was good for Naib Nazirs is good for the petitioners herein also. A clear case of lack of initiative on the part of the officials of GNCTD to deal with the matter is made out. The officials responsible for taking the decisions forget that their such lackadaisical attitude/conduct demoralizes the large number of workers affected thereby. Because of such conduct, the recommendations which have already been implemented vis a vis a small section of employees as far back as in 1997-98 still remain to be implemented qua others. A large number of them may have retired since then without enjoying the benefits of up-gradation of their posts. This writ petition was made to remain pending by meeting out assurances, for the last 10 years inspite of being squarely covered by the order in CWP No.907/1996 which has already been implemented.

13. The Supreme Court in Delhi Judicial Services Association Vs. Delhi High Court AIR 2001 SC 2102 has held that stagnation for very many years for lack of a promotional avenue, inherent in the nature of service, and limitation of other openings, results in the judicial officers, in that case, being less than contended in the absence of incentive and hope for a better future; such a situation was held to be not conducive to bring out the best in them; it was held that it is desirable from every point of view to maintain morale & efficiency of judicial officers at the highest throughout their tenure. In my view, the same equally applies to the staff also. The Supreme Court also had recommended acceptance/adoption of an anti

stagnation formula adopted in public corporations by creating special grades carrying a better scale than the existing grade for those who had invested twelve years of service.

14. The plea of GNCTD of the matter in controversy in this petition being covered by the matter pending before the Supreme Court or by recommendation of the Shetty Commission is also not found to be correct. From the documents filed along with the affidavit no such case is made out. The counsel for petitioners has handed over copy of order dated 7th October, 2009 of the Supreme Court in the All India Judges Association case whereby it is noted that in some of the states, based on various other Pay Commission Reports benefits have been given to the members of the staff; it was directed that those benefits shall be in addition to the recommendations given by the Shetty Commission.

15. This petition therefore succeeds. The respondent GNCTD is directed to forthwith sanction the up-gradation of/upgrade the posts of LDCs to UDCs in terms of the office memorandums dated 1st October, 1979 and 20th March, 1994, of the staff working in the office of the District & Session Judge, Delhi, Judge Small Causes Court, Delhi and Administrative Civil Judge, Delhi save whose posts have already been upgraded pursuant to the orders in CWP No.907/1996. The same together with all consequential steps be done/taken within a period of eight weeks from today.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 22nd March, 2010 pp