Shri Bhim Sain And Anr. vs Delhi Power Company Limited And ...
2015 Latest Caselaw 1357 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No.3638/1999

%                                                          13th February, 2015

SHRI BHIM SAIN AND ANR.                                      ..... Petitioners
                   Through:              Petitioner No.1 in person.
                                         Mr. Fanish K. Jain, Advocate for
                                         petitioner No.2.


                          Versus

DELHI POWER COMPANY LIMITED AND ORS.          ..... Respondents

Through: Mrs. Avnish Ahlawat, Advocate for respondent Nos.1 and 2.

Mr. Vikram Nandrajog, Advocate for respondent No.3.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. There are two petitioners in this writ petition. Therefore, in this

writ petition, separate judgments will have to be passed because separate

facts are in issue with respect to both the petitioners. Separate arguments by

petitioner nos.1 & 2 have been urged before this Court.

2. The first part of this judgment deals with the arguments of and

the reliefs claimed by the petitioner no.2.

3. At the outset, counsel for the petitioner no.2 concedes that all

the reliefs claimed in the writ petition have become infructuous except relief

(d) and which is that the petitioner no.2 claims officiating allowance while

working in an officiating capacity at the post of Assistant Legal Officer from

14.7.1998 to 30.4.2002 and on which latter date petitioner no.2 stood

regularly promoted to the post of Assistant Legal Officer.

4. I put it to the counsel for the petitioner no.2 whether when the

petitioner no.2 was asked to perform the duties and officiate at the post of

Assistant Legal Officer, whether there was any appointment letter issued to

the petitioner no.2 that he will be paid officiating allowance and also as to

whether the Additional General Manager (Administration) of DVB who

appointed the petitioner no.2 as Assistant Legal Officer had power to order

appointment of petitioner no.2 to hold officiating charge of an Assistant

Legal Officer alongwith monetary consequences upon the DVB, and to both

the queries counsel for the petitioner no.2 could not show me any rules or

circular or provision which entitled the Additional General Manager

(Administration) of DVB to make appointment of persons on officiating

basis and which carries with it monetary consequences upon the

employer/DVB. Therefore, neither the AGM (Administration) had the

necessary competence to create posts of Assistant Legal Officer nor

Additional General Manager (Administration) had any power to allow

appointment of an Assistant Legal Officer on officiating basis with payment

of monetary benefits of officiating allowances in the post of Assistant Legal

Officer. Surely, monetary liability cannot be fixed on an employer merely

because petitioner no.2 chose to officiate on a post and if the argument of the

petitioner no.2 is accepted, the same would amount to allowing persons in an

organization to act without lawful authority, and then consequently cause

monetary liability upon the said employer/organization.

5. Counsel for the petitioner no.2 at the end sought to place

reliance upon Fundamental Rule (FR)-49 of the Fundamental Rules and

Supplementary Rules (FRSR) to claim that petitioner no.2 is entitled to

officiating allowance for the relevant period, however, officiating allowance

will have to be paid under FR-49 of FRSR if appointment to the officiating

post is legal in the first instance. The appointment of the petitioner no.2 is

not legal in the first instance because no power has been shown of the

Additional General Manager (Administration) of DVB to make

appointments on officiating basis of an Assistant Legal Officer and which

appointments were to have monetary consequences upon the DVB.

6. The writ petition qua petitioner no.2 is therefore dismissed.

7. So far as the judgment qua the petitioner no.1 is concerned, the

aforesaid discussion also applies so far as the petitioner no.1 is concerned,

inasmuch as the petitioner no.1 (who is an Advocate and argued his case in

person) has failed to show me any judgment that a person who is appointed

without any authority to the post inasmuch as there is no authority to create

such post or appoint an employee in such post, then such a person who

works on an officiating basis at a post without any legal sanction, can claim

monetary benefits by causing imposition of monetary liability on the

employer/organization.

8. I may note that this writ petition was dismissed in default on

08.10.2013 and restoration was subject to payment of costs totalling to

Rs.10,000/- with a sum of Rs.5000/- to be paid to the Delhi High Court

Legal Services Committee and a sum of Rs.5000/- to the respondents, but it

is only the petitioner no.2 who has paid the costs for restoration, and

therefore the petition was restored. In a way the petition can be said to be

restored only qua the petitioner no.2 and not the petitioner no.1 who never

moved an application for restoration and only the petitioner no.2 moved an

application for restoration. However, since the restoration order dated

11.2.2014 restores the writ petition as a whole, I am overlooking the

technical consideration for not hearing the arguments of the petitioner no.1,

however, since the petitioner no.1 had not paid any costs, the petitioner no.2

will be entitled to recover 50% of the costs which are paid by the petitioner

no.2 from the petitioner no.1.

9. Writ petition qua petitioner no.1 is also dismissed.

FEBRUARY 13, 2015                                  VALMIKI J. MEHTA, J
Ne/KA