Ravi Dass vs South Delhi Municipal ...
2015 Latest Caselaw 2634 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                  Judgment delivered on: March27, 2015.
+      W.P.(C) 3347/2014
       RAVI DASS                                       ..... Petitioner
                         Through       Mr. Raman Duggal, Advocate

                         versus

       SOUTH DELHI MUNICIPAL CORPORATION...... Respondents
                    Through: Mr. R.V. Sinha, Mr. R.N. Singh &
                               Mr. Amit Sinha, Advocates
       CORAM:
       HON'BLE MR. JUSTICE KAILASH GAMBHIR
       HON'BLE MR. JUSTICE I.S.MEHTA

                             JUDGMENT

%

KAILASH GAMBHIR, J.

1. The present Writ Petition has been preferred by the petitioner

under Articles 226 and 227 of the Constitution of India challenging the

correctness of the order dated 04.10.2013 passed by the learned Central

Administrative Tribunal, Principal Bench, New Delhi (hereinafter

referred to as the 'learned Tribunal') in Original Application (in short

'OA') No.1491/2012. The petitioner also seeks to challenge the order

dated 06.01.2014 passed by the learned Tribunal dismissing the Review

Application (in short 'RA') No.187/2013 preferred by the petitioner.

2. In the said OA No.1491/2012, the petitioner who has been working

as a Municipal Engineer-cum-Engineer-in-Chief w.e.f. 01.12.2005 sought

enforcement of the Resolution No.428 dated 30.12.2002 passed by the

Municipal Corporation of Delhi (in short 'MCD') approving the pay scale

of the petitioner in the revised scale of Rs.22400- 24500/- w.e.f.

01.12.2005. The appointment to the said post was initially on ad hoc

basis but the same was approved by the MCD vide Resolution No.7 dated

27.02.2006 and the same was also regularised by the Union Public

Service Commission (in short 'UPSC'). In the said OA, the petitioner

was seeking enforcement of Resolution No.7 dated 27.02.2006,

Resolution No. 456 dated 06.11.2006 and Resolution No.382 dated

09.11.2009, seeking pay scale of Rs. 22400-24500/- w.e.f. 01.12.2005

and revised pay scale as per the 6th Central Pay Commission alongwith

interests @ 12 % on the arrears between the difference of the two pay

scales. By order dated 04.10.2013, the learned Tribunal allowed the OA

preferred by the petitioner after taking into consideration the identical

relief granted by the learned Tribunal in the case of one C. M. Viz but

since the decision of the learned Tribunal in the case of C.M. Viz was

under challenge before the High Court, therefore, the impugned order

dated 04.10.2013 passed by the learned Tribunal in the case of the

petitioner was also made subject to the result of W.P. (C) No. 2040/2012

preferred by the respondent in the case of C.M. Viz. The learned Tribunal

also declined the request of the petitioner for payment of interest on the

arrears of the amount.

3. It may be relevant here to mention that earlier vide order dated

12.03.2013, the learned Tribunal had adjourned the said OA of the

petitioner sine die so as to await the decision of the High Court in W.P.

(C) No. 2040/2012 filed by the respondent challenging the order of the

learned Tribunal in the case of C.M. Viz. Later the petitioner filed RA

No.57/2013 in OA No.1491/2012, pleading to decide his case based on

the view taken by the learned Tribunal in the case of C.M. Viz so that the

issue in his favour can also be fairly decided by the High Court of Delhi.

Agreeing with the contention of the petitioner, the learned Tribunal

recalled the order dated 12.03.2013 whereby proceedings were adjourned

sine die and had passed the impugned order dated 04.10.2013.

4. The said order dated 04.10.2013 was again sought to be reviewed

by the petitioner by filing an RA No.187/2013, but the learned tribunal

dismissed the same terming it as an attempt to abuse the process of Court.

The learned Tribunal in the said order referred to the averments made by

the petitioner in paras 5 and 11 of his OA No.1491/2012 and also in RA

No.57/2013 wherein the petitioner himself claimed that his case is similar

to the case of C.M. Viz and held that when an adverse order was passed

against C.M. Viz by the High Court, the petitioner filed the RA

No.187/2013.

5. Assailing the legality and correctness of the order dated 04.10.2013

passed by the learned Tribunal in OA No.1491/2012 and the order dated

06.01.2014 passed by the learned Tribunal in RA No. 187/2013, Mr.

Raman Duggal, the learned counsel for the petitioner vehemently

contended that the learned Tribunal by the impugned order dated

04.10.2013 had allowed the OA preferred by the petitioner for parity of

reasons with the case of C.M. Viz making the order subject to the

outcome of W.P. (C) No.2040/2012, under a mistaken belief that the

High Court was ceased with W.P. (C) 2040/2012 preferred in the case of

C.M. Viz and the same was still pending. The learned counsel also

submitted that the said glaring error which was apparent on the face of

the record was made one of the main grounds to seek review of the order

dated 04.10.2013 by the petitioner in RA No. 187/2013 contending inter-

alia that W.P. (C) No.2040/2012 was no more pending and was already

disposed of vide order dated 23.09.2013, and therefore, the relief granted

to the petitioner in terms of the impugned order dated 04.10.2013 could

not be made contingent upon the outcome of the W.P. (C) No.2040/2012.

The petitioner also averred in his review petition that he was not even a

party to the writ petition concerning C.M. Viz and even the facts of the

case of the petitioner were distinct and distinguishable but the learned

Tribunal without giving any weightage and credence to the cogent pleas

raised by the petitioner dismissed the same terming the review petition as

a gross abuse of process of the Court. The learned counsel for the

petitioner also highlighted the distinguishable facts between the facts of

the case of the petitioner and that of Mr. C.M. Viz and these

distinguishable features can be reproduced as under:-

Sl.          W.P. (C) 2040/2012              O.A. No. 1491/2012
No.          C.M. Viz v. MCD            Ravi Dass v. MCD (Petitioner)

1.           Mr. C.M. Vij was hold            Petitioner was appointed as

the post of Engineer-in-Chief the Municipal Engineer-cum- on ad hoc basis and further Engineer- in- Chief on regular the case of Mr. C.M. Vij basis after his suitability was pertained to the upgradation assessed by the DPC; his in the pay scale while appointment on regular basis was holding the post of Engineer- approved by the Corporation vide in-Chief on ad hoc basis. Resolution No.382 whereby the petitioner was regularised as

Municipal Engineer- cum-

                                        Engineer-       in- Chief w.e.f.
                                        01.12.2005 in the pay scale of Rs.
                                        22400- 24500 in the revised pay
                                        Band-4 Rs. 37400- 67000 + Grade
                                        Pay Rs. 12000 w.e.f. 01.01.2006.
2.           The subject matter in           The subject matter of the
       Mr. C.M. Vij's case was the      present petition is Resolution No.
       implementation              of   382 whereby the petitioner was
       Resolution       No.      428    appointed as Municipal Engineer
       pertaining to granting an ad     & Engineer- in- Chief in the pay
       hoc Engineer-in- charge          scale of Rs. 22400-24500 w.e.f.
       upgradation in the pay scale     01.12.2005.
       from Rs. 18400-22400 to Rs.
       22400-      24500       w.e.f.
       01.01.1996.
3.          Vide judgment dated                It is pertinent to mention
       23.09.2013 the Hon'ble High      here that in the present case
       Court held Resolution No.        Resolution No. 382 was passed
       428 to be void on the ground     pursuant      to    the    Proposals
       that the Commissioner did        forwarded by the Commissioner
       not concur with the proposal.    who concurred with the same.
4.          The facts of the case are         Resolution No. 382 was
       distinct as Mr. Vij was          passed in accordance with Section
       working as an ad hoc             89 of the DMC Act which inter-
       Engineer-in-charge having        alia stipulates that the Corporation
       substantive       post      of   shall appoint the Municipal
       Superintending Engineer.         Engineer on such monthly salaries
                                        and allowances as may be fixed by
                                        the Corporation.

6. The learned counsel for the petitioner in support of his arguments

placed reliance on the following judgments:

i. Rajbir Singh Dalal v. Chaudhari Devi Lal University, Sirsa (2008) 9 SCC 284.

ii. Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar and another AIR 1968 SC

iii. O.P. Bhalotra and others v. Municipal Corporation of Delhi and others 1988 LAB.I.C. 634 Delhi High Court. iv. Alok Shankar Pandey vs. Union of India and others (2007) 3 SCC 545.

7. Per contra, Mr. R.V. Sinha, the learned counsel for the respondent

strongly refuted the contentions raised by the learned counsel for the

petitioner. The learned counsel for the respondent mainly submits that it

was the petitioner himself who had been placing reliance on the case of

C.M. Viz so as to draw a parity between two set of cases not only in his

main petition but even in his RA No 57/2013 and when the High Court

decided W.P. (C) No. 2040/2012 against C.M. Viz then this petitioner

filed a fresh RA which has rightly been dismissed by the learned Tribunal

with costs after terming the same as an attempt to abuse the process of the

Court.

8. We have heard the learned counsel for the parties at considerable

length and given our thoughtful consideration to the arguments advanced

by them.

9. Any party approaching the court of law seeking certain reliefs in a

case is entitled for a decision on the merits of the case. In a case when the

Court has already decided any issue identical with the issue in another

case before it, the Court may after feeling satisfied as to the similarity of

the issue, follow its own view in that case also but where the facts or legal

issues are different, certainly the Court shall decide the other case on its

own facts and legal position. Shockingly, it was the petitioner himself

who in his Writ Petition, being, i.e. OA No. 1491/2012 and in his RA

No.57/2013 sought to draw a parallel analogy of his case with the case of

C.M. Viz but when the decision in C.M. Viz's case wherein the MCD

laid a challenge to the order dated 11.11.2009 was followed in his case by

the learned Tribunal in T.A. No.1060/2009, the petitioner moved a fresh

RA No.187/2013. Having said this, we cannot be oblivious of the fact

that one glaring error which cannot be ignored and which was apparent

on the face of the record was that when the learned Tribunal decided the

OA preferred by the petitioner on 04.10.2013, at that time the decision of

the High Court dated 23.09.2013 had already been passed, and therefore,

the decision in the OA of the petitioner could not have been made subject

to the outcome of the decision in the case of C.M. Viz where the decision

was already given by the High Court. We are surprised that even the

MCD failed to apprise the learned Tribunal about the decision given by

the High Court dated 23.09.2013 in the case of C.M. Viz. This error can

be rectified only if we remit the matter back to the learned Tribunal so

that the learned Tribunal may have the advantage of the order passed by

the High Court in W.P. (C) 2040/2012 dated 23.09.2013, but also it may

determine the issue of difference between the case of C.M. Viz and that

of the petitioner as sought to be made out by the petitioner.

We accordingly, remand the matter back to the learned Tribunal to

decide the OA No. 187/2013 preferred by the petitioner on its merits and

while doing so the learned Tribunal shall certainly refer to the decision of

this Court in the case of C.M. Viz.

Accordingly list this matter before the learned Tribunal on

20.04.2015. Both the parties are directed to appear before the learned

Tribunal.

With the above direction, the present Writ Petition is disposed of.

(KAILASH GAMBHIR) JUDGE

(I.S.MEHTA) JUDGE MARCH 27, 2015 v