Delhi High Court
Delhi Development Authority vs Its Work Assistant Through D.D.A. ... on 24 July, 2017
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on : 07th July, 2017
Date of decision : 24th July, 2017
W.P.(C) 3184/2003
DELHI DEVELOPMENT AUTHORITY ..... Petitioner
Through Mr. Arun Birbal, Mr. Sanjay
Singh, Advocates.
versus
ITS WORK ASSISTANT THROUGH D.D.A. MAZDOOR
UNION ..... Respondent
Through None.
CORAM:
HON'BLE MS. JUSTICE ANU MALHOTRA
JUDGMENT
ANU MALHOTRA, J.
1. The petitioner, the Delhi Development Authority, vide the
present petition assails an award dated 21.9.2000 in ID No.140/96 of
the Industrial Tribunal-I, Karkardooma whereby the reference sent to
the said Industrial Tribunal-I vide notification No.
F.24(3664)/96Lab./42098-102 dated 2.9.1996 to the effect:
"Whether the demand of S/Shri Mukhya Nath,
Kapil Kumar Saini, Anand Kumar Sharma, V
irender Singh and Dev Singh for regularization
/appointment as Lower Division Clerks is justified
and, if yes, to what relief are they entitled and
what directions are necessary in this respect?"
was answered to the effect that all the workmen named in the
reference were entitled to be regularized to the post of Lower Division
Clerks from the respective dates of their engagement as stated by them
in their respective affidavits and were further held entitled to be paid
salary as permissible to their colleagues appointed on regular basis as
Lower Division Clerks with the management, i.e., the Delhi
Development Authority. The Delhi Development Authority was
further directed to pay the said workmen the scale of Lower Division
Clerks atleast from the date of regularization in the Group "D" posts to
which all of the workmen concerned had admittedly been regularized
after their official engagement on muster rolls as Work-Charge
employees, i.e., Mukhya Nath w.e.f. 6.1.1983, Kapil Kumar Saini
w.e.f. 3.1.1985, Anand Kumar Sharma w.e.f. 6.3.1984, Virender
Singh w.e.f. 6.1.1983, Dev Singh w.e.f. 3.1.1985. It has been
submitted by the petitioner that the said workmen were represented by
the Delhi Development Authority Majdoor Union, arrayed as
respondent No.1 to the petition.
2. Respondent No.2 arrayed on record is a proforma party, i.e., the
Presiding Officer of the Industrial Tribunal-I, Karkardooma.
FACTUAL MATRIX
3. The petitioner has submitted that Sh. Mukhya Nath was initially
appointed on the muster-roll as Khalasi w.e.f. 20.1.1981 and his
services were converted into Work-Charge establishment vide letter
bearing No. F2(731) 83/HD-XIX/1068 dated 24.3.1983 and he was
offered the post of Khalasi and he was called upon to report for duty
after completion of formalities for the said post of Khalasi was
accepted. The said workmen accepted the offer of the post of Khalasi.
The petitioner further submits that the workmen Virender Singh was
initially engaged on the muster roll as Beldar on the work at site and
his wages were also paid in accordance with the concerned work.
As stated in the petition, Sh. Dev Singh was initially engaged on
the muster roll as Khalasi on the work at site and his wages were also
paid in accordance with the work executed; Kapil Kumar Saini was
initially appointed as Beldar on the muster roll w.e.f. 22.11.1982 vide
muster roll No. 2/AE-I/CPD/III/DDA/82-83. He was kept on the
work of Assitant Beldar. Sh.Anand Kumar was also kept on the work
of Assitant Beldar and his wages were paid in accordance with the
work executed by him.
4. The petitioner further submitted that on several occasions
various orders were issued by the petitioner herein for transfer of
surplus staff from one department to another and all the subject
workmen were kept in different categories and had never been
assigned the job of Lower Division Clerk. It was also the claim of the
petitioners that as per their recruitment rules, the management has to
appoint LDCs after conducting a written test after obtaining approval
from the competent authority and these workmen have never qualified
in written tests and typing tests and they have never been appointed as
Lower Division Clerks by the competent authority.
The petitioners however stated that these workmen had the
minimum qualification as Matriculate for the post of Khalasi (Beldar)
which was also the qualification standard for appearing in the test of
Lower Division Clerk.
It was submitted by the petitioner that it had regularized the
services of the workmen Mukhya Nath as Khalasi herein above w.e.f.
6.1.1983, Kapil Kumar Saini w.e.f. 3.1.1985, Anand Kumar Sharma
.w.e.f 6.1.1984, Virender Singh w.e.f. 6.1.1983 and Dev Singh w.e.f.
6.1.1985 with the consent of the workmen and they performed duties
on the directions of the management in accordance with the work
assigned to them.
5. It was also further submitted by the petitioner that the work
assistants of the Delhi Development Authority had raised a demand
for revision of their pay-scale in accordance with the pay-scale of
Lower Division Clerk and the claim was filed by the workmen on
14.2.1987.
6. The petitioner has further submitted that the petitioner is an
independent body constituted under the Delhi Development Authority
Act and there are specific provisions in the Act which empowers the
management to make its rules and regulations regarding service
conditions and terms of employment after passing resolution.
7. It was further submitted by the petitioner that the impugned
award dated 21.9.2000 passed in ID No.140/1996 whereby the
workmen named herein above had been directed to be paid the scale of
LDC from the date of regularization in the Group „D‟ posts, was
wholly erroneous and did take into account that these workmen did
not pass or qualify any written test followed by any typing test which
was a mandatory requirement for an LDC and that the Industrial
Tribunal had ignored the Delhi Development Authority Rules and
Regulations and service conditions and terms of appointment and that
no appointment can be made de hors these rules and regulations.
8. The petitioner further submitted that there existed no industrial
dispute between the parties.
9. The petition was instituted on 19.4.2003 and was initially
dismissed in limine on account of delay and latches vide order dated
22.10.2003 and pursuant to the order in appeal No.885/2003 dated
24.8.2003, the writ petition was revived to be disposed of on merits.
However vide order dated 2.3.2005 the application for interim stay
being CM No.11941/2004 was dismissed and the award was directed
to be implemented. It was further directed vide order dated 2.3.2005
that the implementation of the impugned award would be subject to
the final outcome of the present writ petition.
CONTENTIONS RAISED
10. During the course of submissions made on behalf of the
petitioner it was submitted that the impugned award dated 21.9.2000
was, however, not implemented, in as much as similar awards were set
aside in WP(C) No.5140/2003, WP(C) No.1813/2004 and WP(C)
No.4993/2000 filed by the petitioner vide the common judgment dated
20.12.2016 and the said verdict dated 20.12.2016 was upheld by the
learned Division Bench of this Court vide judgment dated 31.01.2007
in LPA 66/2007 and in the connected appeals. It was submitted on
behalf of the petitioner that this writ petition was also connected with
the writ petition disposed off vide the same judgment dated
20.12.2006.
11. The proceedings dated 23.11.2004 in the present W.P.(C)
3184/2003, do indicate that there were connected matters in as much
as it has been observed to the effect : -
"23.11.2004
Present : Ms. Anusuya Salwan for the petitioner.
Mr. Varun Prasad for the respondent.
+W.P. © No. 3184/2003
List on 29.11.2004 along with the connected
matter.
November 23, 2004 sd-J."
m
12. Through the counter affidavit of the respondent, it was
contended that the W.P.(C) 3184/2003 was not maintainable as the
respondents had been working for more than two decades as LDCs /
Clerks / Typists and had not been regularized and that the Industrial
Tribunal had vide the impugned Award classified the proper grade of
the workmen under the Industrial Disputes Act, 1947 as the employees
since the time of their initial employment when they were taken on the
muster roll, have been performing the duties of LDC Typists.
13. It has been submitted further thereby through the counter
affidavit of the respondent that the petitioner i.e. the management
herein had chosen to remain absent and was thus proceeded ex-parte
after having filed its written statement and after issues were framed.
14. Reliance was placed on behalf of the respondent through its
counter affidavit on the verdict of the Supreme Court in Bhagwati Vs.
Delhi State Mineral Development Corporation 1990 1 LLJ, SC 320
to contend that even though the employees did not have the requisite
qualification to hold the post so as to entitle them for the post of
LDCs, undisputably they had been working for a long period of time
for two decades as LDCs and had discharged actually the duties
attached to the said post which practical experience was sufficient for
them to be regularized in the post of LDCs and that the period of work
done by them of the post of LDCs was sufficient for their
confirmation and regularization on the said post, in as much as though
they had been taken on the muster roll on 20.01.1981, 27.11.1982,
23.12.1981, 23.03.1980 and 18.08.1982 but they had been wrongly
regularized as Beldars and Khalasis.
15. It was submitted through the counter affidavit of the
respondents that the petitioner as per the recruitment rules has
prescribed a minimum qualification as „matriculate‟ and that all the
respondents are matriculates and that there is also a prescribed quota
for the promotion from Group D to Group C in the Establishment
recruitment rules for the post of LDCs which can also be filled up by
promotion from Group D to Group C. A further submission made
through the counter affidavit by the employees was to the effect that
the Central Government / Delhi Development Authority also as per the
recruitment rules had the power to relax where it was necessary and
expedient to do so in relation to all categories and posts. Interalia, it
was submitted through the counter affidavit of the respondent that
there were vacancies of the LDCs available with the petitioner and
that the petitioner had not regularized the services of the workmen /
respondents in order to exploit them by denying the benefits and fruits
as regular workmen in the grade of LDCs, which is an unfair labour
practice under the Fifth Schedule of the Industrial Disputes Act, 1947.
16. None has appeared on behalf of the respondents / workmen on
09.01.2014, 15.01.2014, 05.02.2016, 19.02.2016 and 28.04.2016 also
repeatedly.
17. None chose however to put in appearance on behalf of the
respondents / workmen when the matter was taken up for regular
hearing in the present writ on 06.07.2017, nor on 07.07.2017 when
arguments were addressed on behalf of the petitioner.
18. During the course of the submissions made on behalf of the
petitioner on 06.07.2017, it was submitted on behalf of the petitioner
that the issue in the present writ has already been adjudicated by the
judgment of the Division Bench of this Court and thus the matter was
renotified for 07.07.2017 on which date reliance was placed on behalf
of the petitioner on the verdicts of the learned Single Bench of this
Court in W.P. (C) 4542/2005, W.P. (C) Nos. 3015-16/2005, W.P. (C)
No. 1721/2005, W.P. (C) Nos. 1234-36/2005, W.P. (C) Nos. 18406-
09/2004, W.P. (C) Nos. 12784-91/2004, W.P. (C) 5140/2003, W.P.
(C) 11813/2004, W.P. (C) 5140/2003 and W.P. (C) 4993/2000 which
were disposed of vide a common judgment dated 20.12.2006 and on
the verdict of the Division Bench of this Court in Bijender Singh Vs.
Delhi Development Authority dated 31.01.2007 in LPA 66/2007,
against the aforementioned verdict dated 20.12.2006, which was
upheld, on the verdict of this Court in Rajbir Singh Vs. Delhi
Development Authority 2007 (95) DRJ 300, on the verdict of this
Court in Delhi Development Authority Vs. Smt. Rani Verma & Ors.
in W.P. (C) 6086/2000 dated 29.10.2014 to submit that the impugned
Award dated 21.09.2000 in I.D. No. 140/96 which answered the
reference made vide Notification No. F.24(3664)/96-Lab/42098-102
dated 02.09.1996 to the effect that the employees namely Sh. Mukhya
Nath, Sh. Kapil Kumar Saini, Sh. Anand Kumar Sharma, Sh. Virender
Singh and Sh. Dev Singh were entitled to be regularized for the post
of LDCs from the respective dates of their engagement as stated by
them in their affidavit and they were entitled to be paid the salary as
permissible to their cadre appointed on regular basis as LDCs with the
management coupled with the fact that the petitioner had been directed
to pay the workmen the pay scale of LDCs from the date of the
regularization in the Group D posts to which all the workmen
concerned had been regularized after the initial engagement on the
muster roll as Work Charge Employees i.e. Sh. Mukhya Nath
regularized as Khalasi on 06.01.1983, Sh. Kapil Kumar Saini
regularized as Beldar on 03.01.1985, Sh. Anand Kumar Sharma
regularized as Beldar on 06.03.1984, Sh. Virender Singh regularized
as Beldar on 06.01.1983 and Sh. Dev Singh regularized as Khalasi on
03.01.1985,- was erroneous and was liable to be set aside.
19. It is essential to observe that the common judgment dated
20.12.2006 relied upon by the petitioner relates to the workmen whose
services were utilized for clerical work though they had been taken on
the muster roll as Malis, Beldars, Security Guards. In the case of Delhi
Development Authority Vs. Smt. Rani Verma & Ors. in W.P. (C)
6086/2000 dated 29.10.2014 the employees had joined the post of
Mate and worked on the said post and thus the claim of the employee
that she had worked as a permanent employee in different electrical
divisions as a stenographer and that she be regularized to the post of
stenographer was not accepted observing to the effect that the
principle of „equal pay for equal work‟ cannot be applied by the
Courts to direct that the permanent appointments be made without
following the due procedure established under the law in view of the
verdict of the Supreme Court in Secretary, State of Karnataka and
Ors. Vs. Umadevi and Ors; (2006) 4 SCC.
20. The brief facts that have been detailed in the common judgment
dated 20.12.2006 in W.P. (C) 4542/2005, W.P. (C) Nos. 3015-
16/2005, W.P. (C) No. 1721/2005, W.P. (C) Nos. 1234-36/2005, W.P.
(C) Nos. 18406-09/2004, W.P. (C) Nos. 12784-91/2004, W.P. (C)
5140/2003, W.P. (C) 11813/2004, W.P. (C) 5140/2003 and W.P. (C)
4993/2000. have essentially to be spelt out which are : -
" 2. The brief facts which gave rise to all these writ
petitions are that a number of workmen were appointed
as daily wager, muster roll employees, beldars, malis
and on other class IV posts, long back at different
periods of time. These beldars, malis etc. who were
initially muster roll/daily wagers were regularised in
the post of mali and beldar under the directions of this
Court or as a result of awards passed by Tribunal or as
a result of scheme formulated by the DDA under the
directions of this Court or Supreme Court. A large
number of workmen of class IV thus got recruited by
way of regularization who were engaged by DDA for
work exigencies or for different projects, these could
not be disengaged due to stay orders given by Courts.
However, with projects coming to an end the DDA
could not find manual work for them and assigned
them the jobs which were available in DDA. Many such
workmen were asked to do the clerical work, because
they were capable of doing the clerical work. These
workmen were having regular posts of malis, beldars
and security guards and were put on clerical work in
different departments of DDA per force as otherwise
these workmen had to be paid salaries without work and
kept idle at the cost of public exchequer. These
workmen after doing clerical nature of work raised a
dispute that now they have become entitled to be
regularised as clerks and so, these disputes were
referred for adjudication to Labour Courts/Tribunals.
The Tribunals in some cases passed awards that they
should be paid pay equal to that of LDCs and
regularized, in some cases the awards were passed only
of equal pay and they were held not entitled for
regularisation. Some cases are those where the order of
the DDA removing them from work of clerk and posting
them as malis, security guards and beldars have been
challenged. 3. These cases and other similar cases show
a strange phenomenon. A number of people enter into
the DDA, MCD and other similar departments through
approach and contacts as Class IV employees on muster
roll basis or daily wages basis. These employees then
raise an industrial dispute about their regularisation
on the post of malis, beldars etc. and in the past i.e.
before Secretary, State of Karnataka and Ors. v.
Umadevi (3) and Ors. 2006 (4) SCC 1 case, they have
been getting regularised due to different Court orders
on the basis of length of service. None of these persons
have been recruited in accordance with the recruitment
rules. All these persons are back door entrants into the
department. After their regularisation as Class IV
employees despite back door entry then, they have
approached the Courts for their regularization as Class
III employees. The plea taken is that they fulfill the
qualification of Class III employees and have been
assigned the work of Class III employees
and have been doing this work as clerk for quite long
time, therefore, they are entitled for the pay scale of the
clerks as well as regularisation in the post
of clerk."
21. It has been the plea of the petitioner in the present case also that
the workmen namely Sh. Mukhya Nath, Sh. Kapil Kumar Saini, Sh.
Anand Kumar Sharma, Sh. Virender Singh and Sh. Dev Singh, who
have been appointed as Khalasi, Beldars and Assistant Beldars by the
DDA at various times for adjustment of surplus staff and that orders
were issued by the petitioner for transfer of surplus staff from one
department to another and that though they were kept in different
categories they were never assigned the job of LDC and that none of
them have ever qualified any written test or typing test and they have
never been appointed as LDC by the competent authority and that
their services cannot be held to be regularized for the appointment to
the post of LDC in terms of the common judgment dated 20.12.2006
upheld in Bijender Singh Vs. Delhi Development Authority in LPA
66/2007 by the learned Division Bench of this Court.
22. The findings of the issue no. 2 vide the impugned Award dated
20.12.2006 make it apparent that the respondents / employees had
been taken on the muster roll as Work Charge Employees. It has been
submitted on behalf of the petitioner that there is a difference between
the person employed in the work charge establishment and posted in
the regular establishment in as much as those working on the work
charge service cannot be regularized with employees working on the
regular service of the establishment for the purpose of grant of the
additional increment of ACP scales or promotion.
23. Reliance was placed by the petitioner on the observations in
para 8 of the common judgment dated 20.12.2006 referred to
hereinabove in the Bijender Singh Vs. Delhi Development Authority
in W.P. (C) 4542/2005 and other connected matters, which is to the
effect : -
"8. The respondents have relied upon a circular dated
3.11.2004 showing that there was acute shortage of
clerical staff and they were working as
work charged employees against the clerical staff so
they should be regularised. This circular shows that
DDA had a lot of surplus workforce in Class IV and in
order to utilize this workforce, which otherwise would
have been unproductive, assigned this workforce to
different projects as work charged employees so that
there may not be any possibility of accrual of any
claim of any difference of wages by such employees at a
later stage. I consider that DDA has a right to manage
its administrative work and the Court cannot thrust
upon its decisions in the administrative matters on
DDA. If DDA has surplus workforce due to
whatever reasons, DDA has authority to utilize this
workforce in most appropriate and optimum manner."
24. Vide the common judgment dated 20.12.2006 in W.P. (C)
4542/2005, W.P. (C) Nos. 3015-16/2005, W.P. (C) No. 1721/2005,
W.P. (C) Nos. 1234-36/2005, W.P. (C) Nos. 18406-09/2004, W.P. (C)
Nos. 12784-91/2004, W.P. (C) 5140/2003, W.P. (C) 11813/2004,
W.P. (C) 5140/2003 and W.P. (C) 4993/2000 reference was made to
the recruitment regulations for the post of LDC qua which it was
submitted on behalf of the petitioner that the same is still applicable
which indicate that the method of recruitment whether by direct
recruitment or by promotion or by deputation and percentage of
vacancies to be filled by various methods, was as follows : -
RECRUITMENT REGULATIONS FOR THE POST
OF LDC (ENGLISH) IN DELHI DEVELOPMENT
AUTHORITY
"10. Method of 75% by direct recruitment
recruitment: whether by direct (50% by direct by
recruitment or by promotion or recruitment or by LDC-cum-
recruitment or by deputation Typist and 25% LDC-cum-
and percentage of vacancies to Hindi Typist 25% Promotion
be filled by various method from regular Group 'D'
employees (15% by simple
test and 10% by Seniority-
cum-"
25. It is essential to observe that vide para 6 of this the common
judgment dated 20.12.2006 in W.P. (C) 4542/2005, W.P. (C) Nos.
3015-16/2005, W.P. (C) No. 1721/2005, W.P. (C) Nos. 1234-36/2005,
W.P. (C) Nos. 18406-09/2004, W.P. (C) Nos. 12784-91/2004, W.P.
(C) 5140/2003, W.P. (C) 11813/2004, W.P. (C) 5140/2003 and W.P.
(C) 4993/2000, it was observed as follows : -
" 6. It is also not disputed that none of the workmen had
been recruited either directly or through promotion for
the post of LDC. The workmen claim that they were made
to work as work charge LDCs, under the orders of
DDA and since they have worked for quite long time on
the post of clerks, they have become entitled for being
appointed as LDCs. I consider this argument must fail.
All of the workmen, who have approached the Court have
already been regularised either under the Court order or
under a scheme formulated under the Court orders as
malis, beldars, security guards etc.. They cannot
approach the Court for second regularisation in higher
post on the plea that they have worked at the higher post.
A big work force, which should have been discharged
after the projects were over, got thrusted upon DDA due
to Court orders irrespective of the fact whether there was
work or not. It is an administrative problem for DDA as
to what to do with this work force when no project is
going on. If, in order to utilize this man-power, the DDA
has assigned them clerical work no fault can be found
with DDA. There can be only two options with DDA. One
DDA should pay salary to the employees without work or
DDA should have assigned them the work available and
wherever it was available. DDA runs several projects
and it gets budget as per projects. The salary of work
charge employees is charged from those budget. In order
to accommodate these Class IV employees, who were
regularised from daily wagers, DDA assigned them to
different projects on work charged basis and assigned
clerical duties to them. This administrative exercise was
necessary for DDA so that a large workforce may not sit
idle unproductively. This would not give any right to the
workmen to claim status of a higher rank/grade or
regularisation in higher rank / grade. A person, holding
a post of Class IV, draws salary against the post
sanctioned on which he is appointed. The creation of post
and abolition of post is an executive function and Court
cannot order creation or abolition of posts. The executive
has to assess the quantum of work and create or abolish
posts accordingly. By the mode of regularisation of daily
wager into Class IV employees or Class IV employees as
Class III and Class III to Class II and then Class II to
Class I, the Courts would in fact be creating the posts
where non-exist and also simultaneously creating a new
procedure of recruitment. By this procedure, the Court
would be violating the basic mandate of the Constitution
enshrined in Article 14 of equality before law. The
persons who entered through back doors, would always
be the beneficiary and those persons who work hard and
prepare for competition would be the losers because
there would be no posts to be filed by them and all posts,
in this manner would be got filled through back door
entrants only. In Uma Devi (3) case, Supreme Court
specifically directed that High Courts acting under
Article 226, should not ordinarily issue directions for
absorption, regularisation or permanent continuance
unless the recruitment itself was made regularly and in
terms of the Constitutional schemes."
26. The reliance placed by the employees on the verdict of the
Supreme Court in Mineral Exploration Corporation Employees
Union Vs. Mineral Exploration Corporation Ltd. 2006 (6) SCC 310,
was dealt with vide the following observation that the said common
judgment dated 20.12.2006 to the effect : -
"wherein the Supreme Court observed that even in
Umadevi Case Supreme Court has directed the Union of
India, the State Governments and their instrumentalities
should take steps to regularise as a one time measure, the
services of such irregularly appointed, who have worked
for ten years or more in duly sanctioned posts but not
under the cover of the orders of the Courts or of
Tribunals and should further ensure that regular
recruitments are undertaken to fill those vacant
sanctioned posts that are required to be filled up".
27. It was observed vide the common judgment dated 20.12.2006 in
Bijender Singh Vs. Delhi Development Authority in W.P. (C)
4542/2005 and the connected writ petitions that the contention that
was raised on behalf of the employees that since they had worked as
clerks they should be given the salary of clerks was not accepted vide
the said common judgment dated 20.12.2006 in view of the verdict of
the Supreme Court in State of Haryana v. Jasmer Singh AIR 1997
SC 1788 wherein it was held:
"The respondents, therefore, in the present appeals who are
employed on daily wages cannot be treated as on a par with
persons in regular service of the State of Haryana holding
similar posts. Daily-rated workers are not required to possess
the qualifications prescribed for regular workers, nor do they
have to fulfill the requirement relating to age at the time of
recruitment. They are not selected in the manner in which
regular employees are selected. In other words the
requirements for selection are not as rigorous. There are also
other provisions relating to regular service such as the liability
of a member of the service to be transferred, and his being
subject to the disciplinary jurisdiction of the authorities as
prescribed, which the daily-rated workmen are not subjected to.
They cannot, therefore, be equated with regular workmen
for the purposes for their wages. Nor can they claim the
minimum of the regular pay scale of the regularly
employed.(para 10)"
28. It was further categorically observed vide para 10 of the said
verdict of the common judgment dated 20.12.2006 in Bijender Singh
Vs. Delhi Development Authority in W.P. (C) 4542/2005 and the
connected writ petitions to the effect "that the workmen who were
holding regular posts of malis, beldars and security guards would not
become entitled to be regularized as LDC because they have been
deputed as work charge employees on different projects to do clerical
work and they hold some permanent post and each person is entitled
to the pay of that permanent post on which the principle of equal
salary for equal work would not apply in this case because the quality
of work done by an LDC, who comes through recruitment procedure
is always different from the quality of work done by a person, who is a
class IV employee."
29. Vide the said common judgment dated 20.12.2016, the writ
petition against orders of Tribunals / Labour Courts filed by the DDA
were allowed and the workmen were held not entitled to be
regularized as LDCs nor they were held entitled to the salary of LDCs.
Further, the writ petitions of the workmen challenging their posting /
transfer to class IV posts and to which they belong were dismissed and
the writ petition of the workman against the orders of the Tribunal
denying the relief of regularization / equal pay were also dismissed.
30. Thereafter, the learned Division Bench vide its verdict dated
31.01.2007 in LPA 66/2007 dismissed the appeal filed against the said
judgment dated 20.12.2006 and it was observed that the learned
Division Bench found no reason to take a different view than what
was taken by the learned single Judge, in the cases referred to
hereinabove. It is considered appropriate to reproduce the entire order
dated 31.01.2007 in LPA 66/2007, which is as under : -
"LPA 66/2007
This appeal is directed against the judgment and
order dated 20th December, 2006 passed by the learned
Single Judge dismissing the writ petition filed by the
appellants herein. The appellants were engaged by the
respondent as Mali/Beldar at different points of time
without following the procedure laid down for
recruitment to the said post of Mali/Beldar. The initial
appointments of the appellants were irregular and illegal
and in violation of the Recruitment Rules.
Officers of the respondent did not stop at that but
went on to take work of Group-C post from the
appellants. Group-C posts can be filled up in accordance
with the Recruitment Rules. Copy of the Recruitment
Rules for appointment to the post of LDC has been
placed on record. 75% recruitment to the said post, in
the pay scale of Rs.3050-4590 is by direct recruitment
and 25% posts are to be filled up by way of promotion
from regular Group-D employees. Minimum educational
qualifications are also prescribed under the Recruitment
Rules. A person must have 60% marks in Matriculation
or a second division at Graduation. In addition, he
should know typing. In case of promotion from Group-D
employees, requirement of minimum marks is not
applicable but such employee must meet the educational
qualifications.
The appellants herein cannot claim themselves to
be regular Group-D employees. Therefore, as per
Recruitment Rules they could not have been promoted as
LDCs. Promotion from Group-D as per Recruitment
Rules is by simple test (15%) and 10% by seniority. It
appears that the appellants were not only engaged
through back door without selection but were also given
promotion through back door by some of the officers of
the respondent who are responsible for the present
anomalies.
It is stated by the counsel for the respondent that
though the appellants were discharging some functions of
LDC, they were not being paid salary of the said post.
There is no explanation forthcoming from either of the
parties as to why this situation had arisen and why no
action was taken by the respondent for filling up
vacancies of LDC, if there be any, through regular
prescribed procedure under the Rules. Under no
circumstances the appellants could have been given
promotion as LDC. The action of the respondent is in
complete violation of and in disregard of the Recruitment
Rules. Wrong and illegal appointments made have to be
corrected and cannot be given stamp of approval by this
Court.
Counsel for the appellant at one stage sought to
submit before us that there could be relaxation of the
Rules so as to give benefit to the appellants. We see no
reason as to why such benefit should be given to persons
who have been appointed irregularly and without being
eligible for such appointment. The appellants have never
been declared as regular Group-D employees by the
respondent. They could not have been promoted to
Group-C posts de hors and contrary to the Recruitment
Rules. Claim and rights of the citizens to compete and
apply for selection cannot be denied. Similarly, rights of
Group-D employees to be considered for promotion to
the post of LDC cannot be ignored.
We, therefore, direct the Vice Chairman of the
DDA to cause an inquiry to be conducted as to how such
appointments were made and allowed to continue. Action
should be taken against the officers responsible. The Vice
Chairman shall file a report in this regard within four
weeks from today.
So far as the appeal is concerned, for the
foregoing discussions, we find no reason to take a
different view than what was taken by the learned
Single Judge, in the facts and circumstances of this case.
The appeal has no merit and is dismissed.
For consideration of the report to be filed by the
Vice Chairman, DDA, the matter shall be listed on 5th
March, 2007."
31. Thus whilst observing to the effect that under no circumstances,
the appellants of that case could have been given a promotion to the
post of the LDC and that the applicants could not claim themselves to
be regularized group D employees and could not as per the
recruitment rules be promoted as LDCs, it was further observed by the
Division Bench that wrong and illegal appointments made had to be
corrected and cannot be given the stamp of approval by this Court.
The plea raised on behalf of the applicants in that case seeking
relaxation of the Rules so as to give benefit thereof to the appellants
was also repelled, it having been observed that there was no reason as
to why such benefits could be given to the persons who had been
appointed irregularly and without being eligible for such appointment,
it having been further observed that the appellants had never been
declared as regular Group D employees by the respondent i.e. DDA
and that they could not have been promoted to Group „C‟ posts
contrary to the Recruitment Rules and that the claims and rights of the
citizens to compete and apply for selection could not be denied and
likewise the rights of Group D employees to be considered for
promotion to the post of LDC could not be ignored.
32. In terms of the judgment dated 31.01.2007 in LPA 66/2007, the
affidavit of Vice Chairman, DDA was submitted which was
considered vide proceedings dated 20.04.2007 by the learned Division
Bench of this Court in LPA 66/2007, LPA 100/2007, LPA 101/2007
& LPA 102/2007 in which it was stated by the then Vice Chairman,
DDA that there were no Group D employees working as LDC with the
DDA and that an enquiry had been ordered by the Vice Chairman
himself in terms and in view of the observations made by the learned
Division Bench of this Court in the order dated 31.01.2007 in LPA
66/2007.
33. Vide order dated 20.04.2007 in LPA 66/2007, LPA 100/2007,
LPA 101/2007 & LPA 102/2007, the Court closed the matter with a
direction to the Vice Chairman, DDA to continue with the enquiry
proceedings and to bring it to a logical end and further directed that
in future appointments of LDCs had to be in accordance with the
Rules and Regulations.
34. The verdict of this Court in Rajbir Singh Vs. D.D.A. 2007 (95)
DRJ 300 is in facts pari materia to the facts of the instant case in
which the workman was in employment with the DDA as a daily
wager w.e.f. 20.01.1981 and worked as Beldar and was paid wages for
the same from 20.03.1981 to 05.01.1983 and w.e.f. 06.01.1983, the
petitioner was made a „work charged‟ Beldar and thereafter w.e.f.
19.03.1991, he was assigned duties of an LDC with the respondent /
DDA and on which, the workman therein claimed that he had to be
paid wages in the pay scale of Rs.950-1500 which was applicable for
LDC / Typist which is a Class-C post instead of Rs.750-940 which
was the prescribed pay scale for Class-D employees which
claim was rejected by the respondent management whereafter the
workman had served a demand notice dated 11.03.1995 on the
respondent / management and on 13.03.1995 the petitioner workman
filed a statement of claim before the Labour Commissioner and on
failure of the conciliation proceedings, the matter was referred for
adjudication to the Industrial Tribunal on 03.07.1997 with a reference
to the effect:-
"Whether the demand of Shri Rajbir for regularization
of his services as Beldar w.e.f. 20.01.1981 is justified
and if so, to what relief is he entitled and what
directions are necessary in this respect"
in relation to which a Corrigendum was issued in 2014 with the
following terms of reference : -
"Whether the management assigned the duties of
L.D.C. to Sh. Rajbir w.e.f. 19.03.01 and if so whether
his services should be regularized as such in the proper
pay scale along with consequential benefits and if so
what directions are necessary in this respect?"
35. The Industrial Tribunal vide its Award dated 20.07.2006 in the
said case decided both the issues against the petitioner which Award
was challenged in W.P. (C) 706/2007. The contention raised on behalf
of the DDA in this case of Rajbir Singh Vs. D.D.A. 2007 (95) DRJ
300 was reiterated in the present writ before this Court submitting to
the effect that the workmen namely Sh. Mukhya Nath had already
been regularized as Khalasi on 06.01.1983, Sh. Kapil Kumar Saini had
already been regularized as Beldar on 03.01.1985, Sh. Anand Kumar
Sharma had already been regularized as Beldar on 06.03.1984, Sh.
Virender Singh had already been regularized as Beldar on 06.01.1983
and Sh. Dev Singh had already been regularized as Khalasi on
03.01.1985, could not now seek regularization for a second time for
the post of LDCs. It was submitted on behalf of the DDA / the
petitioner placing reliance on Rajbir Singh Vs. D.D.A. (supra) that as
none of them had ever qualified any written test or typing test and had
never been appointed as LDCs by the competent authority and their
services cannot be held regularized for the appointment to the post of
LDCs and that the principle of „equal pay for equal work‟ was not a
rigid principle nor a straitjacket formula so as to be blindly applied to
each and every matter and that fixation of pay and parity in duties and
responsibilities is only for the tribunal or court to decide. It is
observed further vide para 16 of the said verdict in Rajbir Singh Vs.
D.D.A. (supra) to the effect that : -
"16. In the light of the judgment of the Supreme Court in Uma
Devi (supra), it is now settled that recruitment to regular posts
ought not to be made by bypassing the constitutional scheme of
recruitment. In the present case, there are already rules of
recruitment existing for recruitment to the posts of LDC/UDC
and therefore the petitioner cannot be regularized to the said
post in violation of the constitutional scheme."
36. It was also observed in this case in Rajbir Singh Vs. D.D.A.
(supra) to the effect that the verdict of the Supreme Court in State of
Haryana Vs. Chiranjit Singh and Others, (2006) 9 SCC 321 had laid
down that the verdicts in the cases of Jasmer Singh (supra), Surinder
Singh Vs. Engineer-in-Chief, CPWD, (2003) 6 SCC 123, Orissa
University of Agriculture & Technology Vs. Manoj K. Mohanty,
(2003) 5 SCC 188 and Govt. of West Bengal Vs. Tarun K. Roy
(2004) 1 SCC 347, laid down the correct law to the effect that the
principle of „equal pay for equal work‟ has no mechanical application
in very case.
37. It was also observed in this case in Rajbir Singh Vs. D.D.A.
(supra) to the effect that the petitioner in that case had not gone
through the process of recruitment and thus could not claim to the
principle of „equal pay for equal work‟ and merely because a Work
Charge Beldar, he was assigned the duties of LDC by the respondent /
management in that case and it was observed to the effect that : -
"Article 14 permits reasonable classification based on
qualities or characteristics of persons recruited and
grouped together, as against those who were left out
and the very fact that the person has not gone through
the process of recruitment may itself, in certain cases,
make a difference. Thus normally applicability of the
said principle must be allowed to be evaluated and
determined by an expert body."
38. The verdict of Single Bench of this Court in W.P. (C)
6086/2000 in Delhi Development Authority Vs. Smt. Rani Verma &
Ors. dated 29.10.2014 also laid down that a backdoor entry into the
regular service to a post in which an employee has to qualify, cannot
be allowed by way of regularization of workmen to the post of LDC,
who had otherwise not been reunited directly or through promotion on
to the said post.
ANALYSIS
39. It is apparent thus that as rightly contended on behalf of the
petitioner that the facts of the case of the employees namely Sh.
Mukhya Nath, Sh. Kapil Kumar Saini, Sh. Anand Kumar Sharma, Sh.
Virender Singh and Sh. Dev Singh who were taken on the muster roll
on 20.01.1981, 27.11.1982, 23.12.1981, 23.03.1980 and 18.08.1982
respectively and Sh. Mukhya Nath regularized as Khalasi on
06.01.1983, Sh. Kapil Kumar Saini regularized as Beldar on
03.01.1985, Sh. Anand Kumar Sharma regularized as Beldar on
06.03.1984, Sh. Virender Singh regularized as Beldar on 06.01.1983
and Sh. Dev Singh regularized as Khalasi on 03.01.1985 as was also
observed by the impugned Award dated 21.09.2000 are in pari materi
to the cases of workmen disposed of vide the common judgment dated
20.12.2006 of this Court in W.P. (C) 4542/2005, W.P. (C) Nos. 3015-
16/2005, W.P. (C) No. 1721/2005, W.P. (C) Nos. 1234-36/2005, W.P.
(C) Nos. 18406-09/2004, W.P. (C) Nos. 12784-91/2004, W.P. (C)
5140/2003, W.P. (C) 11813/2004, W.P. (C) 5140/2003 and W.P. (C)
4993/2000, which judgment has been upheld vide judgment dated
31.01.2007 in LPA 66/2007 and the verdict of this Court in Rajbir
Singh Vs. D.D.A. (supra) and in Delhi Development Authority Vs.
Smt. Rani Verma & Ors. (supra) to which the ratio of the verdict of
the Supreme Court in Secretary, State of Karnataka and Ors. v.
Umadevi (3) and Ors. 2006 (4) SCC 1 would apply.
40. During the course of the hearing on 07.07.2017 in reply to a
specific Court query, it was submitted on behalf of the petitioner by
the learned counsel for the petitioner that the workmen Sh. Mukhya
Nath, Sh. Kapil Kumar Saini, Sh. Anand Kumar Sharma, Sh. Virender
Singh had been regularized as Beldars and Sh. Dev Singh had been
regularized as a Khalasi with the petitioner.
41. In response to a further Court query raised by this Court in view
of 6th Pay Commission having been implemented w.e.f. 01.01.2006
which recommended that all Group D posts would stand upgraded by
Group C post as consequence of which there is no Group D post w.e.f.
01.06.2006 and the consequential implications thereof by removal of
Class D post which are converted to Multi Tasking Staff post with a
common designation into Group C pay band, it was further submitted
on behalf of the petitioner that despite the recommendation of the 6th
Pay Commission, the ratio of the verdicts relied upon on behalf of the
petitioner are still applicable to the facts of the instant case in as much
as the workmen hereunder can only be promoted as per rules.
42. It was further submitted on behalf of the petitioner that there is
difference between those employees working as Work Charge
Employee and those working as „Regular Employees‟ and that the
employees in the instant case were working as Work Charge
Employee and cannot be treated as part of regular service in as much
as there is a salary distinction between the appointment made on work
charge basis and regular basis.
43. In relation to this aspect, it is essential to advert to the verdict of
the Supreme Court in State of Haryana and Ors. Etc. Etc. Vs. Sita
Ram and Ors. Etc. 2014 IT AO (SC) 22 wherein the distinction
between the work charge establishment and regular establishment as
detailed in State of Rajasthan Vs. Kuji Raman (1997) 2 SCC 517 has
been brought forth to the effect that : -
"A work-charged establishment as pointed out
by this Court in Jaswant Singh Vs. Union of India
(1979) 4 SCC 440 broadly means an establishment of
which the expenses, including the wages and
allowances of the staff, are chargeable to "works".
The pay and allowances of employees who are borne
on a work-charged establishment are generally shown
as a separate sub-head of the estimated cost of the
works. The work-charged employees are engaged on a
temporary basis and their appointments are made for
the execution of a specified work. From the very
nature of their employment, their services
automatically come to an end on the completion of the
works for the sole purpose of which they are
employed. Thus a work-charged establishment is
materially and qualitatively different from a regular
establishment.
A work-charged establishment thus differs
from a regular establishment which is permanent in
nature, Setting up and continuance of a work-charged
establishment is dependent upon the Government
undertaking a project or a scheme or a "work" and
availability of funds for executing it. So far as
employees engaged in work-charged establishments
are concerned, not only their recruitment and service
conditions but the nature of work and duties to be
performed by them are not the same as those of the
employees of the regular establishment. A regular
establishment and a work-charged establishment are
two separate types of establishments and the persons
employed on those establishments thus form two
separate and distinct classes. For that reason, if a
separate set of rules are framed for the persons engaged
in the work-charged establishment and the general
rules applicable to persons working on the regular
establishment are not made applicable to them, it
cannot be said that they are treated in an arbitrary and
discriminatory manner by the Government."
44. The aspect of the work charge service not being synonymous
with regular service and the aspect whether two services can be
clubbed for grant of time bound promotional scale / increment etc. was
also referred to through the verdict of Supreme Court in this case
placing reliance on the observations in Punjab State Electricity Board
Vs. Jagjiwan Ram (2009) 3 SCC 661 where it has been observed to
the effect that : -
"Generally speaking, a work charged establishment is an
establishment of which the expenses are chargeable to
works. The pay and allowances of the employees who are
engaged on a work charged establishment are usually
shown under a specified sub-head of the estimated cost of
works. The work charged employees are engaged for
execution of a specified work or project and their
engagement comes to an end on completion of the work
or project. The source and mode of
engagement/recruitment of work charged employees,
their pay and conditions of employment are altogether
different from the persons appointed in the regular
establishment against sanctioned posts after following
the procedure prescribed under the relevant Act or rules
and their duties and responsibilities are also
substantially different than those of regular employees.
The work charged employees can claim protection
under the Industrial Disputes Act or the rights flowing
from any particular statute but they cannot be treated at
par with the employees of regular establishment. They
can neither claim regularization of service as of right nor
they can claim pay scales and other financial benefits at
par with regular employees. If the service of a work
charged employee is regularized under any statute or a
scheme framed by the employer, then he becomes
member of regular establishment from the date of
regularization. His service in the work charged
establishment cannot be clubbed with service in a
regular establishment unless a specific provision to that
effect is made either in the relevant statute or the scheme
of regularization. In other words, if the statute or scheme
under which service of work charged employee is
regularized does not provide for counting of past service,
the work charged employee cannot claim benefit of such
service for the purpose of fixation of seniority in the
regular cadre, promotion to the higher posts, fixation of
pay in the higher scales, grant of increments etc."
45. In view thereof, it is apparent that the work charge employee
cannot claim benefit of service done for the purpose of fixation of
seniority in a regular cadre nor promotion to the higher post, nor
fixation of pay in the higher scales nor grant of increment etc. in as
much as the workmen‟s service in the work charge establishment as in
the present case cannot be clubbed with service in a regular
establishment without a specific provision to that effect in as much as
the sources and mode of engagements / recruitment of work charged
employees, their pay and condition of the employees are all together
different from the persons in the regular establishment against
sanctioned posts after following procedure prescribed under the Act or
Rules and their duties and responsibilities are substantially allowed
from those of regular employees.
46. It is apparent that the ratio of the common verdict of this Court
in W.P. (C) 4542/2005, W.P. (C) Nos. 3015-16/2005, W.P. (C) No.
1721/2005, W.P. (C) Nos. 1234-36/2005, W.P. (C) Nos. 18406-
09/2004, W.P. (C) Nos. 12784-91/2004, W.P. (C) 5140/2003, W.P.
(C) 11813/2004, W.P. (C) 5140/2003 and W.P. (C) 4993/2000 upheld
in LPA 66/2007 by the learned Division Bench of this Court applies to
the facts of the instant case also where the employees Sh. Mukhya
Nath regularized on 06.01.1983, Sh. Kapil Kumar Saini regularized on
03.01.1985, Sh. Anand Kumar Sharma regularized on 06.03.1984, Sh.
Virender Singh regularized on 06.01.1983 and Sh. Dev Singh
regularized on 03.01.1985 were regularized as work charge
employees and thus they cannot be clubbed with the services of DDA /
the petitioner in its regular establishment nor with the benefit of their
having worked like LDCs from the date of regularization as Beldars
and Khalasis, neither for the purposes of fixation of seniority in the
regular cadre nor promotion to higher posts nor for grant of any
increment.
CONCLUSION
47. Thus the W.P.(C) 3184/2003 is allowed and Award dated
21.09.2000 in I.D. no. 140/1996 is set aside.
48. In the circumstances of the case, there is no order as to costs.
ANU MALHOTRA, J
th
JULY 24 , 2017
sv/mk
