Govt. of NCT of Delhi and Another vs Kartar Singh and Others

CM No. 3438/2010

This is an application for condonation of delay in preferring the appeal. We have heard Mrs. Anju Bhattacharya, learned counsel for the appellants, and Mr. Madan Lal Sharma, Mr. Varun Nishal and Mr. S. Dev, learned counsel for the respondents 1 to 4. Upon perusal of the averments made in the petition and taking note of the submissions canvassed by the learned counsel for the parties, we are of the considered opinion that the delay in preferring the appeal deserves to be condoned and, accordingly, it is so ordered.

The CM stands disposed of.

LPA 130/2010

In this intra-Court appeal, the legal substantiality of the order dated 25.3.2007 passed by the learned Single Judge in WP (C) No. 3374/2007 is called in question.

The respondents, four in number, invoked the jurisdiction of this Court under Article 226 of the Constitution of India for issuance of a writ of mandamus commanding the respondent therein to pay salary and benefits attached to the post of pump operators with effect from 30th July, 2004 in parity with the salaries being paid to the regular pump operators. It is put forth in the writ petition that they were employees of DDA and holding the post of Khalasi and pursuant to the MOU dated 5.5.1993 of ISBT, Kashmere Gate, they were transferred from DDA to the Government of NCT of Delhi (Transport Department) and from that day onwards, they were taken in the Transport Department. They were working on the post of Khalasi as regular employees. Vide Office Order No. E.O.10 dated 30th July, 2004, they were granted charge of current duties of pump operators at ISBT, Kashmere Gate, Delhi with immediate effect for the period of six months or till regular arrangements have been made. The period from time to time was extended but as they were not extended the pay scale and other benefits as were applicable to the said post, they submitted representations on 22.9.2005 and 27.10.2005 requesting the respondents therein to grant them salary and other benefits attached to the post of pump operators. Thereafter, certain further representations were made and notices were served but their grievance remained unremedied. The said situation compelled the writ petitioners to visit this Court with the relief as has been indicated hereinabove. It was contended before the learned Single Judge that as the petitioners were working as pump operators with effect from 30th July, 2004, they were entitled to the payment of remuneration and salary for the post on which they have been discharging their duties. Reliance was placed on the decision rendered in Secretary cum Chief Engineer, Chandigarh v. Hari Om Sharma & Ors. , 1998 SCC (L&S) 1273.

The stand put forth by the petitioners was resisted by the respondents No. 1 and 2 contending, inter alia, that while posting the petitioners as pump operators, it was made clear to them vide memorandum dated 30th July, 2004 that they cannot be given any extra remuneration and benefit in seniority and promotion on the post of pump operators and when they had accepted the same knowing the said aspect fully well, they cannot have any grievance. It was also urged that simply working on the post of pump operators / wiremen could not entitle them for the grant of salary on the post of pump operators. Reliance was placed on the decision in Secretary, State of Karnataka and Others Vs. Umadevi and Others, . The learned Single Judge took note of the factual scenario and referred to the decision rendered in K.T. Veerappa and Others Vs. State of Karnataka and Others, wherein it has been held that a Court of law can interfere with administrative decisions pertaining to pay fixation and pay parity when it finds such a decision to be unreasonable, unjust and prejudicial to a section of employees and taken in ignorance of material and relevant factors. The learned Single Judge has further held that the State being a model employer cannot act in such a harsh and draconian manner completely averse to the valuable rights of the citizens. He also applied the principle of ''Equal Pay for Equal Work''. Reliance was placed on State Bank of India and Another Vs. M.R. Ganesh Babu and Others, . Thereafter, the learned Single Judge directed that the petitioners-respondents herein are entitled to the benefit of salary and other benefits that are applicable to the post of pump operators with effect from 31.7.2004.

The learned counsel for the appellant, challenging the order of the learned Single Judge, has canvassed that the learned Single Judge has fallen into error by directing that the respondents would be entitled to salary for the post of pump operators despite the fact that there cannot be parity of payment in respect of regular employees and employees appointed on temporary/adhoc/daily wage/casual/contract basis. The learned counsel further submitted that they were appointed for six months or till regular arrangement is made with a condition that the respondents would not be entitled to be given any extra remuneration on account of current duty charge ignoring the fact that an employee can be paid remuneration on the higher post only if he is formally appointed to the higher post by the order of the competent authority. It is his further submission that while applying the principle of ''Equal Pay for Equal Work'', the Court is required to consider many factors like sources and mode of recruitment, appointment, qualification, nature of work, etc. but without entering into the same, the learned Single Judge has directed the pay scale of the pump operators to be extended to the respondents which is untenable.

The learned counsel for the respondents, supporting the order passed by the learned Single Judge, contended that though a condition was imposed for a period of six months, when they continued and are continuing, the said condition becomes totally onerous and a model employer cannot exploit the employees in such a manner. It is urged by them that they were given the duty by the competent authority to work as pump operators and when there is a difference of pay scale in the Khalasi and pump operators, the same should be paid to them because an employer cannot take the duty attached to a particular post from an employee and not pay the pay scale. It is canvassed by him that the principle of ''Equal Pay for Equal Work'' has been correctly applied by the learned Single Judge inasmuch as there is no extra qualification or technical expertise involved in the job of a pump operator and one acquires them with slight concentration and learning.

To appreciate the submissions raised at the bar, we have carefully perused the documents brought on record and the order passed by the learned Single Judge. On a perusal of the order dated 30th July, 2004, it is perceptible that there is a stipulation that the respondents should attend to the routine day-to-day nature of work attached to the post of pump operators/wiremen but they would not be given any extra remuneration and benefit in seniority and promotion on account of the current duty charge given. The said order has been passed by the administrative officer, ISBT. There can be no shadow of doubt that the respondents - writ petitioners can neither be allowed any kind of seniority nor can they put forth any claim for promotion along with other employees who are in the cadre of pump operators. There is no dispute that they were work charged (regular khalasis). Thus, they stand on a different footing than the daily wagers. They were asked to function as pump operators. The employer has been taking from them the work of pump operators. Though they are working on the said post, yet they cannot claim regularization in the post. There is a distinction between holding a post in a regular manner and working in a post on an adhoc or temporary arrangement basis. The learned Single Judge, as is manifest, has directed that the respondents would be entitled to the benefit of salary and other benefits as are applicable to the post of pump operators with effect from 31st July, 2004. The apprehension of the learned counsel for the appellant is that the other benefits may include seniority, promotion and other fringe benefits. We are of the considered opinion that when the respondents cannot be treated to be regular pump operators, they cannot be allowed the other benefits which are attached to the post. To workout the equity in a case of this nature and regard being had to the factum that the State is a model employer, the respondents can only be entitled to the minimum pay scale relating to pump operators till they hold the post. As grant of regular pay scale is impermissible, the order passed by the learned Single Judge has to be modified and, accordingly, we so do and direct that the respondents-writ petitioners shall only be entitled to the minimum of the pay scale which is paid to a pump operator and they would not be entitled to any other benefit. They cannot be given any benefit of seniority and they cannot claim any promotion.

In the result, the appeal is allowed in part and the order of the learned Single Judge is modified to the aforesaid extent. There shall be no order as to costs.