Municipal Corporation vs Parbhati Lal

Dr. Bharat Bhushan Parsoon, J.—Parbhati Lal, plaintiff, respondent herein, had filed a suit for declaration that he is entitled to be promoted/designated to the post of Electrician. He had also sought arrears of difference in wages with interest @ 18% per annum while seeking relief of mandatory injunction directing the defendant - Municipal Corporation, Faridabad [appellant herein] to promote and designate him as Electrician from the date of his actual entitlement and for payment of arrears with interest on difference in wages.

Respondent-plaintiff is an undergraduate and had done diploma in Wireman Trade from an Industrial Training Institute. He started his service on ad hoc basis which were later on regularized on 7.6.1993 but with effect from 28.12.1988. His regularization was not done from the date of his initial appointment, i.e., 28.12.1978.

Claiming that his juniors with similar qualification were given designation of Assistant Electrician and that of Electrician and were also regularized in their service in 1995, it was claimed that even under-Matric employees were designated as Assistant Electricians and were given higher pay scales than his pay scale. Representations made by him for designation as well as scale of pay had been pouring in from him.

A tough contest was made by the defendant Municipal Corporation. Denying the stand of the plaintiff, it was explained that the plaintiff was appointed as a Helper on ad hoc basis on 28.12.1978 and was regularized in service on 7.6.1993 when other temporary/ad hoc employees were regularized in their service. Claiming that the plaintiff had no case, dismissal of the suit was sought.

The lower court adjudicated the rival claims of the parties by framing following issues :-

Whether the plaintiff is entitled to be promoted/designated to the post of electrician, as alleged; OPP

Whether the issue No. 1 is answered in the affirmative, to what consequential benefit, if any, the plaintiff is entitled to? OPP

Whether the suit is not maintainable, as alleged? OPP

Relief.

Discussing oral as well as documentary evidence produced by the parties, deciding issues No. 1 and 2 against the plaintiff, suit of the plaintiff was dismissed vide judgment and decree dated 15.6.1998 of Civil Judge [Junior Division], Faridabad.

Parbhati Lal, plaintiff had filed regular first appeal which was decided by District Judge, Faridabad vide judgment and decree dated 10.3.1999. Reversing the findings of the lower Court on issues No. 1 and 2, which were decided in favour of the appellant-plaintiff, it was declared that the appellant was entitled to be designated as Assistant Electrician/Electrician in the pay scale of Rs.1200-2040 with effect from 1.5.1990. Decree of mandatory injunction was also issued directing the defendant-Corporation to give the aforesaid pay scale as also arrears of difference of pay etc.

Initially, counsel for the respondent had appeared, but on 28.1.2015 despite pass over made, none has appeared on behalf of the respondent.

Hearing has been provided to counsel for the appellant and record has been perused with his assistance.

Challenging judgment and decree dated 10.3.1999 of reversal of first Appellate Court, this Regular Second Appeal was filed by the Municipal Corporation, NIT, Faridabad claiming that the appellate Court had ignored very vital points resulting in mis-carriage of justice. It was elaborated that the respondent-plaintiff was not even eligible as he was not an ITI diploma holder in Electrical, but was holding diploma in Wireman. It was also explained that the respondent-plaintiff was appointed only as a Helper to Electrician on daily wages on 4.11.1978 and on ad hoc basis on 28.12.1978 and was regularized on 7.6.1993 though with effect from 28.12.1988. In short, it was claimed that when regularization of services of the plaintiff-respondent could not be made on the post of an Assistant Electrician or an Electrician, when he was only a Helper, how he could be given the designation as also the pay scale pertaining to the post of Assistant Electrician or an Electrician? Elaborating that the first Appellate Court even did not go into the evidence produced by the parties, reversal of the impugned judgment and decree is claimed with consequential relief of dismissal of the suit of the plaintiff.

In terms of Section 100 CPC, while admitting the appeal for hearing on 23.8.2001, following substantial question of law was settled for adjudication by this Court:-

"Whether the respondent was never appointed as Electrician and that he acquired qualification as I.T.I. [Wireman] and as such, granting him relief to be appointed as Electrician is not sustainable?" 12. Perusal of the paper book as also the lower Court records, reveals that the impugned judgment of the first Appellate Court suffers from an apparent defect, as even admitted facts and the real point in issue were not taken up for consideration. Leaving the main dispute unattended, the Court below involved itself in the rigmarole of parity among non equals. Merely because identity card held by the respondent-plaintiff showed his identity as Electrician would not make him so, as the identity card is not the substantive proof of qualifications of the actual posting of the respondent-plaintiff. It is also note-worthy that parity has been drawn amongst unequals, whereas the respondent-plaintiff was initially appointed as a Helper, other employees with whom parity has been drawn had been appointed as Assistant Electrician or an Electrician. Clearly enough, parity would not be available between a Helper and an Assistant Electrician or an Electrician.

Vinod Kumar, an official of the appellate-Corporation appearing as DW-1 has clearly and categorically stated that the respondent-plaintiff was initially appointed as a Helper only on daily wages on 4.11.1978 and then was appointed as Helper on ad hoc basis on 28.12.1978. By now, it is clear that there is no dispute that he was regularized in view of directions issued by Hon''ble Supreme Court of India on 7.6.1993 with effect from 28.12.1988 as he had completed 10 years service on the said date as an ad hoc employee.

Concededly, respondent-plaintiff, Prabhati Lal is a Matriculate as also holds a diploma from an ITI as a Wireman. He does not hold any qualification of an Electrician. Prabhati Lal, respondent-plaintiff was initially appointed on ad hoc basis on 28.12.1978. In terms of the adjudication made by Hon''ble Supreme Court of India, he having completed 10 years of ad hoc service on 28.12.1988, he was entitled to be regularised on the post of Helper. His plea is that non-Matric were given a grade of Rs.775-1025 whereas Matriculates were given the grade of Rs.950-1400 and with the added qualification of ITI were given the grade of Rs.1200-2040. Plea of Prabhati Lal further is that one Dharambir and another Siri Kishan were junior to him as they were regularized on 1.4.1995 with effect from 1.4.1995 in the grade of Rs.1200-2040 and earlier they had been working on daily wages, is not sustained and supported from any evidence. There is not even a single example on record to show that any person was appointed as an Assistant Electrician or an Electrician without requisite qualification of ITI certificate or Diploma in Electrician trade. Plea of the plaintiff would be ridiculous and would rather go against the normative parameters. Merely because the respondent-plaintiff was a Matriculate, he does not become an Electrician with an ITI diploma in Wireman trade. It is a clear case where the appointment of the respondent-plaintiff was as a Helper on which post, having been appointed on ad hoc basis since 28.12.1978, he was regularized on the said post w.e.f. 28.12.1988. It is a conceded fact by the parties that for being appointed as an Electrician, the respondent-plaintiff was required to have a Certificate or Diploma in Electrician trade from an ITI after his Matriculation. If he does not fulfil the basic qualifications, he could not be appointed as Assistant Electrician or Electrician.

If some other employees have been given better scales of pay than him, even though they had joined the appellant-Corporation later than the respondent-plaintiff, it is clear from record that his initial appointment was as a Helper whereas the others were appointed as Assistant Electricians or Electricians. Having joined the employment of the appellant-Corporation on different dates with different qualifications and on different posts, no parity as sought by the respondent-appellant could be available to him.

Findings on issues No. 1 and 2 given by the lower Court vide judgment and decree dated 15.06.1998 are based on facts and evidence, whereas reversal of such findings by the first appellate Court is not supported by any plausible and explainable reasons. For drawing parity there should be similarly situated employees working on the same post with same qualifications. In the present case, neither the respondent-plaintiff was educationally eligible and competent nor was actually working as an Electrician. He was working only as a Helper though in the Electrical department.

Consequently, findings of the first appellate Court in the impugned judgment and decree dated 10.03.1999 on issues No. 1 and 2 are not sustainable and are thus, reversed as it is a clear case of non-appointment of the respondent-plaintiff as an Electrician.

Merely because he has the qualification of Certificate Course ITI [Wireman] trade, he does not become entitled to be appointed as Assistant Electrician or an Electrician because for such a post, ITI with Diploma or Certificate Course in the trade of Electrician is required. The substantial question of law posed in the earlier part of the judgment is answered in favour of the appellant-Corporation.

Sequelly, affirming the judgment and decree dated 15.6.1998 of the trial Court and reversing the judgment and decree dated 10.03.1999 of the first appellate Court, this appeal filed by Municipal Corporation, Faridabad is allowed and the suit of the respondent-plaintiff is dismissed leaving the parties to bear their own costs. Decree sheet be drawn.