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2007 DAILYLAW 2397 (DEL)

HARI LAL v. MUNICIPAL CORPORATION OF DELHI

2007-09-25

J M Malik

body2007
J. M. MALIK, J. ( 1 ) THERE are no conflictions on the point that the present petitioner and one Dr. R. B. S. Tyagi were working as Assistant Veterinary Surgeons in the MCD. Both of them have been officiating as Superintendents, Slaughter House, MCD since 1995. As per the notified recruitment rules for the post of superintendent, Slaughter House, the said post has to be filled by promotion, feeder cadre is the post of Assistant Superintendent, Slaughter House. In the writ petition filed by Dr. R. B. S. Tyagi, the respondent MCD filed an affidavit, wherein, it was explained that the said post had been abolished and there is thus no feeder cadre to the promotional post as a consequence thereof. Although, both of them were working as Superintendents, Slaughter House w. e. f. 11. 01. 1995, yet, they were being paid salary of the post of Assistant Veterinary surgeon. ( 2 ) THE writ petition filed by Dr. R. B. S. Tyagi was permitted. In that case decided on 16. 04. 2004, it was held :- "it is obviously a case where the MCD is getting a financial benefit, in that, a person substantively appointed to a post in the lower scale has been made to perform the duties of a higher post for 9 years without the monetary benefits. It is not disputed that the petitioner is discharging all the functions and is shouldering all the responsibilities of the Superintendent, Slaughter House. Whether the petitioner is or is not entitled to be promoted as superintendent, Slaughter House is a different matter but in my opinion the petitioner must be paid salary and other allowances to the post of superintendent, Slaughter House, on which post the petitioner has been working w. e. f. 11. 01. 1995. Directions are issued to the MCD to pay to the petitioner salary and other allowances payable to the post of Superintendent, Slaughter house, which post the petitioner has been admittedly manning since 11. 1. 1995. Needful be done within a period of 6 weeks from today. The MCD would apply its mind and cease to continue functioning in a mindless manner. We cannot have a situation where the vacancies arise to a promotional post but the feeder cadre stands abolished and an ex cadre employee is made to discharge the functions of a cadre post without any monetary consideration. The MCD would apply its mind and cease to continue functioning in a mindless manner. We cannot have a situation where the vacancies arise to a promotional post but the feeder cadre stands abolished and an ex cadre employee is made to discharge the functions of a cadre post without any monetary consideration. " ( 3 ) IN the present writ petition, the petitioner has not pressed relief prayed in prayer "a" that he should be promoted or regularised to the post of superintendent, Slaughter House w. e. f. 11. 01. 1995. He, however, has pressed for prayer "b" wherein it is prayed that the respondent be directed to pay to the petitioner the pay scale applicable to the post of Superintendent, Slaughter house w. e. f. 01. 01. 1996. ( 4 ) I have heard the counsel for the parties. Counsel for the respondent mcd submitted that after the announcement of judgment in the case of Dr. R. B. S. Tyagi the Constitution Bench in case Secretary, State of Karnataka and ors. Vs. Uma Devi and ors. , JT (2006) 4 SCC 420, has brought about the fundamental changes. She drew my attention towards para numbers 36, 39, 40 and 46. She pointed out that at best this Court may order regarding the enhancement of the salary of the petitioner on the date of judgment as was held in the above said case in para 46. The relevant extract is reproduced as follows:- "we are, therefore, of the view that, at best, the Division Bench of the High court should have directed that wages equal to the salary that are being paid to regular employees be paid to these daily wage employees with effect from the date of its judgment. Hence, that part of the direction of the Division Bench is modified and it is directed that these daily wage earners be paid wages equal to the salary at the lowest grade of employees of their cadre in the Commercial taxes Department in Government service, from the date of the judgment of the division Bench of the High Court. " ( 5 ) I am of the considered view that the above said authority is not applicable to the facts of this case. The said authority deals with temporary, casual, daily wager employees. The Apex Court was dealing with irregular appointment specially in the lower rungs of the service. " ( 5 ) I am of the considered view that the above said authority is not applicable to the facts of this case. The said authority deals with temporary, casual, daily wager employees. The Apex Court was dealing with irregular appointment specially in the lower rungs of the service. This is not the question which falls for consideration in this case. The petitioner is a regular permanent employee under the MCD. He has been asked to discharge the functions of a promoted post. He has been asked to perform the duties of a higher post. MCD cannot wriggle out of its responsibility on the specious plea that he is not entitled to that salary because he was not promoted to that post. ( 6 ) THE learned counsel for the petitioner has drawn my attention towards an authority reported in K. T. Veerappa and ors Vs. State of Karnataka and ors. , (2006) 9 SCC 406, wherein it was held:- "16. The defence of the State Government that as the appellants were not the petitioners in the writ petition filed by 23 employees of the respondent university to whom the benefit of revised pay scales was granted by the Court, the appellants are estopped from raising their claim of revised pay scales in the year 1992-94, is wholly unjustified, patently irrational, arbitrary and discriminatory. As noticed in the earlier part of this judgment, revised pay scales were given to those 23 employees in the year 1991 when the contempt proceedings were initiated against the Vice-Chancellor and the Registrar of the university of Mysore. The benefits having been given to 23 employees of the university in compliance with the decision dated 21. 06. 1989 recorded by the learned Single Judge in WPs Nos. 21487-506 of 1982, it was expected that without resorting to any of the methods the other employees identically placed, including the appellants, would have been given the same benefits, which would have avoided not only unnecessary litigation but also the movement of files and papers which only waste public time. " ( 7 ) EQUAL protection means the right to equal treatment in similar circumstances. There should be no discrimination between one person and another if as regards the subject matter of the legislation their position is the same. " ( 7 ) EQUAL protection means the right to equal treatment in similar circumstances. There should be no discrimination between one person and another if as regards the subject matter of the legislation their position is the same. It is settled law that a judicial or quasi-judicial decision cannot offend article 14 of the Constitution of the India. It must be borne in mind that the above said judgment dated 16. 04. 2004 passed by brother Justice Mr. Pradeep nandrajog has attained finality. This is indisputable fact that the facts of both the cases are similar. Both the persons are similarly situated. ( 8 ) IN the result, I allow writ and direct the MCD to pay to the petitioner salary and other allowances as payable to the post of Superintendent, Slaughter house w. e. f. 01. 01. 1996. Needful be done within a period of 6 weeks from today. ( 9 ) CM Nos. 8568/2005 and 9298/2005 are accordingly disposed of. ( 10 ) A copy of this order be given dasti to counsel for the MCD. Counsel for the MCD would ensure that the present order would reach the Commissioner of corporation, Delhi for his consideration and necessary action.