Delhi High Court
Shri Rakesh Kumar And Ors. vs Municipal Corporation Of Delhi And Anr. ... on 29 November, 2005
Author: Markandeya Katju
Bench: Markandeya Katju, Madan B. Lokur
JUDGMENT Markandeya Katju, C.J.
1. This writ appeal has been filed against the impugned judgment of the learned single Judge dated 21.4.2004 in a bunch of writ petitions involving common question of law and fact.
2. Heard learned counsel for the parties and perused the record.
3. By the impugned judgment the learned single Judge has dismissed the writ petitions and hence this appeal.
4. The prayer in the writ petition was for a writ of mandamus directing the respondents Municipal Corporation of Delhi (hereinafter referred to as the MCD) to absorb the petitioners in the post of Lower Division Clerk (LDC) in the office of the respondent and for a direction that the petitioners are entitled to the pay scale of LDC from the date they were posted as Toll Tax Collector (TTC) in the Toll Tax Department (TTD) by the MCD on diverted capacity basis on the principle of equal pay for equal work and for arrears of pay.
5. The writ petitioners were employees of the MCD holding Class IV posts in different departments of the MCD. It is alleged that they are graduates and some petitioners have even higher qualifications. They were appointed as class IV employees on different dates and in different years and in different departments of the MCD. All of them have more than 10 years of service on the class IV post and some have even 20 years service, but it is alleged that they have been stagnating as class IV employees since the time of their employment and they have been clamoring for promotion to the post of LDC.
6. It is alleged in para 4 of the writ petition that prior to January 1993 the MCD had a Terminal Tax/Octroi Agency which was however abolished by an Ordinance on 30.1.1993 which deleted the provisions contained in Sections 178 to 183 of the Delhi Municipal Corporation Act.
7. The MCD was hard pressed for revenue and hence it was looking for some more sources of revenue and one such source identified by the MCD was by levying toll tax on entry of all commercial vehicles into Delhi. Staff was required for manning the work of the toll tax department in MCD, but since creation of the posts in the toll tax department and filling them up by following the prescribed procedure would take a long time, it was decided that class IV employees in the MCD may be posted in the new department in 'diverted capacity' and be given the designation of Toll Tax Collector (TTC). It was decided that till the posts in toll tax departments are filled up on regular basis by creation of the posts and filling them up on regular basis in accordance with the rules, the class IV employees who are deputed in 'diverted capacity' may work as TTCs but in their own pay scale. Accordingly 140 such class IV employees having qualification of graduate and above were posted on diverted capacity as TTC vide order dated 7.1.2000, Annexure P3 to the writ petition.
8. The relevant part of the order states:
The following class IV employees who are having qualification graduation or above, working in the departments as shown against the name of each are hereby transferred and posted in the Toll Tax Department, in diverted capacity:-
xxxxxxxx xxxxxxxx xxxxxxxx Further these officials are hereby designated as Toll Tax Collectors (TTCs) and will work in their own pay scales till the posts are filled up on regular basis by way of creation of posts and settlement of Service Conditions of Tool Tax Collectors. The aforesaid officials are directed to report to Deputy Commissioner (Factories/Toll Tax) for further duties in the Toll Tax Department by 10.01.2000 positively. All the Heads of Departments are requested to ensure immediate compliance of this office order, so that the officials are in position by the above said date. In case any of the above officials is not working in the department mentioned against his/her name, then in such a situation the official may be relieved by the department where he/she is working at present. This issues with the approval of the Commissioner Sd/-
(B.L. Sharma) Director (Personnel)
9. Similarly another bunch of 108 class IV employees were transferred by order dated 8.2.2000 and 11.2.2000 in diverted capacity as TTC vide Anneuxre P4. Subsequently also various orders were passed in the years 2000, 2001 and 2002.
10. It is alleged that the TTCs thus appointed in diverted capacity were performing the same duty as those performed by the TTCs in the erstwhile toll tax department of MCD. Hence they were entitled to the same pay scale and benefits on the principle of equal pay for equal work. It is stated that the MCD passed resolutions several time supporting the demands of the TTCs for grant of pay scale of LDC. However, the TTCs thus appointed in diverted capacity were always given the same pay which they were getting as class IV employees.
11. A counter affidavit was filed in the writ petition by the MCD and we have perused the same.
12. In para 3 of the same it is stated that the prayer of the petitioners for absorbing them as LDCs with consequential benefits is not maintainable as it will be contrary to the recruitment rules for the post of LDC. True copy of the recruitment rules is Annexure R1 to the counter affidavit. Annexure R1 states that the post of LDC is a selection post. Only 10% of the posts are to be filled in by promotion on the basis of competitive examination held by the MCD for class IV staff. The remaining 90% vacancies are to be filled up by direct recruitment through the clerks grade examination conducted by the Staff Selection Commission.
13. It is further stated in the counter affidavit that TTCs who are appointed in diverted capacity from the class IV employees had only to issue a pre-printed receipt to the commercial vehicles entering Delhi, and the amount printed on the receipt was to be collected by the TTC. These duties are not similar to the one performed by an LDC.
14. The petitioners were deputed as TTCs in TTD with the condition that they will be designated as TTC till the posts are filled up by way of creation of posts and settlement of service conditions of TTCs.
15. It is further stated in paras 7 to 9 of the counter affidavit that two resolutions were moved in the MCD by Municipal Councillors with the proposal that the demand of TTCs to regularize and promote them as LDCs, and these were referred by the Corporation to the Commissioner for his report. The Commissioner, MCD sent a reply to Shri Rambabu Sharma, Leader of the House that the MCD in the meeting of its Standing Committee held on 1.7.2000 decided in principle to privatize the collection of toll tax. The Commissioner further stated that it would not be feasible to recommend creation of permanent posts of any cadre in the TTD. A copy of the reply is Annexure R2 to the counter affidavit.
16. Subsequently a final decision was taken by the MCD to privatize the work of toll collection and an advertisement was given in the newspapers. Hence the request of the petitioners for regularizing them is not maintainable.
17. It is further stated in para 11 of the counter that there is no post of LDC in the TTD and it has also been decided that no post of any cadre may be created in TTD as the same is being privatized.
18. A rejoinder affidavit has also been filed and we have perused the same.
19. On the facts of the case we find no merit in this appeal. Though we may have sympathy for appellants as they have been stagnating as class IV employees for a long time, we have to decide the case on the basis of law and not on sympathies. As is said 'Dura Lex Sed Lex' which means, "the law is hard but it is the law.'
20. The learned single Judge has in our opinion given a correct decision and we uphold the same. However, we are also adding our own reasoning.
21. There is no doubt that the petitioners were never promoted as LDCs in a regular capacity in accordance with the relevant rules, a copy of which is Annexure R1 to the counter affidavit. They were only sent in 'diverted capacity' from the class IV posts which they were holding and designated as TTCs, although in fact there was no post existing known as TTC. Thus their designation as TTC was a purely ad hoc and casual arrangement and conferred no right on the appellants.
22. It is well settled that a temporary employee has no right to the post vide State of Uttar Pradesh and Anr. v. Kaushal Kishore Shukla .
23. Creation and abolition of posts are a purely executive functions vide P.U. Joshi v. Accountant General, Ahmedabad and Ors. . Hence this court cannot create the post of LDC where none exists. Also we cannot issue any direction that posts of LDCs be created to absorb the petitioners.
24. We cannot also issue any direction to regularize the petitioners as LDC. As already stated above, appointment of LDC has to be done in accordance with the relevant rules which are Annexure R1 to the counter affidavit.
25. The petitioner/appellants have not been able to point out any statutory rule on the basis of which their claim of regularization can be considered. It is well settled that unless there exists some rule for regularization no direction can be issued by this court to consider the claim for regularization of an employee. Regularisation of an employee is an execution function, and it is not appropriate for this court to encroach into the functions of another organ of the State. The courts must exercise judicial restraint in this connection.
26. In Asif Hameed v. State of Jammu & Kashmir AIR 1989 SC 1899, the Supreme Court observed:
17. Before adverting to the controversy directly involved in these appeals we may have a fresh look on the inter se functioning of the three organs of democracy under our Constitution. Although the doctrine of separation of powers has not been recognized under the Constitution in its absolute rigidity but the constitution makers have meticulously defined the functions of various organs of the State. Legislature, executive and judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another. The Constitution trusts to the judgment of these organs to function and exercise their discretion by strictly following the procedure prescribed therein. The functioning of democracy depends upon the strength and independence of each of its organs. The Legislature and executive, the two facets of people's will, have all the powers including that of finance. The Judiciary has no power over the sword or the purse, nonetheless it has power to ensure that the aforesaid two main organs of the State function within the constitutional limits. It is the sentinel of democracy. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The expanding horizon of judicial review has taken in its fold the concept of social and economic justice. While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the self imposed discipline of judicial restraint.
19. When the State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the constitution and if not, the court must strike down the action. While doing so the court must remain within its self imposed limits. The court sits in judgment on the action of a coordinate branch of the Government. While exercising power of judicial review of administrative action, the court is not an appellate authority. The constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the constitution lies within the sphere of the legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers.
27. No doubt in some decisions the Supreme Court has directed regularization of temporary or ad hoc employees but it is well settled that a mere direction of the Supreme Court without laying down any principle of law is not a precedent. It is only where the Supreme Court lays down a principle of law that it will amount to a precedent. Often the Supreme Court issues directions without laying down any principle of law, in which case, it is not a precedent. For instance, the Supreme Court often directs appointment of someone or regularization of a temporary employee or payment of salary, etc. without laying down any principle of law. This is often done on humanitarian considerations, but this will not operate as a precedent binding on the High Court. For instance if the Supreme Court directs regularisation of service of an employee who had put in 3 years' service, this does not mean that all employees who had put in 3 years' service must be regularised. Hence such a direction is not a precedent. In Municipal Committee, Amritsar v. Hazara Singh, , the Supreme Court observed that only a statement of law in a decision is binding. In State of Punjab v. Baldev Singh, , the Supreme Court observed that everything in a decision is not a precedent. In Delhi Administration v. Manoharlal, , the Supreme Court observed that a mere direction without laying down any principle of law is not a precedent. In Divisional Controller, KSRTC v. Mahadeva Shetty, , the Supreme Court observed as follows:
...The decision ordinarily is a decision on the case before the Court, while the principle underlying the decision would be binding as a precedent in a case which comes up for decision subsequently....The scope and authority of a precedent should never be expanded unnecessarily beyond the needs of a given situation. The only thing binding as an authority upon a subsequent Judge is the principle upon which the case was decided....
28. In J & K Public Service Commission v. Dr. Narinder Mohan , the Supreme Court held that the directions issued by the court from time to time for regularization of ad hoc appointments are not a ratio of this decision, rather the aforesaid directions were to be treated under Article 142 of the Constitution of India. The Supreme Court ultimately held that the High Court was not right in placing reliance on the judgment as a ratio to give the direction to the Public Service Commission to consider the cases of the respondents for regularization. In that decision the Supreme Court observed:
11. This Court in Dr. A.K. Jain v. Union of India, , gave directions under Article 142 to regularise the services of the ad hoc doctors appointed on or before October 1, 1984. It is a direction under Article 142 on the particular facts and circumstances therein. Therefore, the High Court is not right in placing reliance on the judgment as a ratio to give the direction to the PSC to consider the cases of the respondents. Article 142 power is confided only to this Court. The ratio in Dr. P.C.C. Rawani v. Union of India , is also not an authority under Article 141. Therein the orders issued by this Court under Article 32 of the Constitution to regularise the ad hoc appointments had become final. When contempt petition was filed for non-implementation, the Union had come forward with an application expressing its difficulty to give effect to the orders of this Court. In that behalf , while appreciating the difficulties expressed by the Union in implementation, this Court gave further direction to implement the order issued under Article 32 of the Constitution. Therefore, it is more in the nature of an execution and not a ratio under Article 141. In Union of India v. Gian Prakash Singh, this Court by a Bench of three Judges considered the effect of the order in A.K. Jain's case and held that the doctors appointed on ad hoc basis and taken charge after October 1, 1984 have no automatic right for confirmation and they have to take their chance by appearing before the PSC for recruitment. In H.C. Puttaswamy v. Hon'ble Chief Justice of Karnataka, , this Court while holding that the appointment to the post of clerk etc. in the subordinate courts in Karnataka State without consultation of the PSC are not valid appointments, exercising the power under Article 142, directed that their appointments as a regular, on humanitarian grounds, since they have put in more than 10 years service. It is to be noted that the recruitment was only for clerical grade (Class-III post) and it is not a ratio under Article 141. In State of Haryana v. Piara Singh, 1992 AIR SC 2130, this Court noted that the normal rule is recruitment through the prescribed agency but due to administrative exigencies, an ad hoc or temporary appointment may be made. In such a situation, this Court held that efforts should always be made to replace such ad hoc or temporary employees by regularly selected employees, as early as possible. Therefore, this Court did not appear to have intended to lay down as a general rule that in every category of ad hoc appointment, if the ad hoc appointee continued for long period, the rules of recruitment should be relaxed and the appointment by regularisation be made. Thus considered, we have no hesitation to hold that the direction of the Division Bench is clearly illegal and the learned single Judge is right in directing the State Government to notify the vacancies to the PSC and the PSC should advertise and make recruitment of the candidates in accordance with the rules."
29. In view of the above observations of the Supreme Court it has to be held that the rules of recruitment cannot be relaxed and the court cannot direct regularization of the temporary or ad hoc appointees de hors the rules.
30. It is well settled that regularization cannot be a mode of appointment vide Manager, RBI, Bangalore v. S Mani and Ors. .
31. In the aforesaid decision the Supreme Court referred to its own earlier decision in A. Umarani v. Registrar, Cooperative Societies and Ors. AIR 2004 SC 4504 wherein it was observed: "Regularisation, in our considered opinion, is not and cannot be a mode of recruitment by any "State" within the meaning of Article 12 of the Constitution of India or any body or authority governed by a Statutory Act or the Rules framed there under. It is also now well-settled that an appointment made in violation of the mandatory provisions of the Statute and in particular ignoring the minimum educational qualification and other essential qualifications would be wholly illegal. Such illegality cannot be cured by taking recourse to regularisation. (See State of H.P. v. Suresh Kumar Verma and Anr. ." The Supreme Court in R.N. Nanjundappav. T. Thimmiah, held :
If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution the illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularisation cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of the rules or it may have the effect of setting at naught the rules."
14. The decision in the case of R.N. Nanjundappa (supra) has been followed by the Supreme Court in several decisions viz. Ramendra Singh v. Jagdish Prasad, 1984 Supp SCC 142; K. Narayanan v. State of Karnataka, , and v. Sreenivasa Reddy v. Government of A.P.. 1995 Supp (1) SCC 572. These decisions have also been noticed by the Supreme Court in Sultan Sadik v. Sanjay Raj Subba, and A. Umarani v. Registrar, Co-operative Societies and Ors., .
32. In view of the above decisions if we direct regularization of the appellants as LDCs that would be in violation of the above decisions of the Supreme Court. When posts of LDC in the toll tax department do not exist surely we cannot direct regularization on such non-existent posts.
33. The LDC post is a selection post and appointments on the post can only be done in accordance with the rules and not by directions of this court. We fully agree with the learned single Judge that merely because the petitioners have the requisite educational qualifications and are eligible to compete in departmental examination for promotion that would not entitle them ipso facto to be regularized as LDC. As regards the appellants claim for pay parity with LDC on the basis of principle of equal pay for equal work, it may be stated that when the petitioners were posted as TTC in diverted capacity it was clearly indicated to them that they will work on their own pay scales and not on the pay scale of LDC.
34. The principle of equal pay for equal work has often been misunderstood and there is a plethora of litigation demanding higher pay on the basis of the principle equal pay for equal work.
35. However it has been clarified by the Supreme Court now in a series of decisions that there are certain settled principles for determining the claim of parity in pay scales on the basis of equal pay for equal work. In recent decisions the Supreme Court has considerably watered down its own earlier decisions as it was realized that a mechanical interpretation of the principle of equal pay for equal work was creating great practical difficulties.
36. In State of Haryana and Anr. v. Tilak Raj and Ors. AIR 2003 SC 2658 the Supreme Court considered the doctrine of equal pay for equal work in the context of daily wagers of the Haryana Roadways. After taking note of a series of earlier decisions the Supreme Court observed:
A scale of pay is attached to a definite post and in case of a daily wager, he holds no post. The respondent workers cannot be held to hold any posts to claim even any comparison with the regular and permanent staff for any or all purposes including a claim for equal pay and allowances. To claim a relief on the basis of equality, it is for the claimants to substantiate a clear cut basis of equivalence and a resultant hostile discrimination before becoming eligible to claim rights on a par with the other group vis-Ã -vis an alleged discrimination. No material was placed before the High Court as to the nature of duties of either categories and it is not possible to hold that the principle of "equal pay for equal work' is an abstract one.
"Equal pay for equal work' is a concept which requires for its applicability complete and wholesale identity between a group of employees claiming identical pay scales and the other group of employees who have already earned such pay scales. The problem about equal pay cannot always be translated into a mathematical formula."
37. In State of UP v.. Ministerial Karamchari Sangh, AIR 1998 Supreme Court 303, Supreme Court observed that even if persons holding the same post are performing similar work but if the mode of recruitment, qualification, promotion etc. are different it would be sufficient for fixing different pay scale. Where the mode of recruitment, qualification and promotion are totally different in the two categories of posts, there cannot be any application of the principle of equal pay for equal work.
38. In State of Haryana v.. Jasmer Singh and Ors, AIR 1997 SC 1788, the Supreme Court observed that the principle of equal pay for equal work is not always easy to apply. There are inherent difficulties in comparing and evaluating the work by different persons in different organizations. Persons doing the same work may have different degrees of responsibilities, reliabilities and confidentialities, and this would be sufficient for a valid differentiation. The judgment of the administrative authorities concerning the responsibilities, which attach to the post, and the degree of reliability expected of an incumbent, would be a value judgment of the authorities concerned which, if arrived at bona fide, reasonably and rationally was not open to interference by the court.
39. In Federation of All India Customs and Excise (recognized) and Ors. v. Union of India and Ors. , the Supreme Court observed:-
In this case the differentiation has been sought to be justified in view of the nature and the types of the work done, that is, on intelligible basis. The same amount of physical work may entail different quality of work, some more sensitive, some requiring more tact, some less-it varies from nature and culture of employment. The problem about equal pay cannot always be translated into a mathematical formula.
40. In the counter affidavit it has been clearly stated that work of the petitioners as TTC was not the same as that of LDC. They were only doing the work of giving pre printed receipts.
41. In view of the above we find no force in this appeal and it is dismissed.