Central Administrative Tribunal - Delhi
Mehak Singh S/O Shri Sital Singh vs Municipal Corporation Of Delhi on 17 February, 2010
Central Administrative Tribunal Principal Bench, New Delhi T.A.No.1180/2009 This the 17th day of February 2010 Honble Shri Shanker Raju, Member (J) Honble Dr. Veena Chhotray, Member (A) Mehak Singh s/o Shri Sital Singh c/o Municipal Employees Union Aggarwal Bhawan Tis Hazari, Delhi ..Applicant (By Advocate: Shri Anuj Agarwal) Versus Municipal Corporation of Delhi Through its Commissioner Town Hall, Chandni Chowk, Delhi ..Respondent (None for respondent) O R D E R
Shri Shanker Raju:
Applicant, a Mali, who is performing the duty of Garden Chaudhary on look after charge by an order passed by the Deputy Director, through this TA, has sought officiating pay for the said post and also a direction to dispense with the trade test for the purpose of regular promotion as Garden Chaudhary.
2. At the outset, the High Court of Delhi in Municipal Corporation of Delhi v. Devinder Narayan & another (CWP-7869/2002) decided on 15.12.2009 taking into consideration the Apex Court decision on officiating pay in Secretary-cum-Chief Engineer, Chandigarh v. Hari Om Sharma & others (Civil Appeal No.5546/1995) decided on 29.4.1998, repelled the claim of Mali officiating as Garden Chaudhary on the ground that he has been asked to shoulder the responsibility of higher post by Assistant Director (Hort.), who is not the competent authority in terms of the recruitment rules.
3. As we find on the arguments of learned counsel for applicant that the issue in the present case is distinguishable, as the Deputy Director, being the competent authority, once deputed the applicant to officiate and shoulder the responsibility of higher post of Garden Chaudhary, he is entitled for the difference of salary.
4. Insofar as the test is concerned, it is stated that having continued for twenty years, it would be unjust for the applicant to compete along with others in a trade test for promotion on regular basis as Garden Chaudhary. It is also stated that the applicant as per the recruitment rules is eligible in all respects.
5. Respondent has not turned up even after the second call. Being an old case, we proceed against the respondent under Rule 16 of CAT (Procedure) Rules, 1987 after perusing the reply of the respondent wherein it is denied that the applicant has been asked to perform the duties by an incompetent authority and no Mali can be appointed against the recruitment regulations without passing the test.
6. On a careful consideration of the rival contentions of the applicant and perusing the reply of the respondent, we are of the considered view that the trade test cannot be dispensed with as it is an inbuilt of the recruitment regulations, which hold the field for considering the feeder category candidate, like Mali, for the post of Garden Chaudhary. However, insofar as the salary for the higher post of Garden Chaudhary is concerned, as we find that a distinguishing feature from Devinder Narayans case (supra) that the applicant has been put to officiate on a higher post on which he continued for long years by the Deputy Director, it is to be asserted whether the competent authority is as per recruitment regulations or not.
7. In the result, we dispose of this TA with a direction to the respondent to examine the claim of the applicant and to determine whether the Deputy Director was the competent authority to put the applicant on officiating basis as Garden Chaudhary. In the event, the Deputy Director is found to be the competent authority, applicant shall be entitled to the difference of salary attached to the post of Garden Chaudhary for the period he had worked, with arrears.
8. It goes without saying that as and when the trade test is conducted, applicant on eligibility shall be allowed to participate and his claim for regular promotion as Garden Chaudhary shall be considered in accordance with rules. The above directions, insofar as the difference of salary is concerned, shall be complied with by the respondent within a period of three months from the date of receipt of a copy of this order. No costs.
( Dr. Veena Chhotray ) ( Shanker Raju ) Member (A) Member (J) /sunil/