Shri Bhim Sain and Anr. v. Delhi Power Company Limited and Ors.

1. There are two petitioners in this writ petition. Therefore, in this writ petition, separate judgments will have to be passed because separate facts are in issue with respect to both the petitioners. Separate arguments by petitioner nos.[1] & 2 have been urged before this Court.

2. The first part of this judgment deals with the arguments of and the reliefs claimed by the petitioner no.2. 2015:DHC:1484

3. At the outset, counsel for the petitioner no.2 concedes that all the reliefs claimed in the writ petition have become infructuous except relief

(d) and which is that the petitioner no.2 claims officiating allowance while working in an officiating capacity at the post of Assistant Legal Officer from 14.7.1998 to 30.4.2002 and on which latter date petitioner no.2 stood regularly promoted to the post of Assistant Legal Officer.

4. I put it to the counsel for the petitioner no.2 whether when the petitioner no.2 was asked to perform the duties and officiate at the post of Assistant Legal Officer, whether there was any appointment letter issued to the petitioner no.2 that he will be paid officiating allowance and also as to whether the Additional General Manager (Administration) of DVB who appointed the petitioner no.2 as Assistant Legal Officer had power to order appointment of petitioner no.2 to hold officiating charge of an Assistant Legal Officer alongwith monetary consequences upon the DVB, and to both the queries counsel for the petitioner no.2 could not show me any rules or circular or provision which entitled the Additional General Manager (Administration) of DVB to make appointment of persons on officiating basis and which carries with it monetary consequences upon the employer/DVB. Therefore, neither the AGM (Administration) had the necessary competence to create posts of Assistant Legal Officer nor Additional General Manager (Administration) had any power to allow appointment of an Assistant Legal Officer on officiating basis with payment of monetary benefits of officiating allowances in the post of Assistant Legal Officer. Surely, monetary liability cannot be fixed on an employer merely because petitioner no.2 chose to officiate on a post and if the argument of the petitioner no.2 is accepted, the same would amount to allowing persons in an organization to act without lawful authority, and then consequently cause monetary liability upon the said employer/organization.

5. Counsel for the petitioner no.2 at the end sought to place reliance upon Fundamental Rule (FR)-49 of the Fundamental Rules and Supplementary Rules (FRSR) to claim that petitioner no.2 is entitled to officiating allowance for the relevant period, however, officiating allowance will have to be paid under FR-49 of FRSR if appointment to the officiating post is legal in the first instance. The appointment of the petitioner no.2 is not legal in the first instance because no power has been shown of the Additional General Manager (Administration) of DVB to make appointments on officiating basis of an Assistant Legal Officer and which appointments were to have monetary consequences upon the DVB.

6. The writ petition qua petitioner no.2 is therefore dismissed.

7. So far as the judgment qua the petitioner no.1 is concerned, the aforesaid discussion also applies so far as the petitioner no.1 is concerned, inasmuch as the petitioner no.1 (who is an Advocate and argued his case in person) has failed to show me any judgment that a person who is appointed without any authority to the post inasmuch as there is no authority to create such post or appoint an employee in such post, then such a person who works on an officiating basis at a post without any legal sanction, can claim monetary benefits by causing imposition of monetary liability on the employer/organization.

8. I may note that this writ petition was dismissed in default on 08.10.2013 and restoration was subject to payment of costs totalling to Rs.10,000/- with a sum of Rs.5000/- to be paid to the Delhi High Court Legal Services Committee and a sum of Rs.5000/- to the respondents, but it is only the petitioner no.2 who has paid the costs for restoration, and therefore the petition was restored. In a way the petition can be said to be restored only qua the petitioner no.2 and not the petitioner no.1 who never moved an application for restoration and only the petitioner no.2 moved an application for restoration. However, since the restoration order dated 11.2.2014 restores the writ petition as a whole, I am overlooking the technical consideration for not hearing the arguments of the petitioner no.1, however, since the petitioner no.1 had not paid any costs, the petitioner no.2 will be entitled to recover 50% of the costs which are paid by the petitioner no.2 from the petitioner no.1.

9. Writ petition qua petitioner no.1 is also dismissed.

FEBRUARY 13, 2015 VALMIKI J. MEHTA, J Ne/KA