Mahender Pal & Ors. v. The Lt. Governor and Ors.

1. This writ petition is filed by 45 petitioners. Eight petitioners out of the total of 45 petitioners being petitioner Nos.2, 5, 8, 10, 11, 15, 19 and 20 have expired and their legal heirs have not been brought on record. With respect to these petitioners the petition is dismissed as abated. Writ petition survives qua the other petitioners. I must also note that some of the petitioners have retired and who continue to press for the reliefs in this petition.

2. Petitioners are employees of respondent No.2-society, namely, 2013:DHC:1461 Delhi Society for Prevention of Cruelty to Animals. Respondent No.2 is a society registered under the Societies Registration Act, 1860. Petitioners were employed as Constables and thereafter they were subsequently promoted to Assistant Sub Inspector (ASI). The petitioners by means of this writ petition seek directions that they should be paid salaries by respondent No.2 as per the recommendations of the fourth pay commission.

3. The recommendations of any pay commission have to be adopted and accepted by an organization before the same are implemented. Admittedly, nothing has been filed on record as to how the respondent No.2 has adopted the recommendations of payment in terms of fourth pay commission for its employees. Every organization has certain financial constraints, and also the issue of salaries to be given will have to be as per the qualifications, functions and other aspects related to the jobs. Merely because Central Government adopts a pay commission report, every organization related to the Central Government cannot be given benefit of the pay commission report. In the present case, not only there is no order accepting the recommendations of the fourth pay commission report by the respondent No.2, the respondent No.2 is not an organization related to the Central Government but is an organization under the Government of NCT of Delhi.

4. A reading of the writ petition, and as per the arguments as advanced on behalf of the petitioners in this case, three issues have been urged:-

(i) Petitioners should be given equivalence of pay to similarly placed employees (viz ASIs) in the Delhi Police because the petitioners are also ASIs. Petitioners thus pray that they must get pay scales equal to ASIs of the Delhi Police.

(ii) The second argument urged is that some of the employees of the respondent No.2 are being given the pay scales as per fourth pay commission, and therefore petitioners should not be discriminated against and should also be granted salaries as per the fourth pay commission report.

(iii) The third argument is that respondent No.2 has already adopted the recommendations of the fourth pay commission, but since the recommendations with lower scales have been accepted only w.e.f. 16.10.1987, actually the lesser pay scales granted should have been implemented from an earlier date being 1.1.1986.

5. So far as the first argument that petitioners must be treated as equivalent to ASIs of the Delhi Police, the case pleaded is really a case of claiming equal pay for equal work. Before succeeding in the claim of equal pay for equal work, it is necessary for the petitioners to show as to how their qualifications, scope of duties, hierarchy structure for promotion etc are same as those of ASIs in the Delhi Police. In the writ petition, however it is not at all mentioned as to what are the qualifications of the petitioners and how they are the same as those of ASIs of Delhi Police. Also except for mentioning equivalence of certain powers under the Delhi Police Act, and with respect to working hours, there are no details given as to how the scope of duty of an ASI in the Delhi Police is the same as that of the petitioners. Further no ground work is laid out in the petition as to how promotion structure of ASIs of respondent No.2 viz the petitioners is the same as the promotion structure for ASIs in Delhi Police. Accordingly, since no proper cause of action is laid out by making necessary averments for claiming equal pay for equal work, petitioners cannot be treated as equal to ASIs of the Delhi Police.

6. The second argument which is urged on behalf of the petitioners is that some members of clerical staff of the respondent no.2 are being given salaries as per the report of fourth pay commission and therefore the petitioners should also be given the same. To this aspect, in its counter affidavit, the respondent No.2 has stated that what has been done is that the pay scales have been revised but they have not been upgraded to the level as given by the fourth pay commission report. Though I wish the counter affidavit was worded better, counsel for the respondent No.2 states that really what is meant is that there has been upgradation of the pay structure of the petitioners as also other clerical staff of respondent No.2, however not to the same level as recommended by the fourth pay commission. I may also note that petitioners have not filed any document as to how three clerical employees of respondent No.2 are getting their pay by adopting the report of fourth pay commission. If that was so, that some desired staff was getting salaries as per fourth pay commission report then surely there would have been an office order of the respondent No.2 and which could have been filed by the petitioners, but obviously since there is no office order directing implementation of the fourth pay commission report with respect to the clerical staff, no such order has been filed. This argument of the petitioners is also therefore misconceived and rejected.

7. So far as the third argument is concerned the same is really an acceptance by the petitioner of the fact that partly the report of fourth pay commission has been accepted by the respondent No.2. This stand really destroys their case that the petitioners have not been given increase of pay after the report of the fourth pay commission. The final argument urged on behalf of the petitioners is that though the petitioners have got certain benefits pursuant to the fourth pay commission report, and the respondent No.2 has revised the salary structure though at a lower scale, actually the revision should be implemented not from 16.10.1987 but earlier from 1.1.1986. To this aspect, I must note that no legal right exists in favour of the petitioners for implementation of a report of a pay commission only from a particular date because it is surely the decision of an organisation as per its financial conditions and the service nature and conditions of employees as to whether a pay commission report should be accepted wholly or partly, and from which date. I note that respondent No.2 in the counter affidavit in para 23 has categorically stated that petitioners have been given appropriate benefits by partly adopting the fourth pay commission report from 1.1.1986. This third issue argued has therefore no basis and is rejected.

8. In view of the above, there is no merit in the writ petition which is accordingly dismissed, leaving the parties to bear their own costs.

VALMIKI J. MEHTA, J MARCH 18, 2013