Full Text
HIGH COURT OF DELHI
JUDGMENT
YASH PAL SINGH ..... Petitioner
Through: Mr. Anil Singal, Advocate.
Through: Mr. Mukul Singh, CGSC with Ms. Ira Singh, Advocates for respondent/
UOI.
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
1. The present petition is arising out of order dated 10.05.2006, passed in O.A. No. 620/2005 by the Central Administrative Tribunal, Principal Bench, New Delhi, by which the claim of the Petitioner for grant of salary of the post of Data Entry Operator (DEO) for the period w.e.f. 09.09.1998 to 03.04.2006 has been rejected. The facts of the case reveal that the Petitioner before this Court was undisputedly appointed as a watchman on ad hoc basis Digitaaly vide order dated 08.08.1996. His appointment was purely on temporary basis in the pay scale of 750-12-870-14-940. That another order dated 08.09.1998 was issued by the Respondent directing the Petitioner to report on duty on the post of Watchman. The Petitioner thereafter was posted on 13.01.1999 under the Commissioner of Income Tax, Computer Operations.
2. The Petitioner submitted his joining pursuant to the aforesaid order and the Petitioner’s contention is that he was sent for Data Entry Training by an order dated 13.01.1999. The Petitioner has further stated that applications were invited from eligible employees for the post of DEO vide circular dated 24.05.2000. The Petitioner submitted his application for the post of DEO on 07.06.2000 and his post of watchman was regularized on 12.02.2001. The Petitioner’s contention is that post of Watchman was regularized, but he was working as a DEO and an honorarium was also granted to him @ Rs. 1500 every year. One such order granting honorarium to the Petitioner dated 30.03.2001 is on record.
3. The Petitioner has further stated that the Respondents thereafter issued an order of promotion on 31.03.2006, promoting Group C and Group D employees to the post of Tax Assistant (earlier known as Data Entry Operator) and the Petitioner was also promoted to the post of Tax Assistant w.e.f. 03.04.2006 vide order dated 31.03.2006.
4. The Petitioner came up with the grievance before the Central Administrative Tribunal stating that he was holding the substantive post of watchman, however, the Respondents directed him to work as DEO w.e.f. Digitaaly 09.09.1998 till 03.04.2006 and, therefore, he should be paid the pay scale of DEO, i.e. Rs.4000-6000 instead of Rs.2550-3200.
5. A detailed and exhaustive reply was filed by the Union of India before the Tribunal and the Tribunal has dismissed the Original Application preferred by the Petitioner. The operative paragraphs of the Order passed by the Tribunal, dismissing the Original Application as contained in paragraphs 5 to 8 read, as under:
6. Learned Counsel for the Petitioner has vehemently argued before this Court that though the Petitioner was appointed as a Watchman, he is entitled to salary for the post of DEO because he was working as DEO from 09.09.1998 to 03.04.2006 and the factum that he was working as DEO is established from the fact that he was paid an honorarium @ Rs.1500/- per year for the period w.e.f. 09.09.1998 to 03.04.2006. Therefore, denial of higher pay scale of the post of DEO to the Petitioner by the Department and by the Tribunal is violative of Articles 14,16 and 21 of the Constitution of India, and he is entitled for the pay scale of Rs.4000-6000 which is the pay scale of DEO/ Tax Assistant.
7. Learned Counsel for the Petitioner has vehemently argued before this Court that once the Petitioner was performing the same duties and responsibilities as a regularly recruited DEO, Grade A (Tax Assistant), the Digitaaly nature of duty of the Petitioner as a DEO was the same, and the Petitioner could not have been discriminated in the matter of grant of pay scale. Therefore, the order passed by the Tribunal deserves to be set aside and the Respondents deserve a command to pay the salary to the Petitioner for the post of DEO w.e.f. 09.09.1998 to 03.04.2006.
8. Learned Counsel for the Petitioner has also vehemently argued before this Court that the Recruitment Rules provide for promotion for Group D employees to the tune of 25% of the vacancies of Tax Assistant (DEO) and once there is a channel of promotion, the Petitioner should have been treated as a departmental candidate for the purposes of promotion and should have granted the pay scale to the Petitioner with retrospective effect i.e. w.e.f. 09.09.1998 i.e. the date from which he was working as DEO.
9. Heavy reliance has been placed before the Tribunal upon a judgment delivered in the case of Badri Prasad & Ors. v. Union of India & Ors., AIR 2005 SC 2531, V.C. Gupta v. Union of India & Ors., 2002(2) ATJ 261 (Delhi High Court). Further, reliance has been placed on State of Punjab v. Jagjit Singh, (2017) 1 SCC 148 and Sabha Shanker Dube v. Divisional Forest Officer and Others, (2019) 12 SCC 297.
10. This Court has heard learned Counsel for the parties at length and perused the record.
11. The undisputed facts of the case reveal that the Petitioner is a back door entrant in the Income Tax Department and he was appointed purely on a temporary basis by way of an Order dated 08.08.1996. Digitaaly
12. The orders on record reveal that the Petitioner was appointed purely on temporary basis as a Watchman which is a Group D post.
13. The Petitioner has stated that he was posted as DEO by an order dated 08.09.1998 and the same is also on record. The order dated 08.09.1998 nowhere reflects that the Petitioner has been posted as DEO. His post mentioned in the order is Watchman and he has been posted under the Commissioner of Income Tax, Computer Operation. There were other people who were working as Peon and Watchman. They were also posted along with the Petitioner.
14. It is true that the Petitioner was imparted some basic training for DEO and an order is also on record dated 13.01.1999 but the fact remains that the Department later on issued on order regularizing the Petitioner is post as a Watchman in the pay scale of 2550-55-2660-60-3200. The Order dated 12.02.2021, regularizing the Petitioner is reproduced as under: “F.No: P-314/28/Regularistion/W.M./2000-01/ OFFICE OF THE CHIEF COMMISSIONER OF INCOME TAX C.R. BUILDING, I.P. ESTATE, NEW DELHI DATED: 12/2/2001 ORDER NO. / PERSONNEL Sub: REGULARISATION OF WATCHMAN-ORDER-REGARDING Digitaaly The following Watchmen who are working on ad-hoc basis are regularized in the pay scale of Rs.2550-55-2660-60-3200 and such other allowances as may be sanctioned by the Government of India from time to time. This order takes effect from the date of issue.
S.NO NAME OF OFFICIAL D.O.B CAT.
PLACE OF POSTING (S/SHRI) 1 RANJAN KAMBOJ 30.1273 GN CIT(A)-XXVIII 2 GEORGE TOPPAN 05.0571 GN PRO 3 JOHN MATHEW 13.1159 GN PRO 4 KRISHAN PAL SINGH 05.12.65 GN PRO 5 KISHAN CHAND 05.05.70 GN PRO 6 KARAN BIR KARDAN 02.1274 SC DG(INV) 7 DHIRENDER SINGH 10.02.64 GN PRO 8 BHURAJ SING 09.0896 GN PRO 9 S. LAXMI 10.0568 ST ITAT 10 RAJ BABU 09.0872 SC DG(INV) 11 SUSHIL KUMAR SHARMA 15.04.73 GN PRO 12 S. PERIHA SWAMY 25.1155 PRO 13 RAM RAJ 15.0775 GN CBDT Digitaaly 14 VIJAY BAHADUR THAPA 08.10.68 GN ITAT 15 RAM KARAN 01.0159 GN PRO 16 YASHPAL SINGH 27.07.54 GN PRO 17 DHARAM VEER 20.0367 GN PRO This order does not indicate their inter-se-seniority in cadre of Watchmen This issue with the approval of the CCIT, Delhi, New Delhi”
15. The Petitioner was granted Rs.1500/- per month as honorarium by the Department as claimed by the Petitioner but grant of honorarium to the Petitioner was based upon the recommendations of higher officers and grant of honorarium does not mean that the Petitioner was promoted, at any point of time, either on temporary or on ad hoc basis to the post of DEO/ Tax Assistant. The Petitioner was finally promoted to the post of Tax Assistant (earlier known as DEO) by an order dated 31.03.2006 and, therefore, he has been paid the pay scale of Tax Assistant, i.e. Rs.4000-100-6000.
16. The undisputed facts of the case make it very clear that the Petitioner was a back door entrant and was appointed to the post of Watchman, his services were regularized for the post of Watchman and he was later on promoted to the post of Tax Assistant (DEO). The material on record does not establish that the Petitioner has worked as a full-time DEO with the Department. The Department might have made him work as a DEO at some point of time on account paucity of employees for which the Petitioner was Digitaaly suitably compensated by way of payment in the form of honorarium of Rs.1500/ per year. The Petitioner did not protest at any point of time in the matter of grant of honorarium and it is only when he was regularly promoted to the post of Tax Assistant (DEO) in the year 2006, he came up before the Tribunal claiming pay scale of the post of DEO w.e.f. 09.09.1998. The Tribunal was, therefore, justified in dismissing the Original Application preferred by the Petitioner.
17. This Court has carefully gone through the judgments relied upon on the subject of grant of same pay scale. The latest judgment relied upon has been delivered in the case of Sabha Shanker Dube (supra). The issue involved in the aforesaid case was with respect to daily-rated workers employed in Group ‘D’ post in the Forest Department in the State of Uttar Pradesh. The Petitioners in the aforesaid case were claiming the same pay scale which was granted to their counterparts working on regular posts. The Writ Petition was dismissed by the learned Single Judge and, thereafter the Division Bench has also dismissed the appeals preferred by the dailywagers. The daily-wagers finally came up before the Hon’ble Supreme Court and the Hon’ble Supreme Court taking into account the judgment in the case of Jagjit Singh (Supra) has allowed the SLP and has directed grant of minimum of pay scales to the daily wagers. Paragraphs 9 to 14 of the judgment passed by the Hon’ble Supreme Court read as under: “9. The daily-wagers relied upon a judgment of this Court in Putti Lal [State of U.P. v. Putti Lal, (2006) 9 SCC 337: 2006 SCC (L&S) 1819] and submitted that the same relief may be extended to them. It is relevant to note that the judgment in Putti Lal [State of U.P. v. Putti Lal, (2006) 9 SCC 337: 2006 Digitaaly SCC (L&S) 1819] relates to a dispute similar to that involved in this case. Daily-rated wage earners in the Forest Department in the State of Uttar Pradesh approached the High Court for regularisation of their services. The Division Bench of the High Court of Allahabad directed the State Government to constitute the Committee as directed in order to frame the scheme for regularisation. The judgment of the High Court that the dailyrated wage workers shall be paid at the minimum of the pay scales was affirmed by this Court on the principle of equal pay for equal work. The Division Bench of the High Court while deciding State of U.P. v. Chhiddi [State of U.P. v. Chhiddi, 2015 SCC OnLine All 9087: (2016) 1 All LJ 226] referred to the judgment in Putti Lal [State of U.P. v. Putti Lal, (2006) 9 SCC 337: 2006 SCC (L&S) 1819] but placed reliance on a later judgment of this Court in Tilak Raj [State of Haryana v. Tilak Raj, (2003) 6 SCC 123: 2003 SCC (L&S) 828]. The Division Bench of the High Court also cited Surjit Singh [State of Punjab v. Surjit Singh, (2009) 9 SCC 514: (2009) 2 SCC (L&S) 696] to hold that the daily-wagers cannot seek the benefit of the judgment of Putti Lal case [State of U.P. v. Putti Lal, (2006) 9 SCC 337: 2006 SCC (L&S) 1819] in view of the subsequent decisions of this Court wherein, according to the High Court, it was held that daily-wage employees were not entitled to the minimum of the pay scales.
10. On a comprehensive consideration of the entire law on the subject of parity of pay scales on the principle of equal pay for equal work, this Court in Jagjit Singh [State of Punjab v. Jagjit Singh, (2017) 1 SCC 148: (2017) 1 SCC (L&S) 1] held as follows: (SCC p. 223, para 58)
11. The issue that was considered by this Court in Jagjit Singh [State of Punjab v. Jagjit Singh, (2017) 1 SCC 148: (2017) 1 SCC (L&S) 1] is whether temporary employees (dailywage employees, ad hoc appointees, employees appointed on casual basis, contractual employees and likewise) are entitled to the minimum of the regular pay scales on account of their performing the same duties which are discharged by those engaged on regular basis against the sanctioned posts. After considering several judgments including the judgments of this Court in Tilak Raj [State of Haryana v. Tilak Raj, (2003) 6 SCC 123: 2003 SCC (L&S) 828] and Surjit Singh [State of Punjab v. Surjit Singh, (2009) 9 SCC 514: (2009) 2 SCC (L&S) 696], this Court held that temporary employees are entitled to draw wages at the minimum of the pay scales which are applicable to the regular employees holding the same post.
12 In view of the judgment in Jagjit Singh [State of Punjab v. Jagjit Singh, (2017) 1 SCC 148: (2017) 1 SCC (L&S) 1], we are unable to uphold the view of the High Court that the appellants herein are not entitled to be paid the minimum of the pay scales. We are not called upon to adjudicate on the rights of the appellants relating to the regularisation of their services. We are concerned only with the principle laid down by this Court initially in Putti Lal [State of U.P. v. Putti Lal, (2006) 9 SCC 337: 2006 SCC (L&S) 1819] relating to persons who are similarly situated to the appellants and later affirmed in Jagjit Singh [State of Punjab v. Jagjit Singh, (2017) 1 SCC 148: (2017) 1 SCC (L&S) 1] that temporary employees are entitled to minimum of the pay scales as long as they continue in service. Digitaaly
13. We express no opinion on the contention of the State Government that the appellants are not entitled to the reliefs as they are not working on Group „D‟ posts and that some of them worked for short periods in projects.
14. For the aforementioned reasons, we allow these appeals and set aside the judgments of the High Court holding that the appellants are entitled to be paid the minimum of the pay scales applicable to regular employees working on the same posts. The State of Uttar Pradesh is directed to make payment of the minimum of pay scales to the appellants with effect from 1-12- 2018.”
18. In the considered opinion of this Court, the judgment delivered in the aforesaid case does not help the Petitioner in any manner. The Petitioner who is a back door entrant was appointed as a Watchman. His post of Watchman was regularized and he has, at no point of time, challenged his regularization order dated 12.02.2001. The order regularizing his post as Watchman was never subjected to judicial scrutiny and the Petitioner accepted the order regularizing his post of Watchman with open eyes and, therefore, he was rightly granted the pay scale of Rs.2550-55-2660-60-3200.
19. In the considered opinion of this Court, the judgment delivered in the case of Sabha Shanker Dube (supra) does not help the Petitioner in any manner. He was appointed to the post of Watchman which was subsequently regularized and his substantive post was of Watchman. Therefore, once he was holding the post of Watchman, the question of granting him the pay scale of the post of Tax Assistant/ DEO, in the peculiar facts and circumstances of the case do not arise. Digitaaly
20. This Court does not find any reason to interfere with the order passed by the Tribunal and the writ petition is, accordingly, dismissed. (SATISH CHANDRA SHARMA)
CHIEF JUSTICE (SUBRAMONIUM PRASAD)