W.P.(C)--5214/2011. Case: DHARAM PAL AND ORS. Vs. DELHI HIGH COURT. High Court of Delhi (India)
| Case Number | W.P.(C)--5214/2011 |
| Citation | NA |
| Judgement Date | July 11, 2014 |
| Court | High Court of Delhi (India) |
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 17.12.2013
Pronounced on : 11.07.2014
+ W.P.(C) 5214/2011, C.M. APPL. 10579/2011 & 6798/2012
DHARAM PAL AND ORS. …..Petitioner Through: Ms. Jyoti Dutt Sharma, Sh. Piyush
Sachdeva and Sh. Rahul Sharma, Advocates.
Versus
DELHI HIGH COURT ……..Respondent Through: Sh. Chetan Lokur, for Sh. Viraj. R.
Datar, Advocate, for DHC.
Sh. Baldev Malik with Sh. Arjun Malik, Advocates, for Resp. No.2.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI
MR. JUSTICE S. RAVINDRA BHAT
%
1. The petitioners, working as peons and Ushers in the Delhi High Court, seek directions to quash the Office Orders dated 16.4.2004 and 14.5.2004 issued by the first respondent, the Delhi High Court (“DHC”) and the Report dated 18.7.2009 of the Committee constituted by the Hon’ble Chief Justice, DHC on 1.7.2009 to consider their
grievances. They claim a writ of mandamus directing the DHC to fix their pay at the pay scale which existed at the time of implementation of the recommendations of the 5th Pay Commission (“5th PC”) i.e. ` 3200-4900/-, and, further a writ of mandamus directing the DHC to grant the benefit of the Assured Career Progression Scheme (“ACP”) in the hierarchy as it existed when the 5th PC recommendations came into effect. The second respondent is the Union of India, through the Secretary, Ministry of Law and Justice, responsible for granting sanction to revised pay scales as proposed by the first respondent, the DHC.
2. The Petitioners were appointed as Ushers, Court Attendants, Gestetner Operator Grade II, Security Attendant, Lawn Attendant, Library Attendant, Sweeper and Farash in the establishment of the DHC.W.P.(C) 3464/1990 was filed before this Court, in 1990 by an Usher in a representative capacity for grant of higher pay scale. By judgment dated, 4.11.1991, that petition was allowed and the 4th Pay
Commission pay scale recommendations were directed to be implemented for Class IV employees. Thus, all Class IV employees of this Court were placed in the pay scale of ` 975-1660/-. Subsequently, an application, C.M. 3715/1993 was filed by some Ushers, Daftries and Book Binders, seeking modification of the judgment in W.P.(C) 3464/1990, on the ground that parity of pay ought to be ensured between the employees of the High Court and the Supreme Court. The Court allowed the application and directed by order dated 10.12.1993, that the following pay scales be implemented for those posts:
` 1000-1750/-
Book Binders (Library
Attendants) and Ushers
Court Attendants, Lawn
Attendants, Peons etc.
3. The 5th PC recommendations were made effective on 1.1.1996 by which all Group D employees (Court Attendants, Ushers, Sweepers, Daftries, Book Binders, law attendants, library attendants etc.) were put on the pay scale of ` 3200-4900/-. This apparent merger of pay scale for all Group D employees into a single scale was, however, not challenged by the Petitioners.
4. It was in this background that a previous writ petition, W.P.(C) No. 740/2003 was filed by some Class III and Class IV employees claiming implementation of the “Assured Career Progression” (ACP) Scheme, introduced on 9.8.1999 by a memorandum of the Department of Personnel and Training by DoPTM No. 35034/1/97-Estt. (D). The Court held in its judgment of 4.11.2003 that despite repeated requests to the Central Government to sanction, what was termed “normal replacement of pay scales” in terms of the 5th PC’s recommendations, the Central Government had not responded. Thus, pending approval of the revised pay scales of the staff of the High Court, the ACP was to be implemented on the basis of the “proposed revised pay scales”.
5. The DHC issued the impugned office orders i.e. Office Order no. 144/Estt/E.IV/DHC and Office Order Endst. No. 222/C-4 Cash DHC on 16.4.2004 and 14.5.2004 respectively, granting the benefit of the 1st and 2nd financial upgradations under the ACP to the Petitioners
` 975-1660/-
in the pay scales of (i) ` 3500-5120/- and (ii) ` 4500-7000/- instead of in (i) ` 4500-7000/- and (ii) ` 5500-9000/-. The petitioners argue that this new scale of ` 3500-5120/-, claimed to be corresponding to ` 1000-1750/- (which was granted pursuant to recommendations of the committee constituted in the judgment in W.P.(C) 3464/1990) was non-existent as it finds no mention in the records of the DHC’s hierarchy of pay scales.
6. Aggrieved by the two office orders, the Petitioners subsequently filed CM no. 11920/2004 in the disposed off W.P.(C) 740/2003 asking for clarification of the judgment dated 4.11.2003 but then withdrew the same. A writ petition W.P. (C) no. 3929/2008 was instead filed before the Delhi High Court praying first, that the impugned orders be quashed as the benefit of the ACP was granted to the Petitioners in a non-existent pay scale, second, that directions be given to the DHC to grant the benefit of the 1st and 2nd financial upgradations in to the next existing pay scales in the hierarchy i.e. (i) ` 4500-7000/- and (ii) ` 5500-9000/-, and third, that arrears from the due dates be granted with 9% interest. The Court by its order of 21.5.2008 directed the Petitioners to approach the administrative side of this Court with a representation, on the disposal of which they were permitted to move the Court if they were aggrieved by such decision. The Court in an application, CM No. 3147/2009 (filed by the Petitioners for clarification of the order dated 21.5.2008) also ordered that their representation should be disposed of within four weeks.
7. Pursuant to the above orders, the Chief Justice of this Court formed a Committee to consider the Petitioners’ grievances. The
Committee gave its report on 18.7.2009 and concluded that the post of Usher was a promotional post, using the following reasoning:
“It was the stand of the Ushers in the Writ Petition No. 3464/1990 that they were promoted from Group D as Ushers. The said stand was accepted by the Division Bench of this Court in the judgment dated 10th December, 1993 wherein it was observed under:
“In reply to this application the Deputy Registrar in his affidavit on behalf of the High Court has admitted and stated that the posts of Usher and Daftri are promotional posts and only Peon, Frash and chowkidar are considered for promotion to the said posts of Ushers and Daftri. It is clear, therefore, that all of these categories cannot be placed in the same scale and it is for this reason that the Supreme Court directed the Usher and Safaiwala to be placed in the higher scale of Rs.1000-1750. In the aforesaid decision the Supreme Court in terms came to the conclusion that the pay-scale of Peon, Farash and Safaiwala of Rs.975-1660 has been fixed as it regarded the said posts as corresponding to the posts of Peon, Farash and Sweeper in the Delhi High Court. As the posts of Peon, Farash and Sweeper of the Delhi High Court have been equated by the Supreme Court with their own employees in the categories of Peon, Farash and safaiwala, it must logically follow that the posts of Usher and Daftri in this Court which is also promotional posts, should be regarded as equal to that of Farash and Safaiwalaa in the Supreme Court and should have the same scales. As the Book-Binder is also in the same category as Usher, Daftri and Jamadar, the pre-revised scale of these being the same it must follow that all of these categories, namely, Daftri, Usher, Jamadar and Book-Binder would be entitled to the pay-scale of
Rs. 1000-1750. We accordingly allow this application and modify the judgment dated 4th November, 1991 in so far as the employees falling in the category of Daftri, Book-Binder, Usher and Jamadar are concerned and we direct that their pay scales should be fixed in the scale of Rs.1000-1750. The pay should be fixed within two months from today and the other directions contained in the judgment dated 4th November, 1991 shall ipso facto apply.”
On the strength of the above reasoning, the Committee recommended that a scale of ` 3500-5120/- ought to be treated as corresponding to the old pay scale of ` 1000-1750/-.
Petitioners contentions
8. The Petitioners submit that the Committee failed to appreciate that the introduction of a pay scale which is non-existent and not sanctioned scale in the 5th PC report, by the DHC unilaterally at the time of the coming into force of the ACP scheme is illegal and prejudicial to their rights. They also argue that the scale of ` 3500-5120/- did not exist even in the pay scales of the Supreme Court and that the Chief Justice of India had used his discretion in fixing the said pay scale of Ushers of the Supreme Court, and thus, such Ushers could not be equated with the Ushers of the High Court 9. It is argued that salaries of Ushers were not being paid in the scale of ` 3500-5120/- since 1.1.1996, contrary to the Committee’s report, but were in fact being paid in the pay scale of ` 3200-4900/- to all Group D employees including Ushers, Daftaries and Book Binders, per the 5th PC recommendations. Only after this Court’s order dated
4.11.2003 was the scale of ` 3500-5120/- introduced. It is submitted that the post of Usher could not possibly have been treated as a promotional post since first, the Committee had noted in the same report that the Ushers/Daftries and Book Binders were given the pay scale of `1000-1750/- because the nature of their duties was more onerous than that of similar employees like peons etc., in CM 3715/93 of WP 3464/1990; second, there are no rules to justify treating the post of Usher as a promotional post from the post of Peon, as can be seen from the service list of Ushers, Court Attendants, Room Attendants, Safaiwalas, Security Attendants, Lawn Attendants, Library Attendants and Photocopy Machine Operators; third, since 2004, no Peon or Court Attendant whose educational qualification is below 8th standard has been made an Usher even though juniors of such employees occupy the said post, thus...
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