on Civil No3 of 1990 etc
Under Article 32 of the Constitution of India
KTS Tulsi Addl
Solicitor General MK Ramamurthy Govinda Mukhoty and N Santosh Hegde Ms C Ramamurthi MA Krishna Moorthy MA Chinnaswamy H Subramaniam Ms CM Chopra A Bhattacharjee GS Chatterjee HK Puri MP Jha Serva Mitter RK Maheshwari Vineet Maheshwari Ms Niranjan Singh BD Prasad K Swamy and BK Prasad for the appearing parties
The Judgment of the Court was delivered by KASLIWAL J
All these cases are an upshot of the case RD Gupta  Ors
vs Lt Governor Delhi Administration  Ors
  It is not necessary for us to give the background and history of the constitution of the two main civic bodies namely New Delhi Municipal Committee in short MDMC  and the Municipal Corporation of Delhi in short MCD  in the Union Territory of Delhi as the same has already been mentioned in detail in the above RD Gupta s case supra
We would thus mention only such details which are relevant and necessary for the purpose of deciding the above cases
All the above cages relate to the employees of the NDMC who are claiming the benefit of the report of Shiv Shankar Committee in short SSC  in respect of the grant of pay scales 416 as allowed to other employees of NDMC in RD Gupta s case
The Government accepted the report of the Third Pay Commission and granted pay scales as recommended to the employees of NDMC as well as to the MCD
The technical staff of the Delhi Electricity Supply Undertaking in short DESU  claimed higher scales of pay as they were not satisfied with the pay scales recommended by the Third Pay Commission
The Government therefore constituted Shiv Shankar Committee to go into the question of revision of pay scales of the technical staff of DESU
The SCC submitted its report in 1973 according to which higher pay scales were allowed to the technical staff of DESU
The non technicalministerial staff of DESU who were not covered by the report of the SSC demanded that they should also be granted pay scales as recommended by the SSC
The DESU considered the demand of the ministerial staff at its meeting held in May 1973 and decided to revise the pay scales of the non technical staff also working in DESU
Since the technical as well as the ministerial staff working in the DESU were granted the pay scales recommended by SSC the NDMC also
by its resolution No154 dated 19101973 allowed the benefits of pay scales as recommended by SSC to its staff working in the electricity wing
In view of the fact that the benefit of the SSC pay scales was granted by the NDMC to the ministerial staff working in the electricity wing only the employees working in the general wing of the NDMC also raised a demand for granting them also the benefit o f the pay scales recommended by SSC
Many orders were passed from time to time and writ petitions Were also filed by the concerned parties but we do not think it necessary to give the details as the same have been narrated in RD Gupta s case and we come to the resolution of the NDMC dated 2761978 constituting the electricity wing with effect from 151978 or such subsequent date as may be fixed composed of 28 posts of pump drivers two posts of welders three posts of carpenters and one post of pump
mechanic and 496 posts of ministerial staff and to give all of them scales of pay as per SS Committee Report
Three petitions under Article 226 of the Constitution viz CW Nos
1231 557 and 280 of 1978 were filed in the Delhi High Court
We are only concerned with the grievance of the ministerial staff who were claiming to be treated at par with the ministerial staff of the electricity win in the matter of pay and allowances
The ministerial staff in the general wing having not received the full relief in the High Court filed CA 2969 of 1973 417 before this Court
It was claimed in the said appeal that instead of restricting the payment of SS Committee pay scales to the 496 ex cadre posts in the electricity wing and directing the NDMC to fill up those posts on the basis of seniority cum option the High Court should have directed the NDMC to give the SS Committee pay scales to all the members of the ministerial staff
In RD Gupta s case this Court decided many appeals by a common order but we are only concerned with the CA No 2969 of 1983 which relates to the ministerial staff in the general wing of the NDMC
It was contended by the appellants in the said appeal that the electricity wing of the NDMC was not a distinct and independent unit entitled to have its own scales of pay and secondly the ministerial staff of the NDMC belonged to a unified cadre and the staff members were liable to transfer from one branch of the NDMC to another and as such the NDMC cannot create a cadre within a cadre and fix different scales of pay for those in the carved out cadre
It was also urged that the nature of the duties performed by the ministerial staff in all the three wings of the NDMC is more or less similar if not identical and hence the well established rule of equal pay for equal work  should govern the staff members
This Court in RD Gupta s case held that the grievance of the ministerial staff of the general wing was well founded
The ministerial staff in the NDMC constituted a unified cadre
The recruitment policy for the selection of the ministerial staff is a common one and the recruitment is also done by a common agency
They are governed by a common seniority list
The ministerial posts in three wings of the NDMC viz the general wing the electricity wing and the water works wing are interchangeable posts and the postings are made from the common pool according to administrative convenience and exigencies of service and not on the basis of any distinct policy or special qualifications
It was held that it would be futile to say that merely because a member of the ministerial staff had been given a posting in the electricity wing either due to force of circumstances or due to voluntary preferment he stands on a better or higher footing or in a more advantageous position than its counterparts in the general wing
It was thus held that all sections of the ministerial staff should be treated alike and all of them were entitled to the same scales of pay for the work of equal nature done by them
After the above decision in RD Gupta s case the employees of NDMC working in different departments have filed the above writ petitions under Article 32 of the Constitution or Civil Miscellaneous Petitions in 418 RD Gupta s case which have been directed by this Court to be treated as Writ Petitions by order dated 17111989
In all these cases the employees have prayed for granting the same pay scales including the ex gratia benefits as was recommended by SSC
Writ Petition No1 of 1990 has been filed by NDMC Workship Employees Association on behalf of the employees of Auto Workship of NDMC
In Writ Petition No5 of 1990 the petitioners are Class IV employees of NDMC holding the posts of Duplicating Machine Operators and GunmenDog Shooters
In Writ Petition No3 of 1990 the petitioners were initially appointed as Junior Clerks and subsequently promoted to the posts of Junior Technical Assistants Hindi also knows as Translator Hindi
In Writ Petition No13 of 1990 the petitioner is working on the post of Assistant Store Keeper
In Writ Petition No292 of 1990 the petitioners are pump drivers in the water supply horticulture and civil wings of NDMC
In Writ Petition No1109 of 1990 the petitioners are the employees of Junior Navyug School run by NDMC
In Writ Petition No409 of 1990 the petitioners are working as Telephone Operators under the NDMC
The short controversy to be decided in the above cases is whether the petitioners fall within the cadre of ministerial staff or fall in similar cadres which have already been granted the benefit of SSC pay scales It is no longer in controversy now that the ministerial staff working in all the wings are also entitled to the same benefit of SSC pay scales as has been given to the ministerial staff working in the electricity wing of the NDMC
It has already been decided in RD Gupta s case that the entire ministerial staff in the NDMC constitutes a unified cadre
The ministerial post in the three wings of the NDMC viz the General Wing the Electricity Wing the the Water Works Wing are interchangeable posts and the postings are made from the common pool according to administrative convenience and exigencies of service and not on the basis of any distinct policy or special qualifications
It may be further noted that the NDMC itself in order to extend the benefit of RD Gupta s case in a meeting dated 961988 resolved as under IMPLEMENTATION OF BENEFIT OF SS SCALE SLP
11270 OF 1982 SHRI RD GUPTA 419 AND OTHERS VERSUS LG
DELHI AND OTHERS
The Committee as per the advice of the Law Deptt
and the opinion given by our counsel justice VD Mishra on 2621988 had decided that following categories of employees who constitutes 496 posts created by the
NDMC while forming the Electricity Cell vide Reso
passed on 2761978 should be extended the benefits 1
Office Supdt
HAAccountant 3
Personal Asstt
Clear 5
Stenographers 6
Jr Clerk 7
Asstt
Storekeepers 8
Adrema Operators 9
Asstt
Adrema Operators 10
Asstt
Record Keepers 11
Daftry 12
Peon 13
Bill Collector 14
Sorter 15
Ferro Printer 16
Chowkidar 17
Sewerman 18
Sweeper Accordingly the Committee passed orders to extend the benefits vide orders dated 2621988 to all the above 420 categories
These employees have already been paid a part of the arrears and salaries under SS Scale
The CAP while checking the pay fixation have required a formal resolution of the Committee for processing the cases
Accordingly this is noted to the Committee for information in continuation of Reso
No26 dated 921988
ADMINISTRATOR S DECISION Information noted
 By another order dated 2771988 the benefit of SS Committee s scales was extended to the following cadre of employees NEW DELHI MUNICIPAL COMMITTEE DATED 2771988 OFFICE ORDER Under the orders of the Administrator dated 1871988 the following allied categories of sweepers are extended the benefit of SS Scales in terms of Reso
No26 dated 921988 read with Reso
No52 dated 961988 as they form the common cadre of sweepers
Lorry Belders 2
Dumping ground beldars 3
Bhisties 4
Rat catchers 5
Verandha Beldars 6
Hawker Raid Van beldars 7
Sweepers cum chockidars 8
Dog catchers
Sd Asstt
Health 421 Copy to 1
All Estts
 with the request to fix the pay of the above mentioned categories in the SS Scales
DS E 3
AS AIC 4
PA to Secy
NDMC 5
CA0
OS CBS 7
Supdt
ACs 8
File 9
PA to FA 10
OS CE 1 The case is laid before the Committee of Officers presided over by the Administrator for consideration and decision if the benefit of Supreme Court Judgment dated 781987 be extended to all the Drivers in anticipation of the approval of the Lt Governor Delhi and in the anticipation of the confirmation of the Minutes of the Committee
ADMINISTRATOR S DECISION Resolved by the Committee of Officers and decided by the Administrator that benefit of Supreme Court judgment dated 7th Aug 87 is extended to all the Drivers of the Committee in the anticipation of the approval of the LG Delhi
The action be taken in anticipation of confirmation of the minutes of the Committee  In Writ Petition No1 of 1990 the contention of the petitioners is that they are employees working in the Auto Workshop of NDMC which is a part and parcel of the electricity establishment and their duties are mini  sterial in nature
It has been further contended that the Auto Workshop  422 employees have to work throughout on the ground beneath the vehicles belonging to all departments whether it belongs to electricity water or the administrative staff and they have to work for such time till a vehicle is fit for traffic and have to maintain the vehicle not only for administrative staff but also for the electrical health water etc
It has been further urged that Auto Workshop employees are part and parcel of electrical wing and their appointments promotions pension salaries increments transfers main tenance of personal filing is done by the electricity establishment
Moreover their services are inter transferable such as drivers cleaners helper peon chowkidar sweepers fitters khalasis working in the Auto Workshop can be and are transferred to other departments
It has also been urged that a discriminatory treatment has been given in the case of the petitioners inasmuch as a fitter which is a promotional post from amongst peon or chowkidar or sweeper is getting less pay scale than the peon or chowkidar and likewise clearner which is a promotional post is getting less pay scale than a chowkidar peon and sweeper
We find force in the submission of the petitioners
As already mentioned above the benefit of the pay scales recommended by the SSC has been allowed to the NDMC to the 18 categories of employees which includes daftry peon chowkidar sweeper etc
and we find no valid justification for discriminating the employees of the Auto Workshop which forms a part and parcel of the electricity wing of the NDMC
In Writ Petition No5 of 1990 the petitioners are Class IV employees of NDMC holding posts of Duplicating Machine Operators and GunmenDog Shooters
Needless to say that NDMC has allowed the benefit of SS Committee s scales to Rat Catchers and Dog Catchers vide order dated 2771978 as already quoted above and we find to valid justification for denying such benefit to Duplicating Machine Operators and GunmenDog Shooters
When such benefit has been allowed to Rat Catchers and Dog Catchers there is no essential difference in the job work done by GenmenDog Shooters
The Duplicating Machine Operators are also Class IV employees and such post is transferable and interchangeable from other Class IV employees of the NDMC who have already been granted the benefit of SSC s pay scales vide order dated 961988 already mentioned above
In Writ Petitoin No3 of 1990 the petitioners are working as Junior 423 Technical Assistants Hindi and are also known as Translator Hindi
In Writ Petition No13 of 1990 the petitioner is working on the post of Assistant Store Keeper
Both the above posts of Junior technical Assistants Hindi and Assistant Store Keeper are such posts which clearly fall within the ministerial cadre
Learned counsel appearing for the NDMC was unable to show any material on record for taking a contrary view
In Writ Petition No292 of 1990 the petitioners are pump drivers employed in the water supply horticulture and civil wings of NDMC
The benefit of SSC pay scales has already been extended to the pump drivers in the electricity wing and there in no valid ground or justification to deny such benefit to the pump drivers working in the water supply horticulture and civil wings of NDMC
In Writ Petition No1109 of 1990 the petitioners are the employees of Junior Navyug School run by NDMC
In our view the employees of the school though run by NDMC fall in a different cadre altogether and as such cannot claim the benefit of SSC pay scales on the basis of RD Gupta s Judgment
It is not their case that their posts are interchangeable or transferable from any other post under NDMC
The nature and the duties performed by the petitioners are totally different and they cannot be granted the benefit of the SSC pay scales on the basis of any equality with the other employees of NDMC who have been granted such benefit
In Writ Petition No409 of 1990 the petitioners are working as Telephone Operators
The Telephone Operators fall in a separate cadre and their posts are neither interchangeable nor transferable with the other members of the service in NDMC
That apart the petitioners are Trained Telephone Operators and Senior Telephone Operators and as such do not fall within the category of ministerial staff and  as such are not entitled to the benefit of SSC pay scales on the basis of RD Gupta s case
In the above cases we are only concerned with the granting of benefit of SSC pay scales on the basis of RD Gupta s case and as such we are holding that the petitioners working in the Navyug School in Writ Petition No1109 of 1990 and Telephone Operators in Writ Petition No 409 of 1990 are not entitled to the benefit of the SSC pay scales
These petitioners are free to make their claim if any for the revision of their pay scales to the competent authorities
424 In the result we allow Writ Petition Nos 1 3 5 13 and 292 of 1990 and grant them the benefit of SSC pay scales in the same manner as granted to other employees vide Resolution No26 dated 921988 read with Resolution No52 dated 961988
The respondent Delhi Administration and NDMC shall take appropriate steps within three months of the notice of this order and make payment of the entire arrears and grant future benefit in the pay scales as recommended by SS Committee
The Writ Petition Nos1109 of 1990 and 409 of 1990 are dismissed
No order as to costs


Summary:
The appellant a foreign national was convicted by the trial court under Section 20bii of the and sentenced to undergo ten years  rigorous imprisonment and to pay a fine of one lakh rupees and in default to further undergo rigorous imprisonment for six months
According to the prosecution two cylindrical pieces of charas weighing 7 gms
and 5 gms
respectively were seized from the appellant by a Police Patrol Party and on chemical analysis of one of the pieces it was found that the substance contained charas
The trial court relying on the evidence of PW 1 Junior Scientific Officer of the Director of Health Services who examined the substance PW 2 a panch witness and PW 3 the Police Inspector who was heading the Patrol Party convicted the appellant
The High Court dismissed the appellants appeal
In the appeal before this Court on behalf of the appellant it was contended that both the courts below had erred in holding that the accused was found in possession of 12 gins
of Charas since only a small quantity ie less than 5 gms had been sent for analysis the remaining part of the substance which had not been sent for analysis could not be held to be also Charas and therefore the quantity proved to have been in the 338 possession of the accused would be small quantity as provided under Section 27 of the Act and the accused should have been given the benefit of that Section
On behalf of the State it was submitted that there was no need to send the entire quantity for chemical analysis and the fact that one of the pieces which was sent for analysis had been found to contain Charas the necessary inference would be that the other piece also contained Charas and that at any rate since the accused had totally denied he could not get the benefit of Section 27 as he had not discharged the necessary burden as required under the section
Disposing of the appeal this Court HELD11
In the absence of positive proof that both the pieces recovered from the accused contained Charas only it is not safe to hold that 12 gms
of Charas was recovered from the accused
In view of the evidence of PW 1 the prosecution has proved positively that Charas weighing about 4570 gms
was recovered from the accused
342C 12In general possession of any narcotic drug or psychotropic substance has been prohibited by Section 8 of the and any person found in possession of the same contrary to the provisions of the Act or any rule or order made or permit issued thereunder is liable to be punished as provided thereunder to imprisonment for a term not less than 10 years and a fine not less than Rs 1 lakh
However Section 27 is an exception whereby lesser punishment is provided for illegally possessing any smaller quantity  for personal consumption of any narcotic drug or psychotropic substance
By virtue of the notification issued on 141185 under Explanation 1 of the Section 5 gms or less quantity of Charas has been specified by the Central Government to be the small quantity
343E F 344B 13
In the instance case the prosecution has proved that the quantity seized from the accused was less than 5 gms
Therefore it is within the meaning ofsmall quantity  for the purpose of Section 27
344C 14
No doubt as Section 27 lays down the burden is on the appellant to prove that the substance was intended for his personal consumption As to the nature of burden of proof that has to be discharged 339 depends upon the facts and circumstances of each case
Whether the substance was intended for personal consumption or not has to be examined in the context in which this exception is made
344D 15
The accused though in general has taken a plea of denialbut his examination under Section 313 Cr
PC by the Magistrate reveals that there was a plea that it was meant for his personal consumption
The trial court has also noted in its judgment that the accused had made an application stating that the piece said to have been recovered from him was less than 5 gms and not 12 gms
as alleged
The prosecution case itself shows that he was having this substance in a pouch alongwith a chillum smoking pipe and smoking material
The averments made by the appellant in the application and as extracted by the trial court would themselves show that it was meant for his personal consumption
The surrounding circumstances under which it was seized also confirm the same
344E G 16The appellant is a foreigner and as a tourist appears to have carried this substance for his personal consumption
No doubt the menace of trafficking in narcotic drugs and psychotropic substance has to be dealt with severely but in view of the provisions of Section 27 it cannot be held that the small quantity found with the appellant was not meant for his personal consumption
Therefore the appellant is liable to be punished as provided under Section 27 of the Act
344G H 345A 17Accordingly the conviction of the appellant under Section 20bii of the Act and sentence of 10 years  RI are set aside and he is convicted under Section 27 of the Act and sentenced to undergo 6 months  RI and to pay a fine of Rs 1 lakh in default of payment of which to further undergo 6 months  RI 345C