Delhi High Court

North Delhi Municipal Corporation vs Sh. Jaivinder Singh on 4 July, 2024

Author:
Chandra Dhari Singh

Bench:
Chandra Dhari Singh

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on : 15th May, 2024
Pronounced on: 4th July, 2024

+ W.P.(C) 2990/2017 & CM APPL. 13095/2017
EAST DELHI MUNICIPAL CORPORATION ..... Petitioner
Through: Mr.Kumar Rajesh Singh, Advocate

versus

SIROMAN SINGH ..... Respondent
Through: Mr.__, Advocate (Appearance not
given)

+ W.P.(C) 10674/2021 & CM APPL. 32911/2021
NORTH DELHI MUNICIPAL CORPORATION ..... Petitioner
Through: Ms.Namrata Mukim, Standing
Counsel for MCD

versus

SH. RAJBIR SINGH & ANR. ..... Respondents
Through: Ms.Aakanksha Kaul and Mr.Satya
Sabharwal, Advocates for UOI

+ W.P.(C) 14028/2021 & CM APPL. 44258/2021
EAST DELHI MUNICIPAL CORPORATION ..... Petitioner
Through: Mr.Kumar Rajesh Singh, Advocate

versus

ANAND PAL ..... Respondent
Through: Mr.__, Advocate (Appearance not
given)

+ W.P.(C) 6044/2017

Signature Not Verified
W.P.(C) 2990/2017 & 32 other connected matters Page 1 of 77
Digitally Signed
By:DAMINI YADAV
Signing Date:08.07.2024
17:18:19
SOUTH DELHI MUNICIPAL CORPORATION ..... Petitioner
Through: Mr.Rajan Tyagi, Ms.Vijeta
Mukherjee, Mr.P.R. Wadhwa and
Mr.Samar Partap Singh, Advocates
versus

ASHOK KUMAR & ANR ..... Respondents
Through: Ms.Urvi Mohan, Advocate for
GNCTD

+ W.P.(C) 8891/2019 & CM APPL. 36675/2019, CM APPL.
1039/2020, CM APPL. 8516/2020, CM APPL. 14789/2020, CM
APPL. 1068/2022

SOUTH DELHI MUNICIPAL CORPORATION ..... Petitioner
Through: Mr.Arun Birbal and Mr.Sanjay
Singh, Advocates
versus

DHEER SINGH ..... Respondent
Through: Mr.__, Advocate (Appearance not
given)

+ W.P.(C) 6104/2017 & CM APPL. 25322/2017 & CM APPL.
25325/2017

SOUTH DELHI MUNICIPAL CORPORATION ..... Petitioner
Through: Mr.Rajan Tyagi, Ms.Vijeta
Mukherjee, Mr.P.R. Wadhwa and
Mr.Samar Partap Singh, Advocates
versus

RAM KISHAN & ANR ..... Respondents
Through: Mr.__, Advocate (Appearance not
given)

Signature Not Verified
W.P.(C) 2990/2017 & 32 other connected matters Page 2 of 77
Digitally Signed
By:DAMINI YADAV
Signing Date:08.07.2024
17:18:19
+ W.P.(C) 8986/2017 & CM APPL. 36774/2017
NORTH DELHI MUNICIPAL CORPORATION ..... Petitioner
Through: Ms.Namrata Mukim, Standing
Counsel for MCD

versus

DHARAMVIR SINGH ..... Respondent
Through: Mr.__, Advocate (Appearance not
given)

+ W.P.(C) 13547/2018 & CM APPL. 52775/2018
NORTH DELHI MUNICIPAL CORPORATION ..... Petitioner
Through: Ms.Namrata Mukim, Standing
Counsel for MCD

versus

BALAK RAM ..... Respondent
Through: Mr.__, Advocate (Appearance not
given)

+ W.P.(C) 13609/2018
SOUTH DELHI MUNICIPAL CORPORATION ..... Petitioner
Through: Mr.Arun Birbal and Mr.Sanjay
Singh, Advocates
versus

ZILE SINGH & ANR. ..... Respondents
Through: Mr.__, Advocate (Appearance not
given)

Signature Not Verified
W.P.(C) 2990/2017 & 32 other connected matters Page 3 of 77
Digitally Signed
By:DAMINI YADAV
Signing Date:08.07.2024
17:18:19
+ W.P.(C) 13610/2018

SOUTH DELHI MUNICIPAL CORPORATION ..... Petitioner
Through: Mr.Arun Birbal and Mr.Sanjay
Singh, Advocates
versus

SATPAL ..... Respondent
Through: Mr.__, Advocate (Appearance not
given)

+ W.P.(C) 4413/2019
SOUTH DELHI MUNICIPAL CORPORATION ..... Petitioner
Through: Mr.Arun Birbal and Mr.Sanjay
Singh, Advocates
versus

SATISH KUMAR & ANR ..... Respondents
Through: Mr.__, Advocate (Appearance not
given)

+ W.P.(C) 4967/2019
NORTH DELHI MUNICIPAL CORPORATION ..... Petitioner
Through: Ms.Namrata Mukim, Standing
Counsel for MCD
versus

SHRI DHARM PAL AND ORS. ..... Respondents
Through: Mr.__, Advocate (Appearance not
given)

+ W.P.(C) 6992/2019
NORTH DELHI MUNICIPAL CORPORATION ..... Petitioner
Through: Ms.Namrata Mukim, Standing

Signature Not Verified
W.P.(C) 2990/2017 & 32 other connected matters Page 4 of 77
Digitally Signed
By:DAMINI YADAV
Signing Date:08.07.2024
17:18:19
Counsel for MCD

versus

SUKHPAL ..... Respondent
Through: Mr.__, Advocate (Appearance not
given)

+ W.P.(C) 7973/2019
NORTH DELHI MUNICIPAL CORPORATION ..... Petitioner
Through: Ms.Namrata Mukim, Standing
Counsel for MCD

versus

SOHAN PAL ..... Respondent
Through: Mr.__, Advocate (Appearance not
given)

+ W.P.(C) 8672/2019 & CM APPL. 35814/2019
NORTH DELHI MUNICIPAL CORPORATION ..... Petitioner
Through: Ms.Namrata Mukim, Standing
Counsel for MCD

versus

SH. JAIVINDER SINGH ..... Respondent
Through: Mr.__, Advocate (Appearance not
given)

+ W.P.(C) 8990/2017 & CM APPL. 25955/2018
NORTH DELHI MUNICIPAL CORPORATION ..... Petitioner
Through: Ms.Namrata Mukim, Standing

Signature Not Verified
W.P.(C) 2990/2017 & 32 other connected matters Page 5 of 77
Digitally Signed
By:DAMINI YADAV
Signing Date:08.07.2024
17:18:19
Counsel for MCD

versus

SUSHEEL KUMAR ..... Respondent
Through: Mr.__, Advocate (Appearance not
given)

+ W.P.(C) 9180/2017 & CM APPL. 40448/2017 & CM APPL.
918/2018

NORTH DELHI MUNICIPAL CORPORATION ..... Petitioner
Through: Ms.Namrata Mukim, Standing
Counsel for MCD

versus

KRIPAL SINGH ..... Respondent
Through: Mr.__, Advocate (Appearance not
given)

+ W.P.(C) 9837/2017 & CM APPL. 40040/2017
NORTH DELHI MUNICIPAL CORPORATION ..... Petitioner
Through: Ms.Namrata Mukim, Standing
Counsel for MCD

versus

ASHOK KUMAR ..... Respondent
Through: Mr.__, Advocate (Appearance not
given)

+ W.P.(C) 6791/2018
NORTH DELHI MUNICIPAL CORPORATION ..... Petitioner

Signature Not Verified
W.P.(C) 2990/2017 & 32 other connected matters Page 6 of 77
Digitally Signed
By:DAMINI YADAV
Signing Date:08.07.2024
17:18:19
Through: Ms.Namrata Mukim, Standing
Counsel for MCD

versus

SHRI RAJ SINGH ..... Respondent
Through: Mr.__, Advocate (Appearance not
given)

+ W.P.(C) 8359/2018 & CM APPL. 3089/2019
NORTH DELHI MUNICIPAL CORPORATION ..... Petitioner
Through: Ms.Namrata Mukim, Standing
Counsel for MCD

versus

LATE SHRI CHUNNI LAL ..... Respondent
Through: Mr.__, Advocate (Appearance not
given)

+ W.P.(C) 9225/2018
NORTH DELHI MUNICIPAL CORPORATION ..... Petitioner
Through: Ms.Namrata Mukim, Standing
Counsel for MCD

versus

HARI LAL ..... Respondent
Through: Mr.__, Advocate (Appearance not
given)

+ W.P.(C) 11589/2017
EAST DELHI MUNICIPAL CORPORATION ..... Petitioner
Through: Mr.Kumar Rajesh Singh, Advocate

Signature Not Verified
W.P.(C) 2990/2017 & 32 other connected matters Page 7 of 77
Digitally Signed
By:DAMINI YADAV
Signing Date:08.07.2024
17:18:19
versus

SH. NABAB SINGH ..... Respondent
Through: Mr.__, Advocate (Appearance not
given)

+ W.P.(C) 8471/2018 & CM APPL. 32551/2018
SOUTH DELHI MUNICIPAL CORPORATION ..... Petitioner
Through: Mr.Rajan Tyagi, Ms.Vijeta
Mukherjee, Mr.P.R. Wadhwa and
Mr.Samar Partap Singh, Advocates
versus

NETAR PAL AND ANR. ..... Respondents
Through: Mr.Vikas Chadha, Mr.Rahul Saini,
Mr.Amit Bhati, Ms.Devanjali
Chadha & Mr.Anil Kumar,
Advocates for R-1

+ W.P.(C) 1330/2019
NORTH DELHI MUNICIPAL CORPORATION ..... Petitioner
Through: Ms.Pooja Chandra, Mr.Sumeet
Kaul and Ms.Jyoti Khurana,
Advocates

versus

JAI PAL SINGH ..... Respondent
Through: Mr.__, Advocate (Appearance not
given)

+ W.P.(C) 8716/2019 & CM APPL. 36041/2019

Signature Not Verified
W.P.(C) 2990/2017 & 32 other connected matters Page 8 of 77
Digitally Signed
By:DAMINI YADAV
Signing Date:08.07.2024
17:18:19
SOUTH DELHI MUNICIPAL CORPORATION ..... Petitioner
Through: Mr.Arun Birbal and Mr.Sanjay
Singh, Advocates

versus

SHRI AJEET SINGH ..... Respondent
Through: Mr.__, Advocate (Appearance not
given)

+ W.P.(C) 10020/2019
SOUTH DELHI MUNICIPAL CORPORATION ..... Petitioner
Through: Mr.Arun Birbal, Mr.Sanjay Singh
and Mr.Varun Gupta, Advocates

versus

NIRANJAN SINGH ..... Respondent
Through: Mr.__, Advocate (Appearance not
given)

+ W.P.(C) 10021/2019
SOUTH DELHI MUNICIPAL CORPORATION ..... Petitioner
Through: Mr.Arun Birbal, Mr.Sanjay Singh
and Mr.Varun Gupta, Advocates

versus

MOHAN LAL ..... Respondent
Through: Mr.__, Advocate (Appearance not
given)

+ W.P.(C) 11911/2019
NORTH DELHI MUNICIPAL CORPORATION ..... Petitioner

Signature Not Verified
W.P.(C) 2990/2017 & 32 other connected matters Page 9 of 77
Digitally Signed
By:DAMINI YADAV
Signing Date:08.07.2024
17:18:19
Through: Ms.Namrata Mukim, Standing
Counsel for MCD

versus

SHRI DHARAMVIR SINGH ..... Respondent
Through: Mr.__, Advocate (Appearance not
given)

+ W.P.(C) 11915/2019
NORTH DELHI MUNICIPAL CORPORATION ..... Petitioner
Through: Ms.Namrata Mukim, Standing
Counsel for MCD

versus

SHRI GAJ RAJ SINGH ..... Respondent
Through: Mr.__, Advocate (Appearance not
given)

+ W.P.(C) 1989/2020 & CM APPL. 6948/2020 & CM APPL.
18798/2020

NORTH DELHI MUNICIPAL CORPORATION ..... Petitioner
Through: Ms.Namrata Mukim, Standing
Counsel for MCD

versus

SH. KHEM CHAND ..... Respondent
Through: Mr.__, Advocate (Appearance not
given)

+ W.P.(C) 5455/2020
NORTH DELHI MUNICIPAL CORPORATION ..... Petitioner

Signature Not Verified
W.P.(C) 2990/2017 & 32 other connected matters Page 10 of 77
Digitally Signed
By:DAMINI YADAV
Signing Date:08.07.2024
17:18:19
Through: Ms.Namrata Mukim, Standing
Counsel for MCD

versus

MUNISH CHAND AND RAMESH CHAND ..... Respondent
Through: Mr.__, Advocate (Appearance not
given)

+ W.P.(C) 8138/2020
SOUTH DELHI MUNICIPAL CORPORATION ..... Petitioner
Through: Mr.Arun Birbal, Mr.Sanjay Singh
and Mr.Varun Gupta, Advocates
versus

RAJENDER SINGH ..... Respondent
Through: Mr.__, Advocate (Appearance not
given)

+ W.P.(C) 9221/2020 & CM APPL. 29749/2020
SOUTH DELHI MUNICIPAL CORPORATION ..... Petitioner
Through: Mr.Arun Birbal, Mr.Sanjay Singh
and Mr.Varun Gupta, Advocates

versus

PREM SINGH ..... Respondent
Through: Mr.__, Advocate (Appearance not
given)

CORAM:
HON'BLE MR. JUSTICE CHANDRA DHARI SINGH

Signature Not Verified
W.P.(C) 2990/2017 & 32 other connected matters Page 11 of 77
Digitally Signed
By:DAMINI YADAV
Signing Date:08.07.2024
17:18:19
JUDGMENT

CHANDRA DHARI SINGH, J.

1. The present batch of petitions under
Article 226
of the Constitution
of India is arising out of various awards of the learned Industrial
Tribunal, wherein, the claims of the respondent workmen in the
respective petitions were decided in their favour and against the
petitioner, i.e., East Delhi Municipal Corporation of Delhi, North
Municipal Corporation of Delhi and South Municipal Corporation of
Delhi (now merged and called as Municipal Corporation of Delhi)
(hereinafter "MCD"). In all the petitions, a separate award has been
passed by the learned Industrial Tribunal holding the workman/claimant
who initially joined at the post of „Mali‟ entitled to the pay scale meant
for the post of „Garden Chaudary‟ for the period the concerned workman
worked as a Garden Chaudhary. For reference, a table has been drawn
herein below which states the particulars of respective petitions:

S No. W.P No. Relief
1. 1330/2019 In view of the discussions made herein above, it is held that

the workman herein, Shri Jaipal Singh is entitled to the pay
scale of Garden Chaudhary with effect from 01.04.1989 and
as a corollary, management is liable pay the difference of
wages of mali vis-a-vis Garden Chaudhary from the date
when the workman herein was performing duties and
functions of Garden Chaudhary. An award is accordingly
passed. Let this award be sent to the appropriate Government,
as required under
Section 17
of the Industrial Disputes Act,
1947 for publication.

2. 1989/2020 In view of the discussions made herein above, It is held that
Shri Khem Chand, the workman herein. Is entitled to the pay
scale of Garden Chaudhary with effect from 18.08.1993 till
27.07,2009, the date workman was promoted as Garden

Signature Not Verified

W.P.(C) 2990/2017 & 32 other connected matters Page 12 of 77

Digitally Signed

By:DAMINI YADAV

Signing Date:08.07.2024

17:18:19

Chaudhary and as a corollary, management is liable pay the
difference of wages of mail vis-à-vis garden Chaudhary From
the date when the workman herein was performing duties and
functions of garden Chaudhary till the date he was promotes
as garden Chaudhary, i.e 18.08.1993 till 27.07.2009. An
award is accordingly passes. Let this award be sent to the
appropriate government, as required under
section 17
of the
industrial
Disputes Act, 1947
, for publication.

3. 2990/2017 In view of the entire facts and circumstances of the case, it is
held that the workman is entitled for the pay scale of Rs.950-
1500/- (revised from time to time) meant for Garden
Chaudhary w.e.f. 01.04.1991 till date. Issue no.2 of the
reference is decided accordingly in favour of the Workman.
Award is passed accordingly, in these terms.

4. 4413/2019 As a sequel to my above discussion, it is held that Shri Satish
Kumar and Shri Radhey Shyam Sharma, the claimants herein,
are entitled to the pay scale of Garden Chaudhary with effect
from 15.01.2000 and 01.07.1996 respectively and as a
corollary, management is liable pay the difference of wages of
mali vis a-vis Garden Chaudhary from the date when the
workman herein was performing duties and functions of
Garden Chaudhary till 04.03.2014. Further the claimants are
also entitled to be promoted to the post of Garden Chaudhary
from 04.03.2014, i.e. the date when their juniors were
promoted as regular Garden Chaudhary. An award is
accordingly passed. Let this award be sent to the appropriate
Government, as required under
Section 17
of the Industrial
Disputes Act, 1947, for publication.

5. 4967/2019 As a sequel to my above discussion, it is held that Shri
Dharam Pal, Shri Anand, Shri Mahender Singh and Shri
Manoj Kumar, the claimants herein, are entitled to the pay
scale of Garden Chaudhary with effect from 01.01.1994,
01.01.1999, 01.01.2000 and 18.01.2000 respectively and as a
corollary, management is liable pay the difference of wages of
mali vis-a-vis Garden Chaudhary from the date when the
workman herein was performing duties and functions of
Garden Chaudhary, The claimer‟s are also entitled to be
promoted to the post of Garden Chaudhary from 04.03.2014,
i.e the date when his juniors were promoted as regular
Garden Chaudhary. Further, case of the claimants Shri Balak
Ram and Shri Jasbir Singh have already been granted relief
vide separate awards, filed by them separately. An award is
accordingly passed. Let this award be sent to the appropriate
Government, as required under
Section 17
of the Industrial
Disputes Act, 1947, for publication.

Signature Not Verified

W.P.(C) 2990/2017 & 32 other connected matters Page 13 of 77

Digitally Signed

By:DAMINI YADAV

Signing Date:08.07.2024

17:18:19

6. 5455/2020 As a sequel to my above discussion, it is held that Shri
Munesh Chand and Shri Ramesh Chand, the claimants herein,
are entitled to the pay scale of Garden Chaudhary with effect
from 01.09.2001 and 21.05.2002 respectively and as a
corollary, management is liable pay the difference of wages of
mali vis-à-vis Garden Chaudhary from the date when the
workman herein was performing duties and functions of
Garden Chaudhary. The claimants are also entitled to be
promoted to the post of Garden Chaudhary from 04.03.2014,
i.e. the date when his juniors were promoted as regular
Garden Chaudhary. An award is, accordingly, passed. Let this
award be sent to the appropriate Government, as required
under
Section 17
of the Industrial Disputes Act, 1947, for
publication.

7. 6044/2017 As a sequel to my discussion made hereinabove. It is held that
the Workman Shri Ashok Kumar was doing the work of
garden supervisor since 17.07.1998 and from that date he Is
entitled to the wages of garden Chaudhary and is corollary,
management's libel pay the difference of wages of Mali vis-a-
vis garden Chaudhary from the date when the Workman
herein was performing duties and functions of garden
Chaudhary. And award is accordingly passed. Let this award
be sent to the appropriate government, as required under

section 17
of the Industrial Disputes Act 1947, for publication.

8. 6104/2017 In view of the entire facts and circumstances of the case, it is
held that the workman is entitled for the pay scale of Rs.3050-
4590/- (revised from time to time) for Garden Chaudhary
w.e.f. 01.01.2001 with all consequential benefits till he looked
after the work of Chaudhary with the Management. Issue no.4
of the reference is decided accordingly in favour of the
Workman.

9. 6791/2018 Since the claimant is officiating on the post of Garden
Chaudhary since 01.01.1997, as such, he is entitled to the pay
scale of Garden Chaudhary with effect from 01.01.1997. As a
corollary, management is liable pay the difference of wages of
mali vis-a-vis Garden Chaudhary from the date when the
workman herein was performing duties and functions of
Garden Chaudhary. An award is, accordingly, passed. Let this
award be sent to the appropriate Government, as required
under
Section 17
of the Industrial Disputes Act, 1947, for
publication.

10. 6992/2019 In view of this, the reference is partly allowed in favour of the
workman. Workman is entitled to get pay-scale &other
consequent benefits for the post of Garden Chaudhary w.e.f.
09/06/15 management is directed to grant pay-scale of

Signature Not Verified

W.P.(C) 2990/2017 & 32 other connected matters Page 14 of 77

Digitally Signed

By:DAMINI YADAV

Signing Date:08.07.2024

17:18:19

Garden Chaudhary to workman from 09/06/15. Award is
passed accordingly.

11. 7973/2019 Thus, it is held that workman is entitled to the difference of
wages of the posts of Garden Chaudhary and Mali for the
period w.e.f. 01.06.1993 till 27.11.2008. Issue no. 4 as per
terms of reference is decided accordingly. Award is passed in
these terms and reference is answered accordingly.

12. 8138/2020 Thus, it is held that the workman is entitled to the difference of
wages of the posts of Garden Chaudhary and Mali for the
period w.e.f. 01.02.1999 till28.11.2008. Issue Nos.3 and 4 are
decided accordingly.

13. 8359/2018 As a sequel to my above discussion, it is held that Shri Chunni
Lai, the claimant herein is entitle to the pay scale of Garden
Chaudhary with effect from 02.02.1999 and as a corollary
management is liable pay the difference of wages of mali vis-
a-vis Garden Chaudhary from the date when the workman
herein was performing duties and functions of Garden
Chaudhry till 02.05.2016, i.e. the date of his death further the
claimant is also entitle to be promoted to the post of Garden
Chaudhary form 04.03.2014 i.e. the dated when his juniors
were promoted as regular Garden Chaudhary. An award is
accordingly passed. Let this award be sent to the appropriate
Government, as required under
Section 17
of the Industrial
Dispute Act, 1947, for publication.

14. 8471/2018 In view of the discussions made herein above, it is held that
the workman is entitled to the pay scale of Garden Chaudhary
with effect from 16.07.1997 and as a corollary, management
is liable pay the difference of wages of mali vis-à-vis Gardan
Chaudhary from the date when the workman herein was
performing duties and functions of Garden Chaudhary. An
award is accordingly passed. Let this award be sent to the
appropriate Government, as required under
Section 17
of the
Industrial Disputes Act, 1947, for publication.

15. 8672/2019 In view of the entire facts and circumstances of the case, it is
held that the workman is entitled for the pay scale of Rs.3050-
4590/- (revised from time to time) meant for Garden
Chaudhary w.e.f. 01.01.1997 till the date, he worked as
Chaudhary, Issue no.5 of the reference is decided accordingly
in favour of the Workman.

16 8716/2019 The copy of sponsorship is annexed as Annexure-G with the
statement of claim as the workman is the member of MCD
General Mazdoor Union (Regd. &Recognized) and copy of
the Registration is annexed as Annexure- H, Copy of the letter
to negotiate with the management is annexed as Annexure -I
and copy of the list of Office bearers is annexed as Annexure-

Signature Not Verified

W.P.(C) 2990/2017 & 32 other connected matters Page 15 of 77

Digitally Signed

By:DAMINI YADAV

Signing Date:08.07.2024

17:18:19

J. In view of the above, this Hon'ble Tribunal may kindly
allow the salary of Garden Chaudhary as the workman has
been performing their duty in the pay scale of Rs. 3050-4590
w.e.f 16.6.1997 alongwith all consequential benefits.

17. 8891/2019 It is therefore held that Shri Dheer Singh, the claimant herein,
is entitled to the pay scale and all allowances except
increment with effect from 01.01.1991 to December 2001, i.e.
difference in the pay scale of mali and Garden Chaudhary and
with effect from 17.10.2008, i.e. difference in the pay scale of
mali and Section Officer, as per policy of 'Equal Pay for
Equal Work'. Further, Shri Dheer Singh is entitled for
regularization in the pay scale of Section Officer in
regularized category with effect from 17.10.2008 onwards
with all consequential benefits. An award is, accordingly,
passed. Let this award be sent to the appropriate Government,
as required under
Section 17
of the Industrial Disputes Act,
1947, for publication.

18. 8986/2017 In view of the discussions made herein above, it is held that
the workman is entitled to the pay scale of Garden Chaudhary
with effect from January 1990 and as a corollary,
management is liable to pay the difference of ages of mali vis-
à-vis Garden Chaudhary from the date when the workman
herein was performing duties and functions of Garden
Chaudhary till date. An award is accordingly passed. Let this
award be sent to the appropriate Government, as required
under
Section 17
of the Industrial Disputes Act, 1947, for
publication.

19. 14028/2021 In view of the discussions made herein above, it is held that
Shri Anand Pal, the workman herein, is entitled to the pay
scale of Garden Chaudhary with effect from April 1999 and as
a corollary, management is 'liable pay the difference of wages
of mali vis-a-vis Garden Chaudhary from the date when the
workman herein was performing duties and functions of
Garden Chaudhary, i.e. 01.04.1999, till date.. An award is
accordingly passed. Let this award be sent to the appropriate
Government, as required under
section 17
of the Industrial
Disputes Act, 1947, for publication.

20. 13610/2018 In view of the discussions made herein above, It is held that
the workman herein, Shri Satpal is entitled to the pay scale of
Garden Chaudhary with effect from 01.08.1993 and as a
corollary, management is liable pay the difference of wages of
mall vis-a-vis Garden Chaudhary from the date when the
workman herein was performing duties and functions of
Garden Chaudhary. An award is accordingly passed. Let this
award be sent to the appropriate Government, as required

Signature Not Verified

W.P.(C) 2990/2017 & 32 other connected matters Page 16 of 77

Digitally Signed

By:DAMINI YADAV

Signing Date:08.07.2024

17:18:19

under
Section 17
of the Industrial Dispute act, 1947, for
publication.

21. 13609/2018 In view of the discussions made herein above, it is held that
the workman. Shri Zile Singh is entitled to the pay scale of
Garden Chaudhary with from 01.11.1999 and as a corollary,
management is liable pay this difference of wages of mali vis-
a-vis Garden Chaudhary from the date when the workman
herein was performing duties and functions of Garden
Chaudhari. An award is accordingly passed. Let this award
be sent to the appropriate Government, as required under

Section 17
of the Industrial Disputes Act 1947 for publication.

22. 13547/2018 In view of the ratio of law discussed hereinabove, it is held
that the workman herein, Shri Balak Ram is entitled to the pay
scale of Garden Chaudhary with effect from 01.01.2006 and
as a corollary, management is liable to grant promotion of
Garden Chaudhary in the pay scale of Rs.5200-20200 from
the date when the workman herein was performing duties and
functions of Garden Chaudhary. An award is accordingly
passed. Let this award be sent to the appropriate Government,
as required under
Section 17
of the Industrial Disputes Act,
1947.

23. 11915/2019 Thus, it is held that workman is entitled to the difference of
wages of the posts of Garden Choudhary and Mali for the
period w.e.f. 01.01.2001 till 28.11.2008. Issue no.2 is decided
accordingly.

24. 11911/2019 As a sequel to my above discussion, it is held that Shri
Dharamvir Singh, the claimant herein, is entitled to the pay
scale of Garden Chaudhary ' with effect from 01.03.2003 and
as a corollary, management is liable pay the difference of
wages of mali vis-a-vis Garden Chaudhary from the date
when the workman herein was performing duties and
functions of Garden Chaudhary. Further the claimant is also
entitled to be promoted to the post of Garden Chaudhary from
04.03.2014, i.e the date when his juniors were promoted as
regular Garden Chaudhary. An award is accordingly passed.
Let this award be sent to the appropriate Government, as
required under
Section 17
of the Industrial Disputes Act,
1947.

25. 11589/2017 Perusal of evidence makes it crystal clear that evidence of
workman is reliable, credible and required evidence in this
case. While evidence of management not at all sufficient to
rebut the evidence of workman. So this Tribunal has no option
except to decide the reference in favour of workman and
against management. Which is accordingly decided. And
claim statement is allowed. Management is directed to grant

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salary of Garden Chaudhary to workman Sh. Nabab Singh
since 01.01 .2001 along with all consequential benefits.
Compliance has to be done by management within 2 months
after expiry of period of available remedy against the instant
Award.

26. 10674/2021 This Court is of the view that when it has been proved on
record by workman through documents that he has worked as
Chaudhary since from 1.1.1994, his claim for the wages to the
said post of Chaudhary cannot be rejected. The respondent is
directed to examine the case of the claimant in the pay scale
of Chaudhary as on 1.1.1994 and awarding the amount of
arrears within a period of 6 (six) months.

27. 10021/2019 The reference be and the same is answered in favour of the
workman and it is directed that the workman is entitled to the
pay scale of Garden Chaudhary i.e. Rs 3050- 4590, revised
from time to time w.e.f. 12.02.1999 alongwith all
consequential benefits. The management is thus directed to
revise the current pay of the workman accordingly and pay
the arrear to him accruing between 12.02.1999 to 04.03.2014
when he was promoted as Garden Chaudhary within 3 months
from the date when this award would.

28. 10020/2019 herein, Shn Niranjan Singh is entitled to the pay scale of
Garden Chaudhary with effect from 01.01.2001 and as a
corollary, management is liable pay the difference of wages of
mail vis-a-vis Garden Chaudhary from the date when the
workman herein was performing duties and functions of
Garden Chaudhary, i.e. from 01.01.2001 till 03.03.2014 and
is entitled to be promoted as Garden Chaudhary under the
quota with effect from 04.03.2014, the date when juniors to
the claimant was promoted in the said category. An award is
accordingly passed. Let this award be sent to the appropriate
Government, as required under
Section 17
of the Industrial
Disputes Act, 1947, for publication.

29. 9837/2017 As a sequel to my above discussion, it is held that the Shri
Ashok Kumar, the claimant herein, it is held that the workman
Shri Ashok Kumar was doing the work of Garden Supervisor
since 01.06.2002 and from that date he is entitled to ' the
wages of Garden Chaudhary and as a corollary, management
is liable pay the difference of wages of mall vis-a-vis Garden
Chaudhary from the date when the workman herein was
performing duties and functions of Garden Chaudhary and he
be promoted as Garden Chaudhary under promotional quote
with effect from 04.03.20** date his juniors were promoted in
the said category. An award is accordingly passed. Let this
award be sent to the appropriate Government, as required

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under
Section 17
of the Industrial Disputes Act 1947.

30. 9225/2018 Since the workman was officiating on the post of Garden
Chaudhary since 01.04.1989, as such, he is entitled to the pay
scale of Garden Chaudhary with effect from 01.04.1989. As a
corollary, management is liable pay the difference of wages of
mali vis-a-vis Garden Chaudhary from the date when the
workman herein was performing duties and functions of
Garden Chaudhary, i.e. from 01.04.1989 till the date of his
retirement on 30.06.2014. An award is, accordingly, passed.

31. 9221/2020 In view of the discussions made herein above, it is held that
the workman herein, Shri Prem Singh is entitled to the pay
scale of Garden Chaudhary with effect from 03.09.2014 and
as a corollary, management is liable pay the difference of
wages of mali vis-a-vis Garden Chaudhary from the date
when the workman herein was performing duties and
functions of Garden Chaudhary till the date he was promoted
as Garden Chaudhary, i.e, from 16,11.1999 to 03,09,2014, An
award is accordingly passed.

32. 9180/2017 In view of the entire facts and circumstances of the case, it is
held that the workman is entitled for the pay scale of Rs.3050-
4590/- (revised from time to time) meant for Garden
Chaudhary w.e.f. 01.01,1997 till he was appointed as Garden
Chaudhary after passing the trade test.

33. 8990/2017 In view of the entire facts and circumstances of the case, it is
held that the workman is entitled for the pay scale of Rs.3050-
4590/- (revised from time to time) meant for Garden
Chaudhary w.e.f. 01.01.1998 till he looked after the work of
Chaudhary with the Management.

2. Since the facts and the legal issues involved in the present batch of
petitions are similar, this Court has culled out the facts and submissions
out of the writ petition bearing W.P (C) no. 2990/2017 for the disposal of
the present batch of petitions.

FACTUAL MATRIX

3. The instant petition has been filed on behalf of the petitioner
seeking quashing of the award dated 29th February, 2016 (hereinafter
"impugned award") by the learned Presiding Officer, Industrial Tribunal,
Karkardooma Courts, New Delhi in case bearing ID no. 25/13 (238/16).

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4. It has been stated that the workman was employed as a „Mali‟ with
the petitioner department w.e.f. 1st April, 1989 at the pay scale of Rs.
750/- - 940/- revised from time to time.

5. In the year 2013, the respondent workman raised a dispute before
the appropriate government that he was not being paid as per the pay
scale prescribed for the post of Garden Chaudhary despite working at the
said post w.e.f. 1st April, 1991.

6. Upon failure of conciliation proceedings, the appropriate
government referred the dispute to the learned Industrial Tribunal for
adjudication in terms of the following reference:

"Whether Sh. Siroman Singh S/o Sh. Inderpal Singh is
entitled to the status of Choudhary in the pay scale of
Rs.950-1500/- w.e.f. 01.01.1991, revised from time to time
along with the consequential benefits and if so, to what relief
is he entitled and what directions are necessary in this
respect?"

7. The respondent workman filed his statement of claim stating that
he was initially employed on the post of Mali in the Central Zone and is
presently posted at Shahdra South Zone under the Deputy Director of
Horticulture, Shahadra South Zone as the Garden Chaudhary. Despite
this, he has not been paid as per the pay scale he is eligible for. The
petitioner department filed its written statement denying the workman‟s
claim and after the completion of pleadings, the learned Tribunal framed
the following issues for adjudication:

"1. whether present dispute is an Industrial Dispute as
defined in
section 2(k)
of the Industrial Disputes Act? OPW

2. Whether the claim of the workman has been properly
espoused by the Union? OPW

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3. Whether any notice of demand was served upon
management, if not, its effect? OPW

4. As per terms of reference."

8. The learned Tribunal passed the impugned award dated 29th
February, 2016 allowing the claim of the respondent workman, thereby,
holding that the workman is entitled to the status of Garden Chaudhary
and to the pay scale attached to the said post for the period he worked as
Garden Chaudhary, i.e., w.e.f. 1st April, 1991. In pursuant thereto, a
recovery certificate dated 2nd November, 2016 was issued by the Deputy
Labour Commissioner East District, Labour Department, Government of
NCT of Delhi against the present petitioner for making the payment of
Rs. 8,16,472/-.

9. Being aggrieved by the aforementioned impugned award, the
petitioner filed the instant petition seeking setting aside of the same.
PLEADINGS BEFORE THIS COURT

10. The petitioner has challenged the impugned award on the following
grounds:

"...(ii) That the respondent workman has filed its Statement
of claim before the Ld. Tribunal claiming that the workman
was initially on the post of Mali in Central Zone and later on
he was regularized /promoted on the same post, so he cannot
be regularized/ promoted on the post of Garden Chaudhary
and the claim filed by the respondent is misconceived and
liable to be rejected on the sole ground. It is submitted that
respondent is presently posted at Shahdra South Zone.

(iii) That it is submitted that the workman was not allotted
the work of Chaudhary on 1.1.1991. It is submitted that the
workman is performing the duties of Mali and he was never
allotted the work of Garden Chaudhary by the competent

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authority. No copy of any office order has been placed by the
workman to show that he was working on the said post of
Garden Chaudhary.

(iv) That the workman has never performed the duties of
Garden Chaudhary and no such type of office order was
ever issued by the competent authority. Therefore, the
question of pay scale of Garden Chaudhary does not arise.

Therefore, the claim filed by the respondent-workman should
have been rejected by Ld. Labour Court.

(v) That the recruitment rules for the post of Mali and
Garden Chaudhry are totally deferent. Garden Chaudhary is
not promotional post of Mali and moreover, qualifying the
trade test is mandatory for the promotion to the post of
Garden Chaudhary, the claim of the workman is totally
baseless.

(vi) That the workman cannot be designated as Garden
Chaudhary because of he never worked on the same post.
There is a process for promotion to the post of Garden
Chaudhary i.e there must be sanctioned post/vacant post of
the garden Chaudhary and claimant should pass the trade
test conducted by the department. It is submitted that the
claimant has never passed the trade test as such, his present
claim is misconceived and is contrary to the provisions of
notified....

***

(vii) That the petitioner has appeared before the Ld.
Tribunal and contested the claim of the respondent by filing
the detailed written statement in opposition to the statement
of claim and contended that present dispute is not an
industrial dispute, but is an individual dispute. The
petitioner administration further contended that no demand
notice has been served upon the petitioner management and
as such, the present dispute is not an industrial dispute and
therefore, reference is bad in law and is liable to be rejected.

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(v) That the respondent/workman has failed to adduce any
documentary evidence or oral evidence in support of his
contention that Respondent/workman had been performing
his duty of Garden Choudhary w.e.f. 01.01.1991. Respondent
has made merely an equivocal contentions, therefore, entire
contention of respondent is on the basis of the vague
contention. However, Petitioner administration has denied
that respondent workman has not discharged the duties of
Garden Choudhary. Therefore, question does not arise for
giving the pay scale of the Garden Chaudhary to the
respondent workman. It is further submitted that merely
inclusion of the name of the workman in the panel does not
entitle him for the pay scale of the post of Garden
Chaudhary.

***
A. Because Ld. Industrial Tribunal has failed to appreciate
the fact that the claim of the respondent is not maintainable
before the Ld. Tribunal below because Respondent was
seeking the status of the Garden Choudhary on the
retrospective effect.

B. Because impugned judgment passed by the Ld. Tribunal
in utter disregard with the admitted fact that respondent is
not entitled for the promotion to the post of Garden
Chaudhary w.e.f. 01.01.91 because the post of the Garden
Chaudhary is not the promotional post and same is required
to be filled up by way of conducting the trade test and only
those who have qualified the prescribed test for the post is
entitled to get promoted to the post of Garden Choudhary.
Therefore, in the absence of qualifying in any trade test
prescribed for the post, the workman cannot be entitled to
get the pay scale of the said post w.e.f. 1991. Therefore, the
impugned judgment of the Tribunal below is bad in law and
is liable to be quashed by this Hon'ble Court.

C. Because Ld. Industrial Tribunal has failed to appreciate
the fact that the workman was not allotted the work of
Chaudhary on 1.1.1991. It is submitted that the workman is

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performing the duties of Mall and he was never allotted the
work of Garden Chaudhary by the competent authority. No
copy of any office order has been placed by the workman to
show that he was working on the said post of Garden
Chaudhary.

***
E. Because Ld. Industrial Tribunal has failed to appreciate
the fact that the recruitment rules for the post of Mali and
Garden Chaudhary are totally deferent. Garden Chaudhary
is not promotional post of Mali and moreover, qualifying the
trade test is mandatory for the promotion to the post of
Garden Chaudhary, the claim of the workman is totally
baseless.

F. Because Ld. Industrial Tribunal has failed to appreciate
the fact that workman cannot be designated as Garden
Chaudhary because of he never worked on the same post.
There is a process for promotion to the post of Garden
Chaudhary i.e there must be sanctioned post/vacant post of
the garden Chaudhary and claimant should pass the trade
test conducted by the department. It is submitted that the
claimant has never passed the trade test as such, his present
claim is misconceived and is contrary to the provisions of
law...."

11. The respondent workman has filed his counter affidavit rebutting
the petitioner‟s contentions on the following grounds:

"..2. That the writ petition filed by the petitioner is not
maintainable as it is covered by several orders passed by the
Hon'ble High Court of Delhi. The main case of the
Department which is Sultan Singh's case also stand
dismissed by the Hon'ble Supreme Court. The workman has
been only granted the pay scale of Garden Chaudhary w.e.f.
01.04.991 till date in the pay scale of Rs.950 - 1500 (revised
from time to time) meant for Garden Chaudhary for which
period he was directed to perform the work of Garden
Chaudhary and for which after the award, the payment has

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already been made.

***
***
The copy of the order passed by Hon'ble High Court of Delhi
in MOD Vs. Jai Pal Singh (WP(C) No. 5521/2011) is
annexed herewith and marked as Annexure C-1.

The copy of the order passed by Hon‟ble High Court of
Delhi in
MCD Vs. Mahipal (WP(C) No.
5550/2010) is
annexed herewith and marked as Annexure C-2.

The copy of the order passed by Hon'ble High Court of Delhi
in
MCD Vs. Satinder Singh (WP(C) No.
5066/2010) is
annexed herewith and marked as Annexure C-3.

The copy of the order passed by Hon'ble High Court of Delhi
in
MCD Vs. Kanwar Singh (WP(C) No.
4940/2010) is
annexed herewith and marked as Annexure C-4.

The copy of the order passed by Hon'ble High Court of Delhi
in
MCD Vs. Sh. Sultan Singh & Ors. (WP(C) No.
7947/2010)
is annexed herewith and marked as Annexure C-5.

The copy of the order passed by Hon'ble Supreme Court in

MCD Vs. Sultan Singh &Ors. (SLP(C) No.
20069/2011) is
annexed herewith and marked as Annexure C-6.

The copy of the order passed by Hon'ble High Court of Delhi
in Sultan Singh &Ors. Vs. MCD (WP(C) No. 5453/2012) is
annexed herewith and marked as Annexure C-7...."

12. Written submissions dated 25th May, 2024 filed by the petitioner
and written submissions dated 16th October, 2022 filed by the respondent
workman are on record.

SUBMISSIONS
(on behalf of the petitioner)

13. Learned counsel appearing on behalf of the petitioner submitted
that the impugned award is bad in law and is liable to be set aside since
the same has been passed without taking into consideration the entire
facts and circumstances of the case.

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14. It is submitted that the learned Tribunal failed to appreciate that the
workman was not allotted the work of Garden Chaudhary on 1 st April,
1991 and he has been merely performing the work of Mali. It is further
submitted that no copy of any office order has been placed by the
workman on record to show that he was working on the said post.
Therefore, the aforesaid facts clearly aver that the workman has never
performed the duties of a Garden Chaudhary.

15. It is submitted that the learned Tribunal erred in law by failing to
appreciate that the recruitment rules for the post of Mali and Garden
Chaudhary are totally different.

16. It is submitted that the post of Garden Chaudhary is not a
promotional post of Mali and moreover, qualifying the trade test is
mandatory for the promotion to the post of Garden Chaudhary, and thus,
the claim of the workman is baseless and misconceived.

17. It is submitted that the respondent workman cannot be designated
as Garden Chaudhary because he never worked on the same post. There
is a process for promotion to the post of Garden Chaudhary, i.e., there
must be sanctioned post/vacant post of Garden Chaudhary and the
workman should pass the trade test conducted by the department. It is
submitted that the workman has never passed the trade test, and hence his
claim is misconceived and wrongly adjudicated by the learned Tribunal.

18. It is submitted that the respondent workman has failed to adduce
any documentary or oral evidence in support of his contention that the
respondent workman had been performing his duty of Garden Chaudhary
w.e.f. 1st April, 1991.

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19. It is submitted that the respondent has merely made equivocal
contentions, therefore, the same are vague due to lack of substantial
evidence. It is further submitted that mere inclusion of the name of the
workman in the panel does not entitle him to the pay scale for the post of
the Garden Chaudhary.

20. It is submitted that the impugned award is not sustainable in the
eyes of law as the learned Tribunal failed to appreciate the fact that the
respondent was promoted to the promotional post, i.e., Garden Chaudhary
w.e.f. 29th July, 2005 upon qualifying the trade test as envisaged on the
post.

21. It is further submitted that the finding that the respondent herein
has worked for the post in question w.e.f. 1st April, 1991 is merely on the
basis that no suggestion was put to the respondent in his cross
examination that he had not worked as Garden Choudhary w.e.f. 1st April,
1991.

22. It is also submitted that the learned Tribunal has placed reliance
upon Ex. WW1/1 which is a list of names of the workman as per which it
has been stated that the respondent workman was appointed to work as
Garden Chaudhary. It is submitted that the said list cannot be relied upon
by the learned Tribunal as there is no other evidence to prove that the
workman was working at the said post as claimed.

23. It is submitted that as per the judgment of the Hon‟ble Supreme in

State of Orissa v. Pyari Mohan Misra (Dr
)1 even if the respondent
workman was allowed to officiate on the promoted post, in addition to his
substantive post, without selection by the Departmental Promotion
(1995) 3 SCC 123

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Committee (hereinafter "DPC"), the same does not confer any right on
the workman to claim regular scale of pay in the said officiating post.

24. It is further submitted that the onus to prove the above said fact is
upon the respondent workman that he has worked on the said post w.e.f.
1st April, 1991, however, the respondent has failed to discharge its onus
and failed to prove its contention by adducing either any documentary or
oral evidence. Therefore, in the absence of any material on record, the
learned Tribunal is not justified in holding that the respondent has worked
on the post in question w.e.f. 1st April, 1991.

25. Therefore, in view of the foregoing submissions, it is prayed that
the instant petition may be allowed and the reliefs be granted as prayed
for.

(on behalf of the respondent workman)

26. Per Contra, the learned counsel appearing on behalf of the
respondent workman vehemently opposed the instant petition submitting
to the effect that the same is liable to be dismissed being devoid of any
merits.

27. It is submitted that the learned Tribunal rightly adjudicated the
workman‟s claim by granting him the pay scale of Garden Chaudhary
w.e.f. 1st April, 1991.

28. It is submitted that the workman had produced a list of the names
of the workman marked as Ex. WW1/1 where his name appeared at serial
no. 42, thereby, showing that the workman was earlier working as Mali,
appointed on 1st April, 1989 and thereafter, he has been working as
Officiating Garden Chaudhary w.e.f. 1st April, 1991. It is further

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submitted that the said list was issued by the petitioner department and
the same has not been denied, thus, rightly considered by the learned
Tribunal in favour of the workman.

29. It is submitted that the legal issue raised in the instant writ petition
is covered by the judgment of the Division Bench of this Court passed in
the case of
Municipal Corpn. of Delhi v. Sultan Singh2
. It is further
submitted that in
the said judgment
, it was held by the Division Bench of
this Court that the claim of the workmen therein has always been that
they should be paid the difference in pay of a Mali/Chowkidar and the
Garden Chaudhary as they were made to work on the post of Garden
Chaudhary.

30. It is submitted that the aforesaid judgment of the Division Bench of
this Court was challenged before the Hon‟ble Supreme Court where the
same was dismissed as withdrawn vide order dated 9th April, 2012 in case
titled as
Municipal Corp. of Delhi v. Sultan Singh & Ors.3
.

31. It is submitted that the instant petition is nothing but a gross abuse
of process of law and there is nothing on record to show any illegality in
the findings of the impugned award or the reasoning behind the same.

32. It is submitted that this Court cannot delve into the facts of the
matter as the same is the prerogative of the learned Tribunal which is
empowered to adjudicate upon the industrial disputes under the
Industrial
Disputes Act, 1947
.

33. It is submitted that under
Article 226
of the Constitution of India,
this Court does not have the jurisdiction to re-appreciate the evidence on
2011 SCC OnLine Del 1839
S.L.P (C) no. 20069/2011

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record and issue a writ until there is any error apparent on the face of the
record.

34. Therefore, in view of the foregoing submissions, it is submitted
that the instant petition may be dismissed being devoid of any merits.

ANALYSIS AND FINDINGS

35. The matter was heard at length with arguments advanced by the
learned counsel for the respective parties. This Court has perused the
entire material on record and has also duly considered the factual scenario
of the matter, judicial pronouncements relied upon by the parties and
pleadings presented by the learned counsel for the parties.

36. It is the case of the petitioner department that the impugned award
is bad in law since the learned Tribunal erred in holding the respondent
workman entitled to the status of Garden Chaudhary w.e.f. 1 st April, 1991
and therefore, entitled to the pay scale of the said post. It has been
contended on behalf of the petitioner department that the respondent
workman was appointed on the post of Mali w.e.f. 1st April, 1989 and
since then he has been working as a Mali in the petitioner department. It
has been submitted that the respondent workman cannot claim the status
of Garden Chaudhary w.e.f. 1st April, 1991 since he did not possess the
necessary qualification at the relevant time. The petitioner further
contends that other than not being qualified for promotion to the post of
Garden Chaudhary, the respondent workman did not even pass the trade
test for appointment to the said post. Moreover, the respondent workman
has failed to adduce any evidence to show that he was working as Garden
Chaudhary with the petitioner department. Therefore, the impugned
award is liable to be set aside being against the settled position of law.

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37. In rival contentions, the respondent workman has vehemently
opposed the instant petition contending to the effect that there is no
illegality in the impugned award and the present writ petition is without
any merits. It has been submitted that the present case is covered by
various decisions of this Court as well as the Hon‟ble Supreme Court qua
the similar facts and circumstances and the petitioner is merely
prolonging the issue unnecessarily. It has been contended that the
respondent workman has only been granted the pay scale of Garden
Chaudhary w.e.f. 1st April, 1991 till date, meant for Garden Chaudhary
for which period he was directed to perform the work of Garden
Chaudhary. The respondent contends that as per the judgment of the
Division Bench of this Court in
Sultan Singh
(Supra), appeal against
which was also dismissed by the Hon‟ble Supreme Court, the impugned
award has been rightly passed in favour of the workman.

Learned counsel
appearing on behalf of the respondent workman also
placed reliance upon

the judgment dated 20th March, 2012 of the Coordinate Bench of this
Court in the matter of
M.C.D. v. Jai Pal Singh4
wherein a similar mater
was decided in favour of the workman therein and the petitioner
department therein was directed to pay the difference in the pay of Mali
and Garden Chaudhary from 1st April, 1991 till the time he had performed
the duties of Garden Chaudhary. In view of the foregoing submissions, it
is prayed that the instant petition may be dismissed.

38. At this stage, this Court deems it appropriate to peruse and discuss
the finding of the learned Industrial Tribunal. The relevant paragraphs of
the impugned award are as under:
W.P (C) no. 5521/2011

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".....2. Statement of claim has been filed by the Workman,
wherein it is stated that workman was employed as Mali
w.e.f. 01.04.1989 that he was allotted the work of Chaudhary
w.e.f 01.01.1991 by the order of Competent Officer of the
Horticulture Department. It is averred that workman has got
the payment in lower pay scale of Mali i.e. Rs.750-9401-
revised from time to time but he is denied the pay scale of
Rs.950-1500/- for his performing the duty of Chaudhary
w.e.f 01.01.1991. The Mali comes under the category of
unskilled worker while Chaudhary comes under the category
of skilled worker. It is further averred that Hon'ble High
Court of Delhi in CW no.5514/2001 has disapproved the
non- I payment vide order dated 2.5.2003 for the post of
Chaudhary and MCD vide order no.

ADC(Hort)/A.O.(Hort)/DA-VII/055/457 dated 4.3.2005 has
implemented the said order of the Hon‟ble High Court of
Delhi. It is further averred that the Commission, MCD vide
order no.LWD/HQ/05/5 16 dated 29.07.2005 has accorded
permission to MCD General Mazdoor Union for negotiation
and correspondence in respect of the workman working in
Horticulture Department of MCD and that the Managing
Committee of MCD General Mazdoor Union in the meeting
held on 05.06.2011 sponsored the cause of Sh. Siroman
Singh to raise the dispute for regularization as Chaudhary.

It has been prayed that the workman may kindly be granted
status of Garden Chaudhary in the pay scale of Rs.950-
1500/- w.e.f 01.01.1991.

3. The Management has filed the Written Statement to the
claim of the Workman thereby taking preliminary objections
that the present dispute is not an industrial dispute as it is
not espoused by the Union and the workman has also not
authorized the Union to file the present claim. Further, plea
of the Management is that no demand notice has been served
upon the Management. It is averred that the workman was
initially on the post of Mali and later on he was
regularized/promoted on the same post, so he cannot be

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regularized on the post of Garden Chaudhary as he has
never performed his duties as Garden Chaudhary. It is
further averred that the rules for the post of Mali and
Garden Chaudhary are totally different. Chaudhary is not
the promotional post and test has to be qualified to become
Chaudhary. It is further averred that the present workman
never worked on the post of Garden Chaudhary and to
become Chaudhary there must be sanctioned post. The
claimant has never passed the trade test and there is no
office order issued for assigning the duties of Garden
Chaudhary. The Management has denied the contents of the
statement of claim in parawise reply on merits and averred
that the claim of the claimant may kindly be dismissed.

4. On the pleadings of the parties, following issues were
framed on 18.07.2013:-

ISSUES

1. Whether present dispute is an Industrial Dispute as
defined in
Section 2(k)
of Industrial Dispute Act? OPW

2. Whether the present claim of the workmen has been
properly espoused by the Union? OPW

3. Whether any notice of demand was served upon
Management, if not, its effect? OPW

4. As per terms of reference.

5. In Workman Evidence, the workman Siroman Singh
examined himself as WW1. In his affidavit, WW1 has
reiterated more or less the contents of statement of claim. He
has stated that he was allotted the work of Acting Chaudhary
w.e.f 01.01.91 and his name is appearing at Sr.no.42 on
Ex.WW1/3. The MOD has granted the pay scale to Sh Jai
Chand vide order Ex.WW1/2. He also exhibited the copy of
order of case titled Sultan Singh & ors. As ex.WW1/3. In
cross examination, he has stated that it is correct that he was
holding the post of Mali w.e.f 01.01.91 Volunteered he was
allotted the work of Chaudhary w.e.f 01.01.91. He was
regularly promoted to the post of Garden Chaudhary w.e.f
04.03.2014. He qualified the trade test.

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6. WW2 Sh BK Prasad is the President of MCD General
Mazdoor Union and he proved the registration copy of the
Union as EX.WW2/1. The order of MCD for negotiation is
Ex.WW2/2. The Managing Committee of MCD General
Mazdoor Union in its meeting held on 11.04.2011 sponsored
the cause of workman to raise the dispute and copy of said
sponsorship is Ex.WW2/3. List of office bearers is
Ex.WW2/4. In cross examination, he denied the suggestion
that the union is not a registered union. He further denied
the suggestion that he is not the President of the Union or
that no meeting was held on 11.04.2011.

7. The Management in its Evidence has examined one
witness MWl Mewa Ram who has reiterated that contents of
written statement that the workman has never performed the
duty of Garden Chaudhary and that for the post of Garden
Chaudhary there is process i.e. there must be sanctioned
post and the test has to be qualified. He proved the copy of
service book of workman as Ex.WW1/1 (colly). In cross
examination, he has deposed that it is admitted that
workman has been promoted since 04.03.20 14. After seeing
EX.WW1/1, he replied that office file number is not
mentioned and that the Dy. Director (Hort.) has no power to
direct the Mali/Gardner to look after the work of
Chaudhary. He admitted that Ex.WW1/1 has already been
got verified by the Astt. Director (Horticulture). He admitted
that nowadays Sh. Narpat Singh is posted in Shahdara,
North Zone.

He admitted that Ex.WW1/3 was issued by Director
(Horticulture). He admitted that after joining by Siroman in
their department, he has been looking after the work of
Chaudhary. He admitted that if the rules allow to give the
money for the period working as Chaudhary by the
Workman, Siroman Singh, till he is appearing in the
examination conducted by the Department for promotion as
Chaudhary, then he is eligible to get the said amount from

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the department.

8. I have heard the arguments from Sh. BK Prasad, Ld. AR
for the Workman and Sh. Naveen Singia, Ld. AR for
Management. I have carefully perused the evidence on
record. My issues wise findings are as under

ISSUE NO.1

1. Whether present dispute is an Industrial Dispute as
defined in
Section 2(k)
of Industrial Dispute Act? OPW

9. The onus to prove this issue is on the Workman.
Section
2(k)
of ID Act provides as below:"industrial dispute" means
any dispute or difference between employers and employee
or between employers and workmen, or between workmen
and workmen, which is connected with the employment or
non-employment or the terms of employment or with the
conditions of labour, or any person"

In
Municipal Employees Union Vs. The Secretary (Labour)
& Anrs
. 1999 LLR 1020, it has been held that
"It is clear that even a dispute between an employer and his
workmen which is connected with non-employment of any
person can be an industrial dispute. The beneficiary of the
claim need not be a workman of the employer at the time of
raising the dispute. A dispute can be raised by the workmen
of the employer even in respect of the non-employment of
any person, who is not hi workman at the material time".‟
I have also perused Schedule II & III of I.D Act which
contemplates: -

***

10. Workman has examined Sh BK Prasad, President of
MCD General Majdoor Union as WW2 in this present case.
In his affidavit, filed by way of an evidence, he has produced
the copy of espousal sponsorship dated 11.04.2011 as
Ex.WW2/3, copy of Union registration certificate as
Ex.WW2/1. No question has been put to any of the workman
witnesses by the Ld. AR for the Management that the present
dispute is not an industrial dispute as defined
u/s 2(k)
of ID
Act. The present workman is employed in East Delhi
Municipal Corporation. He has raised the plea that the work

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of Garden Chaudhary was being taken from him while he
was being paid as per the scale of Mali. Thus, it is held that
the present dispute is an industrial dispute as defined in

section 2(k)
of I. D. Act. Issue no.1is decided accordingly in
favour of the workman.

ISSUE NO.2
Whether the present claim of the workmen has been properly
espoused by the Union? OPW

11. The onus to prove this issue is on the workman. The
workman has examined WW2 Sh. B.K. Prasad, President of
the Union who has proved the espousal letter issued by Sh.
Bhoop Singh, General Secretary of MCD General Mazdoor
Union(Regd). The copy of the said letter dated 11.04.2011 is
available on file as EX.WW2/3. In reference order, the name
of the Union specifically mentioned. In cross examination,
no question has been asked by the Ld.AR from WW1 that his
case has not been properly espoused. No question has also
been asked with regard to meeting of the union. Only
suggestion has been put to WW2 with regard to espousal
which will not affect the case of the workman. In view of this,
I am of the view that the cause of the workmen has been duly
espoused. Issue no.1 is decided accordingly in favour of the
workman.

ISSUE NO.3
Whether any notice of demand was served upon
Management, if not, its effect? OPW

12. The onus to prove this issue is on the Workman.
However, perusal of the record shows that workman has
failed to prove that he sent any demand notice to the
management.

13.
In
Shambu Nath Goyal Vs. Bank of Baroda, Jullundur
,
(1978), 2 SCR 793, Hon'ble Supreme Court after referring to

section 2(k)
of the Industrial Dispute, 1947, which defines
"industrial dispute", held as below:

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"A bare perusal of the definition would show that where
there is a dispute or difference between the parties
contemplated by the definition and the dispute or difference
is connected with the employment or non- employment or
terms of employment or with the condition of labour of any
person, there comes into existence an industrial dispute.
The
Act
nowhere contemplates that the dispute would come into
existence in any particular, specific or prescribed manner.
For coming into- existence of an industrial dispute a written
demand is not a sine qua non, unless of course in the case of
public utility service, because section forbids going on strike
without giving a strike notice".

14. Though, no demand notice has been served upon the
management, yet in view of above judgment, it will have no
material affect on the award as no such notice was required
to be given. Issue no.3 is decided accordingly.

ISSUE NO.4

4. As per terms of reference.

The terms of reference is - "Whether Sh Siroman Singh S/o
Sh. Inderpal Singh is entitled to the status of Chaudhary in
the pay scale of Rs.950-1500 with effect from 01.01.1991
revised from time to time along with all consequential
benefits and if so, to what relief is he entitled and what
directions are necessary in this respect?"

15. The Workman has deposed in his affidavit filed in his
evidence that he was working as acting Chaudhary w.e.f
01.01.91 and his name appears at sr.no.42 in Annexure W
which is Ex.WW1/1. I have perused the said exhibited
document. It clearly shows that the employees from sr.no.1
to 43 were working as Officiating Chudharies with the
Management. The list clearly show that the persons were
earlier working as Mali who have been working as
Chaudhary w.e.f the date mentioned against their names.
The perusal of Ex.WW1/1 shows that the name of Workman
appears at sr.no.42 i.e. Siroman sb Inderpal, earlier working

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as Mali, appointed on 01.04.1989, working as Officiating
Chaudhary w.e.f. 01.04.1991. This list has been signed by
Dy. Director (Horticulture). This document has been issued
by Management. It has not been denied by the Management
that this document does not belong to then' or that it is a
false or procured document. In cross examination, WW1
Workman has deposed that he has been regularly promoted
to the post of Garden Chaudhary w.e.f 04.03.2014. He
qualified the trade test for the post of Garden Choudhary.
The document Ex.WW1/1 clearly indicate that the workman
started working as Chaudhary w.e.f. 01.04.199 1 though the
passed the required test later and promoted to the post of
Chaudhary.

16. The Management has also led the evidence to counter the
claim of the workman. But the plea of the management that
the workman never performed the work of chaudhary is
unbelievable since the the document EX.WW1/1 issued by
management clearly indicate that the workman used to
perform the duty of Chaudhary w.e.f. 01.04.1991. I have
perused the service book of the workman Ex.MW1/1 (colly.).
The said service book clearly show that the workman has
been getting the pay scale applicable to Mali while he has
been working as Chaudhary w.e.f .01.04.1991.

17. Workman has also deposed that the Management has
granted the pay scale to Sh. Jal Chand (co-worker) and
order of MCD In this respect Is Ex.WW1/2.1 have perused
the said order. It clearly Indicate that the order of Hon'ble
High Court dated 02.05.2003 passed In CWP No.6514/2001
In the matter of
Jal Chand Vs. MCD & Ors. And
order dated
24.09.2004 passed In CWP no. 4799/2000 In the matter of

MCD Vs. Jal Chand
are implemented. It is therefore, clear
that the Management has already implemented the scale to
its worker Jai Chand.

18.
In
Selvaraj Vs. Ltd. Governor of Island, Port Blair

(1998) 4 SCC 291, It is held that The employee was not

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regularly promoted to the post of Secretary (scouts) but he
was regularly asked to look after the duties of Secretary
(Scouts). Applying the principle of quantum merit it was held
by the Supreme Court that the authorities should have paid
to the employee the emoluments available in the higher pay
scale during the time he actually worked on the said post of
secretary (Scouts) though in an officiating capacity and not
as a regular promote.

19.
In
M.C.D Vs. Sultan Singh & Ors. WP (C)
NO.7974/2010
, it is observed that 'considering the entire
facts and circumstances it is apparent that the claim of the
respondents have always been that they should be paid the
difference in pay of Mali/Chowkidar and the Garden
Chaudhary as they were made to work on the post of Garden
Chaudhary whereas the petitioner had first denied that they
worked as Garden Chaudharies, then took the plea that the
Assiatant Director (Horticulture) was not competent to ask
the respondents to work as Garden Chaudharies and that the
respondents cannot be appointed to the post of Garden
Chaudharies in accordance with the recruitment rules.

There is no doubt that respondents are not claiming
appointment to the post of Garden Chaudharies on account
of having worked on adhoc basis on the post of Garden
Chaudhary contrary to rules or that some of them not having
the requisite qualifications are entitled for relaxation. In the
entirety of facts & circumstances therefore, the learned
counsel for the petitioner has failed to make out any such
grounds which will impel this court to exercise its
jurisdiction under
Article 226
of the Constitution to set aside
the order of the Tribunal dated 291/1 Jan 2010 and 7th Oct.
2010 as no illegality or un-sustainability or perversity in the
orders of the Tribunal has been made out.

20. In view of my above discussions and Judgment quoted
above and considering Ex.WW1/1, Workman is entitled to
the Status of Chaudhary and he is also entitled to pay scaled
attached to this post for the period he worked as Chaudhary.

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The Management has been failed to produce any record that
the workman was appointed as officiating Chaudhary for
some time and that thereafter he stopped working as
Chaudhary. On the other hand, it has been admitted that the
workman has been promoted as Chaudhary w.e.f.

04.03.2014 after passing required trade test.

21. In view of the entire facts and circumstances of the case,
it is held that the workman is entitled for the pay scale of
Rs.950- 1500/- (revised from time to time) meant for Garden
Chaudhary w.e.f. 01.04.1991 till date. Issue no.2 of the
reference is decided accordingly in favour of the
Workman...."

39. Upon perusal of the above extracted portion of the impugned
award, it is observed that the case before the learned Tribunal revolves
around a dispute raised by Sh. Siroman Singh, a workman, regarding his
entitlement to the pay scale and status of a Garden Chaudhary. The
workman‟s claim stated that he was employed as a Mali from 1st January,
1989 and was assigned the duties of a Garden Chaudhary from 1st April,
1991, by a competent officer in the Horticulture Department, i.e., Deputy
Director (Horticulture). Despite performing the duties of a Garden
Chaudhary, he continued to receive the lower pay scale of a Mali. The
pay scale for a Mali was Rs. 750/- -940/-, whereas a Garden Chaudhary,
categorized as a skilled worker, had a pay scale of Rs. 950/- -1500/-. The
workman had
placed reliance upon
a judgment of this Court and
subsequent Municipal Corporation of Delhi orders which disapproved the
non-payment for the post of Garden Chaudhary and directed the
petitioner department therein to make the payment of the difference of the
pay scale.

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40. The petitioner management contested the workman‟ claim, arguing
that the dispute did not qualify as an industrial dispute since it was not
properly espoused by a union and no demand notice was served upon it. It
was asserted that the workman was initially and regularly promoted as a
Mali, not a Garden Chaudhary, and had never performed the duties of a
Garden Chaudhary. Furthermore, the petitioner department emphasized
that Garden Chaudhary is not a promotional post from Mali; it requires
passing a test, and the workman in the instant case had never passed such
a test nor was there an office order for him to act as Garden Chaudhary.

41. The issues framed for determination of the learned Tribunal
included whether the dispute qualifies as an industrial dispute under the

Industrial Disputes Act, 1947
, if the claim was properly espoused by the
union, and the effect of the absence of a demand notice, and as per the
terms of the reference. Evidence presented included testimonies from the
workman and a union representative, along with documentary evidence
supporting workman‟s claim that he performed Garden Chaudhary duties
from April, 1991.

42. The learned Tribunal observed that the dispute raised before it
qualifies as an industrial dispute under
Section 2(k)
of the Industrial
Disputes Act, 1947 noting that the workman‟s union had properly
espoused the cause. Despite no formal demand notice being served, the
dispute was recognized as valid, following legal precedents of the
Hon‟ble Supreme Court, indicating that a written demand is not a
prerequisite for an industrial dispute's existence.

43. The learned Tribunal noted that the examination of evidence
revealed the workman‟s name on a list of employees performing as

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officiating Garden Chaudharies and the acknowledgment by the
management that the workman was promoted to Garden Chaudhary in the
year 2014 after passing the required trade test. The learned Tribunal noted
that although he was formally promoted later, the workman performed
the duties of Garden Chaudhary from 1991. Citing previous judgments of
the Hon‟ble Supreme Court as well as this Court, the learned Tribunal
underscored the principle that employees should be compensated for
higher responsibilities undertaken, even if formal promotions occur later.

44. In conclusion, the learned Tribunal decided the claim in favor of
the workman, entitling him to the pay scale of Rs. 950/- -1500/- for
Garden Chaudhary, effective from 1st April, 1991, till date, including all
the consequential benefits. The reasoning behind the same was based on
the evidence that the workman performed the duties of a garden
Chaudhary from 1991, and the management's inability to refute the claim
effectively.

45. Therefore, the question that arises for the consideration of this
Court are as follows:

Issue no. 1 - Whether the respondent workman is entitled
to the post of Garden Chaudhary w.e.f. 1st April, 1991?
Issue no. 2 - Whether the respondent workman is entitled
to the pay scale attached to the post of Garden Chaudhary
for the period he has worked on the said post on officiating
status?

Issue no. 1 - Whether the respondent workman is entitled to the post of
Garden Chaudhary w.e.f 1st April, 1991?

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46. Before delving into the analysis of the instant issue, this Court
deems it imperative to state the settled position of law with respect to the
entitlement to a post without having been officially appointed to the said
post.

47. In addressing whether a person who is not officially
appointed/promoted to a post can be entitled to the said post merely
because they were working in an officiating or ad hoc or acting or
temporary position or as a stop gap arrangement, it is crucial to apply
legal principles and precedents relevant to employment law and industrial
disputes.

48. As per the settled position of law, appointment to a post has to be
made after following the due process of law. Appointment made to a post
without following the established recruitment process is contrary to the
constitutional mandate as well as the basic fundamental and legal rights.

49. Recruitment rules and qualifications for a post are designed to
ensure that only those with the requisite skills and expertise occupy
positions of responsibility. Courts generally uphold the necessity of
complying with these rules to maintain organizational standards and
fairness.

50.
In
Shankarsan Dash vs. Union of India5
, the Hon‟ble Supreme
Court held that even if a candidate is selected for a post, they do not
acquire a right to be appointed unless there is a formal appointment
following the prescribed procedure. The relevant portion of
the said
judgment
is as under:
(1991) 3 SCC 47

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"...10. The main contention on behalf of the appellant has
been, however, that the authorities in keeping the vacancies
arising later unfilled, acted arbitrarily. Mr Goswami
referred to several documents annexed to the special leave
petition and affidavits filed on behalf of the parties and
contended that although appointments of many candidates in
the other services were made in the later vacancies, the
vacancy in the Indian Police Service which subsequently
became available to the appellant was refused without any
just cause, resulting in illegal discrimination. This was
emphatically denied on behalf of the respondent. Since the
matter did not appear to be free from ambiguity on the basis
of the affidavits before us, we decided to examine the factual
aspects more thoroughly by examining the other available
materials on the records of the Union of India, and
accordingly the learned counsel for the respondent got the
relevant departmental files called. Two further affidavits
were also filed along with photostat copies of a large
number of documents, which we examined at some length
with the aid of the learned advocates for both sides. From
the materials produced before us it is fully established that
there has not been any arbitrariness whatsoever on the part
of the respondent in filling up the vacancies in question or
the other vacancies referred to by the learned counsel for the
appellant. The process of final selection had to be closed at
some stage as was actually done. A decision in this regard
was accordingly taken and the process for further allotment
to any vacancy arising later was closed. Mr Goswami relied
upon certain appointments actually made subsequent to this
stage and urged that by those dates the further vacancies in
the Indian Police Service had arisen to which the appellant
and the other successful candidates should have been
adjusted. We do not find any merit in this contention. It is
not material if in pursuance of a decision already taken
before closing the process of final selection, the formal
appointments were concluded later. What is relevant is to
see as to when the process of final selection was closed.

Mere completing the formalities cannot be of any help to the

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appellant. We do not consider it necessary to mention all the
details in this connection available from the large number of
documents which we closely examined during the hearing at
considerable length and do not have any hesitation in
rejecting the argument of the learned counsel in this regard
based on the factual aspect..."

51. Moving further, this Court is of the view that officiating positions
are temporary arrangements and do not confer any right to the substantive
post. Also, the retrospective appointment or promotion to a post should
be given most sparingly and on sound reasoning and foundation.
Additionally, it is the DPC which is tasked with determining and
finalizing the process of promotion to a certain post and unless the
decision of the said DPC is proven to be arbitrary or mala fide, it cannot
be said that the same requires intervention of the Courts.

52. Similar view was also taken by the Hon‟ble Supreme Court in
K.
Madhavan vs. Union of India6
, where the Hon‟ble Court observed that
officiating in a higher post does not entitle an employee to a permanent
promotion unless they meet the eligibility criteria and are appointed
through due process. The relevant paragraphs of the same read as under:

"...10. The 1975 Rules which are relevant for the purpose do
not explain what is meant by the expression "on a regular
basis". The expression has created some ambiguity in the
eligibility clause giving rise to this controversy. There can
be no doubt that when a person is appointed to a post
against a permanent vacancy on probation, his appointment
is on a regular basis, but when a person is appointed to a
post on a purely temporary or on an ad hoc basis, the
appointment is not on a regular basis. The expression "on a
regular basis" in the 1975 Rules cannot, in our opinion, be
(1987) 4 SCC 566

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interpreted to mean as on absorption in the CBI as SP. The
general principle is that in the absence of any specific
provision to the contrary, the length of service from the date
of appointment to a post should be taken into consideration
for the purpose of either seniority in that post or eligibility
for the higher post. As no explanation has been given in the
1975 Rules of the said expression, we do not think it
desirable to deviate from the established principle of
computing the length of service for the purpose of seniority
or eligibility for the higher post from the date of
appointment. In our view, therefore, the expression "on a
regular basis" would mean the appointment to the post on a
regular basis in contradistinction to appointment on ad hoc
or stopgap or purely temporary basis. Respondent 5, in our
opinion, satisfied the eligibility test of the 1975 Rules for
consideration for the post of DIG. But, it is not disputed by
the parties that the petitioners and Respondent 5 have, by the
lapse of time during the pendency of this litigation, become
eligible for appointment to the posts of DIG. Indeed, they are
holding the posts of DIG, may be on ad hoc basis, under the
interim orders of this Court and there is no chance of their
being reverted to the next lower post of SP. The question,
therefore, boils down to the seniority of the petitioners, vis-

à-vis Respondent 5 in the post of DIG. That again will
depend upon the decision on the question as to the seniority
of the petitioners and Respondent 5 in the post of SP.

***

15. There can be no doubt that if the meeting of the DPC
scheduled to be held is arbitrarily or mala fide cancelled
without any reasonable justification therefor to the prejudice
of an employee and he is not considered for promotion to a
higher post, the government in a suitable case can do justice
to such an employee by granting him promotion or
appointing him to the higher post for which the DPC was to
be held, with retrospective effect so that he is not subjected
to a lower position in the seniority list. But, if the
cancellation or postponement of the meeting of the DPC is
not arbitrary and is supported by good reasons, the

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employee concerned can have no grievance and the
government will not be justified in appointing the employee
to the higher post with retrospective effect. An employee may
become eligible for a certain post, but surely he cannot
claim appointment to such post as a matter of right..."

53. During the course of arguments, the petitioner
placed reliance upon

the judgment of the Hon‟ble Supreme Court in
Pyari Mohan Misra

(Supra) contending that even if the respondent workman, in addition to
his substantive post was allowed to officiate on the promoted post, de
hors of selection in DPC, the same does not confer any right on the
respondent to claim regular scale of pay in the said promoted post.
Relevant paragraphs of
the said judgment
are as follows:

"..4. Admittedly, there is no order communicated to the
respondent appointing him in a substantive capacity as
Director. The only order passed in his favour was of 22-7-
1972. That order clearly shows that he would continue
temporarily until further orders in terms of the order of
appointment made on ad hoc basis on 12-8-1971. In other
words, mere prolonged continuous ad hoc service does not
ripen into a regular service to claim permanent or
substantive status. He would remain to be on ad hoc basis
until further orders. Since the Government had taken policy
decision to appoint an IAS officer, he was rightly reverted to
the post of Joint Director. Accordingly, we hold that his
reversion is perfectly legal and valid. However, the stark
facts remain that he continued in the post of Director and
discharged his duties as Director from 12-8-1971. In these
circumstances, as a mark of good gesture but not as a
precedent, the appellants are directed to give him
pensionary benefits computing his pay as if he voluntarily
retired as a Director from 16-12-1977. All the proceedings
now stand concluded. The TA stands dismissed. The appeal
is disposed of accordingly. No costs..."

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54. Perusal of the above judgment states that mere prolonged
continuous ad hoc service does not entitle the employee to claim
appointment into a regular service or to claim permanent or substantive
status. This Court is also of the view that unless the circumstances speak
otherwise, mere working in a particular post on ad hoc does not vest any
right to be appointed permanently in the said post as the same would be
contrary to the recruitment rules and violative of various constitutional
mandates.

55. In light of the facts of the instant case, it is observed that Ex.
WW1/1, which is the part of the Trial Court Record is a list of workers
working as Officiating Chaudharies, and in Ex. WW1/1, the respondent
workman‟s name appears to be at serial no. 42. Moreover, in paragraph
no. 15 of the impugned award, the workman has also duly admitted that
he was working as „acting Chaudhary‟ w.e.f. 1st April, 1991.

56. Furthermore, as per the rules of recruitment of the petitioner
department, the respondent is not entitled for the promotion to the post
Garden Chaudhary w.e.f. 1st April, 1991 because the said post is the
promotional post and the same is required to be filled by way of
conducting a „trade test‟ and only those who have qualified the prescribed
test for the post are entitled to get promoted to the post of Garden
Chaudhary.

57. Although the respondent workman is seen to be working as a
Garden Chaudhary upon directions and order of the Deputy Director
(Horticulture), however, there is nothing on record to show that he was
promoted or appointed to the said post by following the established

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recruitment rules of the petitioner department until his official promotion
on 4th March, 2014.

58. While the workman performed the duties of a Garden Chaudhary
from the year 1991, this alone does not entitle him to the post. There must
be clear evidence that his performance met the standards required for the
post, thereby, confirming his promotion to the post of Garden Chaudhary
after following the due process of law, i.e., trade test.

59. The fact that the respondent workman passed the trade test in the
year 2014 is relevant, but it also indicates that prior to this, he did not
meet all the necessary qualifications for „regular promotion/appointment‟
to the post of Garden Chaudhary.

60. The workman‟s entitlement to the post must be evaluated based on
the date he met all the requirements, not just when he began performing
the duties on officiating/ad hoc basis. Precedent like
State of Karnataka
v. Umadevi
(3)7 particularly states that regular appointments must follow
statutory rules. Therefore, the respondent workman‟s claim to the post
must be evaluated against these legal standards, which prioritize
adherence to established recruitment procedures.

61. This Court is of the view that if the rules for the higher post require
certain qualifications or passing of specific tests, the employee must meet
these criteria. Sh. Siroman Singh, i.e., the workman herein passed the
required trade test only in the year 2014, which fulfilled this requirement
for formal promotion to the post of Garden Chaudhary. As per the law,
promotions must be evaluated based on the fulfillment of all requirements
at the appropriate time and the respondent workman passed the trade test
(2006) 4 SCC 1

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in the year 2014, indicating he did not meet the necessary qualifications
for regular promotion to the post of Garden Chaudhary until that time.

62. The contention of the petitioner department that the workman has
failed to discharge the onus of proof that he was performing duties of
Garden Chaudhary w.e.f. 1st April, 1991 is untenable in the eyes of law as
the respondent workman had duly placed the list of workmen (which
includes his name at serial no. 42), duly issued by the Deputy Director
(Horticulture) and the said documentary evidence has been rightly taken
into consideration by the learned Industrial Tribunal.

63. Based on the legal principles and judicial precedents, it is stated
that a person cannot be entitled to a post merely because they were
working in an officiating capacity, especially if they were not appointed
following the prescribed recruitment rules and necessary qualifications.

64. The principles of equity and fairness must be balanced with the
statutory requirements to ensure that appointments are made transparently
and based on merit. Therefore, while the respondent workman‟s long
service and performance in the role of Garden Chaudhary might merit
consideration, his official appointment to the post must comply with the
requisite recruitment rules and qualifications.

65. Summarily stated, the respondent workman is not entitled to the
post/status of Garden Chaudhary w.e.f. 1st April, 1991 since he was not
appointed on the said post as per the recruitment rules and further, cannot
be promoted to the said post until he passed the trade test.

66. This Court is of the considered view that to determine whether the
respondent worked as a Garden Chaudhary w.e.f. 1st April, 1991 until 4th
March, 2014, i.e., when he was promoted officially, after passing the

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trade test, is a question of fact and not a question of law which is the
prerogative of the learned Industrial Tribunal and being a writ Court, this
Court is only tasked to decide whether the workman is entitled to the post
of Garden Chaudhary w.e.f. 1st April, 1991, which has been decided in
negative in terms of the observations made in the foregoing paragraphs.

67. It is held that the respondent workman was appointed as an
Officiating Garden Chaudhary and he performed the duties of the said
post under the orders of the Deputy Director (Horticulture) merely as an
Officiating Garden Chaudhary and not as a regular Garden Chaudhary
since he did not pass the trade test at the relevant time. The respondent
workman‟s was directed to perform the duties of the above said post and
the same was merely a temporary arrangement without vesting any right
in his favour to claim entitlement to the said post on regular basis.

68. Accordingly issue no. 1 stands decided.

Issue no. 2 - Whether the respondent workman is entitled to the pay
scale attached to the post of Garden Chaudhary for the period he has
worked on the said post on officiating status?

69. In order to decide the issue stated herein above, it is prudent for
this Court to ascertain the settled legal position behind the entitlement of
a person performing the duties of a higher post in an officiating capacity
qua pay scale of the said higher post.

70. Here, the doctrine of quantum meruit comes into picture which
implies that a person should be paid for the work done if they have
performed duties typically associated with a higher post.

71. The doctrine of quantum meruit was applied by the Hon‟ble
Supreme Court in the case of
Selvaraj vs. Lt. Governor of Island, Port

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Blair8
, where it was held that the employee was entitled to the
emoluments available for the higher post during the time he actually
worked in that capacity, even though he was not officially promoted.
Relevant portion of
the said judgment
are as under:

"..3. It is not in dispute that the appellant looked after the
duties of Secretary (Scouts) from the date of the order and
his salary was to be drawn against the post of Secretary
(Scouts) under GFR 77. Still he was not paid the said salary
for the work done by him as Secretary (Scouts). It is of
course true that the appellant was not regularly promoted to
the said post. It is also true as stated in the counter-affidavit
of Deputy Resident Commissioner, Andaman & Nicobar
Administration that the appellant was regularly posted in the
pay scale of Rs 1200-2040 and he was asked to look after the
duties of Secretary (Scouts) as per the order aforesaid. It is
also true that had this arrangement not been done, he would
have to be transferred to the interior islands where the post
of PST was available, but the appellant was keen to stay in
Port Blair as averred in the said counter. However, in our
view, these averments in the counter will not change the real
position. Fact remains that the appellant has worked on the
higher post though temporarily and in an officiating
capacity pursuant to the aforesaid order and his salary was
to be drawn during that time against the post of Secretary
(Scouts). It is also not in dispute that the salary attached to
the post of Secretary (Scouts) was in the pay scale of 1640-
2900. Consequently, on the principle of quantum meruit the
respondents authorities should have paid the appellant as
per the emoluments available in the aforesaid higher pay
scale during the time he actually worked on the said post of
Secretary (Scouts) though in an officiating capacity and not
as a regular promotee. This limited relief is required to be
given to the appellant only on this ground.
(1998) 4 SCC 291

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4. The decision of the Central Administrative Tribunal
rejecting the claim of the appellant to the aforesaid limited
extent is therefore required to be set aside. The appeals are
allowed to the limited extent that the respondents will be
called upon to make available to the appellant the difference
of salary in the time scale of 1640-2900 during the period
from 29-1-1992 to 19-9 1995 during which time the
appellant actually worked. It is made clear that the payment
of the aforesaid difference amount of salary shall not be
treated to amount to any promotion given to the appellant on
the said post. It is only on the ground that he had actually
worked, as such this relief is being given to him. The
difference of salary as aforesaid shall be paid over to the
appellant within eight weeks from today. No costs..."

72. The aforementioned judgment was also followed by the Hon‟ble
Supreme Court in
State of Punjab v. Dharam Pal9
and the observations
made therein are as follows:

"...10. Certain Notes have been appended to the said Rule
but they are not relevant for adjudication of the present
controversy. On a close scrutiny, it is noticeable that the
said Rule postulates that the government employee
appointed to an officiating post shall not draw pay higher
than his substantive pay in respect of a permanent post
unless the post in which he is appointed to officiate is one
enumerated in the Schedule to the Rules and further the
officiating appointment involves assumption of duties and
responsibilities of greater importance than those attached to
the post. It is not in dispute that the posts of Superintendent
Grade II and Grade I are covered under the Schedule. Be it
mentioned, the extension of benefit is subject to the
provisions of Rules 4.22 and 4.24.

***

13. On a careful scrutiny of the aforesaid prescription, it is
perceptible that the said Rule envisages a different situation
(2017) 9 SCC 395

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altogether. The present factual matrix is quite different. We
are inclined to so hold as the respondent herein was holding
higher posts and further he was performing the duties of
higher responsibility attached to the posts. Thus analysed,
we arrive at the conclusion that the Rules do not bolster the
proposition advanced by the learned counsel for the State.

14. Having analysed the Rule position, we may allude to the
authorities that have been commended to us. First, we shall
dwell upon the decision in
Pritam Singh Dhaliwal [Pritam
Singh Dhaliwal v. State of Punjab
, 2004 SCC OnLine P&H
1428 : (2004) 4 RSJ 599] that has been relied upon by the
High Court in the impugned order.

In the said case, the
Division Bench of the High Court had
placed reliance
upon

P. Grover v. State of Haryana [P. Grover
v. State of
Haryana, (1983) 4 SCC 291 : 1983 SCC (L&S) 525 : AIR
1983 SC 1060] and Selvaraj v. Lt. Governor of Island, Port
Blair [Selvaraj v. Lt. Governor of Island, Port Blair, (1998)
4 SCC 291 : 1998 SCC (L&S) 1127 : (1999) 2 SCT 286] and
earlier decisions of the High Court and analysing the Rule
position opined that the officer therein had been asked to
officiate as Deputy Director with effect from 14-3-1996 and
he had been continuously posted to equivalent posts such as
Additional Deputy Commissioner (D) and till his
superannuation the officiating charge was never withdrawn
and hence, his entitlement to claim higher pay scale for the
post for which he was asked to officiate and perform his
duties till his superannuation would not be negatived.

15. As the reasoning of the High Court is fundamentally
based on enunciation of law propounded by the Court in
P.
Grover [P. Grover v. State of Haryana
, (1983) 4 SCC 291 :

1983 SCC (L&S) 525 : AIR 1983 SC 1060] , we think it apt
to appreciate the
ratio
laid down in
the said case. A two-
Judge Bench of this Court was dealing with the fact situation
wherein keeping in view the policy decision, the appellant
therein was promoted as an acting District Education
Officer. The order of promotion contained a superadded
condition that she would draw her own pay scale which
apparently meant she would continue to draw her salary on

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her pay scale prior to promotion. The claim was put forth by
the appellant that she was entitled to the pay of District
Education Officer and there was no justification for denying
the same to her. A writ petition was filed before the High
Court and the State filed the counter-affidavit contending,
inter alia, that she was promoted to the post of acting
District Education Officer as there was no Class I post and
hence, she was not entitled to be paid the salary of District
Education Officer. Appreciating the fact situation, the Court
held : (SCC p. 293, para 3)
"3. ... We are unable to understand the reason given
in the counter-affidavit. She was promoted to the post
of District Education Officer, a Class I post, on an
acting basis. Our attention was not invited to any rule
which provides that promotion on an acting basis
would not entitle the officer promoted to the pay of the
post. In the absence of any rule justifying such refusal
to pay to an officer promoted to a higher post the
salary of such higher post (the validity of such a rule
would be doubtful if it existed), we must hold that Smt
Grover is entitled to be paid the salary of a District
Education Officer from the date she was promoted to
the post, that is, 19-7-1976, until she retired from
service on 31-8-1980."

***

18.
In
A. Francis [A. Francis v. Metropolitan Transport
Corpn. Ltd.
, (2014) 13 SCC 283 : (2015) 1 SCC (L&S) 376]
, the Court was dealing with the entitlement of the appellant
to the salary in higher pay of Assistant Manager wherein he
had worked from 28-2-2001 till 31-5-2005. The employer
had denied certain benefits and the employee preferred a
writ petition before the High Court which was allowed by
the learned Single Judge. The Corporation filed letters
patent appeal which reversed the judgment of the learned
Single Judge.

The appellant before this Court placed
reliance on
Secy.-cum-Chief Engineer v. Hari Om
Sharma [Secy.-cum-Chief Engineer
v. Hari Om Sharma,

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(1998) 5 SCC 87 : 1998 SCC (L&S) 1273] . On behalf of the
Corporation terms of the order were pressed into service
contending that there were specific conditions stipulated in
the order with regard to salary and emoluments and,
therefore, the claim with regard to higher post was not
tenable in law.

***

20.
In
Hari Om Sharma [Secy.-cum-Chief Engineer v. Hari
Om Sharma
, (1998) 5 SCC 87 : 1998 SCC (L&S) 1273] , the
respondent was promoted as a Junior Engineer I in 1990
and had been continuing on that post without being paid
salary for the said post and without being promoted on
regular basis. It was in this situation, he approached the
Central Administrative Tribunal which allowed the claim
petition with the direction that the respondent shall be paid
salary for the post of Junior Engineer I. That apart certain
other directions were also issued. The Court took note of the
fact that the respondent was promoted on a stop-gap
arrangement as Junior Engineer I and opined that this by
itself would not deny his claim of salary for the said post. In
that context, the Court held : (SCC p. 89, para 6)
"6. ... If a person is put to officiate on a higher post
with greater responsibilities, he is normally entitled to
salary of that post. The Tribunal has noticed that the
respondent has been working on the post of Junior
Engineer I since 1990 and promotion for such a long
period of time cannot be treated to be a stop-gap
arrangement."

***

22. In the instant case, the Rules do not prohibit grant of pay
scale. The decision of the High Court granting the benefit
gets support from the principles
laid down in

P. Grover [P.
Grover v. State of Haryana
, (1983) 4 SCC 291 : 1983 SCC
(L&S) 525 :
AIR 1983 SC 1060] and Hari Om
Sharma [Secy.-cum-Chief Engineer v. Hari Om Sharma
,
(1998) 5 SCC 87 : 1998 SCC (L&S) 1273] .

As far as the
authority in
A. Francis [A. Francis v. Metropolitan

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Transport Corpn. Ltd.
, (2014) 13 SCC 283 : (2015) 1 SCC
(L&S) 376] is concerned, we would like to observe that the
said case has to rest on its own facts. We may clearly state
that by an incorporation in the order or merely by giving an
undertaking in all circumstances would not debar an
employee to claim the benefits of the officiating position.

We
are disposed to think that the controversy is covered by the

ratio
laid down in

Hari Om Sharma [Secy.-cum-Chief
Engineer v. Hari Om Sharma
, (1998) 5 SCC 87 : 1998 SCC
(L&S) 1273] and resultantly we hold that the view expressed
by the High Court is absolutely impeccable...."

73. Perusal of the above extracts reveal that the Hon‟ble Supreme
Court has settled the issue regarding claim of a person for pay scale
attached to a position where he was working in an officiating capacity.
In
the case of
Dharam Pal
(Supra), Dharam Pal was given the officiating
charge of higher posts (Superintendent Grade II and Superintendent
Grade I) while he was substantively holding the post of Senior Assistant.
The Hon‟ble Supreme Court held that Dharam Pal was entitled to the pay
scale of the higher post he was officiating because he was performing the
duties and responsibilities of the said post.

74. It was observed that an employee performing duties of a higher
post in an officiating capacity should be paid the higher emoluments for
the duration they actually worked in that capacity, applying the principle
of quantum meruit. The Hon‟ble Court held that if an employee is
officiating in a higher post and is performing the duties and
responsibilities attached to that post, he is entitled to the pay scale of that
higher post.

75. Furthermore, as per the principle of legitimate expectation, an
employee has a reasonable expectation of being treated in a certain way

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by their employer, based on past practices or promises. If an employee
has been performing the duties of a higher post for an extended period,
they might have a legitimate expectation of being compensated
accordingly or being formally appointed to that post.

76. This Court is of the view that the Courts are duty bound to consider
the principles of equity and fairness, particularly in employment disputes.
If an employee has been performing the duties of a higher post in good
faith and upon directions/orders of the concerned authority, it might be
deemed unfair for the employer to deny them the corresponding benefits.
However, there must be clear and convincing evidence that the employee
has been performing the specific duties of the higher post.

77. Now delving into the facts of the matter in hand.

78. The respondent workman claimed his entitlement to the pay scale
of Garden Chaudhary w.e.f. 1st April, 1991, i.e., when he was
directed/ordered by the Deputy Director (Horticulture) to perform the
duties of Chaudhary by way of issuing a list where the workman‟s name
appeared at serial no. 42.

79. It is relevant to note here that the above said list has not been
denied or disputed by the petitioner department before the learned
Industrial Tribunal as observed in paragraph no. 15 of the impugned
award. Relevant paragraph is reproduced herein below:

"...15. The Workman has deposed in his affidavit filed in his
evidence that he was working as acting Chaudhary w.e.f
01.01.91 and his name appears at sr.no.42 in Annexure W
which is Ex.W1/1. I have perused the said exhibited
document. It clearly shows that the employees from sr.no.1
to 43 were working as Officiating Chudharies with the
Management. The list clearly show that the persons were

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earlier working as Mali who have been working as
Chaudhary w.e.f the date mentioned against their names.
The perusal of Ex.WW1/1 shows that the name of Workman
appears at sr.no.42 i.e. Siroman sb Inderpal, earlier working
as Mali, appointed on 01.04.1989, working as Officiating
Chaudhary w.e.f. 01.04.1991. This list has been signed by
Dy. Director (Horticulture). This document has been issued
by Management. It has not been denied by the Management
that this document does not belong to then' or that it is a
false or procured document. In cross examination, WW1
Workman has deposed that he has been regularly promoted
to the post of Garden Chaudhary w.e.f 04.03.2014. He
qualified the trade test for the post of Garden Choudhary.
The document Ex.WW1/1 clearly indicate that the workman
started working as Chaudhary w.e.f. 01.04.199 1 though the
passed the required test later and promoted to the post of
Chaudhary..."

80. Perusal of the above reproduced extracts of the impugned award
reveals that the workman had deposed before the learned Tribunal that he
was working as acting Garden Chaudhary w.e.f. 1st April, 1991. Further,
it was observed by the learned Tribunal that the list (EX. WW1/1), which
was duly signed by the Deputy Director (Horticulture), exhibited by the
workman in his affidavit, explicitly states the name of the workman at
serial no. 42, who was earlier working as a Mali and later on working as
Officiating Chaudhary.

81. It was also observed by the learned Tribunal that the document has
been issued by the petitioner management and the said list has not been
denied by the Assistant Director (Horticulture) who was appearing on
behalf of the petitioner department before the learned Tribunal.

82. The above extract of the impugned award also states that in the
cross examination, the authorized representative of the petitioner

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department explicitly stated that the workman was promoted in the year
2014 after passing the trade test and the learned Tribunal had specifically
noted that the petitioner department did not deny the above said list by
virtue of which the respondent workman was directed to perform duties
of Garden Chaudhary in officiating capacity. For reference, the relevant
portion of the cross examination of petitioner department is reproduced
herein below:

"..XXXXXX by Sh. BK Prasad, Ld. AR for workman.
It is correct that workman Sh. Siroman Singh has been
promoted since 04.03.2014.

At this stage, Ld. AR for workman has drawn attention of the
witness on order Ex. WW 1/1 at serial no.42 of judicial file
and asked the following questions:-

Q Is it correct that as per this order the present workman
alongwith the other workmen has been directed to look after
the work as Choudhary. What have you to say?
Ans. I have seen the order but it is not mentioned the office
file number nor the Dy. Director Horticulture has power to
direct the Mali/Gardener to look after the work of
Choudhary.

Q It is correct that this list Ex, WW 1/1 has already been got
verified by the Asst. Director Horticulture namely Sh.
Narpat Singh. What have you to say?

Ans. It is correct.

Q Is it correct that now a days the Narpat Singh is posted in
Shahdara North zone? What have you to say?
Ans. It is correct.

At this stage, Ld. AR for workman has drawn attention of the
witness on the list dt. 4.6.13 for payment of discharging the
duties of higher post already Ex. WW 1/3 and asked the
following questions
Q The abovesaid order was issued by the Director,
Horticulture. What have you to say?

Ans It is correct.

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Q Is it correct that workman Siroman Singh has joined you
on 17.06.09 as a Mali/Gardener on transfer from New
Delhi Central Zone Horticulture?

Ans. It is correct.

Q Is it correct that after joining by Siroman in your
department, he has been looking after work of Choudhary
since 17.06.09. What have you to say?

Ans It is correct.

It is correct that if the rules allow to give the money for the
period working as Choudhary by the workman Siromani
Singh till he is appearing in the examination conducted by
the department for promotion as Choudhary, then he is
eligible to get the said amount from the department..."

83. It is observed by this Court that the document (Exhibit WW1/1)
signed by the Deputy Director (Horticulture) serves as official
acknowledgment that the respondent workman along with the others were
performing duties of Garden Chaudhary which is a higher post than that
of Mali (initial post). The lack of denial or contestation by the
management strengthens the credibility of this evidence.

84. This Court is of the view that in terms of the aforesaid list, i.e., Ex.
WW1/1 it is proved that the workman was appointed to perform duties of
a Garden Chaudhary in officiating capacity by the Deputy Director
(Horticulture) of the petitioner department.

85. Thus, in terms of the law discussed in the foregoing paragraphs, the
workman cannot be held to be not entitled to the pay scale attached to the
post of Garden Chaudhary. The said finding is based upon the fact that
the petitioner department has not produced any documentary or oral
evidence to deny or disprove that the workman did not perform the duties
of Officiating Garden Chaudhary after his name appeared in the list or
that he was not appointed on the said post w.e.f. 1 st April, 1991.

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86. It is important to note that the entitlement of the workman to the
pay scale of Garden Chaudhary is also based upon the fact that the
respondent was officially promoted to the above said post w.e.f. 4th
March, 2014 as well as the legal propositions discussed in the foregoing
paragraphs.

87. Thus, various judicial decisions have established that the
employees are entitled to the pay scale of higher posts if they are
officiating in those posts and performing the associated duties, even if
they have not been formally appointed or promoted through the
established recruitment process. This ensures fairness and adherence to
the principle of „equal pay for equal work‟, recognizing the
responsibilities and work actually undertaken by the employee.

88. At this stage, it is pertinent to discuss the judgment of the Division
Bench of this Court in
Sultan Singh
(Supra) against which SLP was filed
before the Hon‟ble Supreme Court by the petitioner department and the
same was dismissed as withdrawn. The relevant portion of the judgment
of the Division Bench of this Court is reproduced herein below for
reference:

"...12. The Tribunal heard the pleas and contentions of the
parties and directed the petitioner to examine the claim of
the respondents on the basis of the evidence that is the three
lists issued by different zones in respect of respondents
working as Garden Chaudharies and other functions and
process the payment of difference of pay of the post held and
the duties discharged by the respondents relying
on
Selvaraj v. Lt. Governor of Island, Port Blair
, (1998) 4
SCC 291 and Secretary-cum-Chief Engineer.

Chandigarh v. Hari Om Sharma
, 1999 (1) SLJ 23 (SC).
The
respondent has also relied on W.P(C) No. 5742/2010, GNCT

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of Delhi v. B.S. Jarial where the Division Bench had held
that when a person is told to discharge the function and
duties of a higher post till the same is filled up and he works
for years together as in that case the Deputy Superintendent
was made to work as Superintendent for more than 7 years,
it would be unjust to deny him wages in the said post. The
Tribunal categorically noted the plea of the respondents that
they are performing the higher duties for long years for want
of a regular promotion on officiating basis, and having
discharged the duties of higher post by resorting to what is
referred by the Tribunal as the „quantum of proportion rule‟,
held that they are entitled for emoluments of the higher post.
The mention of „quantum of proportion rule‟ appears to be a
typing error. What the Tribunal intended to say was
„quantum meruit rule‟.

***

19. The learned counsel for the petitioner has argued the
matter on the premise that the respondents are claiming to
be appointed to the post of Garden Chaudharies without
having qualifications as contemplated under the recruitment
rules. No doubt on account of having worked as Garden
Chaudharies on ad hoc basis for a number of years, the
respondents may not be entitled to be appointed to the post
of Garden Chaudharies contraiy to the recruitment rules,
however, perusal of their petition which was filed in the
High Court which was later on transferred to the Central
Administrative Tribunal whose order is impugned by the
petitioner, reveals that what the respondents are demanding
is only that the petitioner should pay the difference of wages
of Malies/Chowkidars and that of Garden Chaudhary from
the date the respondents have been performing the duties
and responsibilities of Garden Chaudharies.

***

22. Apparently the petitioner misconstrued the claim of the
respondents who were not seeking promotion to the post of
Garden Chaudharies but are only claiming difference in pay
of Mali/Chowkidar and Garden Chaudharies as they had
been performing the work of Garden Chaudharies after the

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Deputy Director Horticulture directed them to perform the
said work which was also intimated to headquarter
Horticulture without any objection either from the
Horticulture department or any other competent authority at
any time. This is also not the plea of the petitioner that
Headquarter of Horticulture Department and alleged
competent authority was not aware of work of Garden
Chaudharies being taken from Malies/Chowkidars as
sufficient number of posts of Garden Chaudharies were not
filled and all the posts according to accepted norms were not
created.

23. While seeking the review of order dated 29th January,
2010 it was rather pleaded that the Mali/Chowkidars are not
entitled for difference in pay for performing the duties of
Garden Chaudharies pursuant to the directions of the
Assistant Director (Horticulture) as it was adjudicated in
Civil writ petition Nos. 7869/2002, 8679/2005, 13288-
91/2005 and 12025/2006. Before this Court the copies of
these orders have not been produced by the learned counsel
for the petitioner. This is, however, clear that the facts and
circumstances in those writ petitions were different as
apparently in those cases Assistant Director (Horticulture)
had asked the malies/chowkidars to perform the duties of
Garden Chaudharies in contradiction to the present case
where the Deputy Director (Horticulture) has asked the
respondents to perform the duties of Garden Chaudharies
and the details of these persons and the dates from which
they have been performing was duly intimated to the
Horticulture headquarter without any objection of any type
either by the Horticulture headquarter or from the petitioner
in any manner. If the Deputy Director and other officials had
been asking the malies/chowkidars to perform the duties of
Garden Chaudharies contrary to any directions or rules,
action should have been proposed or taken by the petitioner
against them. This is also apparent that the work of Garden
Chaudhary has been available as the post of Garden

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Chaudharies based on the number of posts of
Malies/Chowkidars have not been filled.

24. The Tribunal while dismissing the application for review
of the petitioner by order dated 7th October, 2010 has held
that the Deputy Director (Horticulture) is the competent
authority relying on the decision of the Apex Court in
State
of West Bengal v. Kamal Sen Gupta
(2008) 2 SCC (L&S)

735.

25. The learned counsel for the petitioner has not produced
any guidelines, circulars to show that if the work is available
and the Garden Chaudharies are not appointed, then who is
competent to appoint Malies/Chowkidars on ad hoc basis as
Garden Chaudharies and to take from them the work of
Garden Chaudharies. If on account of exigencies of the work
the head of the department asks Malies/Chowkidars to do the
work of Garden Chaudharies which is now admitted by the
petitioner in the present writ petition impugning the order of
the Tribunal then why the difference of pay of
Mali/chowkidar and Garden Chaudhary be not be paid to
them, has not been satisfactorily explained by the petitioner.
Applying the principle of quantum meruit as was held by the
Supreme Court in case of
Selvaraj
(Supra) the petitioner has
to pay to the respondents emoluments available in the higher
pay scale during the time they actually worked on the post of
Garden Chaudhary in the facts and circumstances.

In Selvarai v. Lt. Government of Island, Port Blair, (1998) 4
SCC 291, the employee was not regularly promoted to the
post of Secretary (scouts) but he was regularly asked to look
after the duties of Secretary (scouts). Applying the principle
of quantum meruit it was held by the Supreme Court that the
authorities should have paid to the employee the emoluments
available in the higher pay scale during the time he actually
worked on the said post of Secretary (Scouts) though in an
officiating capacity and not as a regular promote.
In Secy.-
cum-Chief
Engineer v. Hari Om Sharma
, (1998) 5 SCC 87
the employee was promoted as a stop-gap arrangement as

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Junior Engineer I and he had given an undertaking that on
the basis of stop-gap arrangement, he would not claim any
benefit pertaining to that post. It was held that the
Government in its capacity as a model employer cannot be
permitted to raise such an argument, and the undertaking
which is said to constitute an agreement between the parties
cannot be enforced at law. An agreement that if a person is
promoted to the higher post or put to officiate on that post
or, as in the instant case, a stop-gap arrangement is made to
place him on the higher post, he would not claim higher
salary or other attendant benefits would be contrary to law
and also against public policy. It would, therefore, be
unenforceable in view of
Section 23
of the Contract Act,
1872.
In W.P(C) No. 5742/2010, decided on 25th August,
2010, GNCT of Delhi v. B.S. Jarial another Division Bench
had held that when a person is told to discharge the function
and duties of a higher post till the same is filled up and he
works for years together as in that case the Deputy
Superintendent was made to work as Superintendent for
more than 7 years, it would be unjust to deny him wages for
the said post. The Division Bench had held that if an
employee is directed to work on a higher post he has no
option but to work at higher post at the dictate of the
employer, as for his not so doing would attract penalty
proceedings against him. In Sh. Bhagwan Dassv. State of
Haryana, 1987 (3) SLJ 93 it was observed by the Supreme
Court that whether the appointment was for temporary
period or the scheme was temporary in nature is not relevant
and what is to be seen is that once it is established that the
nature of duties and functions discharged and the work done
in similar, the doctrine of equal pay for equal work would be
attracted. The employee in this case had been posted to
officiate as Sub Post Master in HSG-I at the post office and
he shouldered the higher responsibilities of the department
and, therefore, he became entitled for emoluments of the post
of HSG-I for those periods and he could not be denied those
emoluments.

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26. The petitioner has relied on (1997) 6 SCC 200, Mohd.
Swaleh v. Union of India and W.P(C) No. 4231/2002
decided on 17th March, 2011 titled
MCD v. Sh. Bhanwar
Singh In Bhanwar Singh (Supra) the Single Judge of the
High
Court had set aside an award passed against the
Municipal Corporation of Delhi holding that the workman
was entitled in future to wages as of a Garden Chaudhary.
The workman in the said case had filed a complaint under

Section 33
of Industrial Disputes Act, 1947 regarding the
terms of his employment having been changed during the
tenure of general dispute between the employer MCD and
the Chowkidar, Beldar, Bullockmen, Bhishties, Coolies,
Machinemen, Hedgemen, Garden Chaudhary etc. employed
with it. It was asserted by the workman that term of his
employment had been changed by his transfer from
Shahdara zone where he was working to the Headquarters
(Horticulture Department). In these circumstances the
reference was made „Whether the workman was entitled to
wage of Garden Chaudhary for the period 3rd December,
1988. The Tribunal had held that the workman though was
not entitled to the relief of regularization on the post of mali
with effect from 1st March, 1978, however, he was held
entitled to wages equal to regular malies with effect from 1st
March, 1978 till the date of his regularization up to 31st
March, 1998 without any increment. It was also held that the
workman shall be entitled to receive wages of regular
Garden Chaudharies in proper pay scale.

The learned Single
Judge relying on W.P(C) No. 4023/1997 titled
Municipal
Corporation of Delhi v. Jaedish Chander
where it was held
that proper procedure has to be followed for promotion to
the post of Garden Chaudhary had set aside the award
holding that the workman was entitled for emoluments as of
mali only as he was asked to work as Garden Chaudhary by
the Assistant Director who was not authorized to do so.
Apparently the case relied on by the petitioner is
distinguishable as the respondents are not claiming regular
appointment to the post of Garden Chaudhary. The
respondents are claiming difference in wages as they were

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directed to perform the work of Garden Chaudharies by the
Deputy Director (Horticulture) and the details of
respondents who had been directed to work as Garden
Chaudharies and the tenure during which they worked as
Garden Chaudharies, were sent to the Horticulture
headquarter and Municipal Corporation of Delhi without
any objection or action on the part of petitioner. In the case
of respondents it is also apparent that the work of Garden
Chaudharies was available.

In the circumstances, on the
basis of ratio of
Sh. Bhanwan Singh
(Supra) it cannot be
held that the respondents are not entitled for difference in
wages.

27. In Mohd. Swaleh (Supra) it was held by the Supreme
Court that a Deputy Registrar of Central Administrative
Tribunal who was ordered by the Vice Chairman to
discharge the function of the Registrar would not be entitled
for emoluments of the Registrar as the Vice Chairman did
not have the power to appoint another Government servant,
permanently to the said post, as the appointing authority was
the President of India. It was held that in absence of any
delegation of power in respect of Group „A‟ post, Vice
Chairman was not empowered to make the appointment of
the Registrar. In contradistinction in case of respondents it
has been held that the Deputy Director could take the work
of Garden Chaudharies from the malies/chowkidars which is
Group "D" post workman and this fact was not objected to
either by the petitioner at any time nor by the Horticulture
headquarter. If the action of the Deputy Director or the
headquarter Horticulture was illegal then the petitioner
should have taken some action against some of the officials
or at least should have objected about taking the work of
Garden Chaudharies from malies and chowkidars for years
together. In the circumstances, apparently the ratio of the
cases relied on by the petitioner would not entitle it for any
relief to decline the difference in wages to the respondent
during the period they worked as Garden Chaudharies

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which is left for determination by the petitioner after
consideration of evidence produced by the respondents.

28. Considering the entire facts and circumstances it is
apparent that the claim of the respondents have always been
that they should be paid the difference in pay of
Mali/Chowkidar and the Garden Chaudhary as they were
made to work on the post of Garden Chaudhary whereas the
petitioner had first denied that they worked as Garden
Chaudharies, then took the plea that the Assistant Director
(Horticulture) was not competent to ask the respondents to
work as Garden Chaudharies and that the respondents
cannot be appointed to the post of Garden Chaudharies in
accordance with the recruitment rules. There is no doubt
that respondents are not claiming appointment to the post of
Garden Chaudharies on account of having worked on ad-
hoc basis on the post of Garden Chaudhary contrary to rules
or that some of them not having the requisite qualifications
are entitled for relaxation.

29. In the entirety of facts and circumstances therefore, the
learned counsel for the petitioner has failed to make out any
such grounds which will impel this Court to exercise its
jurisdiction under
Article 226
of the Constitution to set aside
the orders of the Tribunal dated 29th January, 2010 and 7th
October, 2010 as no illegality or un-sustainability or
perversity in the orders of the Tribunal has been made out.

30. The writ petition is, therefore, dismissed. Parties are left
to bear their own cost..."

89. Upon perusal of the above stated judgment, it is observed that the
issue before the Division Bench of this Court was to decide regularization
and payment of arrears to certain employees of the MCD.

90. Similar to the issues in the present case, the employees in question
before the Division Bench were initially appointed to positions like Mali

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or Chowkidar within the MCD. Over time, due to operational needs or
administrative decisions, these employees were directed to perform duties
that were traditionally assigned to a higher position, such as Garden
Chaudhary. This resulted in them performing duties of a higher post
without receiving the corresponding pay scale.

91. While deciding the issue, the Division Bench emphasized that the
mere fact of performing duties of a higher post does not automatically
entitle an employee to regularization. Regularization can only be granted
in accordance with the recruitment rules governing such appointments. It
must be based on the existence of sanctioned posts, recruitment rules, and
the fulfillment of other statutory requirements.

92. The Division Bench also held that the employees who had been
directed to perform duties of a higher post, even if on an ad hoc or
temporary basis, are entitled to receive arrears for the period during
which they performed those duties. This decision was based on the
principle that if employees are asked to perform work of a higher grade,
they should receive remuneration commensurate with the duties
performed.

93. The Division Bench applied the principle of „equal pay for equal
work‟ in the said case and held that the employees who were performing
duties equivalent to those of regular employees in higher posts should
receive pay and benefits equivalent to the pay scale of those higher posts.

94. At this juncture, this Court deems is appropriate to refer to the
judgment of the Hon‟ble Supreme Court in
State of U.P. v. Arvind

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Kumar Srivastava10
wherein the Hon‟ble Court discussed the principle of
extending the benefit of a judgment in rem. Relevant paragraphs are as
under:

"...8. The moot question which requires determination is as
to whether in the given case, approach of the Tribunal and
the High Court was correct in extending the benefit of
earlier judgment of the Tribunal, which had attained finality
as it was affirmed till the Supreme Court. Whereas the
appellants contend that the respondents herein did not
approach the court in time and were fence-sitters and,
therefore, not entitled to the benefit of
the said judgment
by
approaching the judicial forum belatedly. They also plead
some distinguishing features on the basis of which it is
contended that the case of the respondents herein is not on a
par with the matter which was dealt with by the Tribunal in
which order dated 22-6-1987 was passed giving benefit to
those candidates who had approached the court at that time.
On the other hand, the respondents claim that their case is
identical to those who had filed the application before the
Tribunal inasmuch as appointments of the respondents were
also cancelled by the same order dated 22-6-1987 and,
therefore, there is no reason to deny the same treatment
which was meted out to the said persons, as denial thereof
would amount to invidious discrimination which is anathema
to the right of equality enshrined under
Article 14
of the
Constitution of India.

9. It is of interest to note that both the sides, in support of
their respective submissions, have referred to certain
judgments and the reading whereof would demonstrate that
in certain cases benefit of a particular judicial
pronouncement is extended to those who are identically
situated on the principle of equality. On the other hand,
there is a line of judgments denying such a benefit to the
second group which approaches the court afterwards, even
(2015) 1 SCC 347

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when the said second group is similarly situated as the
persons belonging to the first group. However, there is no
conflict between the two sets of cases. In order to find out the
principles laid down on the basis of which benefit of the
earlier judgment is extended to those coming subsequently
and the situations where such benefit is denied, we will have
to undertake a journey into these details and lay down clear
parameters.

***
22.1. The normal rule is that when a particular set of
employees is given relief by the court, all other identically
situated persons need to be treated alike by extending that
benefit. Not doing so would amount to discrimination and
would be violative of
Article 14
of the Constitution of India.
This principle needs to be applied in service matters more
emphatically as the service jurisprudence evolved by this
Court from time to time postulates that all similarly situated
persons should be treated similarly. Therefore, the normal
rule would be that merely because other similarly situated
persons did not approach the Court earlier, they are not to
be treated differently.

22.2. However, this principle is subject to well-recognised
exceptions in the form of laches and delays as well as
acquiescence. Those persons who did not challenge the
wrongful action in their cases and acquiesced into the same
and woke up after long delay only because of the reason that
their counterparts who had approached the court earlier in
time succeeded in their efforts, then such employees cannot
claim that the benefit of the judgment rendered in the case of
similarly situated persons be extended to them. They would
be treated as fence-sitters and laches and delays, and/or the
acquiescence, would be a valid ground to dismiss their
claim.

22.3. However, this exception may not apply in those cases
where the judgment pronounced by the court was judgment
in rem with intention to give benefit to all similarly situated

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persons, whether they approached the court or not. With
such a pronouncement the obligation is cast upon the
authorities to itself extend the benefit thereof to all similarly
situated persons. Such a situation can occur when the
subject-matter of the decision touches upon the policy
matters, like scheme of regularisation and the like (see
K.C.
Sharma v. Union of India [K.C. Sharma
v. Union of India,
(1997) 6 SCC 721 : 1998 SCC (L&S) 226] ). On the other
hand, if the judgment of the court was in personam holding
that benefit of
the said judgment
shall accrue to the parties
before the court and such an intention is stated expressly in
the judgment or it can be impliedly found out from the tenor
and language of the judgment, those who want to get the
benefit of
the said judgment
extended to them shall have to
satisfy that their petition does not suffer from either laches
and delays or acquiescence..."

95. A bare reading of the above extracts states that the Hon‟ble
Supreme Court reiterated that a judgment in rem, which is a judgment
concerning the status of parties or determining the rights of the public or
a class of persons, applies to everyone who falls within its scope.
Therefore, the benefit of such a judgment extends to all similarly situated
individuals, even if they were not parties to the original case.

96. The Hon‟ble Supreme Court further specifically emphasized that if
a judgment in rem grants benefits or rights to a particular class of
employees (such as ad hoc employees seeking regularization), those
benefits or rights should be extended to all similarly situated individuals
across the board. This principle ensures that the benefits of judicial
decisions are applied universally and fairly, promoting consistency and
equality before the law.

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97.
In essence,
Anand Kumar Srivastava
(Supra) emphasized that
judgments in rem have broad applicability and their benefits should not
be confined only to the parties involved in the specific case but should
extend to all who are similarly affected or situated.

98.
In terms of the judgment of the Division Bench of this Court in

Sultan Singh
(Supra), this Court vehemently deprecates the stand taken
by the petitioner department that the respondent workman was not
possessing requisite qualifications or has not qualified the trade test etc. It
is clarified that since the workman was discharging the duties of the post
of Garden Chaudhary, as such, the workman is entitled for the pay scale
of Garden Chaudhary and competent authority need not look into
anything else except the fact that the workman had worked as a
Chaudhary in an officiating capacity in so far as the question of grant of
pay against the said post is concerned.

99. Therefore, extending the observations made by the Division Bench
of this Court in
Sultan Singh
(Supra) in terms of the judgment titled

Anand Kumar Srivastava
(Supra), this Court is of the considered view
that although the respondent workman is not entitled to the post of
Garden Chaudhary w.e.f. 1st April, 1991 in light of the observations made
in issue no. 1, however, he is duly entitled to the pay scale attached to the
said post for the period for which he performed the duties of Garden
Chaudhary in officiating/ad hoc position, as per the order (Ex. WW 1/1)
of the Deputy Director (Horticulture). The petitioner department is liable
to pay the workman in terms of the prescribed pay scale attached to the
post of Garden Chaudhary.

100. Accordingly, issue no. 2 stands decided.

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CONCLUSION

101. Taking into account the limited scope of this Court‟s power under

Article 226
of the Constitution of India, this Court is of the considered
view that there is no prima facie error in the impugned award. There is
nothing on record to show that the learned Industrial Tribunal has
exceeded or usurped its jurisdiction, or acted illegally or in contravention
to any law.

102. Based on the considerations made in the preceding paragraphs, it is
held that an individual workman who has been working in an
officiating/ad hoc position and fulfilling the duties of a higher post, by
virtue of an order of the concerned department, is indeed entitled to the
pay scale associated with that post.

103. Upon reading the legal precedents, it is apparent that Courts have
upheld such claims based on principles of equity, fairness, and the
doctrine of quantum meruit. Therefore, the legal precedent and principles
support the entitlement to the corresponding pay scales under such
circumstances.

104. With regard to the facts of the instant case, it is observed by this
Court that the learned Tribunal has provided a detailed discussion in the
impugned award which is based on the testimony and evidence presented
before it. The findings in the impugned award show that the respondent
workman is entitled to the pay scale of Garden Chaudhary for the period
(w.e.f. 1st April, 1991) for which he performed the duties of Garden
Chaudhary as per the order of the Deputy Director (Horticulture).

105. It is held that the petitioner department has failed to make out a
case to show that the learned Tribunal has acted in an arbitrary manner or

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in contravention to the law. The petitioner department had sufficient
opportunity to lead evidence and the same is apparent from the impugned
award. Taking note of the same, the learned Tribunal has rightly passed
the impugned award.

106. In light of the foregoing discussions of facts and law, the impugned
award dated 29th February, 2016 by the learned Presiding Officer,
Industrial Tribunal, Karkardooma Courts, New Delhi in case bearing ID
no. 25/13 (238/16) is upheld. In view of the same, the writ petition
bearing W.P (C) no. 2990/2017 stands dismissed along with the pending
applications, if any.

107. With regard to the instant batch, it is noted that the learned
Tribunal in the respective writ petitions has given similar findings based
upon similar observations wherein, based upon the evidence, examination
in chief as well as cross-examination, it was found that the workman‟s
name in the respective petition falls under a list which was issued by the
Deputy Director (Horticulture) wherein the workmen were directed to
work as Officiating/ad hoc Garden Chaudhary.

108. Considering the above observations, it is held that in the instant
batch of petitions, the petitioner department has failed to put forth any
propositions to make out a case in its favour.

109. In view of the foregoing paragraphs, this Court does not find any
merit in the instant batch of petitions and is of the view that there is no
illegality in the findings as recorded by the learned Tribunal. Therefore,
the impugned award in each of the connected petitions is upheld by this
Court.

Signature Not Verified

W.P.(C) 2990/2017 & 32 other connected matters Page 76 of 77

Digitally Signed

By:DAMINI YADAV

Signing Date:08.07.2024

17:18:19

110. It is made clear that the above said decision is particularly based on
the observations of the learned Tribunal wherein it was noted that the
workman‟s name falls within the list issued by the petitioner department.
In case, any of the workman in any of the writ petitions do not fall under
the list, the same would imply that the said workman was not
directed/authorized to perform the duties of the Garden Chaudhary and in
the said instance, the said workman would not be entitled to the pay scale
of Garden Chaudhary, as claimed by him.

111. Accordingly, the instant batch of petitions stand dismissed.

112. Pending applications, if any, also stand dismissed.

113. In view of the abovesaid findings, the petitioner department is
directed to pay the dues as awarded by the learned Industrial Tribunal to
the respective workman within a period of three months.

(CHANDRA DHARI SINGH)
JUDGE
JULY 4, 2024
NA/RYP/AV

Signature Not Verified

W.P.(C) 2990/2017 & 32 other connected matters Page 77 of 77

Digitally Signed

By:DAMINI YADAV

Signing Date:08.07.2024

17:18:19