JUDGMENT
A.K. Sikri, J.
1. This writ petition is filed by 4 petitioner who are all working in Slum and JJ. (Wing) which was, at material time, with DDA. This wing is not transferred to MCD. Admittedly they were initially appointed as muster roll employees on daily wages. Subsequently, they were made work-charged employees and were designated as mates/Benders etc. The petitioners filed this case alleging that for last more than five years they were performing the duties of Lower Division Clerk without any break. However they were still treated as work-changed and benefit of regularisation of their services as LDCs was not given to them although regular vacancies of LDCs existed with the respondents. It is further stated that petitioners are educationally qualified for the post of LDCs. Taking undue advantage of their weak position being unemployed, petitioners were taken by the respondents as workcharged basis although they are entrusted with the duties of LDCs. It is further alleged in the writ petition that many persons who are juniors to the petitioners have been regularised as LDCs ignoring the claim of the petitioners. On the basis of these basic averments petitioners have filed
this writ petition seeking direction to the effect that petitioners be treated as regular LDCs from the date they have been discharging the duties of LDCs and they may also be given the pay in the regular scale of LDCs i.e. Rs. 260-400 (pre-revised).
2. This petition was listed for the first time, for admission, on 16.12.1987 when notice to show cause was issued to the respondents. Thereafter matter was taken up from time-to-time and ultimately on 12.5.1989 rule was issued in the writ petition. Petitioners had also filed CMs 5022/87 & 1173/88. They were disposed of by passing the following order :
In the answer to the show cause notice, it is stated that the petitioners were given an opportunity to appear in the test for the post of L.D.C. which was held from April 11, 1987 to April 13, 1987 alongwith other work charged employees but the petitioners did not qualify. In the subsequent test all the four petitioners appeared in the departmental test held on October 9, 1988 for the post of L.D.C. and were declared successful. They have been promoted to the post of L.D.C. vide order dated November 18, 1988. Whether the petitioners are entitled to be appointed on regular basis with retrospective effect or whether they are entitled to the wages of an L.D.C. though appointed as work-charged employee, is a question which can only be determined on the merits of the writ petition. No interim relief can be granted at this stage. Dismissed.
3. From the aforesaid order, it is clear that during the pendency of this writ petition, petitioners have been appointed as LDCs after they passed departmental test which was held on October 9, 1988. The only question which is to be determined now as to whether they are entitled to be appointed on regular basis with retrospective effect and whether they are entitled to the wages of an LDC though appointed as work-charged mates/Benders, etc.
4. In the counter affidavit filed by the respondents DDA it is stated that as per recruitments rules for appointment of LDC, work-charged employee is eligible to be promoted as LDC only if he possesses the required educational qualification and also subject to qualifying departmental written test. The petitioners could be promoted to the post of LDC as per the recruitment rules and not otherwise. It is further stated that petitioners were provided opportunity to appear in the test for the post of LDC which was held from April 11, 1987 to April 13, 1987 but petitioners could not qualify the said written test. Thereafter they appeared in the said departmental test on 9.10.1988 and since they were declared successful this time, the petitioners were promoted to the post of LDC vide Office Order No. 288/ADMN/SEC/88 dated 18.11.1988. It is further mentioned that respondent being statutory body is to act according to rules and regulations prescribed for the appointment of LDC and other staff.
5. During the arguments, learned Counsel for the petitioners emphasised that since these petitioners were discharging the duties of LDC which they discharged for long periods they should be treated as regularised w.e.f. dates from which they started working as LDC in the year 1981. Reliance was placed on the judgment of Supreme Court in the case of Narender Chadha Vs. UOI, reported as 1986(1) SLR 437. Learned Counsel also referred to various documents annexed with the petition as well as rejoinder as per which these petitioners were discharging the duties of LDCs.
6. Insofar as relief of regularisation of the petitioners from the back date is concerned i.e. the date from which they were discharging the duties of LDCs, it cannot be granted. Admittedly petitioners were employed as work-charged employees. For promotion to the post of LDC, the petitioners have to undergo the selection process as per the statutory recruitment rules and passing of written test is one of the pre-conditions. Petitioners could not be treated as promoted to the post of LDC unless they qualified this test. In April, 1987 when this test was held petitioners failed to qualify. They could pass the test only in October, 1988 and were thus promoted in November, 1988. Merely because the petitioners were discharging the duties of LDCs would not give them the right to be regularised as LDC from retrospective effect. This principle of law is now well established by various judgments of the Supreme Court as well as this Court and since law
on this point is now well settled it does not require further discussion.
7. Coming to the second issue regarding the entitlement of the petitioners to get the salary of LDC on the ground that they were discharging the functions of LDC, the petitioners have specifically made this averment in the writ petition and it is stated that petitioners started performing the duties of LDCs since November, 1981. In para 2 of the writ petition even name of the section/office is mentioned where these petitioners were performing the duties of LDCs. In fact number of documents are also filed alongwith the petition which go on to demonstrate that these petitioners were working as LDCs even before 1988. In fact in the counter affidavit filed by the respondent, there is no categorical denial to these averments except averment in para 1 that the petitioners who were earlier daily wagers were made work-charged employees and designated mate, Beldar etc. and they have been performing the duties as such as per the directions of
sectional heads under whom they have been working. No explanation is given to any of the documents annexed with the counter affidavit. During the arguments also, Mr. Apurab Lal learned Counsel for the respondent when confronted with these documents, could not give any satisfactory reply or say that petitioners were not working as LDCs even before 1988. His only submission was that these documents do not show that the petitioners were working as LDCs since 1981 as these documents are of the year 1985 and onward. However as pointed above although the petitioners have made categorical averment that they were discharging the duties of LDCs since November 1981 there is no specific denial to this averment. It is also not stated that these petitioners started discharging the duties of LDCs only in 1985 and not before. In view of these facts and when the averment made by the petitioners in the writ petition are not denied, the same are deemed
to have been accepted. Accordingly, it can be said that the petitioners were discharging the duties as LDCs since November, 1981. On this factual position, petitioners would be entitled to the salary as LDCs w.e.f November, 1981. My aforesaid conclusion stands fortified in view of the Division Bench judgments of this Court in the case of DDA Vs. Virender Kumar Tyagi, which is directly on the point. In that case petitioner was given a letter of appointment as work-charged driver but he was being asked to function as a legal assistant. However the wages paid to him were that of work-charged driver. In the petition filed by him, interim order was passed directing the DDA to pay petitioner the salary of legal assistant. Against this DDA filed the appeal and while dismissing the appeal Division Bench made following observations:
“8. In this context, we also note the provision of Article 23 of the Constitution, which reads as under:
23. Prohibition of traffic in human begins and forced labour. – (1) Traffic in human beings and “begar” and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.
“The word “begar” in this Article has obvious reference to traffic in the human beings and forced labour. In this case, the respondent may actually not be performing forced labour, but he is certainly made to work as a Legal Assistant, and if he is not paid as a Legal Assistant, it cannot be said that “begar” is not being performed by him. It is only when he is paid as a Legal Assistant that it can be said that prohibition of Article 23 of the Constitution is not attracted to this case.”
8. Thus I hold that petitioners be given the salary and allowances, at the minimum of pay scale and without any increments since November, 1981, which was admissible to LDCs. Arrears on this account be paid to the petitioners within two months from today.
9. No order as to costs.