Central Administrative Tribunal - Delhi
Mr. R D Saxena S/O Mr. P D Saxena vs Govt. Of Nct Of Delhi on 16 March, 2015
Central Administrative Tribunal Principal Bench, New Delhi O.A. No.4222/2010 Order reserved on 27th February 2015 Order pronounced on 16th March 2015 Honble Mr. A.K. Bhardwaj, Member (J) Honble Mr. V.N. Gaur, Member (A) 1. Mr. R D Saxena s/o Mr. P D Saxena r/o C-24A, East Krishna Nagar Delhi-51 2. Mr. S K Kapoor s/o Mr. N L Kapoor r/o A 67 Lohia Nagar Ghaziabad 3. Dr. R K Dabas s/o Mr. Bhim Singh r/o 90, Majra Dabas, Delhi 4. Mr. V K Sodhi s/o Mr. N S Sodhi 314, XXIX, Faridabad (Haryana) 5. Dr. (Miss) Shakti Kapur d/o Mr. M C Kapur r/o 31-A, MIG, DDA Flats Rajouri Garden, New Delhi-27 6. Dr. T C Sharma s/o Mr. Tej Pal Sharma 520, Shiv Puri Railway Road, Hapur Distt. Ghaziabad (UP) 7. Mrs. Srijata Dass w/o Mr. J K Das r/o 681, Baba Kharak Singh Marg New Delhi ..Applicants (Mr. Sarvesh Bisaria, Advocate) Versus 1. Govt. of NCT of Delhi Through Chief Secretary Delhi Secretariat, IP Estate New Delhi-2 2. Secretary (Finance) Govt. of NCT of Delhi Delhi Secretariat, IP Estate New Delhi-2 3. SCERT, Delhi Through Secretary Varun Marg, Defence Colony New Delhi-24 ..Respondents (Mr. N K Singh, Advocate for Ms. Avnish Ahlawat) O R D E R
Mr. A.K. Bhardwaj:
The seven applicants, who retired as academic staff from State Council of Educational Research and Training (SCERT), have filed the present Original Application praying therein:-
It is, therefore, most respectfully prayed that Your Lordships may graciously be pleased to issue appropriate orders and directions to the respondents, directing them to grant the benefits of pension cum gratuity cum general provident fund on retirement and pay arrears of pension and allowances and also extend the benefits of same pay and allowances as are admissible to the academic staff of NCERT at par in terms of the regulation 67 of the SCERT regulations or in alternative quash the notification dated 7.12.1999 amending the regulation 67 of the SCERT regulations and declare that the applicants are entitled to all the service benefits under unamended regulation 67 of SCERT regulations i.e. pension-cum-gratuity-cum- provident fund scheme on retirement, difference of pay and allowances and Career advancement scheme or may pass any other order or directions as may deem fit and proper in the interest of justice.
2. In the beginning, learned counsel for applicant submitted that his written arguments may be treated as oral submissions also and he would not be advancing any arguments across the Bar.
3. Learned proxy counsel for respondents espoused that the Original Application is barred by res judicata, as the identical issue was raised by the applicants herein in CWP No.6780/2001 and WP (C) No.3693/1998. He further submitted that even otherwise also, the Order passed by the Honble High Court in WP (C) No.3693/1998 (V.K. Sodhi & others v. Lt. Governor of Delhi & others) was assailed before the Honble Supreme Court in Appeal (Civil) No.3272/2003 and their Lordships could reverse the Order of the Honble High Court with the view that in the case of bodies like SCERT, the Court cannot ignore the financial implications of implementing the directions that it is called upon to give effect to and if the SCERT is made to spend the whole of the grant or a major portion of the grant in paying salaries and emoluments to its employees and it does so, that may tend to frustrate the very object of its constitution.
4. Rejoining the submissions, learned counsel for applicants submitted that in Appeal (Civil) No.3273/2003, the only view taken by the Apex Court was that the SCERT is not a State within the meaning of Article 12 of the Constitution and normally not amenable to the extra-ordinary jurisdiction of the Honble High Court under Article 226 of the Constitution and once there is a notification issued under Section 14 (3) of the Administrative Tribunals Act, 1985, extending the jurisdiction of the Tribunal to SCERT in the present Original Application, the entitlement of the applicants to pension and pensionary benefits in terms of the Rule 67 of the Rules & Regulation for SCERT and Training, Delhi need to be adjudicated on merits. His succinct submission is that once no court of competent jurisdiction has adjudicated the issue on merits, in the present proceedings, the Tribunal need to decide the same on merits and the Order passed by the Honble High Court in CWP No.6780/2001 cannot operate herein as res judicata.
5. We heard the learned counsel for the parties and perused the record.
6. The SCERT, a registered society under the Delhi Societies Registration Act on 5.5.1988, was established w.e.f. 27.5.1988 to achieve the objectives concurrent to those of National Council of Educational Research & Training (NCERT). The objective, functions and programme activities of the Council, as mentioned in its Memorandum, reads thus:-
3.1. The objects of the Council shall be :
i) To assist and advice the Administration of Delhi in the implementation of its policies and major programmes for 'human resource development, especially in the field of education, Human and child development, national integration and other related affairs.
ii) To promote Educational Researches and Training of.
iii) To develop the curriculum, aiming at an all round development of the child, and at all levels of Education.
iv) To develop and produce the teaching-learning materials.
v) To develop educational technology for use of the teaching learning activities and training programme and to provide distance education.
vi) To devise the systems and approaches for qualitative education.
vii) To develop a scientific process of evaluation of. the pupil and the educational programmes and institutions.
viii) To develop the strategies to achieve the goals of education for equality.
ix) To established linkage with NCERT, various Deptt. of Universities of Delhi, Administration of U.T. of Delhi, Deptt, of Education, other educational institutions of central and Delhi Admn.
x) To develop, adopt/adapt &.produce curricular materials, text books and other related instructional materials.
xi) To provide all types of Educational materials & guidance to the disadvantage group.
xii) To guide, develop & provide Educational materials for nonformal Education/Educational.
xiii) To promote and assist Delhi Administration in SUPW & Vocational Education in the State/U.T. of Delhi.
xiv) To improve the existing examination system and to make question Book in different areas for School Education.
xv) To provide pre-service and in-service training to teachers on all levels of school education.
3. 2. For realization of these objectives, the council may undertake any or all of the following functions, programmes and activities :-
i) To undertake, assist, promote and co-ordinate research in all branches of education.
ii) To organize pre-service and in-service training, at elementary secondary and also at an advanced level.
iii) To organise and provide extension services for such institutions as are engaged in educational research and training of teachers.
iv) To experiment, develop and/or to disseminate improved educational techniques and practices in schools.
v) To develop the curriculum and instructional materials.
vi) To undertake the preparation, evaluation, revision and production of teaching-learning materials to improve the quality of education.
vii) To explore the possibilities of use of Educational Technology in teaching-learning process.
viii) To assist and advice the various agencies of mass media for the propagation of education.
ix) To experiment and recommend for the implementation of scientific pupil evaluation of pupils at all levels.
x) To devise the systems and approaches for efficient management evaluation and monitoring of educational institutions.
xi) To suggest measures for the education for equality.
xii) To frame the programmes and suggest the initiations of action to achieve the universalisation of Elementary Education.
xiii) To suggest measures for ensuring qualitative education.
xiv) To select and suggest the techniques for distance education.
xv) To identify the talented children and plan for nurturing of their talent (NTS & JSTS).
xvi) To plan, execute and evaluate the educational programmes in the State of Delhi.
xvii) To develop the State/UT and District level Resources Centres in the State/UT in the various fields of education.
xviii) To design the curriculum and learning materials of teacher education and work out the process for enhancing the potentialities of the teachers.
xix) To help local bodies for Primary and Pre-primary education/middle/ secondary/Sr. Sec. education of Delhi and other State/Centre level institutions, organisations and agencies in developing and implementing programmes for qualitative improvement of education.
xx) To collaborate and cooperate with National and other Centre/State level institutions for the furtherance of its objectives.
xxi) To establish, in any part of the State/UT, such institutions as may be necessary to realise its objective.
xxii) To act as a clearing-house for' ideas and information on all matters relating to education.
xxiii) To advise the Delhi Administration and other educational organisations and institutions on matters relating to education.
xxiv) To develop and manage the educational information system.
xxv) To develop and/or publish such books, materials, periodicals and other literature as may be necessary for furtherance of its objectives.
xxvi) To function as a link organisation between the National/State/UT and District level institutions.
xxvii) To acquire by gift, purchase, lease or otherwise any property, movable or immovable, which may be necessary or convenient for the purposes of the Council and to construct, alter and maintain any building or buildings for the purposes of the Council;
xxviii) To draw, make, accept, endorse, discount and negotiate with the Admn. of Delhi the promissory notes, bills of exchanges, cheques or other negotiable instruments;
xxix) To invest the funds of the Council in such securities or in such manner as may from time to time be determined by the Executive Committee and from time to time, to sell' or transfer such investments;
xxx) To sell, transfer, lease or otherwise dispose of all or any property of the Council, and xxxi) To do all such things as the Council may consider necessary, incidental or conductive to its primary objectives of promoting educational research, advance professional training of educational personnel and the provision of extension services to educational institution.
7. The Council has Lt. Governor, Delhi Administration, Delhi as its President, Executive Councillor (Education), Delhi Administration, Delhi as Senior Vice-President, Secretary, Education, Delhi Administration as Vice President, and Director of Education, Delhi Administration, Additional Director of Education (Schools), Additional Director of Education (Administration), Director (NCERT or his nominee), Chairman, Board of Secondary Education, Principal, District Institute of Education & Training, Education Officer, MCD, Deputy Secretary (Finance), Delhi Administration and Senior Fellow, NIEPA, New Delhi as its members. In terms of Rule 67 of the Rules and Regulation, the terms and tenure of service of the academic staff at the Council shall remain the same as available for the academic staff of the NCERT. For easy reference, said rule is reproduced hereinbelow:-
67. Terms and Tenure of service of Academic Staff.
The terms and tenure of service of the academic staff at the Council shall remain the same as available for the academic staff of the National Council of Educational Research and Training.
8. In exercise of the powers conferred under Regulations 43 to 49 of the Memorandum of Association and Rules and Regulations of SCERT and as per the decision of the Executive Committee, the Council in its meeting held on 1.12.1999 substituted the aforementioned Rules and Regulations of the Council. The substitution / amendment in the Rules and Regulations was notified vide notification No. F.5 (4)/SCERT/ADMN./9337-59 dated 7.12.1999, which reads thus:
Notification In exercise of the powers conferred under Regulations 43 to 49 of the Memorandum of Association and Rules and Regulations of SCERT and as per the decision of the Executive Committee of the Council in its meeting held on 1.12.99, the existing provisions under Regulation 67 of the aforesaid Rules and Regulations of the Council are hereby substituted with the following provisions with immediate effect:-
The terms and tenure of service of Academic and other staff of the Council should remain the same as available for the Academic and other staff of the Directorate of Education, GNCT of Delhi with such modifications that may be specifically adopted by the Executive Committee from time to time.
9. When the Academic staff of the SCERT was not given the benefit at par with the staff of NCERT or the Directorate of Education, Govt. of NCT of Delhi, few of its members filed WP (C) No.3693/1998 before the Honble High Court of Delhi praying therein:
It is, therefore, most respectfully prayed that Your Lordships may graciously be pleased to issue a writ of Mandamus or any other suitable Writ Order of Directions to the respondents to please extend the benefits of Pension, Gratuity and General Provident Fund on retirement in favour of the petitioners, to provide facilities of loan advances for betterment of career, status and life in terms of Housing Loan, Car Loan, Computer Loan etc. etc. in favour of the petitioners and also to extend the benefits of same pay and allowances in favour of the petitioners as are admissible to the Academic Staff of the NCERT at par, or may pass any other order or directions as may deem fit and proper.
10. The said writ petition was disposed of by the Honble High Court in terms of the Order dated 18.5.2002 with the following directions:
41. For the reasons afore-mentioned, we are of the opinion that the respondents are bound to implement its policy decision as reflected in Regulation 67 as also Advance Career Promotion Scheme.
42. However, we may hasten to add that those who are only on deputation and have not been absorbed, the benefit of this decision cannot be given unless they are absorbed permanently.
43. The writ petition is allowed in the above terms with costs. Advocates fee assessed at Rs.5000/-.
11. The aforementioned Order of the Honble High Court was challenged before the Apex Court in Appeal (Civil) No.3272/2003 wherein their Lordships reversed the Order of the High Court of Delhi and allowed the Appeal (Civil). Though broadly the view taken by the Apex court in the aforementioned case was that the SCERT was not a State and was not amenable to the extra-ordinary jurisdiction of the High Court under Article 226 of the Constitution, but at the same time, it could also be observed by their Lordships that the object of SCERT is laudable and it has to coordinate and promote education in the State, thus since its resources are limited and the main income is by way of grant from the State Government, it cannot spend the whole of the grant or a major portion of the grant in paying salaries and emoluments to its employees, as the same could tend and frustrate the very object with which the society was formed. Paragraph 16 of the judgment reads thus:-
16. It appears to us that in the case of bodies like SCERT, the court cannot ignore the financial implications of implementing the directions that it is called upon to issue. The object of SCERT is laudable and it has to coordinate and promote education in the State. Its resources are limited and the main income is by way of grant from the State Government. When SCERT pleads that it cannot spend the whole of the grant or a major portion of the grant in paying salaries and emoluments to its employees and if it does so, that may tend to frustrate the very object with which the society was formed, it is an argument that has to be considered weighty by a court called upon to exercise jurisdiction under Article 226 of the Constitution of India. A court cannot issue a direction which would tend to frustrate the very object with which a society like SCERT is formed or a body like SCERT is created. After all, there may be a point of time in a welfare State where the right of the employees must be subservient to the right of the society. In the matter of education, surely, the interests of the society at large should prevail and issue of any direction that may endanger such interests must be done with extreme caution and only after careful deliberation.
12. When CWP No.6780/2001 was preferred before the Honble High Court by more or less the same persons, who were petitioners in WP (C) No.3693/1998 by changing their serial numbers/orders as petitioners, it could dismiss the same in the wake of the judgment of Apex Court in Appeal (Civil) No.3272/2003 (Lt. Governor of Delhi & others v. V.K. Sodhi & others). The ramification of the reliefs sought by more or less the same petitioners in CWP No.6780/2001 and WP (C) No.3693/1998 was substantially the same, i.e., pension and pensionary benefits on retirement and only the wording of the prayer clause was different. We have already extracted the prayer made in WP (C) No.3693/1998 hereinabove and for easy reference, the prayer made in CWP No.6780/2001 is reproduced hereinbelow:-
i) To issue a writ, order or direction in the nature of certiorari to quash/set aside the notification bearing No.F.(4)/SCERT/Admn./ 9377-59 dated 07.12.1999 (Annexure-A) issued under the signatures of Dr. O.P. Kohli, Deputy Secretary of the respondent Council whereby the Rule 67 of Rules and Regulations of SCERT was amended and came into force with immediate effect and
ii) To issue a writ, order or direction in the nature of mandamus directing the respondent to restore the said rule to its original position.
iii) To issue any other suitable writ, order or direction which this Honble Court may deem just and proper in the circumstances of the case.
iv) To award the cost of the petition.
13. We have no hesitation to note that the same group of individual (Academic staff of SCERT) has been trying to succeed in getting pension and pensionary benefits as employees of SCERT by resorting to different proceedings at different points of time by engineering the prayer clause in the proceedings differently, which device can certainly be not appreciated. Once in Appeal (Civil) No.3272/2003, the Apex Court ruled that the SCERT was not amenable to the extra-ordinary jurisdiction of the Honble High Court under Article 226 of the Constitution the proper course for the petitioners therein to take up their cause before the appropriate forum. But instead of acting fairly, the applicants remained busy in evolving their own strategies to invoke the jurisdiction of Honble High Court again.
14. For easy identification of the individual as applicants in CWP No.6780/2001, WP (C) No.3693/1998 and in the present Original Application, the details of the applicants mentioned in the memos of parties in three proceedings are reproduced hereinbelow:-
CWP No.6780/2001 WP (C) No. 3693/1998 O.A. No.4222/20101.
1. Sh. R D Saxena Sr. Lecturer, s/o Sh. P D Saxena, r/o C-24A, East Krishna Nagar Delhi-51
2. Mrs. Jag Mohini Sr. Lecturer, w/o Sh. K.s. Gandhi r/o BB-5/H, DDA Flats, Munirka, New Delhi-67
3. Dr. R K Dabas Sr. Lecturer s/o Sh. Bhim Singh r/o 90, Majra Dabas, Delhi
4. Mr. V K Sodhi Sr. Lecturer, s/o Sh. N S Sodhi, r/o 24, Housing Board Colony, Palval, District Faridabad, Haryana
5. Mrs. Pawan Sudhir, Sr. Lecturer, w/o Sh. Sudhir Gandotra, r/o R-10, Khirki Extension, Malviya Nagar, New Delhi
6. Dr. (Mrs.) Madhulika Patel Sr. Lecturer, w/o Dr. K.L. Fatel, r/o941, Sector-14 Gurgaon, Haryana
7. Dr. Nahar Singh Sr. Lecturer, S/o Sh. Babu Ram, r/o IX/4307, Gali No.9, Ajit nagar, Delhi-31
8. Mrs. Srijata Das, Lecturer, w/o Sh. J K Das r/o 681, Baba Kharak Singh Marg New Delhi-1
9. Mrs. Santosh Malik, Lecturer, w/o Sh. V.K. Malik, r/o Flat No.529/GH-13, Paschim Vihar, Delhi-97
10. Mrs. Shifali Ray, Lecturer, w/o Dr. Rajat Ray, r/o 425, Hawa Singh Village, Asiad Village, New Delhi-49
1. Mr. V.K. Sohi s/o N.S. Sodhi, 814, XXI, Faridabad (Haryana)
2. Mrs. Jagmohini w/o Sh. K.S. Gandhi r/o BB-5/H, DDA Flats, Munirka, New Delhi-67
3. Mr. S K Kapoor s/o Mr. N L Kapoor, r/o A 67 Lohia Nagar Ghaziabad
4. Dr. Nizam Elahi s/o Sh. Karam Elahi, E-3/2, Okhla Village Jamia Nagar, New Delhi-100025
5. Sh. R D Saxena s/o Sh. P D Saxena, r/o C-24A, East Krishna Nagar Delhi-51
6. Mr. R.D. Sexena, s/o Sh. P.D. Saxena, r/o C-24A, East Krishna Nagar, Delhi-51
7. Dr. R K Dabas s/o Sh. Bhim Singh r/o 90, Majra Dabas, Delhi
8. Mrs. Srijata Das, w/o Sh. J K Das r/o 681, Baba Kharak Singh Marg New Delhi-1
9. Dr. (Miss) Shakti Kapur d/o Sh. M.C. Kapur, r/o 91-A, N.G. DDA Flats, Rajouri Garden, New Delhi-27
10. Ms. Sushimita Biswas w/o Dr. S.K. Biswas r/o 342, Nirman Appt. Mayur Vihar, Phase-I, Extn. Delhi-92
11. Sat Pal singh s/o Durjan Singh r/o 175, Munirka, New Delhi-67
1. Mr. R D Saxena s/o Mr. P D Saxena, r/o C-24A, East Krishna Nagar Delhi-51
2. Mr. S K Kapoor s/o Mr. N L Kapoor, r/o A 67 Lohia Nagar Ghaziabad
3. Dr. R K Dabas s/o Mr. Bhim Singh r/o 90, Majra Dabas, Delhi
4. Mr. V K Sodhi s/o Mr. N S Sodhi, 314, XXIX, Faridabad (Haryana)
5. Dr. (Miss) Shakti Kapur d/o Mr. M C Kapur r/o 31-A, MIG, DDA Flats Rajouri Garden, New Delhi-27
6. Dr. T C Sharma s/o Mr. Tej Pal Sharma, 520, Shiv Puri Railway Road, Hapur Distt. Ghaziabad (UP)
7. Mrs. Srijata Dass w/o Mr. J K Das r/o 681, Baba Kharak Singh Marg New Delhi
15. In the present case, the relief sought for by the applicants is more or less the same, as sought in CWP No.6780/2001 and WP (C) No.3693/1998. The relief clauses have already been mentioned in the preceding paragraphs.
16. In fact, in implementation of Rule 67 of the Rules and Regulations (ibid), the SCERT worked out the modalities in consultation with the Finance Department of Delhi Administration to provide for pension, gratuity and GPF, etc. to the staff of SCERT but the Ministry of Finance, Government of India viewed that as a matter of policy the introduction of pension scheme, as applicable to the employees of the Government of India, to the employees of Autonomous Bodies should not be agreed to. The relevant portion of D.O. No.25(1)/EV/2000 dated 16.3.2000 (page 154 of the paper book) written by the Joint Secretary, Government of India, Ministry of Finance, Department of Expenditure to the Financial Adviser, Ministry of Home Affairs, New Delhi, reads thus:-
3. We have, however, come across a number of cases where pension scheme on GOI pattern has been allowed for the employees of autonomous bodies either with the approval of the Internal Finance Division or with the approval of the Financial Adviser of the Ministry/ Department concerned without obtaining this Departments concurrence. In one such case, the Department concerned is now faced with a situation where the Pension Fund set up for the employees of an autonomous body has become unviable; there being no possibility of disbursing pension to the pensioners without seeking Governments support in the form of grants-in-aid.
4. In view of the above, we have been advising autonomous bodies under various Ministries/Departments of the Government of India to continue to follow the CPF Scheme or the autonomous bodies, if they so desire, may work out an annuity scheme through the Life Insurance Corporation of India based on voluntary contributions by the employees and without any contribution from the Government or the employees may join the pension scheme introduced by the Ministry of Labour for the PF subscribers. It may please be noted that introduction of pension scheme on GOI pattern to the employees of autonomous bodies should not be agreed to as a rule; any exception in this regard should be referred to this Department.
17. Though after the aforementioned judicial Orders passed by the Honble High Court and the Apex Court, vide notification dated 13.10.2009, the SCERT, i.e., the Council reiterated that the terms and tenure of the Academic staff at the Council should remain the same as available in the Academic staff of the NCERT, but the said notification was in issue before this Tribunal in Dr. B.K. Kapoor v. Govt. of NCT of Delhi & others (O.A. No.598/2013) decided on 15.4.2013 wherein it was held that it was not binding on the Government and the SCERT was duty bound to obtain prior permission from the competent authority before passing a Resolution amending the terms and service conditions of its employees. Paragraphs 7 to 9 of the said Order read thus:-
7. The main issue for our determination is whether restoration of Regulation-67 done by the Executive Committee of SCERT vide its Resolution dated 13.10.2008 was in order or not and if so whether it was binding on the Govt. of NCT of Delhi. It is not disputed that SCERT is an autonomous Society registered under the Societies Legislation Act. It has a Governing Council and an Executive Committee. The Chairman of the Council is the Lt. Governor and government officers including a representative of Finance Department are its Members. The Executive Committee is chaired by Secretary, Education of Delhi Administration and Secretary, Finance or his representative is also a Member of the Executive Committee besides other government officials of Department of Education. As per Regulation-43(d), the Executive Committee has powers to frame and amend regulations dealing with the terms and tenure of appointment, emoluments, allowances, rules, discipline and other service conditions of the officer and the staff of the Council. Thus, it would appear that the Executive Council was empowered to pass a Resolution restoring Regulation-67 by which the age of retirement of the academic staff would have become same as that of the academic staff of SCERT.
8. However, it is also not denied that SCERT is a 100% Grantee institution of Govt. of Delhi. To that extent, it cannot claim to have full financial autonomy and is bound to follow the conditions imposed by the grantor while giving grant to grantee. Under the Pattern of Assistance issued vide Govt. of NCT of Delhi letter No. F.DE 18-14(6)/2002/Plg./17627-635 dated 23.03.2005 (Annexure-2) certain restrictions have been imposed. As per Clause-17(ii) of this Pattern of Assistance, it is laid down that the recruitment rules, terms and conditions of service, welfare schemes of the employee and other service related matters will be decided by the EC only with the prior permission of the Government of Delhi. The rationale behind this provision is clear. SCERT gets both recurring and non-recurring grant from Government of Delhi. Recurring grant covers amongst other things, expenditure on salaries and allowances of the staff. Further, the quantum of grant is on net deficit basis which would imply that the Government of Delhi is duty bound to meet the budgetary deficit of SCERT calculated by deducting all expected income of SCERT from its anticipated expenditure. If SCERT were fully autonomous to decide the service conditions of their employees then the Govt. of NCT would lose control over the expenditure of SCERT and will be liable to increase the quantum of grant as and when salary expenditure goes up. This would put burden on the finances of Govt. of Delhi, the quantum of which would not be in their control. This is clearly not an acceptable position. In the case of V.K. Sodhi & Ors. (supra), the Honble Supreme Court dealt with this issue and observed as follows:-
16. It appears to us that in the base of bodies like SCERT, the court cannot ignore the financial implications of implementing the directions that it is called upon to issue. The object of SCERT is laudable and it has to coordinate and promote education in the State. Its resources are limited and the main income is by way of grant from the State Government. When SCERT pleads that it cannot spend the whole of the grant or a major portion of the grant in paying salaries and emoluments to its employees and if it does no, that may tend to frustrate the very object with which the society was formed, it is an argument that has to be considered weighty by a court called upon to exercise jurisdiction under Article 226 of the Constitution of India. A court cannot issue a direction which would tend to frustrate the very object with which a society like SCERT is formed or a body like SCERT is created. After all, there may be a point of time in a welfare State where the right of the employees must be subservient to the right of the society. In the matter of education, surely, the interests of the society at large should prevail and issue of any direction that may endanger such interests must be done with extreme caution and only after careful deliberation.
9. On the basis of the above analysis, we come to the conclusion that the Executive Council of SCERT was duty bound to obtain prior permission of the Govt. of NCT of Delhi before passing a Resolution amending the terms and service conditions of its employees. In the instant case, the Govt. of NCT of Delhi has stated that such permission was not taken. As such this Resolution cannot be binding on it and therefore, the claim of the applicant that he should be allowed to retire at the age of 62 years cannot be acceded to.
18. The Order was challenged before the Honble High Court by filing W.P. (C) No.3560/2013 and was upheld in terms of the Order dated 8.7.2013. Relevant excerpt of the Order passed by the Honble High Court in this regard reads thus:-
11. It is settled law that a Juristic Entity, such as a society registered under the Societies Registration Act, breaths and lives in terms of its charter of incorporation i.e. the Memorandum of its incorporation and Rules framed. Thus, notwithstanding the Executive Committee of SCERT being empowered to amend the Rules as per power conferred by Rule 43 it must additionally abide by Rule 64 which requires amendment to the Rules with the previous concurrence of the Government of Delhi; and we do not find any approval accorded by the Government of Delhi to the resolution passed by the Executive Council on October 13, 2008. Further, as observed by the Supreme Court in V.K.Sodhi's case (supra) since entire finances of SCERT are met by the Government of NCT Delhi, any resolution passed by the Council having financial impact must be as per the finances made available by the Government of NCT Delhi.
12. We concur with the view taken by the Tribunal.
13. The submission advanced that Rule 26 shows complete representation of the Government of NCT Delhi including the Secretary Finance on the Executive Council of SCERT and that since the resolution dated October 13, 2008 was passed when the Secretary Finance was present it has to be treated as a resolution with the approval of the Government of NCT Delhi is noted and rejected for the reason the Secretary Finance has not been shown to us as having any power to act on behalf of the Government of NCT Delhi with reference to the allocation of business rules to conduct the affairs of the Government of NCT Delhi. A person can wear two hats. The Lt. Governor of Delhi exercises the executive powers on behalf of the Government of NCT Delhi and he alone could have approved the resolution in question.
14. The second argument advanced by relying upon certain observations of the Supreme Court in V.K.Sodhi's case where the Supreme Court held that there is no deep and pervasive control of the State over SCERT and hence SCERT is not a State. It was urged that said observations of the Supreme Court would reveal that the management of the affairs of SCERT is the concern of the Executive Committee alone without any governmental interference.
15. We fail to understand the applicability of the logic of the argument. That the Government does not exercise deep and pervasive control over the affairs of SCERT has nothing to do with Rule 64 of the Memorandum of Association of SCERT which mandates that any amendment to the Rules must be with the previous concurrence of the Government of Delhi.
19. Indubitably, the Rules and Regulations (SCERT) (ibid) are framed by the SCERT itself and as has been found by the Honble Supreme Court in the case of V.K. Sodhi (supra), the SCERT is not capable to meet the expenses required to be incurred in the wake of the provisions of Regulation 67 and thus cannot be compelled to implement the same. In such a situation the question would arise whether a direction can be given to respondent No.2 or the Union of India to meet the expenses. In this regard, the Ministry of Finance has already taken a policy decision that the pension scheme applicable to the employees of Central Government should not be made applicable to the employees of autonomous bodies. Besides, as has been ruled by the Apex Court in Indian Airlines Officers Association v. Indian Airlines Limited & others, JT 2007 (9) SC 519, the Court/Tribunal should not normally interfere with the policy decision of the Government. Paragraph 39 of the judgment reads thus:-
39. That the policy decision should not be lightly interfered with has been observed by this Court in Union of India & Anr. Vs. International Trading Co. & Anr. [(2003) 5 SCC 437].
20. Also in view of the judgment delivered in Tech. Executive (Anti Pollution) Welfare Association v. Commissioner of Transport & another, 1997 (1) SCSLJ 633, the Tribunal is not competent to issue direction to lay down the policy, which is a matter within the purview of the appropriate Government.
21. In the circumstances, no direction can be issued to the Govt. of NCT of Delhi or Union of India to frame a policy to provide for pension and pensionary benefits to the applicants herein. Though a direction to implement Regulation 67 could be issued to the SCERT but in the case of V.K. Sodhi, the Apex Court has already ruled that the SCERT cannot be made to spend whole of the grant or a major portion of the grant in paying salaries and emoluments to its employees, as such direction would frustrate its very object. As has been noticed hereinabove, in the said case, the Apex Court also ruled that the Court cannot issue such direction to SCERT, which would tend to frustrate the very object of its constitution.
22. As far as the plea of res judicata raised by the learned counsel for respondents is concerned, though strictly speaking once the Apex Court could reverse the Order of the Honble High Court technically on the ground that the writ petition was not maintainable before it and subsequently CWP No.6780/2001 was dismissed on the premise that SCERT was not a State and was not amenable to the extra-ordinary jurisdiction of the High Court under Article 226 of the Constitution, the present Original Application may not be considered as barred by res judicata. Nevertheless, the applicants herein have not acted fairly, as when in Appeal (Civil) No.3272/2003 Honble Supreme Court ruled that the Honble High Court was not correct in entertaining the writ petition under Article 226 of the Constitution against the SCERT, they ought to have obtained the liberty to approach appropriate forum, but such is not the case here. Even otherwise also, the observations made by the Honble Supreme Court in paragraph 16 of the Order are binding on us and in the wake of such observations, no direction can be given to SCERT to incur financial burden to pay pension and pensionary benefits to the applicants herein, in terms of Rule 67 of the Rules and Regulations (ibid). Further, without consulting the Government of NCT of Delhi and Government of India, which is the major source for its finance, the SCERT cannot create financial obligations for them. Had the Rule 67 (ibid) been incorporated in the Rules after due consultation with the Government of NCT of Delhi and Government of India, they could be bound by the same.
23. In the facts and circumstances, as noted hereinabove, the Original Application is found devoid of merit and is accordingly dismissed. No costs.
( V.N. Gaur ) ( A.K. Bhardwaj ) Member (A) Member (J) /sunil/