Delhi High Court
N.R.Dogra vs Union Of India & Ors. on 10 April, 2013
Author: Valmiki J. Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 1813/1997
% 10th April, 2013
N.R.DOGRA ......Petitioner
Through: Mr. Anil Kumar Verma and Ms. Ashu Rani,
Advocate.
VERSUS
UNION OF INDIA & ORS. ...... Respondents
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This writ petition is filed by the petitioner-Sh. N.R.Dogra seeking the relief that he should be granted Selection Grade in terms of the Presidential order dated 26.11.1971. In sum and substance what the petitioner claims is that though the Presidential order dated 26.11.1971 applied only to teachers and though, the petitioner was only a Librarian and not a teacher, he is yet included in category-4 of para-3 of the Presidential order dated 26.11.1971. It is contended that category-4 includes therein not only Trained Graduate Teachers but others in the same scales and the petitioner is in the „same scales‟ category. Reliance on behalf of the petitioner is in the expression "others in the same scale" contained in the order W.P.(C) No. 1813/1997 Page 1 of 9 dated 26.11.1971 to argue that persons who may not be teachers, but if they are in the same scales as in category-4, these persons will be entitled to Selection Grade as they would fall in the category-4 of para-3 of the Presidential order dated 26.11.1971.
2. The contesting respondents are respondent nos. 2,3,5 and 6. Respondent no.2 is the Director of Education. Respondent no.3 is the Pay and Accounts Officer(IX) of the Government of NCT of Delhi. Respondent no.5 is the Government of NCT of Delhi. Respondent no.6 is the Deputy Director of Education. In the counter-affidavit, filed jointly by the respondent nos. 2,3,5 and 6, three main issues have been urged to dispute the claim in the writ petition. Firstly, it is contended that the petitioner being a Librarian was already getting a teaching allowance and therefore, he should not be equated with other teachers. The second defence is that the Presidential order dated 26.11.1971 applies only to teachers and not to librarians such as the petitioner. Thirdly, it is contended that the case of the petitioner-Sh. N.R.Dogra, ex-librarian was forwarded to the Director of Education and the Director of Education dismissed the representation of the petitioner for fixation of pay-scales in the Selection Grade.
3. That the Presidential order dated 26.11.1971 applies by its ordinary language only to teachers, and not librarians, is not disputed. The question is whether petitioner who though only a Librarian falls in the category-4 of para 3 of W.P.(C) No. 1813/1997 Page 2 of 9 the Presidential order dated 26.11.1971 i.e whether category-4 of para-3 seeks to include persons who are not teachers although such persons would have the pay- scale of Trained Graduate Teachers as contained in category-4 of para-3.
4. As already stated above, the petitioner in support of his argument that librarians are covered under category-4 in para-3 of the Presidential order dated 26.11.1971, and although the Presidential order applied only to teachers and not to librarians, the petitioner is covered by the expression "others in the same scale". Reliance is also placed to buttress this argument upon a judgment of a learned Single Judge of this Court in the case of Sh. Abinash Chander & Ors Vs. Union of India and Ors C.W.P. No. 264/1979 decided on 14.3.1983. The following observations of the judgment in the case of Sh. Abinash Chander (supra) are relied upon and which read as under:-
"In my opinion the stand of the Director is wholly erroneous. On a plain reading of this Presidential order it appears to me that trained graduates teachers and others who are in the pay scale of Rs.250-20-450-EB-24- 550 are entitled to the award of the selection grade, if they satisfy the test of seniority subject to fitness. The Presidential order speaks of "categories of school teachers". This is the expression used in clause (1). Clause 3 again uses the expression "categories". Therefore in order to be entitled to a selection grade one has only to see what is that category to which he belongs. For that purpose, he has to go by his own scale of pay. These physical education teachers were grouped together with the trained graduate teachers because their pay scale was the same as the pay scale of the trained graduate teachers.
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W.P.(C) No. 1813/1997 Page 3 of 9
The Presidential order has introduced the concept of categories. All the teachers have been divided for purposes of award of selection grade into as many as eight categories. One has to find the category to which he belongs. The method of finding it out is to see what is the scale of his pay. If a particular teacher falls within the categories mentioned in para 3 and fulfills the seniority subject to fitness test he cannot be deprived of the benefit of the selection grade. This, I think, is plainly the meaning of the Presidential order and distinctly its intention. The Presidential Order is simple. It is not a complicated affair. The eight categories into which the school teachers are divided are conglomerations of teachers. These teachers wandered about, unhoused and unshephered, except for a casual attention here and there, in the pathless fields of their diverse disciplines until the President classified them in their true categories. He co-ordinated them all. He rationalised their pay scales. The pay scales determine the categories. The categories are made the subject of selection grades."
5. In my opinion, the petitioner is not entitled to the relief as claimed in this writ petition and the writ petition is bound to be dismissed for the reasons given hereinafter.
6. The argument urged on behalf of the petitioner that he would fall in category-4 of para-3 of the Presidential order dated 26.11.1971 is wholly misconceived inasmuch as the Presidential order admittedly applied only to teachers. Petitioner is not a teacher and he is a librarian. If the Presidential order dated 26.11.1971 applies only to teachers, then even category-4 in para-3 has only to apply to teachers ie the expression "others in the same scale" will also be applicable to teachers in the same scales and not librarians who are not teachers. W.P.(C) No. 1813/1997 Page 4 of 9 Once the Presidential order applies to teachers only, the petitioner being only a librarian, petitioner cannot on the basis of some abstract language in the Presidential Order claim that the order was intended to cover persons other than teachers.
7. Reliance placed upon by the petitioner upon the judgment in the case of Sh. Abinash Chander (supra) is also misconceived, inasmuch as the judgment specifically dealt with the case of Physical Education Teachers. Physical Education Teachers are also teachers unlike librarians. Such Physical Education Teachers were included originally by the Director of Education for taking benefit of the Presidential order dated 26.11.1971, and thereafter were removed and this action of the Director of Education was quashed in the judgment of Sh. Abinash Chander (supra). The observations which have been made by the learned Single Judge and which have been relied upon by the petitioner in the present case, have to be confined to their application to Physical Education Teachers i.e teachers and not librarians. As already stated above, category-4 of para-3 of the Presidential order refers to teachers and other teachers drawing the same scales i.e persons who are not teachers cannot be got to be included in the expression "others in the same scale" and which expression has to apply to teachers only. That the judgment in the case of Sh. Abinash Chander (supra) did not apply to librarians who are not teachers becomes clear from the following observations in the said judgment. W.P.(C) No. 1813/1997 Page 5 of 9
"There are several sub-divisions of category No.4. One sub-division is trained graduate teachers. One sub-division is trained graduate teachers. The other sub-division is physical education teachers (senior). Both belong to the same category because they are in receipt of the same scale of pay. If the trained graduate teaches are entitled to the selection grade, it will be illogical to say that the physical education teachers, though they belong to the same category as the trained graduate teachers, will not be entitled to the award of the selection grade.
The Director by his letter dated 1st Decembe, 1972 has divided category No.4 into SL.No. Category Scale of Pay.
(1) Trained Graduate Teachers 550-30-700
(2) Language Teacher -do-
(3) Drawing Teachers -do-
(4) Physical Education Teacher -do-
(5) Senior Domestic Science -do-
(6) Craft Teacher(Senior) -do-
(7) Music Teacher (Senior) -do-
All these seven kinds of teachers are described as "following categories" in the letter. This is wrong under the Presidential order they belong to one category of "trained graduate teachers and others, in the same scale", that is Rs.250-20-450-EE-25-550."
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The controlling conception of the Presidential order is classification. Teachers are divided into classes or groups. They were placed into eight categories. These are separate categories. All teachers have been put into these groupings. We are centrally concerned with these groupings. The physical education teachers are included in one of them (see item No.4). The Order covers them. They are not left out in the cold. To exercise them from the benefit of the selection grade on the ground that the post is single or W.P.(C) No. 1813/1997 Page 6 of 9 solitary is to introduce the mathematics of posts. This is not the basis of classification.
The "categories"are the ruling conception of the scheme. Take this case. Category (4) is an individual category. Trained Graduate teacher, Language teacher, Drawing teacher, Physical Education teacher, Senior Domestic Science teacher, Craft teacher (senior) are all concrete examples of "others in the same scale". They are all placed in the same category. They all belong to the same class or group. All of them are entitled to selection grade if they satisfy the test of seniority subject to fitness and there are selection grade posts to go round."
8. Therefore, the judgment in the case of Sh. Abinash Chander (supra) cannot have any application to the facts of the present case because that judgment dealt with the benefit which was granted to the Physical Education Teachers and thereafter withdrawn by the Director of Education, and which order was quashed by the Court in the case of Sh. Abinash Chander (supra) by treating the Physical Education Teachers as teachers as falling under category-4 of para-3 of the Presidential order. As already stated above, once the Presidential order is to be applied only to teachers, it cannot be applied to librarians such as the petitioner and librarians cannot by a convoluted interpretation of category-4 in para-3 of the Presidential order seek to get themselves included as teachers.
9. In my opinion, the very fact that librarians are getting an additional emoluments being teaching allowance, shows that they otherwise were getting some amount of benefit, and therefore, Director of Education in the present case W.P.(C) No. 1813/1997 Page 7 of 9 was justified in rejecting the claim of the petitioner for being treated as equal to a teacher for being granted the Selection Grade benefit.
10. In my opinion, there may be an additional ground to dismiss the writ petition on the ground of delay and laches inasmuch as, benefit of Selection Grade in terms of the Presidential order dated 26.11.1971 ought to have been claimed by the petitioner immediately thereafter. I may note that the petitioner from 1971 till about the time of retirement in 1995 made no representation for the Selection Grade. There is no averment in the writ petition that the Selection Grade is available only if a person who is holding or entitled to hold a Selection Grade retires from that post and thereafter only the petitioner could have claimed the Selection Grade as argued on behalf of the petitioner before me. In fact, in my opinion, this argument would also be misconceived because as per the Presidential order dated 26.11.1971, Selection Grade is granted on the basis of seniority subject to fitness i.e once a person derives the necessary seniority, he would be entitled to the Selection Grade, subject to his fitness. Therefore, it was necessary for the petitioner to state in the writ petition as to when did the petitioner firstly acquire the right to get a Selection Grade. I put it to counsel for the petitioner as to whether there is any averment in the writ petition of the date from which the petitioner first became entitled to the Selection Grade, but the counsel for the petitioner could not point out to me any averment as to when the petitioner became entitled to Selection W.P.(C) No. 1813/1997 Page 8 of 9 Grade having been stated in the writ petition. Therefore, the writ petition filed in 1997 for claiming benefit of a Presidential order dated 26.11.1971 i.e of 26 years earlier, is quite clearly barred by delay and laches in absence of particulars as to when petitioner otherwise had become entitled to the Selection Grade. I may hasten to observe that the issue of delay and laches is a ground totally independent of the other issues discussed above and which other issues are in themselves enough to deny the petitioner the reliefs claimed in this writ petition.
11. In view of the above, there is no merit in the petition, which is accordingly dismissed, leaving the parties to bear their own costs.
APRIL 10, 2013 VALMIKI J. MEHTA, J.
ib
W.P.(C) No. 1813/1997 Page 9 of 9