Central Administrative Tribunal - Delhi
Dr. K.C. Rakesh vs Govt. Of Nct Of Delhi on 31 July, 2015
Central Administrative Tribunal Principal Bench, New Delhi O.A. No.1959/2014 Order reserved on 27th day of July 2015 Order pronounced on 31st day of July 2015 Honble Mr. A.K. Bhardwaj, Member (J) Dr. K.C. Rakesh, Addl. Director (Education), MCD (Retd.) Aged 70 years Group : Class A s/o late Mr. Leeladhar r/o C-13/86 Sector 3 Rohini, Delhi-85 .. Applicant (Mr. I S Sharma, Advocate) Versus 1. Govt. of NCT of Delhi (through its Chief Secretary) 5th Level, A Wing, Delhi Secretariat IP Estate, New Delhi-2 2. Director of Education Govt. of NCT of Delhi Directorate of Education 3. North Delhi Municipal Corporation Through its Commissioner Dr. Shyma Prasad Mukherjee Civic Centre, Minto Road New Delhi-2 (through its Commissioner) ..Respondents (Mrs. Rashmi Chopra, Advocate for respondent Nos. 1 & 2 Mrs. Anupama Bansal, Advocate for respondent No.3) O R D E R
The facts of the case stated in the Original Application are that the applicant joined the Directorate of Education, Delhi Administration, Delhi as PGT (Civics) on 15.9.1970 and got promotion as Vice Principal on 6.10.1977. In response to an Advertisement issued by the Union Public Service Commission, inviting applications for the post of Assistant Education Officer in Municipal Corporation of Delhi (MCD), he offered his candidature and participated in the selection process successfully. Pursuant to the directions issued by the Honble High Court of Delhi in Civil Writ Petition No.759/1985, the applicant was relieved by the Directorate of Education, Government of NCT of Delhi to join the MCD as Assistant Education Officer and he could join the post on 4.4.1985. The Civil Writ Petition was subsequently transferred to this Tribunal and registered as T.A. No.1109/1985. The said T.A. was disposed of in terms of Order dated 29.4.1992 whereby the relieving of the applicant in terms of the interim order was made absolute. The applicant served the MCD as Assistant Education Officer, DEO and Additional Director (Primary Education) from 4.4.1985 to 31.3.2004. During such period, he remained on deputation in KVS between March 1996 to January 1998. He had joined back the Corporation on 15.7.1998, i.e., on repatriation. To seek the benefit of service rendered by him in the Directorate of Education (Govt. of NCT of Delhi), he moved Honble High Court of Delhi by way of Civil Writ Petition No.2251/2004, which was transferred to this Tribunal and registered as T.A. No.1438/2009 and was decided in terms of the Order dated 29.1.2010 with direction to the Govt. of NCT of Delhi to grant arrears of efficiency bar, revise selection pay and pay for medical leave period to the applicant as sought by him. Relevant excerpt of said Order reads thus:-
8. In our considered view the import of Rule 26 of the Pension Rules also envisages a technical resignation when a Govt. servant joins another department. In such a case the erstwhile service shall be reckoned towards qualifying service. We do not find on record such a resignation but as per the promulgated DoP&T guidelines of 1979 only intimation when UPSC conducts examination is required. However, it is a case where ongoing relieving of applicant by an interim order by the High Court applicant could not resign from service, as he was relieved as an implication of the order of the High, as reiterated by the Tribunal later on in TA, yet we feel that all the components and functional requirements are present in the instant case, whereby applicant had an intention by informing the respondents before applying for the post the issue of technical resignation has caused undue hardship to the applicant, as his qualifying service of about 15 years has been obliterated. We are further of the considered view that the CCS (Pension) Rules, 1972 regarding requirement of formal technical resignation are coming in the way of the applicant, causing undue hardship in counting of service. As such, Rule 88 of the Pension Rules operates when such undue hardship is caused, where the Government can dispense with or relax the requirement of rule, i.e., technical resignation in consultation with DoP&T to count the aforesaid service of applicant as qualifying service for the purpose of pension. We direct respondents to seek such a relaxation as per Rule 88 of the Pension Rules to count the service of applicant in question towards qualifying service within a period of three months from the date of receipt of a copy of this order.
9. Applicant shall also be entitled to revision of the pay scale before his relieving. We further direct Govt. of NCT of Delhi to grant arrears of efficiency bar, revised selection grade and pay for medical leave period to the applicant, as prayed for in relief clause c of the TA, within the aforesaid period. TA stands disposed of accordingly.
2. Alleging disobedience of the aforementioned Order, the applicant had filed Contempt Petition No.266/2011 and during the pendency of the same, the MCD handed over him a cheque No.140845 dated 23.5.2012 for an amount of `7,81,584/-. In the wake, the Contempt Petition was disposed of in terms of Order dated 29.5.2012. During the pendency of the Contempt Petition, the applicant had filed Original Application No.2521/2011 seeking issuance of direction to the respondents to grant him interest @18% in respect of all delayed payments as per the details furnished in the Original Application. In terms of the Order dated 8.8.2011, the said Original Application was disposed of, relevant excerpt of which reads thus:-
Applicant, who has retired on 31.03.2004 from the post of Assistant Director of Primary Education in Municipal Corporation of Delhi (MCD), has filed this OA, thereby praying for the following reliefs:
a) The respondents may be directed to grant interest @ 18% in respect of all delayed payments as per details furnished hereinabove.
b) Any other relief or direction which this Honble Tribunal deems fit and proper in view of the facts and circumstances of the case may be granted/passed in favor of the applicant and against the respondents.
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11. That apart, from the material placed on record it is evident that the retiral benefits of the applicant could not be settled because the applicant while working in MCD was appointed on the post of Assistant Commissioner in KVS on 13.3.1996. He was on probation and during the period of probation his services were terminated/repatriated vide order dated 31.1.1998. He did not join the parent department, i.e., MCD. Further the aforesaid period when he was working in KVS was not regularized and whether said period should be counted as qualifying service for the purpose of pensionary benefits. The order to that effect was passed on 8.2.2006, whereby the period w.e.f. 31.3.1996 to 16.12.1997 was treated as qualifying service in MCD and the period from 17.12.1997 to 31.1.1998 was treated as dies non. Further from the material placed on record it is evident that applicant has also taken House Building Advance (HBA) as well as scooter advance. When he retired on superannuation on 31.3.2004 the substantial amount of HBA to the tune of Rs.61463/- and a sum of Rs.13255/- on account of scooter advance (vide letter dated 7.4.2005 and 5.4.2005 respectively, pages 50-51 of the paper-book) were outstanding. Further from the perusal of the document dated 10.05.2006 it is evident that the recovery of the excess payment of pay due to shifting of increment from 1.4.1998 to 17.5.1998 and in the years 1.4.1999 to 1.5.1999, and in the years 2000, 2001, 2002 and 2003 was also required to be effected from the applicant. It may also be relevant to mention here that applicant did not join the parent department after his termination/repatriation by the KVS for a period of 103 days. The MCD has regularized this period as leave period. The said issue was also settled subsequently to his retirement. Thus, it cannot be said that the delay in making the payment is wholly attributable to the administrative lapse and not to the applicant.
3. The Order passed by the Tribunal was challenged before the Honble High Court of Delhi by way of Writ Petition (C) No.7637/2012 and was upheld in terms of the Order dated 24.5.2013, paragraph 5 of which reads thus:-
5. From the above, it is seen that the petitioner himself is responsible for the delay that has occurred in settling the retiral benefits, as his period of working in Kendriya Vidyalaya Sanghathan was not regularized. That could be regularized only with the issuance of order dated February 02, 2006 by treating the period between March 31, 1996 to December 16, 1997 as qualifying service and the subsequent period of December 17, 1997 to January 31, 1998 as ?dies non?. Apart from that, certain advances taken by the petitioner were required to be effected from the petitioner. Thus, for certain justifiable reasons if the delay has occurred, the petitioner would not be entitled to interest on the payments from the date of superannuation to the date of payment. Besides claim filed beyond 3 years was ex-facie barred by limitation.
4. In the present Original Application filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has sought issuance of direction to the respondents to grant him interest on amount of `10,20,772/- from April 2004 to August 2012 @ 18%. The prayer reads thus:-
a) The respondents may be directed to pay the interest @ 18% p.a. on the total amount of Rs.10,20,772/- paid to the applicant for the past service of 15 years rendered by him in Delhi Admn. The said interest amount payable for the delayed period of more than 8 years i.e. from April. 2004 to Aug. 2012, comes to Rs.11,94,300/-.
b) The respondents may also be directed to pay interest @ 8% on the aforesaid interest calculated in the tune of Rs.11,94,300/- w.e.f. Aug 2012 till its realization.
c) The respondent may further be directed to pay compensation to the applicant in the tune of Rs.4,00,000/- (four lakhs), for his mental agony, harassment and acute financial hardship he was subjected to due to the delayed payments toward his pension and other terminal benefits etc made after a delay of more than 08 years totally attributable to the administrative lapse and inaction on the part of the respondents and without any fault on the part of the applicant.
d) Any other relief or direction which this Honble Tribunal deems fit and proper in view of the facts and circumstances of the case may also be granted/passed in favor of the applicant and against the respondents in the interest of justice.
5. Mr. I.S. Sharma, learned counsel for applicant relied upon certain judgments of Honble High Court and Honble Supreme Court to espouse his claim for interest. The judgments relied upon by him are:
High Court
i) Satya Bhan Singh v. Union of India & others, 141 (2007) Delhi Law Times 85 (DB).
ii) Roshan Lal & others v. Delhi Transport Corporation, 140 (2007) Delhi Law Times 49.
iii) Union of India & another v. Rattan Singh, 139 (2007) Delhi Law Times 629 (DB) Apex Court
iv) Alok Shanker Pandey v. Union of India & others, III (2007) SLT 27.
v) S.K. Dua v. State of Haryana & another, AIR 2008 SC 1077.
6. On the other hand, Mrs. Rashmi Chopra, learned counsel for respondent Nos. 1 and 2 and Mrs. Anupama Bansal, learned counsel for respondent No.3 submitted that the Original Application is barred by res judicata and is liable to be rejected on this ground alone. They further submitted that when the applicant was before this Tribunal thrice earlier, in paragraph 7 of the Original Application, he did not disclose the said fact, thus having approached this Tribunal with unclean hands, he is not entitled to seek any relief.
7. In the counter reply filed on behalf of respondent Nos. 1 and 2, it has been explained that the applicant had applied for the post of Assistant Education Officer in MCD through UPSC on 28.11.1983 without intimating the Department, thus his resignation from the services of the Directorate of Education could not have been treated as technical resignation and his past service was liable to be forfeited.
8. In the reply filed on behalf of the Corporation, the reliance has been placed on the judgment of Honble High Court whereby their Lordship upheld the Order passed by the Tribunal denying the interest to the applicant.
9. I heard the learned counsels for the parties and perused the record.
10. Indubitably, there is nothing on record to show that the applicant had applied for the post of Assistant Education Officer through proper channel or he submitted any technical resignation to quit the services of the Delhi Administration, Directorate of Education (Govt. Of NCT of Delhi) before joining the MCD as Assistant Education Officer. In terms of the Order dated 29.1.2010, this Tribunal could issue direction to dispense with or relax the requirement of the rule, i.e., technical resignation in consultation with the Department of Personnel & Training to count service rendered by the applicant with Delhi Government only to do away the undue hardship caused to him. Relevant excerpt of the Order of the Tribunal has already been reproduced hereinabove. Such concession was made in favour of the applicant only to enable him to overcome the hardship. In view of the Order passed by the Tribunal, the Govt. of NCT of Delhi was required to relax or dispense with the requirement of rules in consultation with the Department of Personnel & Training and to complete the exercise certain period of time was to be consumed inevitably. Finally, the due payment could be made to the applicant on 23.5.2012. Once the applicant was not entitled to benefit of certain service and the same could be extended to him only to protect him against undue hardship, he cannot claim that he was entitled to the benefit as a matter of right and should be paid even interest for the period of delay in extending such benefit.
11. In Satya Bhan Singhs case (supra), the claim of the applicant was for interest on the delayed payment of gratuity. In Roshan Lals case (supra), the petitioner had claimed interest on his pensionary benefits released after delay of 21 months. In Rattan Singhs case (supra), the payment on the basis of circular issued in the year 1997 was made after long delay, thus a direction was issued to give interest to retired employee @ 9%. In S.K. Duas case (supra), the Apex Court ruled that even in the absence of Statutory Rules, Administrative Instructions or Guidelines, an employee can claim interest under Part III of the Constitution relying on Articles 14, 19 and 21 of the Constitution. Also in Alok Shanker Pandeys case (supra), it could be held that interest is not penalty or punishment but normal accretion on capital.
12. It is no ones case that the party is entitled to interest on the amount, it is deprived of, not only at the strength of applicable rules and instructions but also at the strength of constitutional provisions and in terms of the principle that the interest is payable as damages and compensation. However, in the present case, since in terms of the extant rules and instructions the applicant was not entitled to counting of his service rendered in Directorate of Education and MCD, no right had accrued in his favour to seek any terminal benefits for such service. It was only in the year 2010 that this Tribunal issued direction to the Delhi Government to relax the Rules after consulting the Department of Personnel & Training and only thereafter certain amount could fall due to the applicant only on relaxation of the rules as per the Order of the Tribunal. By no stretch of imagination, it can be said that the amount of terminal benefits paid to him for the service rendered by him in the Government of NCT of Delhi had fallen due to him at any point of time before the Department of Personnel & Training relaxed the Rules. An amount paid to an individual by relaxing the Rules cannot be claimed as such amount on which interest can be charged.
13. As far as the judgments of Honble High Court and Honble Supreme Court, relied upon by learned counsel for applicant are concerned, the same are in distinct facts. It is well settled that judicial precedent cannot be followed as a statute and need to be applied with reference to the facts of the case involved in it. In Collector of Central Excise, Calcutta v. M/s Alnoori Tobacco Products & another, 2004 (6) SCALE 232, it has been held thus:
12. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. V. Horton (1951 AC 737 at p.761), Lord Mac Dermot observed:
"The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge."
13. In Home Office v. Dorset Yacht Co. (1970 (2) All ER 294) Lord Reid said, "Lord Atkin's speech.....is not to be treated as if it was a statute definition It will require qualification in new circumstances." Megarry, J in (1971) 1 WLR 1062 observed: "One must not, of course, construe even a reserved judgment of Russell L.J. as if it were an Act of Parliament." And, in Herrington v. British Railways Board (1972 (2) WLR 537) Lord Morris said:
"There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case."
14. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
15. The following words of Lord Denning in the matter of applying precedents have become locus classicus:
"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."
14. The issue before this Tribunal in Original Application No.2521/2011 (supra), upheld by the Honble High Court in Writ Petition (C) No.7637/2012 (supra), was of course for interest on the amount of terminal benefits became payable to the applicant for the service rendered by him with MCD and KVS. The said Original Application was filed in the year 2011 when the Tribunal had already passed the Order in T.A. No.1438/2009 on 29.1.2010. Had the applicant any belief that the amount of terminal benefits paid to him for the service rendered by him with Directorate of Education (Government of NCT of Delhi) was payable to him in the year 2011 or in the year 2004, in O.A. No.2521/2011 he could have claimed interest on such amount also. He did not claim interest on said amount because he himself was conscious that till relaxation of the extant Rules by the Department of Personnel & Training the amount was not due to him. The applicant had not claimed any interest on the said amount also in T.A. No.1438/2009 in implementation of the directions issued in which he could get benefit for the service rendered in Directorate of Education for the simple reason that he himself was not very confident that the amount was due to him. Besides, when the applicant had sought benefit of the service rendered by him with the Government of NCT of Delhi as well as the consequential benefits of such service in T.A. No.1438/2009, he ought to have raised the plea of interest in the said T.A. alone. Once such relief was not sought in the T.A., the separate Original Application for the same relief would be barred by Rule 2 Order II of Code of Civil Procedure 1908.
15. In the wake, I am not inclined to grant the relief sought in the present Original Application. The same is accordingly dismissed. No costs.
( A.K. Bhardwaj ) Member (J) /sunil/