Central Administrative Tribunal - Delhi
Mrs. Manorama Bhatnagar vs Govt. Of Nct Delhi Through on 21 March, 2012
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-3479/2011
MA-2539/2011
MA-2540/2011
Reserved on: 13.03.2012.
Decided on: 21.03.2012.
Honble Sh. G. George Paracken, Member (J)
Honble Dr. A.K. Mishra, Member (A)
1. Mrs. Manorama Bhatnagar,
W/o Sh. S.K. Bhatnagar,
R/o S-487, School Block,
Shakarpur, Delhi-92.
2. Mrs. Kailash Rani,
W/o sh. Babu Ram,
R/o B-1/119, Paschim Vihar,
New Delhi-63.
3. Sh. Gauri Shanker Sharma,
S/o Sh. Balkrishan Sharma,
R/o 201/25F, Krishna Gali No.7,
Maujpur, Delhi-55.
4. Sh. Bhanwer Singh Sharma,
S/o Sh. Kalu Ram Sharma,
R/o C-9/164, Yamuna Vihar,
Delhi-53.
5. Sh. B.P. Tyagi,
S/o late Sh. Jaswant Singh,
R/o V-655, Gali No.10,
Vijay Park, Maujpur,
Delhi-53.
6. Sh. Bijan Pal Tyagi,
S/o Sh. Girvar Singh,
R/o B-58, Kitar Nagar, Gali No.18,
Parwana Road, Delhi-51.
7. Sh. Ram Pal Singh Panu,
S/o Sh. Dalip Singh,
R/o C-15/4, Arjun Mohalla, Gali No.7,
Maujpur, Delhi-53. . Applicants
(through Sh. D.R. Gupta, Advocate)
Versus
1. Govt. of NCT Delhi through
its Chief Secretary,
Players Building, I.P. Estate,
New Delhi-2.
2. Directorate of Education,
Govt. of NCT of Delhi,
Old Secretariat, Rajpur Road,
Delhi-54.
3. Dy. Directors of Education
Concerned under Director of Education,
Govt. of NCT of Delhi,
Old Secretariat, Rajpur Road,
Delhi-54. . Respondents
(through Mrs. Avnish Ahlawat, Advocate)
O R D E R
Dr. A.K. Mishra, Member (A) The applicants held the substantive post of Vice-Principal of different schools of the respondent government and worked as Heads of the Office/Heads of the School at different times till their retirement. They have filed this application claiming the pay scale attached to the post of Principal on the strength of the order of this Tribunal dated 06.11.2009 in OA-1166/2009 in the case of S.C. Gupta & Ors. Vs. Govt. of NCT of Delhi which was allowed in favour of similar claims by the applicants therein. The respondent government challenged the order of this Tribunal before the Honble High Court of Delhi, which, however, upheld the decision of the Tribunal in its order dated 06.09.2010 in Writ Petition (C) No. 724/2010. The respondent government contested this order by filing SLP No. 35338/2010 which was dismissed by the Apex Court on 05.01.2011.
2. The applicants are claiming themselves to be similarly circumstanced employees who had discharged the duties of the Head of the Office/Head of the School at different periods before their retirement and are claiming similar benefits. The applicants have also filed an application for condonation of delay.
3. Learned counsel for the respondents drew our attention to the averments made by the respondents in paragraph-3 relating to para-wise reply which has set forth the delay in filing the application. Applicant No.1 (Mrs. Manorama Bhatnagar) was allowed to work as Head of the School on 15.10.2002, she retired on 31.10.2008 and has filed this application after more than 10 years; Applicant No.2 (Mrs. Kailash Rani) was allowed to work as Head of the School on 04.08.2005, she retired on 31.12.2007 and has filed this application after seven years; applicant No.3 (Mr. G.S. Sharma) was allowed to work as Head of the School on 27.07.2001, he retired on 02.07.2006 and has filed this application after 11 years; applicant No. 4 (Mr. Bhanwar Singh Sharma) was allowed to work as Head of the School on 01.09.2006, he retired on 31.12.2010 and has filed this application after 6 years; applicant No.5 (Mr. B.P. Tyagi) was allowed to work as Head of the School from 01.10.2007 to 03.07.2001 and has filed this application after 15 years; applicant No.6 (Sh. Vigyanpal Tyagi) was allowed to work as Head of the School on 03.08.2004, he retired on 31.03.2005 and has filed this application after 8 years; applicant No.7 (Sh. Rampal Singh) who was allowed to work as Head of the School on 01.01.996, he retired on 30.06.1997 and has filed this application after 16 years. The delay has been computed from the dates of their working as Head of the Office/School.
4. Learned counsel for the respondents raises the preliminary objection of limitation, as according to her, all these applications suffer from undue delay and laches in preferring claims. Therefore, it should be dismissed as not maintainable on that account.
5. Learned counsel for the applicants cites the following cases of the Honble Supreme Court in support of his contention that delay should be condoned:-
(i) K.C. Sharma & Ors. Vs. U.O.I. & Ors., (1997) 6 SCC 721.
(ii) U.O.I. & Ors. Vs. Shantiranjan Sarkar, (2009) 3 SCC 90.
State of Madhya Pradesh and Ors. Vs. Yogendra Shrivastava, (2010) 12 SCC 538.
5.1 The case of K.C. Sharma (supra) was in respect of a notification of Railway Board which was given retrospective effect adversely affecting the pensions of many retired employees. This notification was held to be invalid by the Tribunal. Those who filed later claiming the benefits of this judgment were given the relief by the Honble Supreme Court on the ground that in the facts and circumstances of that case their OAs should not have been rejected on limitation ground. Suffice it to say that the facts are distinguishable. It related to validity of a particular notification which was given retrospective effect. Once the validity was set aside naturally all the pensioners were entitled to the benefits.
5.2 The case of Shantiranjan Sarkar (supra) related to grant of benefits as applicable to members of the scheduled caste (SC) for the purpose of reservation in Central Government services. It was a case in which the advertisement for recruitment did not erroneously mention the vacancies meant for SC candidates and the Apex Court held that the Government could not be allowed to take advantage of its wrong. Therefore, in the peculiar circumstances of the case, it was also held that any delay in filing the O.A. should not be treated as a bar for granting an equitable relief in view of the fact that the State Government as a benevolent litigant could not be permitted to take advantage of its own wrong. Besides, in this case there was suppression of material facts on the basis of which the Writ Petition deserved to be allowed.
5.3 The case of Yogendra Shrivastava (supra) related to the wrong interpretation about the quantum of Non Practicing Allowance (NPA) which is admissible to a Government Doctor. It was held that 25% of the basic pay would constitute NPA. The basic pay would mean the revised pay and not the initial minimum pay. It was also held that the benefits which had accrued to the doctors could not be taken away retrospectively by means of an amendment. In this context, it was held that denial of a legitimate benefit could not be supported on the principle of limitation as the denial led to a continuing wrong.
6. Learned counsel for the respondents cited the decision of the Honble Supreme Court in the case of U.O.I. & Ors. Vs. M.K. Sarkar, (2010)2 SCC 59 to contend that by merely giving representation will not give any fresh cause of action to the petitioner and the limitation has to be considered from the original cause of action. In this case an employee sought the benefit of regular pension as opposed to CPF Scheme involving a long delay after his retirement. It was held in the facts and circumstances of this case that the cause was not one of recurring nature as to condone the delay. In the case of D.C.S. Negi Vs. U.O.I. & Ors., [SLP (Civil) No. 7956/2011 decided on 07.03.2011] the Apex Court specifically enjoined the Tribunals to look into the issue of limitation and admit only such applications as are filed within the prescribed period or where sufficient cause is shown for not doing so.
7. There is no doubt about inordinate delay involved in raising claims of different applicants in this case. In the case of Ram Pal Singh, it is long as 16 years, in the case of B.P. Tyagi, it is 15 years and in other cases it ranges from 6 to 11 years from the dates the original cause action arose. The only explanation which has been given is that the applicants came to know about the validity of their claim only after OA-1166/2009 was decided in favour of similarly circumstanced employees.
8. Learned counsel for respondents also cites the decision of the Honble Supreme Court in the case of Surendra Nath Pandey and Ors. Vs. Uttar Pradesh Cooperative Banck Limited and Anr., (2010)12 SCC 400 to contend that the mere fact of similarly placed employees have been conferred with some benefits through the decision of the Court would not imply that similar claims could not be resisted.
9. The Honble High Court of Delhi while dealing with CM No. 9122/2010 in WP(C)-4257/2010 made the following observations in respect of those who did not assert their right at the right time:-
8. The applicants of CM No. 9122/2010 were also in the list of 945 candidates called for interview but were not in the final select list. It is apparent that they chose to sit by, and accept their fate. They never took recourse to legal remedies. They seek to reap the harvest of the labour put in by somebody else.
9. It is settled law that law does not come to the rescue of those who sleep and do not assert their rights at the right time.
10. From the facts noted herein above, it is apparent that the offending act of the petitioner came to light in the month of April 2009 when the select list was finally published and as respondents of WP(C) No. 4255/2010, WP (C) No. 4256/2010 and WP(C) No. 4257/2010 promptly asserted their rights in the month of May 2009, the applicants did not do so. 9.1 Learned counsel for respondents also draws our attention to the observations made in paragraph-29 of the decision of the Honble Supreme Court in the case of Shiba Shankar Mohapatra and Ors. Vs. State of Orissa and Ors., (2010)12 SCC 471, which reads as under:-
29. It is settled law that fence-sitters cannot be allowed to raise the dispute or challenge the validity of the order after its conclusion. No party can claim the relief as a matter of right as one of the grounds for refusing relief is that the person approaching the Court is guilty of delay and the laches. The Court exercising public law jurisdiction does not encourage agitation of stale claims where the right of third parties crystallises in the interregnum. (vide Aflatoon & Ors. vs. Lt. Governor, Delhi & Ors. AIR 1974 SC 2077; State of Mysore vs. V.K. Kangan & Ors., AIR 1975 SC 2190; Municipal Council, Ahmednagar & Anr. vs Shah Hyder Beig & Ors., AIR 2000 SC 671; Inder Jit Gupta vs. Union of India & Ors. (2001) 6 SCC 637; Shiv Dass vs. Union of India & Ors., AIR 2007 SC 1330; Regional Manager, A.P.SRTC vs. N. Satyanarayana & Ors. (2008) 1 SCC 210; and City and Industrial Development Corporation vs. Dosu Aardeshir Bhiwandiwala & Ors. (2009) 1 SCC 168).
10. No doubt the applicants are placing reliance on a specific relief granted by this Tribunal in respect of similarly placed employees in OA-1166/2009. But the same Tribunal in OA-517/2011 decided on 08.02.2012 considered the claim of the applicant therein for grant of salary attached to the higher post of Assistant Commissioner/Deputy Director of Revenue which had been discharging duties on current duty charge and held as under:-
8. Admittedly, the fact is that applicant has accepted the offer of his appointment on current duty charge in the post of Assistant Commissioner, the order of CDC inter alia has one of the conditions that the entrustment of current duty charge shall be in his own pay scale of the post he is holding. Once the applicant has accepted the offer of appointment to work on CDC in the said post for a short period, he cannot claim the salary of the said post. It is also noticed that he on promotion as the Assistant Commissioner has issued the appointment letters to nine such officers who have been put in current duty charge as late as July, 2011. This indicates that DJB has been following the practice for temporary/ stop gap arrangement of current duty charge of a higher post. The current duty charge is not additional charge. The applicant on CDC got the pay of his previous post and discharged the function of the CDC post. Therefore, the FR 49 would not be applicable as the applicant was not holding dual charges but was only holding one charge of a higher post with current duty charge. We have also perused the judgment of Honble Supreme Court in Surendra Nath Pandeys case (supra). The relevant part of the judgment reads as follows :-
9. We are of the view that the real issue is whether persons employed on stop gap or ad hoc basis were entitled to the benefit of pay scales with increments during the period of service on daily or stop-gap or ad hoc basis. Unless the appellants are able to establish that either under the contract, or applicable rules, or settled principles of service jurisprudence, they are entitled to the benefit of pay scale with increments during the period of their stop-gap/ad-hoc service, it cannot be said the appellants have the right to claim the benefit of pay scales with increments.
10. Admittedly, the appellants do not claim the said relief on the basis of any rules or contract. This Court in a series of decisions [See for example -- State of Haryana vs. Jasmer Singh- 1996(11) SCC 77 and State of Haryana vs. Tilak Raj - 2003 (6) SCC 123], has held that the daily wage or ad hoc employees were not entitled to the benefit of regular pay scales with increments, by claiming parity with regular employees. Therefore, it is clear that the appellants did not have a right to claim the said relief.
9. Thus, the above judgment indicates that when the persons are employed as a stop gap or temporary arrangement, they will be entitled to the benefits of pay scales with increments during the period of service on daily or stop gap or ad hoc basis only if they are able to establish that either in the contract or applicable rules, or settled principles of service jurisprudence are entitled to the benefits of pay scales with increments during the period of their stop gap arrangements. As per the Rules of DJB, current duty charge does not grant the higher pay scales and the order issued for current charge does not permit pay scale of higher post. But the, promotion on adhoc basis to the said post, as per DJB order grants him the pay scales for the post of Assistant Commissioner. The respondents exactly have done the same. This issue was also considered by the Honble High Court of Delhi in the case of Govt. of NCT of Delhi Vs. Prem Prakash, 124(2005)DLT 10 DB. After going through the case law on the subject, the Honble High Court held that the ruling of the Honble Supreme Court would apply and the claim for higher pay would not be admissible when an employee is asked only to look after the duties of a higher post. Honble High Court held as under:-
7. In our considered opinion, the ratio of the aforesaid decision (Mohd. Swaleh Vs. UOI & Ors., 1998(1)SLJ 1) is squarely applicable to the facts of the present case as in the present case the appointment is made by the Principal, who is not an competent authority to make such an appointment. Similar is the case of the Supreme Court in State of Haryana v. R.K. Aggarwal, reported in 1997(4)SLR 733. In the said case also the Supreme Court was examining the case where the respondent R.K. Aggarwal was assigned to hold the current duty charge first, as Chief Engineer and thereafter as the Engineer-in-Chief. It was held by the Supreme Court that since substantive promotion was not given to the respondent during the impugned period because of pending litigation, therefore, he is not entitled to claim any salary of the promotional post that is held on current duty charge..
11. As regards application of the principle of quantum meruit to Service Law, the Honble Supreme Court of India in Mohd. Swaleh vs. UOI&Ors., 1998(1) SLJ 1 made the following observations:-
23.For the aforesaid reasons we are of the view that the condition mentioned in Appendix 3 to the F.R. wherein the Central government has delegated powers under Rule 49 to the Head of the Department namely that the Head of the Department must have been authorised to make appointment to the higher post, is not satisfied in the facts of this case inasmuch as the power to appoint a Registrar has not separately been delegated to the Chairman or Vice-chairman of the Central Administrative Tribunal. Hence the Additional remuneration cannot be granted as claimed.
24. Learned counsel for the appellant made a submission that the principle of quantum meruit would apply to the facts of the case and relied upon the decision of the Supreme Court in State of West Bengal Vs. B.K. Mondal & Sons [AIR 1962 SC 779]. in that case it was held that though the contract for certain work was not executed as per the provision of Section 175(3) or the Government of India Act still compensation could be paid under Section 70 of the Contract Act. In our view the said decision which is based on Section 70 of the Contract Act is not applicable to the present situation where the field is governed by specific statutory rules namely Rule 40 of the Fundamental Rules. In this case, the Honble Supreme Court was dealing with the claim of Deputy Registrar of Central Administrative Tribunal who was permitted to hold the charge of the office of Registrar for grant of the pay scale attached to the post of Registrar. After examining the legality of the issue, the Honble Supreme Court held that since the applicant therein had not been appointed by the appointing authority on the post of Registrar and there was no promotion to that post, his claim for higher pay could not be allowed. It also held that any delegation of financial powers to functionary does not necessarily involve payment of additional remuneration. The case has to be examined only in terms of Rule-49 of Fundamental Rules. It is only when the appropriate appointing authority appoints either in officiating capacity or by way of regular promotion that the salary attached to the higher post would be admissible not otherwise. After examining the law on the subject, the claim of the applicant was rejected.
12. It is not the case of the applicant that they were promoted to the post of Principal or appointed on officiating basis to that post by the Appointing Authority and had the right to the higher pay scale on the basis of their promotion either on ad hoc or regular or officiating basis. Nor did the stop gap orders declaring them as Heads of School were made by the appointing authority, conferring on them the position of Principal. Neither is it their case that their juniors have been given this promotion to the exclusion of their rightful claim for the promotional post. They are seeking this benefit only on the strength of discharging the duty of the Head of the School/Head of the Office although their substantive capacity was that of Vice-Principal. In the peculiar facts and circumstances of the case, if such claims will be maintained long after the original cause of action had arisen, it would open a Pandoras box for similar claims to be made by many others. Further, the possibility of seniors raising claim of equal pay cannot be ruled out if the claims of junior employees are allowed after lapse of so many years without examining the issue of limitation.
12. In view of the foregoing discussion, we feel that the claims suffer from delay and laches and the application for condonation of delay cannot be allowed in the absence of satisfactory explanation why the applicants did not raise the claim at the appropriate time. In the circumstances, the O.A. is dismissed on the ground of limitation. No costs.
(Dr. A.K. Mishra) (G. George Paracken) Member (A) Member (J) /Vinita/