Delhi District Court
Sh. Ram Avtar Gupta vs The Commissioner Of on 28 January, 2010
IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI
IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ(NW), ROHINI COURTS, DELHI
S98/08/02
Sh. Ram Avtar Gupta
S/o Sh. Kharakia Ram
R/o H.No.28, Anand Vihar,
Pitampura,
Delhi110034. .....Plaintiff
Versus
1. The Commissioner of
Municipal Corporation of Delhi, Town Hall,
Delhi110006.
2. Smt. Gursaran Kaur (Since deceased)
Assistant Education Officer
Head Office: Kashmere GAte,
Through Commissioner, MCD,
Town Hall, Delhi.
3. Sh. Bahadur Chander Narula
Assistant Education Officer
Through Commissioner, MCD,
Town Hall, Delhi.
4. Sh. Chatter Singh
Assistant Education Officer
Through Commissioner, MCD,
Town Hall, Delhi.
5. Smt. Usha Rani Madan
School Inspector,
Through Commissioner, MCD,
Town Hall, Delhi. .....Defendants
Date of Institution of the Suit : 21.05.2002
IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI
Date of Reserve for Judgment : 16.01.2010
Date of final Judgment : 28.01.2010
JUDGMENT
1. Present is a suit seeking relief of Declaration and Mandatory Injunction on the averments that plaintiff was appointed as Assistant Teacher in the Education Department of defendant No.1 MCD on 18.09.1961 and thereafter was promoted as Head Master on 29.11.1991 and as School Inspector on 21.08.2001 but defendant No.2 to 5, who were appointed as Assistant Teachers subsequent to him i.e. defendant No.2 on 21.08.1965, defendant No.3 on 11.11.1968 and defendant No.4 on 06.12.1978 and defendant No.5 on 22.01.1983 have been promoted to the higher post without seniority and have been granted higher pay scale against the Statutory Rule 109 of the Delhi Education Act and since the juniors of the plaintiff have been promoted prior to him, he has challenged their promotion and it has been prayed that defendants should be directed to promote and give higher grade to the plaintiff alongwith consequential relief from the same date as his juniors were promoted. It was also prayed that a declaration should be granted in favour of the plaintiff entitling him to the seniority from the date as given to his juniors defendants No. 2 to 5.
2. In the separate written statement filed by defendant No.1, it was stated that plaintiff has not come to the court with clean hands and has concealed IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI the fact that defendants No. 2 to 5 were appointed as School Inspector (General) by way of selection through direct recruitment and not by way of promotion. It was also claimed that even otherwise the suit is highly barred by limitation and unexplained delay as defendants No. 2 to 5 were appointed as School Inspector during the period 1976 to 1989 whereas the present suit has been filed in May'02 and there is inordinate and unexplained delay of more than 12 years and suit therefore is liable to be rejected. It was also claimed that plaintiff was never promoted as School Inspector but was assigned the current duty charge of School Inspector in the pay scale of Head Master only from which post he retired on 31.03.2002.
3. No written statement was filed by defendant No.2 who otherwise is reported to have expired as early as on 09.12.2002. She was not substituted through her legal heirs. Written statement, however, was filed by defendants No. 3, 4 & 5 almost on identical lines that they have been appointed as School Inspector directly and not by promotion and further the suit of the plaintiff is barred by limitation.
4. On the pleadings of the parties following issues were framed by my Ld. Predecessors on 08.04.2003:
1. Whether the suit of the plaintiff is barred u/s 477/478 DMC Act?
OPD
2. Whether the plaintiff has not come to the court with clean hands and has suppressed material facts as alleged by the defendant? If so, its effect? OPD
3. Whether the suit of the plaintiff is bad for delay and latches as alleged by the defendant No.1? OPD
4. Whether the suit of the plaintiff is not maintainable as alleged IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI by the defendant No.1? OPD
5. Whether the suit of the plaintiff is time barred? OPD
6. Whether the plaintiff is entitled to the relief for declaration as prayed for? OPP
7. Whether the plaintiff is entitled to the relief for mandatory injunction as prayed for? OPP
8. Relief
5. My findings on the issues are as under: ISSUE NO.1:
The onus of proving this issue was on the defendant MCD and in this regard the plaintiff has placed on record statutory notice required to be served prior to institution of this suit vide Ex.PW1/2. It was sent by registered cover and the acknowledgment card is also received back duly received at the office of Commissioner, MCD which proves that the requisite notice required u/s 478 of DMC Act was duly served upon the defendant prior to filing of this case, which was a proper legal notice and as such requirement of section 477 & 478 of DMC Act has been duly complied by the defendant and as such this issue is decided against the defendants.
6. ISSUE NO.2:
The onus of proving this issue was also on the defendants. However, none of the defendants have been able to lead any evidence nor has made any arguments to show that how plaintiff has not approached the court with clean hands or what material fact has been suppressed by him. As a matter of fact in the crossexamination the plaintiff has denied the suggestion that he was aware that defendants No. 2 to 5 have been recruited as School Inspector IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI under the direct recruitment process and therefore this issue is also decided in favour of the plaintiff and against the defendants.
7. ISSUE NO.3 & 5:
Both these issues are interconnected. The onus of proving these issues was on the defendants and it was argued by the Ld. Counsel appearing for defendants that admittedly it is the case of the plaintiff that defendants No.2 to 5 were given promotion to School Inspector in 1976, 1982 and lastly in 1989, whereas he was given promotion to the post of Head Master on 29.11.1991 and allegedly as School Inspector on 21.08.2001 and thereafter he retired on 31.03.2002 and therefore the suit filed on 21.05.2002 is beyond the period of limitation as the cause of action if any in favour of the plaintiff accrued on the date of respective promotion of defendants No. 2 to 5 to the post of School Inspector, which lastly was on 06.11.1989 and the suit for Declaration, Mandatory Injunction, has a limitation of three years and as such the suit filed after almost 13 years is barred by limitation. On the other hand Ld. Counsel for the plaintiff has stated that cause of action in favour of plaintiff is a recurring cause of action and on each and every increment granted to defendants No. 2 to 5 a cause of action accrue in favour of the plaintiff and as such the suit is maintainable, for which he has placed reliance upon the Article 7 of the Limitation Act 1963, which provides a limitation of three years from the date when the wages accrues due and has also placed reliance upon three judgments.
IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI
8. I have perused the judgments relied upon by the Ld. Counsel for the plaintiff. In the first judgment titled as Maimuna Khatoon V State of UP reported in AIR 1980 SC 1773, it has been held by Hon'ble Supreme Court that if the court takes a view that the right to sue for the arrears of salary accrues from the date when the salary would have been payable but for the order of dismissal and not from the date when the order of dismissal is set aside by the Civil Court, it will cause gross and substantial injustice to the employee concerned, who was for no fault of his was deprived of the arrears of his salary. This judgment is not at all applicable to the facts before me since in the case before Hon'ble Supreme Court the employee Zamirul Hasan was under suspension and then was terminated from the services which was challenged by the employee and thereafter the trial court held that he is entitled to the arrears from the date of his suspension and not within three years from the date of the suit. This order of the trial court was over ruled by the High Court but the Supreme Court set aside the order of High Court and restored that of the trial court holding that the cause of action accrues when the Right to Wages Act accrues i.e. the date of the order of the trial court. The facts before me are entirely different since in the case before me plaintiff has never been dismissed but is aggrieved by the alleged promotion of his juniors from the year 1976 to 1989 and as such the cause of action accrued in his favour way back in 1989 when defendant No.5 was promoted or in 1991 when he himself was promoted to the post of Head Master.
IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI
9. As far as the second judgment reported as D.N. Kaul V State, AIR 1985 HP 39 is concerned, the same is also not applicable to the facts since in that judgment before Hon'ble Himachal Pradesh High Court the issue was the date from which the petitioner will be entitled to the selection grade and it was held in that judgment that the petitioner will be entitled to the selection grade from the date of communication of the order of the said government in this regard which was 22.12.1981 in that case. The judgment is not at all applicable to the facts before me since it is not the case of the plaintiff that promotion or direct recruitment of defendants No. 2 to 5 to a senior grade was not in his knowledge as on date of their promotion.
10. As far as the last judgment relied upon titled as State V Bishan, reported in AIR 1968 Punjab & Haryana 58 is concerned, the same is also not applicable to the facts since in that judgment the issue before Hon'ble High Court was that from which date an employee, who has been dismissed from the service w.e.f. 19.01.1952 but brought the suit on 05.03.1957, will be entitled to the back wages. The issue before Hon'ble High Court is not at all issue in this case and as such all the three judgments are not applicable since the Article 7 of the Limitation Act 1963, which earlier was Article 102 of Limitation Act 1908, is not applicable to the facts in this case. The suit of the plaintiff seems to be highly barred by limitation as well as by delay and latches and therefore these two issues are decided against the plaintiff as the cause of action accrued in his favour on the respective dates of promotion of defendants No.2 to 5 ranking from 1976 to 1989 and the suit for declaration IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI and mandatory injunction since not brought within three years from that date, is highly delayed and barred by limitation.
11. ISSUE NO.4:
The onus of proving this issue was on the defendant No.1. However, Ld. Counsel for the defendant No.1 has not been able to draw my attention to any law or fact, except of the limitation that how the suit of the plaintiff is not maintainable. This issue, therefore, is decided against the defendant.
12. ISSUE NO.6 & 7:
Both these issues are taken up together as the evidence led on the issues are same. The onus of proving these issues was on the plaintiff who in support of his case has examined five witnesses including himself as PW1 and on affidavit has reiterated the contents of his suit and has proved on record the seniority list Ex.PW1/1, the legal notice Ex.PW1/2 to Ex.PW1/4, a photocopy of the judgment pronounced by Hon'ble High Court in Civil Writ Petition No.870/87 as Ex.PW1/5, the judgment passed by Sh. Sanjay Garg, the then Civil Judge, Delhi in the suit titled as Vijay Pal Singh V MCD as Ex.PW1/6 & the judgment in appeal Ex.PW1/7 and statement made by one School Inspector in that suit Ex.PW1/8. This witness was crossexamined wherein he has denied all the suggestions that defendants No. 2 to 5 were not promoted but were appointed as School Inspector by direct selection and recruitment. He, however, has admitted that he has not filed any suit between 1974 to 1989 nor has placed on record even a single document to show that he ever IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI represented to MCD for his promotion and financial benefits qua those given to defendants No. 2 to 5. He however, has admitted that as per notification of the recruitment rules, School Inspectors (General) are appointed through promotion and through direct recruitment in the ratio of 50% each. He has also examined some official witnesses PW2 an LDC from the Record Room, Tis Hazari to prove the record of the suit titled as Vijay Pal Singh V MCD, PW3 an LDC from his own Department to prove his service record and PW4 Deputy Education Officer to prove the service record of defendants No. 2 to 5. He also examined PW5 Record Clerk from the Hon'ble High Court to prove the orders of Hon'ble High Court Ex.PW1/5. Defendants on their part have examined their Administrative Officer as DW1 and defendant No.4 himself appeared as a witness for himself and has proved on record his documents out of which some were already proved by the plaintiff in his evidence.
13. I have heard the submissions on these issues as well as perused the material on record. From the documents proved on record it is clear that defendant No.2, who has since died, was appointed under the category of Scheduled Caste belonging to Banjara community and was a female and further was promoted to Head Master under the same category and was further promoted to School Inspector under the process of direct recruitment of the Scheduled Caste Category. The category of the plaintiff is entirely different from that of defendant No.2 as he admittedly is a male and belongs to general category and as such cannot claim that he should be promoted under the same category under which defendant No.2 has been promoted. IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI Their selection criteria and the process of their promotion are entirely different.
14. As far as defendants No. 3, 4 & 5 are concerned, from the material placed on record i.e. documents Ex.PW4/2A to Ex.PW4/2F, Ex.PW4/3A to Ex.PW4/3F and Ex.PW4/4A to Ex.PW4/4D, the witness brought by the plaintiff only, has proved on record that defendants No. 3, 4 & 5 though originally were appointed as Assistant Teachers subsequent to that of plaintiff, but thereafter were recruited as School Inspector (general) through the process of direct recruitment and not by way of promotion. It is also admitted case of the plaintiff that for appointment of School Inspector there were two categories one by direct recruitment and another by promotion and as such their cases are also entirely different from that of plaintiff as these three defendants were not promoted but were directly recruited to the post of School Inspector by separate selection process. It is not the case of plaintiff that he also applied for appointment of School Inspector under direct quota and was not considered.
15. As far as the judgments passed by Sh. Sanjay Garg, the then Civil Judge and Ms. Shail Jain, the then ADJ in Civil suit No.22/91 titled as "Vijay Pal Singh V Commissioner of MCD" are concerned, this suit attained finality by the order of Hon'ble High Court in RSA filed by MCD against this judgment wherein the orders passed by Ld. Civil Judge and the first appellant court were modified and it was held by Hon'ble High Court that the claim of the plaintiff IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI therein for promotion to the post of Head Master can be considered as per recruitment rules in category wise promotion to the post of Head Master amongst the male and female teachers vizaviz considering the reservations for SC/ST etc. and the judgment of the trial court to the effect that plaintiff has to be considered alongwith the female teachers was modified by the Hon'ble High Court and as such no advantage or benefit can be given to the plaintiff herein from the judgment pronounced by Sh. Sanjay Sharma, the then Civil Judge as upheld by Ms. Shail Jain, the then ADJ.
16. Apart from it, DW1, the Administrative Officer has placed on record the documents to show that plaintiff and defendants No. 2 to 5 were on different footings and defendants No. 2 to 5 were promoted to School Inspector under the direct recruited category and are not in the category under which the plaintiff was promoted and as such these two issues are decided against the plaintiff.
17. RELIEF:
In view of my findings given on issue No. 3, 5, 6 & 7, the plaintiff is not entitled to any relief. The suit, therefore, is liable to be dismissed being barred by the limitation as well barred by delay and latches and further plaintiff has failed to prove the case on merits vizaviz issue No.6 & 7 and therefore the suit is dismissed.
18. It is important to note that subsequently jurisdiction of this court was IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI challenged in view of the notification dated 01.12.2008 issued under Administrative Tribunal Act, which however was declined vide order dated 26.08.2009 which order has attained finality and there is no reason for defendants to press this issue afresh. The suit is dismissed with no order as to costs. Decree Sheet be prepared. File be consigned to Record Room.
Announced in the open Court (AMIT KUMAR)
on 28.01.2010 JSCC/ASCJ/GJ(NW)
ROOM NO.217, ROHINI
COURTS, DELHI