Raj Kumari vs Delhi Administration And Ors.
1991 Latest Caselaw 584 Del

JUDGMENT

S.C. Jain, J.

(1) Smt. Raj Kumari, hereinafter referred to as the petitioner was appointed as a 'caller woman' a class Iv employee in S.D. Hari Mandir School against a vacancy created due resignation of Ram Kali w.e.f. 1.9.64 on compensate grounds being a widow of Jeevandamal a freedom fighter. As per averments made by the petitioner in this writ petition, she has been continuously working in this institution since 1.9.64 without any break and she has been assigned different types of duty by the management of the school such as cleaning of laboratory, office and to do other miscellaneous jobs of taking children from their homes. In fact, she has been performing duties of a peon as a class Iv employee of the institution. Though she has put in 23 years of service but she has not been declared confirmed by the concerned authorities while her juniors have been confirmed. She has also been deprived of service benefits like uniform allowance, washing allowance, medical facilities, overtime allowance as provided under Sections 8 and 10 of Delhi School Education Act, though her other counterparts are getting such benefits. According to her, this act of the respondents is violative of Articles 14, 16 and 23 of the Constitution of India. She has challenged this act of the respondent by filing this writ petition, seeking the relief that the respondent be directed to confirm her before the date of the confirmation of respondents 5 to 10 who joined service later than her. She should be declared senior to respondents 5 to 10 and that she should be awarded her all due service benefits with retrospective effect.

(2) The respondent contested this writ petition and filed a counter affidavit pleading, inter alia, that this writ petition is not maintainable having been filed after a lapse of 2 years of the rejection of her representation in 1985. Earlier she filed a civil suit for declaration before the Court of Sub Judge, Delhi and but the same was dismissed. Her petition before the "central Administrative Tribunal was also dismissed. Jurisdiction of this Court to entertain this writ petition has been challenged in view of Section 28 of the Central Administrative Act.

(3) On merits, it is pleaded that she is illiterate and does not possess qualification to be appointed as a class Iv employee. Being a widow of a freedom fighter, she was appointed as a caller-woman which is a post in itself having no regular basis. She cannot be equated with other class Iv employees of the institution as she neither possesses the requisite qualification nor the capacity to man any of those class Iv posts. The post of caller woman not being regular post, she was not declared regular or confirmed. She is not entitled to claim any privilege and service benefits being a temporary employee.

(4) As far as the facts of the case are concerned, it is on record that she does not possess the qualification or eligibility to be considered for the post of a peon or any other class Iv employee like Chowkidar, dak peon, etc., i.e. a cadre in itself. She was appointed as a caller woman on compassionate grounds being a widow of a freedom fighter by the management of the school against the vacancy created due to resignation by Ram Kali w.e.f. 1.9.64. It is also on record that since then she has been continuously working in that capacity. It is also on record that she has neither been made regular, nor was confirmed and she is getting Rs. 1100/' per month without any increment or other allowances like the uniform allowance, washing allowance, overtime etc. Law as laid down by the Supreme Court in various decisions is that the employees who are in continuous employment for so many years should be regularised and they are entitled to salary, allowance as paid to the regular and permanent employees from the date of their continuous employment. Even casual workers on daily wages performing the same duties, as performed by permanent employee against the sanctioned posts, are entitled to salary and conditions of service at par with regular workers.

(5) In this case, the post of caller woman is a separate post and is not in the category of class Iv employees who are performing other types of duties like dak peon, chowkidar, water woman etc. She cannot claim seniority over respondents 5 to 10 who are appointed as class Iv employees. These respondents are having the requisite qualifications to be appointed as class Iv employee and they were appointed on regular basis, whereas the post of caller woman is quite different in nature, as is apparent from the letter of the Education Officer dated 29.5.76. The remuneration of a caller woman in the revised scale (initial pay) is only to be made 50% by the parents of the concerned students and 50% (excluding 5% of the management) is to be claimed through grant-in-aid under the head "contingent paid staff". This post is different in nature from the posts of other class Iv employees in the institution and both these posts cannot be equated for the purpose of service benefits etc.

(6) She has been continuously working as a caller woman since 1964, keeping her temporary is against the canons of law and principles of natural justice. Her services should have been regularised in the due course of time as a caller woman. It is not a new post which was created for her. One Smt. Ram Kali was working as a caller woman before the petitioner joined service and it is on account of resignation of Ram Kali that the petitioner was appointed against that vacancy. She is entitled to regularisation/confirmation as a caller woman and she is also entitled to service benefits which Ram Kali, her predecessor was getting. Withholding the benefits which Ram Kali was getting is discriminatory and this action of the respondents cannot be approved. The plea of the Counsel for the respondents that if she has got any grievance she should approach the Delhi School tribunal constituted under Delhi School Education Act is not tenable in the present case. It is only in case of removal, dismissal, reduction in rank that door of Delhi School Tribunal are to be knocked by the aggrieved employee of a recognised private school. In this case, she has challenged the discriminatory act on the part of the respondents 1 to 4 in depriving her of her legitimate dues and benefits of service, which she is entitled by virtue of her being in continuous service. This writ petition under Article 226 is maintainable though her earlier suit for declaration and her petition before the Central Administrative Tribunal were dismissed on technical ground of jurisdiction. There are no laches in filing this writ petition. From the record it is apparent that this poor lady was compelled to make several representations and was also forced to take legal recourse before various authorities for getting her legal dues. Not getting any success, she bad to file this writ petition.

(7) Under these circumstances, I allow this writ petition only to the extent that respondents 1 to 4 shall regularise the services of the petitioner against the post of caller woman and she should be given all the service benefits as her predecessor Smt. Ram Kali was getting as caller woman. Writ petition is allowed in part with costs which are assessed a Rs. 1000.00 as lawyer's fee.