Delhi High Court
H.C. Shali vs Union Of India And Ors. on 29 January, 2002
Equivalent citations: 2002 VAD Delhi 327, 97 (2002) DLT 369, 2003 (1) SLJ 205 Delhi
Author: S K Kaul
Bench: S K Kaul
JUDGMENT
Sanjay Kishan Kaul, J.
1. Petitioner has filed this writ petition under
Article 226 of the Constitution of India seeking a direction
against the respondents to restructure the pensionary
benefits of the petitioner from the date of his retirement
i.e., 28.2.73 on the same terms and conditions on which the
pensionary and other related benefits of the employees of
the similar status in the schools run by the appropriate
authority who have retired after 31.12.73 and onwards have
been structured.
2. The controversy in the present petition arises as a
result of the Delhi School Education Act, 1973 (for short the
said Act) having come into force on 31.12.1973. The
petitioner retired on 28.2.1973 prior to the said Act coming
into force and opted for restricted pension scheme under
triple benefit scheme. The relevant sections of the said
Section 2(i):
'existing employee' means an employee of an
existing school who is employed in such school
immediately before the commencement of this Act,
and includes an employee who was employed in such
school for a period of not less than twelve months
immediately preceding the 2nd day of September,
1972.
Section 10:
The scales of pay and allowances medical
facilities, pension, gratuity, provident fund and
other prescribed benefits of the employees of a
recognised private school shall not be less than
those of the employees of the corresponding status
in Schools run by the appropriate authority."
3. The learned counsel for the petitioner has
contended that on bare reading of Section 2(i) of the said
Act it is apparent that while the first portion of the said
sub-section deals with the employees in employment at the
stage of the Act coming into force, the second part deals
with the employees who were not employed when the Act came
into force. The second portion comes into play when the
employee was employed in such school for a period of not
less than twelve months immediately preceding the 2nd day of
September, 1972.
4. The learned counsel for the petitioner contends
that thus the provisions of Section 2(i) would be applicable
to the petitioner and the petitioner would thus be entitled
to be treated as existing employee.
5. Learned counsel for the respondent, on the other
hand, contends that pension has not been specifically
included under Section 2(i) and the petitioner having
availed of scheme of pension on his retirement should not be
entitled to the benefits under Section 10 of the said Act.
6. Learned counsel for the respondent also contends
that there has been gross delay and laches on part of the
petitioner in approaching the court as the petitioner
retired in February, 1973 and the first representation has
been made by him on 25.11.86 and the petitioner approached
the court in 1988. This submission is opposed by learned
counsel for the petitioner who contends that it was the duty
of the respondents to have applied the provisions of the Act
and at best this should preclude him from entitlement for
pensionary benefits for a period before 25.11.83 since the
first representation was made n 25.11.86.
7. I have considered the rival contentions advanced by
learned counsel for the parties. A reading of Section 2(i)
clearly shows that legal fiction had been applied to include
certain employees who on plain reading of the meaning of
existing employee would not have been so included. Thus
apart from the employees who are employed with the School
immediately before the commencement of the Act employees who
are employed with such School for a period of 12 months
preceding 2.9.1972 are also included in the definition of
an employee. Admittedly, the petitioner has worked for a
period of 12 months prior to the date of commencement of the
Act. In the said section no exception has been made that
with this definition of existing employee will not apply so
far as provision of pension is concerned. In the absence of
any exception having been made, I am of the considered view
that there is no reason why provisions of Section 10 of the
Act dealing with the medical facilities, pension, gratuity
and provident fund should not apply to an existing employee
as defined in Section 2(i) of the Act. Since the petitioner
falls within this definition the petitioner is entitled to
the benefit of Section 10 of the said Act. However, in view
of the petitioner having opted for restricted pension scheme
under triple benefit scheme petitioner's pension is liable
to be worked out under the said scheme on the basis that the
provisions of the Act apply to the petitioner.
8. The other issue to be decided relates to the
question of delay and laches raised by the respondent. This
issue has been considered in CWP 6538/98 in the case of
Major Rajinder Singh v. Union of India and Ors. decided on
17.1.2002 by this court where after considering the judgment
of the Supreme Court it has been held that Pensionary
benefits accrue from month to month and is thus analogus to
the concept of a salary which a person would be entitled
during the course of his service. Thus the principles laid
down by the Supreme Court in M.R. Gupta v. Union of India
and Ors., 1995 31 ATC 186 would apply to the case where the
claim is of pension. It was thus held that if the person
approaches the court belatedly the same cannot be held
against him in granting the benefits of pension at least
taking into consideration the date when he approached the
court. Admittedly, the petitioner approached the respondent
authorities on 25.11.86 through a representation. The
petitioner approached the court on 7.12.1988 and thus would
be entitled for a period commencing from 7.12.85 i.e., from
3 years prior to his approaching the court. In view of the
aforesaid, the petitioner is entitled to pensionary benefits
from 7.12.85. The arrears of the pensionary benefits be
paid to the petitioner by the respondents within a period of
two months.
9. Though no prayer for interest has been made,
learned counsel for the petitioner makes an oral prayer to
grant interest. I am not agreeable to give interest on the
past amount to the petitioner, in view of the petitioner
having approached the Court belatedly.
10. Petition stands allowed in the aforesaid terms.
The parties are left to bear their own costs.
