Mushaqqat Hussain And Ors. vs Municipal Corporation Of Delhi
2006 Latest Caselaw 402 Del

JUDGMENT

S. Ravindra Bhat, J.

Page 963

1. Issue Rule. With consent of the parties, the petition is heard for disposal.

2. The petitioners in this writ proceedings seek direction to be issued with rectified appointment letter in the post of School Inspectors (Mid-Day-Meal) by the Respondent (hereafter called the MCD) on regular basis. They also claim monthly salary in the Pay Scale of Rs. 6500-10,500/- with effect from 19.12.2003.

3. The petitioners were initially recruited as Assistant Teachers, some of them were subsequently appointed as Head Masters by the MCD. In the year 1993, the MCD implemented a Scheme styled as Education for All. This contemplated the engagement of some employees as Area Organisers to motivate children into joining schools and pursuing their studies. This Scheme was part of a Central Government sponsored initiative, under the aegis of the National Scheme for Nutrition for working children. This included a Mid-day-Meal component. The Page 964 petitioners applied for the post of Area Organisers and were selected for the purpose by the MCD. The Circular calling for applications stated that the selected candidates would work on deputation for the specified project period. 12 posts were indicated and were to carry the pay scale of Rs. 1640-2900/-.

4. It is not disputed that the petitioners continued to work as Area Organisers for three years between 1993 and 1996. In 1996 the funding under the Plan had come to an end but nevertheless the MCD continued with the project on a Non-Plan basis. It is the common case of the parties that the petitioners were continued to work as Area Organisers.

5. Some time in the year 2003, the Commissioner of the MCD mooted a proposal to upgrade 10 posts of Area Organisers as School Inspectors (MDM). Apparently, this received the concurrence of the Education Committee as well as the Standing Committee of MCD. The Resolution of the Education Committee dated 9.7.2003, as also Resolution of the Standing Committee No. 290 dated 30.7.2003 read as under:

Out of sixteen posts of School Inspector (MDM) which are to be created, ten post of School Inspector (MDM) will be filled up by upgradidng ten posts of Area Organisers under on plan in the pay scale of Rs. 65000-10500 from the incumbents presently holding the posts of Area Organisers and discharging duties of School Inspector for the last nine years and looking after the work of Mid- day-Meal Scheme the last seven years. The remaining two posts of Area Organisers are to be surrendered under non-plan since all the Aarea Organisers are getting more than Rs. 6500/- as basic salary, there will be minimal financial ability of MCD.

The matter regarding upgradation of ten posts of Area Organisers to the post of School Inspector (MDM) under Non-PLan and creation of the remaining posts under plan may be place before the Corporation dated through Education/Standing Committee as an item of Urgent Business.

(ii) Resolution No. 23 of Education Committee dated 9.7.2003

Resolved that it be recommended to the Corporation through the Standing Committee that as proposed in the Commissioner's letter No. F.33/P.Edu/1017/CandC dated 6.6.93 and as recommended by the Sub-Committee of the Education Committee under Non Plan Head of Education Department, 10 posts of the Area Organiser be upgraded in the pay scale of Rs. 6500-10500 to the post of School Inspector Mid- day-Meal) and of the proposed posts of Area Organisers, two posts be surrendered.

Further resolved that those upgraded posts of School Inspector (MDM) be filled up from the present incumbents of the post of Area Organiser (already filled up).

Action on the proposal relating to 'Plan' be initiated separately.

(ii) Resolution No. 290 of the Standing Committee dated 30.7.2003.

Resolved further that those upgraded posts of the School Inspector (MDM) be filled up from the incumbents of the post of Area Organiser (already filled up).

Resolved also that action on the proposal relating to plan be initiation separately.

Page 965

6. The petitioners were issued with an Office Order on 19.12.2003 which stated that Commissioner had approved the appointment of 10 Area Organisers to the post of School Inspector (MDM) in the pay scale of Rs. 6500-10500/- on deputation basis with immediate effect. The terms and conditions indicated in the Office Order include the stipulation that the employees would not claim any benefit of the post of School Inspector (General) or any other equivalent post and that they would not claim promotion to higher level. It was also mentioned that regular employment of the employees would be subject to finalization of Recruitment Rules. Pending the regular appointments, the petitioners were to hold substantive post of Assistant Teachers/ Head Masters, which they were holding prior to joining MCD as Area Organisers.

7. Learned counsel for the petitioners submits that the MCD has resoled from its office order; neither have the petitioners been regularly appointed as School Inspectors nor have they been actually paid the salaries as indicated in the pay scale of Rs. 6500-10500/-. Mr. Duggal appearing on their behalf took me through the terms of the Resolution of the MCD as well as the Office Order. He submitted that the period of the service put in by the petitioners between 1993 and 2003 could not be ignored or obliterated and they alone have exclusive right to be appointed as School Inspectors in the newly upgraded posts which were meant for them.

8. Mr. Ashok Bhasin, learned counsel for MCD, on the other hand, submits that the terms of the order dated 19.12.2003 are clear namely, that the petitioners were asked to officiate as School Inspectors on deputation basis. Their appointments were subject to finalization of recruitment rules and they continued to hold substantive posts as Assistant Teacher/ Head Master which they were holding prior to their joining as Area Organisers. It is submitted that if the petitioners had any reservations they ought not to have accepted the post and should have reverted back to their substantive grades.

9. Counsel also submitted that the up-gradation did not automatically result in the assignment of the duties and responsibilities of the up-graded post on regular basis. The manner of filling up of such posts was seized of by the MCD; rules have to be necessarily framed and in the event MCD took the position that the petitioners could claim some benefits; the extent of such benefits would be as per its policy or the rules.

10. The terms of the Resolutions dated 9.7.2003 and 30.7.2003, in my opinion are clear. The Commissioner had indicated that 12 posts of Area Organisers ought to be dealt with in a separate manner. 10 posts were proposed for upgradation and two posts were required to be surrendered under the Non-Plan Scheme. The Commissioner's proposal had stated that the incumbents namely, persons like the petitioners ought to be placed in the newly upgraded posts. However, the Education Committee and the Standing Committee endorsed the proposal only so far as it pertained to upgradation. Significantly enough the Resolution of the two Committees were silent as to the upgradation of the incumbents of the posts.

11. In my considered opinion, in terms of the Resolution of the Education Committee and the Standing Committee the petitioners cannot claim an Page 966 overriding right to be regularly posted at the newly added post of School Inspectors (MDM). It is an admitted case of both the parties that the grade of School Inspectors have to be filled both by direct recruitment as well as by promotion. In the case of promotion it is from the feeder category of Head Masters. Therefore, the petitioners cannot claim any pre-eminent right on the basis of having worked as Area Organisers, when admittedly they were holding a lien to the post of Assistant Teacher/ Head Masters.

12. Having said so, however, I am of the opinion that the respondents who deputed the petitioners as Area Organizers cannot wipe out or ignore their entire period as Area Organizer for the purposes for considering their case for the post of School Inspector (MDM), in the event, the respondent-MCD is of the opinion that the post of School Inspector (MDM) has to be filled according to the existing rules. The Petitioners were admittedly chosen after they responded to Circular calling for application from eligible candidates; they worked for this length of time, and continued to retain substantive lien in their posts. Therefore, if the seniority of all the eligible candidates, has to be seen, the petitioners claim necessarily, therefore, has to be considered on the basis of their having discharged their duties on behalf of the MCD, as substantive Assistant Teachers/ Head Masters during this period. In other words, the period of service between 1993 and till the date of decision as to the manner of filling up of the post of School Inspectors, cannot be ignored. It has to be taken for the purposes of seniority and the petitioner's seniority vis-a-vis, other colleagues have to be appropriately determined. The petitioner cannot claim a mandatory order or a direction that they should be treated as substantive School Inspectors (MDM); in view of the decision that the newly created 10 posts will have to be filled in accordance with the policies to be formulated by the MCD in that regard. Since some time has already elapsed after the Resolution was made in the year 2003, I am of the opinion that the MCD should take appropriate steps to finalize its policies in that regard at the earliest in any case within the period of four months from today. A direction to that effect is accordingly issued.

13. As far as the second point is concerned, namely, vis-a-vis the pay scale of Rs. 6500-10500 the stand of the MCD is indefensible. There is no denial that the Office Orders have not been modified till date, in terms of which the petitioners were assigned the duties of School Inspectors. The order categorically stipulates that the said pay scale would be admissible to them. Indeed there is no specific denial that the petitioners are entitled to the said pay as as long as they work as School Inspectors.

14. In the light of the above findings, the respondent MCD is directed to release the salary of the petitioners in the scale of Rs. 6500-10500 along with admissible allowances for the period 1.1.2004 onwards within six weeks from today. Since the amounts have been unreasonably withheld, they shall carry an interest of 7% p.a. In the event, the MCD does not pay the amounts to the petitioners within the time granted, the interest shall be enhanced to 10% on the expiry of six weeks, till the date of payment.

15. Writ petition is allowed to the extent indicated above. No costs.