Smt. Hirdesh Jain W/O Shri B.B. ... vs Delhi Admn. And Ors.
2007 Latest Caselaw 902 Del

JUDGMENT

Kailash Gambhir, J.

1. This is a pathetic tale of the petitioner who has been deprived of salary for the period 4.10.76 to 27.10.77 and has to fight a long battle of litigation. Vide letter dated 25.9.76, the petitioner was appointed on the post of drawing teacher in the pay scale of Rs. 425-640/- w.e.f. 4.10.76 and in the said appointment letter it was clearly stated that she was appointed against a vacancy duly sanctioned vide Education Officer's letter dated 6.7.76. In the said appointment letter it was also stated that appointment on the said post was purely temporary and subject to the approval of the Education Officer of NDMC/Director of Education on completion of all formalities as laid down in the Education Act, 1973. Counsel for the petitioner has drawn my attention to the sanction letter dated 6.7.76 addressed by the Education Officer to the Manager/Administrative Officer of the school which clearly shows that sanction was accorded by the Director of Education for the said post of drawing teacher in the pay scale of 425-640/-. The post of drawing teacher, Grade II is shown in serial number 5 in the said sanction letter which is at page 11 of the paper book.

2. Counsel for the petitioner contends that the petitioner has been unnecessarily deprived of her salary for the said period and, therefore, the respondents should be liable to pay arrerars of salary along with interest @12 % per annum.

3. Mr. Dinesh Agnani counsel for the respondent/school says that the school is not liable to pay the salary for the said period as the petitioner was appointed against the sanctioned post and once she was appointed against the sanctioned post, liability of payments rest with NDMC as the NDMC was granting 95% aid to the school. Mr. Agnani also contends that in the Selection Committee, officer of the NDMC was also present besides other members and in his presence the decision to appoint the petitioner was taken. Mr. Agnani contends that once the decision was taken in the presence of representative of NDMC and that too after the sanction duly accorded by the Director of Education, therefore, the NDMC cannot be allowed to take a stand that the said post was not a sanctioned post.

4. Mr. Rajesh Mahajan counsel for respondent no.3/NDMC has placed reliance on the minutes of the meeting held between various agencies including the office of Director of Education, concerned school and the NDMC wherein the request was made to the Administrator of the NDMC to give ex-post facto sanction for creation of the said post of drawing teacher so as to enable the teacher to draw her salary. Counsel contends that once in the said meeting such request was made to the NDMC to grant ex-post facto sanction then it becomes amply clear that no sanction for appointment on the said post was then existing. The Counsel has also referred to last para of the said minutes of the meeting dated 16.4.87 whereby the management of the school was requested to make arrangement for the funds so that the said teacher could be given her due salary for the period in question. When the counsel was asked by this Court as to what prevented the NDMC to grant ex-post facto sanction to the said post. Mr. Mahajan has stated that this position he is not aware of.

5. Mr. Agnani counsel for the respondent/school has also taken objection to the non maintainability of the present petition on the ground of delay and laches. Mr. Agnani says that this writ petition was filed in the year 1994 for the arrears of salary for the period from 1976-1977.

6. To controvert the argument of Mr. Agnani on delay and laches, Mr. Hari Shanker counsel for the petitioner says that there is no delay on the part of the petitioner as earlier the petitioner had moved the Central Administrative Tribunal and O.A. was filed by the petitioner in the year 1988. The said O.A. was withdrawn by the petitioner in the year 1993 on account of the fact that NDMC was not amenable to the jurisdiction of the tribunal as there was no notification under Section 14(2) of the Administrative Tribunals Act 1985. So the plea of Mr. Agnani regarding delay and laches does not find any merit, as the petitioner had timely taken steps to seek her legal remedy.

7. Rule in this matter was directed vide order dated 15.3.95. No counter affidavit has been filed either by respondents 1 & 2 or respondent no.4. Only respondent no.3 has filed a short reply. It is not in dispute that the petitioner had worked on the said post of drawing teacher for the said period between 4th October, 1976 to 27th October, 1977. It is also not in dispute that the petitioner was duly selected by the Selection Committee. It is further also not in dispute that the Selection Committee did comprise of Members from NDMC and Director of Education. The Director of Education has granted sanction vide letter dated 6.7.76 for the said post of drawing teacher in the pay scale of Rs. 425-640/-. Once these facts are not in dispute, then one thing is clear that for no fault of the petitioner she has been made to suffer due to deprivation of the said salary. No cogent reasons have been advanced by the counsel appearing for the respondents as to why the petitioner has been deprived of her salary for the said period. The letter dated 6.7.76 apparently shows that sanctioning authority was Director of Education although the school being under the control of the NDMC at that point of time was receiving grant-in-aid from the NDMC and therefore, the necessary move for sanction of the said post was to be initiated by the NDMC in taking up the matter with the Director of Education, Delhi Administration. The sanction in the present case was accorded by the Director of Education and even if it is assumed that the same was not pursuant to the request made by the NDMC or ex-post facto sanction was also not given by the NDMC, then, the same ought to have been accorded immediately after the said matter was deliberated in the meeting held on 16.4.87. Even vide letter dated 13.6.86, the matter was taken up by the then Director of Education with the then administrator of NDMC making a request to the NDMC to accord sanction to the said post and to make payment for the period w.e.f. 4.10.76 to 27.10.77. It would be relevant to reproduce para 2 of the said letter dated 13th June, 1986 as under:

The Teacher concerned is representing time and again for the payment of her salary for the period with effect from 4.10.76 to 27.10.77. The matter was referred to the local Finance Department for advise whether the payment for the above period is to be made by the Director of NDMC. The Finance Department has advised that this liability is to be defrayed by the NDMC. Accordingly, your Education Officer was advised vide this Office Letter No. D/South/1937, dated 3.9.84 to decide the claim of Mrs. J.

8. It is most unfortunate that instead of granting any ex-post facto sanction to the said post, the NDMC did not bother about the plight of the teacher who for no fault of her was deprived of the salary for the said period. Even in the meeting held on 16.4.87, decision was taken to request the NDMC to give ex-post facto sanction to create a post of drawing teacher so as to enable the present petitioner to draw her salary and to avoid further harassment to her. But even after the said meeting no such ex-post facto sanction was given. The school management could not have been burdened with the payment of arrears of the salary for the said period as the petitioner was appointed against a sanctioned post and for a sanctioned post the responsibility to defray payment towards salary solely rested upon the NDMC. Even if it is taken that the post was not sanctioned then also the NDMC was required to give either the ex-post sanction or taken a categorical stand justifying refusal on the part of the NDMC.

9. Based on the above discussion, respondent/NDMC is directed to pay salary of the petitioner w.e.f. 4.10.76 to 27.10.77 with interest @ 12 % per annum w.e.f. 27.10.77. The payment be made to the petitioner within a period of six months.

10. Writ petition is allowed.

11. Rule is made absolute.