Anita Garg vs Govt. Of Nct Of Delhi & Anr
2009 Latest Caselaw 4890 Del

                                                         REPORTABLE

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                              W.P. (C) No.11802/2009

                                   Date of Decision: November 30, 2009


       ANITA GARG                                  ..... Petitioner
                              Through Mr. C.S.S.Tomar, Advocate with
                              Mr. C.B.Tomar, Advocate

                         versus


       GOVT. OF NCT OF DELHI & ANR           ..... Respondents
                     Through Ms. Kusum Dhalla, Advocate for
                     Mr. Sushil Dutt Salwan, Advocate

       CORAM:
       HON'BLE MISS JUSTICE REKHA SHARMA

1.     Whether the reporters of local papers may be allowed to see the
       judgment? Yes
2.     To be referred to the reporter or not? Yes
3.     Whether the judgment should be reported in the 'Digest'? Yes

REKHA SHARMA, J. (ORAL)

The petitioner along with two others, namely Shri Varun Mani

and Miss Sikha Yadav was selected as TGT (Maths) pursuant to an

interview held on November 23, 2005. However, on January 06, 2006

all three of them were told that their appointments were void ab-initio

because they were made without holding the selection in accordance

with the rules. The order so passed was challenged by them by way of

Writ-Petitions No.1707-09 of 2006 which were allowed by this Court

by an order dated March 22, 2007 and consequently, the letter dated

January 06, 2006 was quashed, with a direction to the respondents to

take them back into service and to pay them their salaries, allowances

and other benefits from the date they joined the duties.

Aggrieved by the order dated March 22, 2007 the respondents,

namely, the Government of NCT of Delhi and the Deputy Director of

Education preferred a Letter Patent Appeal bearing No.332 of 2007

which was dismissed by a Division Bench of this Court on

May 17, 2007. In the meanwhile, aggrieved by the inaction of the

respondents in not taking her back into service and not paying her the

arrears of her salary, the petitioner filed a contempt petition being

Cont. Case (C) No.329 of 2007. It so happened that during the

pendency of the contempt petition, the petitioner though was

permitted to join the duty but was not paid her salary and allowances.

Hence, a learned Single Judge of this Court vide an order dated

August 02, 2007 directed the respondents to pay the salary due to the

petitioner within a period of two weeks and file a compliance affidavit

within a period of two weeks thereafter. It was further directed that

if the compliance affidavit was not filed as directed, the respondents

would remain personally present in the Court on the next date of

hearing. Thereafter, on January 06, 2009 the Director of Education

placed on record two sanction orders indicating payment of

Rs.1,26,514/- on account of sixth pay Commission arrears to the

petitioner for the period January 01, 2006 to June 06, 2007 as well as

another payment of Rs.7,931/- on account of salary arrears for the

period from December 13, 2005 to December 31, 2005. This did not

satisfy the petitioner, as according to her, a further sum of

Rs.3,21,000/- was still due and payable to her. The Court, therefore,

directed the petitioner to furnish a chart of the outstanding amount

along with bifurcation under various heads which she did and

supplied a copy to learned counsel for the respondents who took time

to obtain instructions with regard to the chart furnished by the

petitioner. Finally, on July 10, 2009, the learned counsel for the

respondents made a statement before the Court that the arrears of

salary amounting to Rs.1,39,579/- for the period January 01, 2006 to

June 06, 2006 had been paid to the petitioner vide Bill No.81 dated

May 19, 2009. Based on the said statement of the counsel, the

contempt petition was disposed of.

It is evident from the aforementioned orders passed in the

contempt petition that till such time the entire arrears of salary and

allowances were not paid to the petitioner, the contempt petition was

kept pending and it was only after the petitioner had received her

salary and other benefits, that the proceedings against the

respondents were dropped. But in so far as the petitioner is

concerned, it was not the end, for after having taken her back into

service and having paid her the arrears of salary, the respondents

have passed an order dated August 31, 2009 and thereby the arrears

of salary paid to her for the period December 13, 2005 to

June 06, 2007 are sought to be recovered with immediate effect on

the ground that as per the order dated March 22, 2007 passed in

Writ-Petitions No.1707-09 of 2006 and affirmed by the Division Bench

in LPA No.332 of 2007 dated May 17, 2007 she was only entitled to

the salary and allowances from June 07, 2007 onwards. It is this

order of August 31, 2009 which has once again impelled the petitioner

to approach this Court praying for quashing of the same.

Should the respondents be allowed to recover

the arrears of salary allegedly overpaid to her?

As noticed hereinabove, the respondents did take back the

petitioner in service after filing of the contempt petition but kept

taking time for making payment of the arrears of the salary and other

allowances. The contempt petition, thus, remained pending for nearly

two years. At no stage of the proceedings, a plea was taken by the

respondents that the salary and allowances prior to June 07, 2007

were not payable to the petitioner. Surprisingly, it was only after the

contempt proceedings were dropped that it seems to have dawned

upon the respondents that the petitioner was not entitled to salary

and allowances prior to June 07, 2007 and the order dated

March 22, 2007 passed by this Court is sought to be made the basis

for recovery of the amount already paid to the petitioner. In so far as

the said order is concerned, it simply stated that 'as a result, the

petitioners shall be taken back in service and they shall be paid

salary, allowances and other benefits from the date they join duties',

which meant that on their joining duties they shall be paid their

salaries and other benefits. It nowhere said that they were not

entitled to the arrears of salary. In any case, if the respondents were

of the view that the petitioner was not entitled to the arrears of salary

and allowances, they ought to have taken this plea before the

contempt court but as noticed above, no such plea was raised and

there is no explanation as to why it was not raised. Having got the

contempt proceedings dropped against them on the strength of the

statement of learned counsel appearing on their behalf who informed

the Court that the payment of arrears as claimed by the petitioner had

been made to her, it is to say the least wholly inappropriate on the

part of the respondents to have passed the impugned order dated

August 31, 2009. The same has not been passed in bonafide exercise

of the power conferred upon the concerned authority. Hence, I allow

the writ-petition and quash the order dated August 31, 2009.

REKHA SHARMA, J.

NOVEMBER 30, 2009 ka