Delhi High Court
Arvind Kumar vs The Directorate Of Education And ... on 22 December, 2010
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 1054/1998
% 22nd December, 2010
ARVIND KUMAR ...... Petitioner
Through: Ms. Indrani Ghosh, Adv.
VERSUS
THE DIRECTORATE OF EDUCATION AND ORS .... Respondents
Through: Mr. S.Q.Kazim , Mr. Alim
Miraj, Mr. H.Usmani and
Mr. Mukul Kumar Singh,
Advocates for R-1.
Mr. Puneet Mittal, Mr. Nitin
Sharma and Mr. Ankur
Aggarwal, Advocates for R-2
and R-3.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
VALMIKI J. MEHTA, J (ORAL)
1. The petitioner, by means of this writ petition, seeks the higher pay-
scale as has been granted by the respondent no.2 school to the respondent
no.3, and the concerned relief clause in the writ petition is as under:-
"(b) Pass an appropriate writ, order or direction in the
nature of mandamus, directing the Respondent No.2 to
grant to the Petitioner the scale of pay, corresponding to
WP(C) No. 1054/98 Page 1
Rs.2200-4250 which is being drawn by his junior,
Respondent No.3 in accordance with Govt. instructions vide
letter No. F-5-165/86-UT dated 8.01.90 and FR 22C of the
CCS Rules."
2. The petitioner states that he was appointed as a TGT (physics) on
28.6.1982 with the respondent no.2 school. It is further stated that he was
promoted to PGT on 1.6.1987. The petitioner contends that the respondent
no.3 who was his junior was promoted as a Deputy Head with pay-scale of
Rs. 2000-3800 in 1993 and subsequently to Estate Administrator and proctor
in May, 1995. The petitioner therefore states that he is entitled to the same
grade as that of the respondent no.3 who was his junior.
3. The respondent no.2, in reply, has stated that the respondent no.3 was
appointed as TGT (Physical Education) on 14.8.1972 around 10 years before
the petitioner was appointed as TGT on 28.6.1982. It is further stated that
the respondent no.3 received the scale of Rs.1700-3600 w.e.f. 1.1.1986 and
the petitioner got the same scale as a PGT only on 1.6.1987. It is further the
stand of the respondent no.2 that respondent no.3 happened to be in the
Department of Physical Education where vacancy arose of a Deputy Head in
1993 on the promotion of Mrs. Kathuria as the head, and since this was a job
meant for Physical Education Department, the respondent no.3 working in
the Physical Education Department was promoted as Deputy Head. Reliance
has also been placed upon the Explanation to Rule 109 of the Delhi School
Education Rules, 1973 which provides that grade means a post or a group of
WP(C) No. 1054/98 Page 2
posts created for the work of same nature and the nature of work of the
petitioner and respondent no. 3 were different and hence the respondent
no.2 was fully justified in categorizing the petitioner and respondent no.3
differently by fixing grades as per the different natures of their
works/disciplines.
4. The main issue to be decided in the present case is the argument of
the petitioner that, can there be merger of two cadres for the purpose of
seniority so that a junior in a different discipline would necessarily have to
have a pay-scale lower than a senior in another discipline/grade. Putting it
differently, can a higher pay-scale of a promotee in a different department
entitle a person in another department to claim the higher pay-scale
although the promotee has been given due promotion to the higher post.
5. A reading of the facts of the case show the following undisputed
position:-
(i) The petitioner achieved the scale of pay of Rs.1700-3600 on 1.6.1987
whereas the respondent no. 3 reached that scale earlier on 1.1.1986.
(ii) The disciplines/cadres of the petitioner and respondent no.3 are
different in that whereas the petitioner is working as a physics teacher, the
respondent no.3 was in the Physical Education Department.
(iii) Though, the respondent no.3 reached the senior scale of Rs.1700-3600
more than one year prior to the petitioner, however, the petitioner on
WP(C) No. 1054/98 Page 3
account of vacancy in the post of a PGT in the Physics Department got
promotion prior to the respondent no.3 and the same fortuitous
circumstance caused promotion of the respondent no.3 to the next post of
Deputy Head on account of Mrs. Kathuria being promoted to the Head of the
Department of Physical Education in 1993.
6. The contention of the petitioner is that he is senior to the respondent
no.3 is mis-conceived because the petitioner reached the grade/pay-scale of
Rs.1700-3600 only on 1.6.1987 when the respondent no.3 had already
reached this pay-scale much earlier on 1.1.1986. In fact, the respondent
no.3 was appointed as a TGT about 10 years prior to the appointment of the
petitioner as a TGT. If the petitioner had the fortuitous circumstance of there
being a vacancy in the post of PGT in the Department of Physics and
therefore he got promotion to PGT before the respondent no.3, similarly, the
respondent no.3 has had the benefit of fortuitous circumstance of vacancy
being available in the physical education discipline/cadre as a result of which
he was promoted. There cannot be joinder of separate cadres/disciplines for
the purpose of pay-scale as is being canvassed by the petitioner. Rule 109 of
the Delhi School Education Rules, 1973 permits separate gradation as per
the nature of the work, and surely, physics and physical education are
separate disciplines. The lack of acceptable rationale in the argument of the
petitioner will be demonstrated by the fact that if the contention of the
petitioner is accepted then the effect will be that if one person is promoted in
WP(C) No. 1054/98 Page 4
one department and thereby he gets a higher scale than all other persons
who are working in an equivalent post to the post from where the promotee
was promoted will be entitled to pay scale of the promotional post without
putting in work of that post or because of promotion from the post of a PGT
in one department will automatically have to mean grant of promotion to all
PGTs merely because they became PGTs prior to the promoted person in
another department. Argument of the petitioner if accepted will lead to
unimaginable financial burden on the employer and that too payable to a
person who is not putting in work in the higher post.
7. The counsel for the petitioner argued that the respondent no.2 is not
maintaining an appropriate seniority list for all similar pay scales. This
contention in the facts of the present case argued has no basis not only
because, respondent no.3 reached the scale of 1700-3600 prior to the
petitioner and therefore was senior in that scale prior to the petitioner, but
also, both the petitioner and the respondent no.3 who are in different
disciplines/nature of work, as per the vacancy in their disciplines at higher
post, got their promotions at those relevant points of time.
8. I may only add that further promotions to the post of Vice Principal and
ahead are on the basis of seniority-cum-merit. There is no legal right of the
petitioner which is therefore infringed for the petitioner to claim the same
pay-scale/grade as that of the respondent no.3.
WP(C) No. 1054/98 Page 5
9. In view of the above, the writ petition being devoid of merits is
dismissed, leaving the parties to bear their own costs.
DECEMBER 22, 2010 VALMIKI J. MEHTA,J
ib
WP(C) No. 1054/98 Page 6
