Delhi High Court
Smt. Rajo Garg (Rajo Gupta) vs Delhi Cantonment Board & Ors. on 22 September, 2010
Author: Manmohan Singh
* HIGH COURT OF DELHI : NEW DELHI
+ WP (C) No.7236/2008
% Decided on : September 22nd , 2010
SMT. RAJO GARG (RAJO GUPTA) ......Petitioner
Through: Mr. K.P. Gupta, Adv.
Versus
DELHI CANTONMENT BOARD & ORS. .....Respondents
Through: Nemo.
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may
be allowed to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported
in the Digest?
MANMOHAN SINGH, J.
1. The petitioner has filed the present writ petition under
Article 226 of the Constitution of India seeking various directions
mentioned in the prayer clause.
2. Brief facts are that the petitioner worked as an assistant
teacher with Respondent No. 1 Delhi Cantonment Board from
22.10.1990 to 01.07.1998. The petitioner had applied for „NO
OBJECTION CERTIFICATE‟ in 1996 from Respondent No. 1 to apply
in any other department. The petitioner was drawing a salary of
Rs. 4875/- in the pay scale of Rs.4500-125-7000 from Respondent
No.1 as from 01.01.1998.
3. The petitioner was appointed as assistant teacher with
Respondent No. 2/Municipal Corporation of Delhi under basic pay of
Rs.4500 on 01.04.1998. The petitioner thereafter following the
requirements and giving a 3 months‟ notice for taking resignation
w.e.f. 02.04.1998 and was relieved from duty on 01.07.1998. The
petitioner thereafter joined Respondent No. 2 on 02.07.1998.
4. On being asked for the benefits of her previous service
with Respondent No. 1, Respondent No. 2 informed petitioner that
it can only be granted if Respondent No. 1 forwards the pension
and leave salary contribution to Respondent No. 2. Letters
requesting the said benefits to be submitted to Respondent No. 2
through Respondent No. 1 were given to Respondent No. 1 by the
petitioner as well as the Respondent No. 2.
5. The petitioner claimed the amount of Rs.24,056/-
towards pension contribution and Rs.24,252/- towards salary
contribution with interest of 6% p.a. calculated w.e.f. 02.07.1998.
6. The petitioner through a letter dated 12.03.2004 and
Assistant Education Officer of respondent No.2 through a letter
dated 01.04.2004, contended that since this is a case of transfer
from one autonomous body to another autonomous body and rules
of appendix 11 of CCS (Pension) Rules 1972 are applicable. It was
also contended in these letters that as per OM No. 28-10/84
Pension Unit dated 29th August, 1984, contribution is to be borne by
the autonomous body where employee has worked.
7. The respondent No. 1 in the counter affidavit contended
that Dopt. OM No. 28-10/84- Pension Unit dated 29 August, 1984 is
not applicable because under the said OM benefit can only be
granted if transfer of the employee is from one central autonomous
body to another central autonomous body. But as Delhi
Cantonment Board is a statutory body constituted under central
enactment i.e Cantonment Act, 1924 whereas MCD is Local
municipal body constituted under DMC Act, 1957. Thus MCD
(Respondent No. 2) does not fall under ambit of OM No. 28-10/84 as
respondent No.2 is neither a central government body not a central
autonomous body and petitioner is a permanent employee of
Respondent No. 2. Also LAO (Audit Authorities) had advised
Respondent No. 1, that petitioner is not entitled to claim any
benefits.
9. The respondent No. 1 also contended as per reply to RTI
on 06.06.2007, that proper channels were not used by petitioner in
taking up job with Respondent No.2. Further the petitioner was
promoted to TGT (Sanskrit teacher) on 14.09.2007 and requested
that her pay after promotion be adjusted after considering that she
was receiving salary of Rs.4875 at pay scale of Rs.4500.-125-7000
and this was not accounted for by the Respondent No. 2 in fixing
her salary.
10. The respondent No. 2 in counter affidavit contended that
they will consider to fix the pay of petitioner only when the records
and pension, gratuity and leave encashment is transferred by
Respondent No. 1 to Respondent No. 2.
11. The respondent No. 3 in counter affidavit contended that
salary of petitioner after promotion to TGT was fixed after
considering the last pay drawn from Respondent No.2 as per rule
FR22(1)(a)(1) at Rs.5,850/-. Also Respondent No. 3 is not liable to
pay petitioner‟s pension/gratuity etc.
12. The contentions raised by the Respondent No. 1 are
without any substance because the petitioner applied for
appointment in MCD after obtaining „No Objection Certificate‟. As
regards to the applicability of the said Circular, the Respondent No.
1 falls within the ambit of aforesaid memorandum as per para 4 of
the said Memorandum which defined Central Autonomous Body
wherein it is clearly states that autonomous body includes a Central
Statutory Body or a Central University but does not include a Public
Undertaking.
13. The Respondent No. 1 admittedly is a Statutory Body
constituted under Cantonment Act, 1924 and respondent No.1
under DMC Act, 1957 and hence they both fall within the definition
of Central Autonomous Body.
14. Hence, the petitioner is covered in Sub Clause (ii) of
clause (b) of para no. 3 and also clause (c) of the said para of the
aforesaid memorandum OM No.28-10/84 Pension Unit dated 29th
August, 1984 wherein it is clearly stated that the procedure
mentioned in above sub para (ii) will be followed mutais mutandis
in respect of employees going from one autonomous body to
another.
15. The petitioner is also entitled to avail the benefit of
counting of her previous service rendered to the respondent No.1
with effect from 22.10.1990 to 01.07.1998 for fixation/protection of
her pay under sub rule (2) of Rule 26 of Pension Rules wherein it is
clearly stated that "A resignation shall not entail forfeiture of past
service if it has been submitted to take up with proper permission,
another appointment whether temporary or permanent, under the
Government where service qualifies".
16. The respondent No.1 is directed to forward a sum of
Rs.24,056/- towards pension and Rs.24,252/- towards salary
contribution along with interest @ 6% p.a. w.e.f. 02.07.1998 till
the day and date of its forwarding by way of cheque drawn in
favour of the Commissioner MCD.
17. As regards the second prayer made in the petition in
para (a) is concerned, I am of the view that the petitioner shall be
entitled for the said benefits from the respondent No.3 who shall
take the decision in this regard to pay the pension and gratuity
benefits to the petitioner, as the petitioner ultimately has to retire
from their office. The remaining prayers made in the petition are
rejected as not pressed by the petitioner at the time of hearing.
18. Thus, the present writ petition is disposed of with the
abovementioned directions. No order as to costs.
MANMOHAN SINGH, J.
SEPTEMBER 22, 2010
jk/sa
