Preeti Sharma vs School Of Correspondence Courses ...
2011 Latest Caselaw 3919 Del

        IN THE HIGH COURT OF DELHI AT NEW DELHI
#17
                              W. P. (C) 15502/2004

        PREETI SHARMA                   ..... Petitioner
                     Through: Mr. C. Mohan Rao, Advocate.

                         Versus

        SCHOOL OF CORRESPONDENCE
        COURSES & ORS                       ..... Respondents
                     Through: Ms. Beenashaw Soni, Advocate
                              for R-1.
                              Mr. Ashok Kashyap, Advocate
                              for R-4 to 6.

        CORAM: JUSTICE S. MURALIDHAR
        1. Whether Reporters of local papers may be
           allowed to see the judgment?                      No
        2. To be referred to the Reporter or not?               No
        3. Whether the judgment should be reported in Digest? No

                                  ORDER

12.08.2011

CM Nos. 3227/2005 (for recalling of order dated 6th December 2004), 20880/2010 (for recalling of order dated 8th October 2010) and 20881/2010 (for suspension of order dated 8th October 2010)

1. No grounds are made out to review the orders dated 6 th December

2004 and 8th October 2010.

2. The applications are dismissed.

W. P. (C) 15502/2004 & CM APPL Nos. 11276/2004 and 12333/2004 (for stay)

3. The Petitioner is aggrieved by the Award dated 3 rd March 2004

passed by the Industrial Tribunal („Tribunal‟) in I. D. No. 143 of

2000.

4. The Petitioner was appointed as a Junior Library Attendant

(„JLA‟) in the School of Correspondence Courses and Continuing

Education („the School‟), University of Delhi, Respondent No. 1 on

3rd June 1988. She was promoted as Senior Library Attendant

(„SLA‟) on 27th March 1989 and was confirmed on the said post by

the Managing Committee („MC‟) of Respondent No. 1 at its meeting

held on 6th March 1992 with effect from 27th March 1989.

5. Respondent Nos. 2 & 3 were appointed as JLAs in the School on

22nd August 1990. On 30th November 1992, Respondent No. 2 was

promoted to the post of Semi Professional Assistant („SPA‟) purely

on temporary basis with effect from 30th November 1992. On 1st

September 1993, Respondent No. 3 was promoted to the post of SPA

on a purely temporary basis with effect from 1st September 1993.

The Petitioner has placed on record copies of the said orders dated

27th May 1993 and 2nd October 1993 by which Respondent Nos. 2 &

3 were promoted as SPAs on "purely temporary basis". The

Petitioner has also placed on record an Office Order announcing that

the MC of the School at its meeting held on 6 th March 1992

confirmed 95 employees working in the School "with effect from the

date noted against each". In this list, the Petitioner figured at serial

No. 85 as SLA with the date of confirmation as 27 th March 1989

whereas Respondent Nos. 2 and 3 were shown at serial Nos. 93 and

89, respectively. They were both junior to the Petitioner as JLA as

their date of confirmation was indicated as 22nd August 1990. The

date of confirmation of the Petitioner as SLA was already indicated

as 27th March 1989.

6. On 4th January 1994, the MC of the School sanctioned the

creation of four posts of SPA. In a written endorsement made on the

letter addressed to him by the Principal of the School, the Chairman

of the MC noted that in view of the approval granted for the creation

of posts which included four posts of SPA, "action may be taken to

fill up these posts".

7. What is important is that on 4th January 1994, four posts of SPA

were created but they were not filled up on that date. On 6th January

1994, the Departmental Promotion Committee („DPC‟) met and

decided to promote the Petitioner and Respondent Nos. 2 & 3 to the

posts of SPA. Separate orders dated 6th January 1994 were issued

each to the Petitioner and to Respondent Nos. 2 & 3 in identical

wording. Copies of the letters dated 18th January 1994 addressed to

Respondent Nos. 2 & 3 clearly state that their services on the post of

SPA "have been placed against the substantive post of Semi

Professional Assistant on probation for a period of one year w.e.f.

06.01.1994 in the pay scale of Rs. 1400-40-1800-SB-50-2300". In

the office order dated 21st April 1995, the list of confirmed

employees shows the Petitioner at serial No. 8 as SPA with the date

of confirmation as 6th January 1994 and that of Respondent Nos. 2 &

3 at serial Nos. 9 and 10 as SPAs with the same confirmation date.

8. On 16th May 1997, the Petitioner was addressed a letter by the

Acting Principal of the School with the following effect:-

"Ref:- Her representation regarding controversy in seniority in the cadre of Semi-Professional Assistant.

Ms. Preeti Sharma, Semi Professional Assistant in

Library is hereby informed that her representation under reference was considered and it has been found that under the University rules the seniority of the three employees of the Library in the cadre of SPAs will remain unchanged since the same was finally approved by the Managing Committee at the time of their confirmation in the cadre of S.P.A. viz :-

S. N.               NAME OF THE                    DATE OF
                    INCUMBENTS                   CONFIRMATION

  1.          Ms. Preeti Sharma, SPA                 06-01-94
  2.          Ms. Anjana, SPA                        06-01-94
  3.          Ms. Nirmala Devi, SPA                  06-01-94


                                         (DR. R. K. ANAND)
                                         ACTING PRINCIPAL"

9. However, it appears that on 21st October 1997, a representation

was made by Respondent Nos. 2 & 3 protesting against the above

order of seniority. Thereafter, at the meeting of the MC held on 8 th

October 1998, the MC noted that "the seniority confirmed earlier by

the Managing Committee needs to be revised. After a detailed

discussion, the Managing Committee decided to re-fix the seniority,

taking into consideration the temporary services rendered by the two

officials i.e. Ms. Anjana and Ms. Nirmala Devi." Respondent Nos. 2

& 3 were now shown senior to the Petitioner. The Petitioner

protested against the above decision but this was negatived by the

School by a letter dated 6th April 1999.

10. The resultant dispute was referred to the Labour Court in ID No.

143/2000. The dispute referred to it read as follows:-

"Whether the demand of Smt. Preeti Sharma, Semi- Professional Assistant, for treating her senior to Smt. Nirmala Devi and Smt. Anjana is justified and if so, what directions are necessary in this respect?"

11. On the primary issue whether the reference was maintainable in

the absence of any proper espousal of the dispute, the issue was held

against the Petitioner. The Tribunal concluded that since Respondent

Nos. 2 & 3 had been promoted earlier as SPA, they were senior to

the Petitioner and, therefore, the fixation of the seniority by the MC

at its meeting on 8th October 1998 was correct.

12. Before this Court it has been contended by Mr. C. Mohan Rao,

learned counsel for the Petitioner that there is no basis for altering

the seniority of the Petitioner vis-à-vis Respondent Nos. 2 & 3 as

was done by the MC on 8th October 1998. There were no rules

whereby the ad hoc service rendered by a person in a post would

count for the purpose of seniority after being regularly absorbed in

the said post. Consequently, it is submitted that all the three, i.e., the

Petitioner and Respondent Nos. 2 & 3 were promoted as SPAs on the

same date, i.e., 6th January 1994 whereas a representation by the

School was made in the written statement in the Tribunal that the

Chairman had directed these promotions to be effective from 4th

January 1994. It is submitted that there is no such order passed by

the Chairman of the School. Thirdly, it is submitted that the feeder

cadre for the post of SPA was SLA and neither the Respondent No.

2 nor Respondent No. 3 was appointed either on ad hoc basis or

regularly as SLA. Therefore, they were not eligible to be promoted

as SPA earlier than the Petitioner who was confirmed as SLA and

that too much before Respondent Nos. 2 & 3 who were appointed as

JLAs. Lastly, it is submitted that the Petitioner qualified a graduate

degree on 6th January 1994 which was the date of the marksheet

issued in respect of the BA exam taken by her in October/November

1993. Since the promotion to the post of SPA was effective only

from that date, the Petitioner was qualified for the post.

13. Ms. Beenashaw Soni, learned counsel appearing on behalf of the

School submitted that the Petitioner intimated that she had obtained a

BA degree only on 18th January 1994. On the date of promotion to

the post of SPA, i.e., 6th January 1994, she was not qualified to be so

promoted. Consequently, it is submitted that since Respondent Nos.

2 & 3 have been already working on ad hoc basis in the post of SPA

earlier to the Petitioner they were, therefore, entitled to count for the

purposes of seniority, the ad hoc service period as well. Thirdly, it is

submitted that the Petitioner delayed the actual orders of grant of

promotion and used that time to somehow obtain the BA degree in

order to justify her promotion as SPA. Lastly, it is submitted that the

actual date of promotion should be considered as 4 th January 1994 on

which date admittedly the Petitioner did not possess the BA degree.

14. Appearing on behalf of certain other employees of the School as

Respondent Nos. 4 to 6, Mr. Ashok Kashyap submitted that the delay

occurred by the Petitioner through a correspondence course was not

recognized and that the inter se seniority of the Petitioner and

Respondent Nos. 2 & 3 ought not be distributed.

15. As regards the last submission, it is seen from the record that

there was no challenge at any point of time raised either by the

School or Respondent Nos. 2 & 3 to the promotion granted to the

Petitioner as SPA. The only dispute was as regards the inter se

seniority. Consequently, it is not necessary for this Court to

adjudicate whether the degree produced by the Petitioner was good

enough for the purposes of her eligibility for promotion as SPA.

16. The issue that arises for consideration is whether the MC of the

School was justified in altering inter se seniority of the Petitioner and

Respondent Nos. 2 & 3 at its meeting on 8th October 1998.

17. The School has failed to explain how Respondent Nos. 2 & 3

could have been promoted as SPA even on an ad hoc basis when

they were at no point of time appointed as SLAs which was the

feeder cadre for the promotional post of SPA. It was submitted that

there had been a merger of the post of JLA and SLA and therefore,

both the Petitioner and Respondent Nos. 2 & 3 were eligible for

being promoted as SPAs. However, there is no such statement made

in the pleadings. On the contrary, the combined list of employees of

the School at page 48 of the paper book which is of 13 th April 1992

shows the Petitioner at serial No. 85 as SLA having been confirmed

on 27th March 1989 and Respondent Nos. 2 & 3 at serial Nos. 93 and

89 respectively shown as JLA with the date of confirmation as 22nd

August 1990. Clearly, therefore, the Petitioner who was confirmed

as SLA from an earlier date was eligible to be promoted to the newly

created post of SPA earlier than Respondent Nos. 2 & 3. Moreover,

the ad hoc promotions granted to Respondent Nos. 2 & 3 as SPA

was on a purely temporary basis.

18. The MC of the School at its meeting on 3rd January 1994

approved the creation of the four posts of SPA and this was

conveyed by the Principal of the School to the Chairman of the MC

on 4th January 1994. He then made an endorsement that "necessary

action may be taken to fill up these posts". Therefore, as on 4th

January 1994 the four posts of SPA were only created. The

promotion of the Petitioner and Respondent Nos. 2 & 3 of the said

posts only took place on 6th January 1994 when the DPC met.

19. On that date, i.e., 6th January 1994, the Petitioner admittedly was

a graduate. In her letter dated 18th January 1994 addressed to the

School, she enclosed the marksheet issued to her from the Osmania

University of the BA final examination held on October/November

1993. Even if the marksheet was issued only on 6th January 1994,

clearly the marks list has been prepared earlier. The answer sheets

were given even earlier. The date of graduation usually relates the

date of passing the exam which invariably would be earlier to the

date of issuance of the marksheet. It is possible that the actual date of

issuance of the marksheet may vary. A person who has passed the

exam should be taken to have passed the exam some time earlier to

the date of issuance of the marksheet indicating the marks. In the

present case, therefore, the Petitioner certainly was a graduate as on

6th January 1994. The submission on behalf of the School that she

would be taken to be a graduate only on the date of the intimation to

the School overlooks the factual position that as far as the Petitioner

is concerned, she in fact graduated on 6th January 1994, or even

earlier and was merely intimating the School of that fact on 18th

January 1994. Therefore, on the date of promotion to the post of

SPA, the Petitioner was duly qualified.

20. The seniority initially fixed of the Petitioner and Respondent

Nos. 2 & 3 as found in the office order dated 21 st April 1995 and was

further confirmed by the letter dated 16th May 1997 of the Acting

Principal. The memorandum dated 18th January 1994 issued to

Respondent Nos. 2 & 3 also clearly stated that their appointments as

SPAs was on probation with effect from 6th January 1994 and should

not be counted from any earlier date. The ad hoc appointment of

Respondent Nos. 2 & 3 was as SPA would not count for the simple

reason that at that time there was no substantive post of SPA

available. Such post was created only on 4 th January 1994 and their

ad hoc service could not have been regularized on a non-existent

post.

21. For all the aforementioned reasons, this Court finds that the

position taken by the MC at its meeting on 8 th October 1998 showing

Respondent Nos. 2 & 3 to be senior to the Petitioner in the post of

SPA to be unsustainable in law.

22. The Tribunal came to a contrary conclusion. It failed to notice

that Respondent Nos. 2 & 3 were appointed as SPAs only on ad hoc

basis prior to 6th January 1994 and, therefore, could not be

considered senior to the Petitioner in the substantive post of SPA.

These substantive posts were created only on 3rd January 1994 and

the appointments to the substantive post were effective from 6th

January 1994.

23. Consequently, the impugned Award dated 3rd March 2004 of the

Tribunal in ID No. 143 of 2000 as well as the decision dated 8th

October 1998 of the MC of the School are hereby set aside. The

Respondent No. 1 School will now issue appropriate orders correctly

restoring the seniority of the Petitioner vis-à-vis Respondent Nos. 2

& 3 as indicated in the office order dated 21st April 1995 and further

confirmed in the letter dated 16th May 1997 issued by the Acting

Principal. All other consequential orders and benefits will also be

given to the Petitioner. All these directions will be complied with

by Respondent No. 1 School within a period of four weeks from

today.

24. In the interim order dated 8th October 2010, it had been directed

that the ad hoc promotions for filling up four vacant posts of

Professional Assistant would be subject to final outcome of the

present writ petition. Consequently, orders in that regard will also

now be passed on the basis of the present judgment. The Respondent

No. 1 School will now consider the case of the Petitioner for

promotion to the post of Professional Assistant in accordance with

law. This will also be done within a period of four weeks from

today.

25. The writ petition is allowed in the above terms with costs of

Rs. 5,000/- which will be paid by Respondent No. 1 to the Petitioner

within a period of four weeks.

S. MURALIDHAR, J.

AUGUST 12, 2011 ha