Delhi High Court

Ms. Radha Sharma vs Lt. Governor & Ors. on 11 January, 2011

Author: Veena Birbal

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              WP(C) 4232/2008

%                         Date of Decision: 11.01.2011

Ms. Radha Sharma                                          .... Petitioner
                     Through Mr. Arun Bhardwaj, Adv.

                                  Versus

Lt. Governor & Ors.                             .... Respondent
                  Through Mr. Rohit Madan, Adv. for Mr. Aditya
                          Madan, Adv

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MS. JUSTICE VEENA BIRBAL

1.    Whether reporters of Local papers may be
      allowed to see the judgment?

2.    To be referred to the reporter or not? Yes
3.    Whether the judgment should be reported in
      the Digest? Yes


Veena Birbal, J. (oral)
*

By way of this petition, petitioner has challenged the impugned

order dated 9th April, 2008 passed by Central Administrative Tribunal,

Principal Bench, New Delhi (hereinafter referred to as "The Tribunal")

in OA No.1843/2007 whereby the request of the petitioner for the

grant extension to continue in service w.e.f 1st April, 2006 to 30th

September, 2008, after retirement, on the basis of her being a State

Awardee with all consequential benefits including back wages and

interest thereon, has been rejected.

2. The petitioner had joined as a Junior Home Science Teacher

with respondent on 11th August, 1967. On 4th February, 1974, she was

promoted as a Senior domestic Science Teacher. In the year 1989,

petitioner was awarded State award by the Delhi Administration for

her meritorious/outstanding service by the Lt. Governor of Delhi. Prior

to her retirement, petitioner made various representations to the

respondents seeking extension in service for two years with all

relevant documents which entitled her for extension. On 30th

September, 2006, petitioner stood retired from the services as a

Senior Domestic Science Teacher. The representations of petitioner

for extension of service were rejected on 06.11.2006.

Feeling aggrieved, petitioner filed an OA No. 2373/2006 before

the Tribunal praying for a direction to the respondents to declare that

the petitioner was entitled for extension of service for two years w.e.f

1.10.2006 to 30.9.2008 on the basis of her being a State Awardee.

The said OA was disposed of vide order dated 19.04.2007 with a

direction to the respondents to re-examine the case of the petitioner

for extension in service beyond 60 years upto 62 years on account of

being a State Awardee in the light of the similar treatment meted out

of one Smt. Lakhbir Kaur by a reasoned and speaking order to be

passed within a period of one month from the date of receipt of the

said order.

On the direction of the Tribunal, respondents re-examined the

case of the petitioner and vide order dated 25th June, 2007 rejected

the claim of petitioner for extension in service on the ground that as

per FR-56 no government servant is entitled for extension of service

beyond the age of 60 years. It was further stated in the said order

that Smt. Lakhbir Kaur was granted extension inadvertently due to

oversight of FR-56(d) amended vide DOPT notification dated

13.05.1998.

Thereafter, petitioner came to know that even after amendment

in FR-56, respondents had granted extension to few other teachers.

The details of which are given in the petition. Feeling aggrieved with

the order of respondent dated 25.06.2007, petitioner filed review

application before the Tribunal in OA 2373/2006. The said review

application was rejected vide order dated 06.09.2007. Feeling

aggrieved with the same, petitioner filed a WP(C) No. 7261/2007. The

said writ petition was disposed of vide order dated 1st October, 2007

and liberty was given to the petitioner to file fresh OA challenging the

order dated 25th June, 2007. Accordingly, petitioner filed fresh OA i.e

O.A. No.1813/2007 challenging the order of respondents dated 25th

June, 2007 on the ground that similarly situated State Awardees of the

year 1989 had been granted two years extension in service whereas

petitioner had not been granted, as such, discrimination had been

caused to her. Petitioner had also alleged that Rule 110(3) of the

Delhi School Education Rules provides extension in service of two

years to State Awardees after retirement and contended that said rule

will prevail over FR-56(d). The contentions raised by the petitioner

were rejected by the Tribunal vide impugned order dated 9th April,

2008. Aggrieved with the same, the present petition is filed.

3. Counsel for the petitioner has contended that extension of

service up to two years are given to State Awardee teachers to

encourage meritorious teachers. It is contended that FR-56(d) is not a

bar to the grant of such extension because of applicability of Rule

110(3) of the Delhi School Education Rules, 1973. Learned counsel

has also relied upon circulars of respondent dated 11.04.1997. It is

also contended that other similarly placed teachers who were State

Awardees of 1989 were granted extension and they had enjoyed the

same. It is only the petitioner who has been left out. It is contended

that in the earlier OA No.2373/2006, petitioner had mentioned about

one Smt. Lakhbir Kaur who had been granted extension. After the

disposal of the said O.A, petitioner came to know about other State

Awardee teachers, who had been granted extension in service by

respondent. Despite that, the respondents have not considered her

case favorably. It is contended that FR-56 does not prohibit grant of

extension in service to State Awardee teachers.

4. The contention of the respondents is that FR-56(d) does not

permit any extension of service beyond the age of 60 years. The case

of the petitioner does not fall within the exceptions of FR-56(d) being a

government teacher. Their further stand is that Rule 110(3) of the

Delhi School Education Rules, 1973 has no applicability on the

petitioner as she was a government teacher. It is further contended

that extension in service had been given earlier to few teachers who

were State Awardee due to inadvertence and that in any way does not

entitle the petitioner to get similar treatment.

5. We have considered the submissions made.

6. Admittedly, petitioner was a teacher in a Government school

and had retired on 30.09.2006 on attaining the age of 60 years. Rule

110(3) of the Delhi School Education Rules, 1973 which is relied upon

by counsel for petitioner during arguments is reproduced as under:-

"110.(3) Notwithstanding anything contained in sub-rule (1) and sub-rule (2), where a teacher, Principal or Vice- principal has obtained National or State award for rendering meritorious service as a teacher, Principal, or Vice-Principal or where he has received both the National and State awards as aforesaid, the period of service of such teacher, Principal or Vice-Principal may be extended by such period as the Administrator may, by general or special order, specify in this behalf."

The said rule falls under chapter VIII of the aforesaid Rules

which deals with recruitment and terms and conditions of service of

employees of a recognized private school, other than un-aided

minority school. The said rule has no applicability on the petitioner

who was a Govt. teacher.

During arguments, learned counsel for the petitioner has fairly

conceded that he has no material to support the stand that said rule is

applicable to the teachers of a Government school. Thus, the

contention of the counsel for the petitioner that after attaining the age

of 60 years, petitioner can be awarded extension under the aforesaid

rule, has no applicability to the facts of the case and has been rightly

rejected by the Tribunal vide impugned order dated 9th April, 2008.

As regards the contention of petitioner that few teachers on

attaining the age of superannuation have been given extension, the

stand of the respondents is that the same is dehors the Rules and that

does not confer any right on the petitioner to get extension on the

basis of State award.

The relevant finding of the Tribunal in this regard is as under:-

"12. It is trite that those, who have been granted extension in the past have been granted on the basis of the Lieutenant Governor's decision, which when is not in accordance with the rules and in the wake of FR 56(d), an illegal order in favour of some shall not bestow the applicant a legal and indefeasible right to claim parity, as concept of equality does not recognize concept of negativity equality, as ruled by the Apex Court in K.Prasad's case (supra) where following observations have been made:-

"13. We may now deal with the plea of the respondents that they have been discriminated against. It is true that Article 14 of the Constitution embodies a guarantee against arbitrariness but it does not assume uniformity in erroneous actions or decisions. It is trite to say that guarantee of equality being a positive concept, cannot be enforced in a negative manner. To put it differently, if an illegality or irregularity has been committed in favour of an individual or even a group of individuals, others, though falling in the same category, cannot invoke the jurisdiction of the writ courts for enforcement of the same irregularity on the reasoning that the

similar benefit has been denied to them. Any direction for enforcement of such claim shall tantamount to perpetuating an illegality, which cannot be permitted. A claim based on equality clause has to be just and legal."

13. Moreover, an administrative error would not confer a valid right, as ruled by the Apex Court in State of Haryana & Ors. Vs. Ram Kumar, 1997(2) SLJ SC 257. Recently the Apex Court in Bihar PSC V. Kamini, 2007(5) SCALE 735 ruled that an illegality cannot be perpetuated on a claim of the right for equality."

7. We find no illegality in the order of the Tribunal in this regard

also. Petitioner has failed to show any right in her favour on the

basis of which she is claiming extension. Some of the State Awardees

had been given extension in the past but the same cannot be taken

as a precedent on the principle that two wrongs cannot make one

right. The respondents cannot be asked to commit the same mistake

which has been done inadvertently when the Rules do not permit any

such extension. Learned counsel for the petitioner has not disputed

that petitioner is not governed by FR-56(d), as per which no extension

of service can be granted beyond 60 years. The petitioner does not

fall in the categories mentioned in the proviso to the aforesaid rule

also.