Mrs. Suman Bakshi vs Family Planning Assn.Of ...
2011 Latest Caselaw 2412 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                               Date of decision: 5th May, 2011

+                               W.P.(C) 4773/1994

         MRS. SUMAN BAKSHI                                  ..... Petitioner
                      Through:            Mr. Arvind Nayar with Mr. Vikas
                                          Kumar, Advocates.

                                      versus

    FAMILY PLANNING ASSN.OF INDIA
    (FPAI)& ANR                             ..... Respondent
                 Through: Mr. Siddharth Dias, Advocate for
                           R-1.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
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             No
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner, an employee of the respondent No.1 Family Planning

Association of India (FPAI) has filed this petition impugning the

W.P.(C) 4773/1994

Regulation 42(3)(ii) of the General Rules and Service Regulations, 1984 of

respondent No.1 FPAI, laying down the age of retirement as of 58 years

for one set of employees and of 60 years for another set of employees. The

petitioner, who was retired at the age of 58 years also seeks quashing of the

order of her retirement and seeks directions / declaration that she was to

retire at the age of 60 years.

2. The writ petition was accompanied with an application for interim

relief seeking stay of the order of retirement of the petitioner at the age of

58 years. Though initially the interim order is stated to have been granted

but is informed to have been subsequently vacated.

3. Thus the only effect today is that if the petitioner succeeds, she

would get emoluments of the remaining two years of service.

4. The counsels have been heard.

5. Some of the employees of respondent No.1 FPAI had filed W.P.(C)

No.3007/1989 in this Court. The same was decided vide judgment dated

5th August, 1992. Intra court appeal being LPA No.54/1992 preferred

thereagainst was dismissed vide judgment dated 18 th November, 2005.

W.P.(C) 4773/1994

6. There is some controversy whether the petitioner herein was a

petitioner in the aforesaid proceedings; while the counsel for the

respondent No.1 FPAI states that as per his information, the petitioner was

a party, the counsel for the petitioner denies.

7. The judgment in the aforesaid proceedings also noted that there were

two sets of employees in respondent No.1 FPAI, on one set engaged in

projects funded by the Government of NCT of Delhi (then Delhi

Administration) and others involved in other projects funded from

elsewhere.

8. The claim in the said earlier proceedings was by the employees

whose emoluments, though payable by the respondent No.1 FPAI, were

being reimbursed by the Government. The said employees claimed to be

entitled to the benefit of the 4th Pay Commission recommendations

accepted with effect from 5 th August, 1992. The Single Judge as well as

the Division Bench allowed the writ petition of the said employees of

FPAI and directed the Government to release funds for payment of the

arrears of 4th Pay Commission to them.

W.P.(C) 4773/1994

9. The counsel for the respondent No.1 FPAI has drawn attention to the

passages in the judgments in the said earlier proceedings, noticing the

dichotomy prevalent in the respondent No.1 FPAI; that the employees in

the Government funded projects retired at the age of 58 years in place of

age of retirement of 60 years which other employees of respondent No.1

FPAI enjoyed. It was specifically noted that the retirement age of

government funded employees was reduced to 58 years to bring the

employees in Government funded projects in line with the conditions of

service enjoyed by the other government employees.

10. The counsel for the petitioner also has during the course of hearing

admitted that the respondent No.1 FPAI has two kind of projects namely

the government funded projects and the non government funded projects

but contends that the employees used to be shifted between both kinds of

projects. He contends that the petitioner was also one such employee.

11. It has next been enquired from the counsel for the petitioner whether

the benefit of the judgment in earlier proceedings aforesaid was availed by

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one set of employee only or by all the employees of FPAI. The counsel for

the petitioner states that he has no instructions to reply to the said question

and his only instructions are that since the petitioner retired in the year

1994, therefore the said question in her case does not arise.

12. It has next been enquired from the counsel for the petitioner whether

the petitioner even if not a party to the judgment in earlier proceedings,

claims benefit thereof for the period between 5 th August, 1992 i.e. when

recommendations of 5th Pay Commission were accepted and till the date of

her retirement, whether it be at the age of 58 years or 60 years. The

counsel again states that he has no instructions on this aspect also.

13 Dictation at this stage was interrupted by lunch.

14. The counsel for the petitioner after lunch has stated that the

petitioner was a party to the earlier writ petition. It is further stated that the

petitioner has also got emoluments as per the 4th Pay Commission i.e. the

benefit of the judgment in the earlier proceedings for the years 1992-1994.

15. The counsel for the petitioner has however invited attention to the

orders dated 28th November, 1994, 29th November, 1994, 3rd December,

W.P.(C) 4773/1994

2009 & 10th December, 2009 in this petition. On 28th November, 1994

when the petition came up first before this Court, the counsel for the

petitioner took time to produce documents to show employer-employee

relationship between the petitioner and FPAI on 21 st February, 1990 when

the rule of superannuation was changed, and also to file documents

indicating that the petitioner was also working on projects other than

government funded projects. In pursuance thereto an additional affidavit

dated 29th November, 1994 at page 128 of the paper book along with

annexures was filed. On 29th November, 1994, the version of the petitioner

that she had worked with both kinds of projects i.e. those funded by the

Government of India as well as other projects and was thus entitled to go

up to the age of 60 years was recorded and notice of the petition was

issued. The order of 3rd December, 2009 shows that arguments were partly

heard in the absence of the counsel for the respondents; the counsel for the

petitioner during the course of arguments submitted that the FPAI after the

filing of the present writ petition had extended the benefit of retirement at

the age of 60 years to some of the employees who were also engaged for

W.P.(C) 4773/1994

government aided projects; the counsel for the petitioner then took time to

file documents in support thereof. In pursuance thereto documents were

filed by the petitioner as noted in the order dated 10 th December, 2009 and

the respondent FPAI given time to respond with respect thereto.

16. The counsel for the petitioner contends that the respondent FPAI

inspite of opportunity has not responded.

17. The counsel for the petitioner thus contends that besides the aspect

of challenge to the rules discriminating between two sets of employees, the

case of the petitioner also is that the petitioner has been discriminated qua

others similarly situated as her.

18. I have again enquired from the counsel for the petitioner as to

whether the benefit of the judgment in earlier proceedings was extended to

all the employees or to only some of the employees. The counsel has not

been able to take any stand thereon.

19. The counsel for the petitoiner however contends that the earlier

proceedings were concerned only with claiming same emoluments as of

government employees because the petitioner was then performing the

W.P.(C) 4773/1994

same duties as a government employee. He contends that the rules of FPAI

providing different age of retirement for different employees did not fall

for consideration in the earlier proceedings.

20. A reading of the judgments in the earlier proceedings clearly shows

that the petitioner who was a party thereto, then sought to justify her case

by contending that owing to being entitled to higher emoluments than

those being paid to other employees, she was also to be retired two years

before the other employees. The petitioner having availed benefit once

cannot now be heard to contend otherwise. The petitioner then having

carved out a distinction herself of there being two categories of employees

in FPAI, cannot now be heard to contend otherwise.

21. I have otherwise also perused the judgments in the earlier

proceedings. The said judgments clearly show the categorization of

employees in FPAI. Once such categorization is admitted and it also

transpires from the judgment that the same was not intended for the benefit

of all the employees of FPAI, then there is no reason to disbelieve that all

employees of FPAI did not get the benefit of the said judgment. Once the

W.P.(C) 4773/1994

petitioner has availed of higher emoluments, the challenge to the rule

disappears.

22. As aforesaid, the counsel for the petitioner has towards the end,

pegged the case on the basis of discrimination with others similarly

situated as petitioner. I have enquired from the counsel whether the

petitioner is willing to deposit back with the respondent no.1 FPAI the

additional amounts so received by her under the judgments in earlier

proceedings. The petitioner is stated to be not so willing.

23. Once challenge to the rule disappears, in my view even if the

respondent has allowed 4 or 5 others as contended to retire at the age of 60

years would not entitle the petitioner to relief. The writ petition did not

contain the challenge on the said ground and the said challenge as

aforesaid has been made for the first time only on 3 rd December, 2009. As

far as the reference to the earlier orders is concerned, those were with

respect to the petitioner having worked in two types of projects; even if the

petitioner has worked for non-government funded projects, the fact of the

matter is that the petitioner availed of the benefit of the judgment in earlier

W.P.(C) 4773/1994

proceedings which was intended for only those employees working for the

government funded projects. The petitioner cannot sail in two boats.

Allowing the petitioner to continue till 60 or to receive emoluments due till

the age 60 would tantamount to placing the petitioner in a better position

than other employees who did not get the benefit of the judgments

aforesaid and the same if allowed would open a Pandora's box and lead to

many more petitions by the employees of FPAI.

24. There is no merit found in the petition. The same is dismissed. No

order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) MAY 05, 2011 pp..

(corrected and released on 18th May, 2011.)

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