N.R.Dogra vs Union Of India & Ors.
2013 Latest Caselaw 1624 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(C) No. 1813/1997
%                                                           10th April, 2013

N.R.DOGRA                                                 ......Petitioner
                            Through:     Mr. Anil Kumar Verma and Ms. Ashu Rani,
                                         Advocate.


                            VERSUS

UNION OF INDIA & ORS.                                       ...... Respondents
                   Through:

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.             This writ petition is filed by the petitioner-Sh. N.R.Dogra seeking the

relief that he should be granted Selection Grade in terms of the Presidential order

dated 26.11.1971. In sum and substance what the petitioner claims is that though

the Presidential order dated 26.11.1971 applied only to teachers and though, the

petitioner was only a Librarian and not a teacher, he is yet included in category-4

of para-3 of the Presidential order dated 26.11.1971. It is contended that category-4

includes therein not only Trained Graduate Teachers but others in the same scales

and the petitioner is in the „same scales‟ category. Reliance on behalf of the

petitioner is in the expression "others in the same scale" contained in the order
W.P.(C) No. 1813/1997                                                        Page 1 of 9
 dated 26.11.1971 to argue that persons who may not be teachers, but if they are in

the same scales as in category-4, these persons will be entitled to Selection Grade

as they would fall in the category-4 of para-3 of the Presidential order dated

26.11.1971.

2.            The contesting respondents are respondent nos. 2,3,5 and 6.

Respondent no.2 is the Director of Education. Respondent no.3 is the Pay and

Accounts Officer(IX) of the Government of NCT of Delhi. Respondent no.5 is the

Government of NCT of Delhi.           Respondent no.6 is the Deputy Director of

Education. In the counter-affidavit, filed jointly by the respondent nos. 2,3,5 and

6, three main issues have been urged to dispute the claim in the writ petition.

Firstly, it is contended that the petitioner being a Librarian was already getting a

teaching allowance and therefore, he should not be equated with other teachers.

The second defence is that the Presidential order dated 26.11.1971 applies only to

teachers and not to librarians such as the petitioner. Thirdly, it is contended that the

case of the petitioner-Sh. N.R.Dogra, ex-librarian was forwarded to the Director of

Education and the Director of Education dismissed the representation of the

petitioner for fixation of pay-scales in the Selection Grade.

3.            That the Presidential order dated 26.11.1971 applies by its ordinary

language only to teachers, and not librarians, is not disputed. The question is

whether petitioner who though only a Librarian falls in the category-4 of para 3 of
W.P.(C) No. 1813/1997                                                         Page 2 of 9
 the Presidential order dated 26.11.1971 i.e whether category-4 of para-3 seeks to

include persons who are not teachers although such persons would have the pay-

scale of Trained Graduate Teachers as contained in category-4 of para-3.

4.            As already stated above, the petitioner in support of his argument that

librarians are covered under category-4 in para-3 of the Presidential order dated

26.11.1971, and although the Presidential order applied only to teachers and not to

librarians, the petitioner is covered by the expression "others in the same scale".

Reliance is also placed to buttress this argument upon a judgment of a learned

Single Judge of this Court in the case of Sh. Abinash Chander & Ors Vs. Union

of India and Ors C.W.P. No. 264/1979 decided on 14.3.1983. The following

observations of the judgment in the case of Sh. Abinash Chander (supra) are

relied upon and which read as under:-

       "In my opinion the stand of the Director is wholly erroneous. On a plain
       reading of this Presidential order it appears to me that trained graduates
       teachers and others who are in the pay scale of Rs.250-20-450-EB-24-
       550 are entitled to the award of the selection grade, if they satisfy the
       test of seniority subject to fitness. The Presidential order speaks of
       "categories of school teachers". This is the expression used in clause
       (1). Clause 3 again uses the expression "categories". Therefore in order
       to be entitled to a selection grade one has only to see what is that
       category to which he belongs. For that purpose, he has to go by his own
       scale of pay. These physical education teachers were grouped together
       with the trained graduate teachers because their pay scale was the same
       as the pay scale of the trained graduate teachers.
       .........................

The Presidential order has introduced the concept of categories. All the teachers have been divided for purposes of award of selection grade into as many as eight categories. One has to find the category to which he belongs. The method of finding it out is to see what is the scale of his pay. If a particular teacher falls within the categories mentioned in para 3 and fulfills the seniority subject to fitness test he cannot be deprived of the benefit of the selection grade. This, I think, is plainly the meaning of the Presidential order and distinctly its intention. The Presidential Order is simple. It is not a complicated affair. The eight categories into which the school teachers are divided are conglomerations of teachers. These teachers wandered about, unhoused and unshephered, except for a casual attention here and there, in the pathless fields of their diverse disciplines until the President classified them in their true categories. He co-ordinated them all. He rationalised their pay scales. The pay scales determine the categories. The categories are made the subject of selection grades."

5. In my opinion, the petitioner is not entitled to the relief as claimed in

this writ petition and the writ petition is bound to be dismissed for the reasons

given hereinafter.

6. The argument urged on behalf of the petitioner that he would fall in

category-4 of para-3 of the Presidential order dated 26.11.1971 is wholly

misconceived inasmuch as the Presidential order admittedly applied only to

teachers. Petitioner is not a teacher and he is a librarian. If the Presidential order

dated 26.11.1971 applies only to teachers, then even category-4 in para-3 has only

to apply to teachers ie the expression "others in the same scale" will also be

applicable to teachers in the same scales and not librarians who are not teachers.

Once the Presidential order applies to teachers only, the petitioner being only a

librarian, petitioner cannot on the basis of some abstract language in the

Presidential Order claim that the order was intended to cover persons other than

teachers.

7. Reliance placed upon by the petitioner upon the judgment in the case

of Sh. Abinash Chander (supra) is also misconceived, inasmuch as the judgment

specifically dealt with the case of Physical Education Teachers. Physical

Education Teachers are also teachers unlike librarians. Such Physical Education

Teachers were included originally by the Director of Education for taking benefit

of the Presidential order dated 26.11.1971, and thereafter were removed and this

action of the Director of Education was quashed in the judgment of Sh. Abinash

Chander (supra). The observations which have been made by the learned Single

Judge and which have been relied upon by the petitioner in the present case, have

to be confined to their application to Physical Education Teachers i.e teachers and

not librarians. As already stated above, category-4 of para-3 of the Presidential

order refers to teachers and other teachers drawing the same scales i.e persons who

are not teachers cannot be got to be included in the expression "others in the same

scale" and which expression has to apply to teachers only. That the judgment in

the case of Sh. Abinash Chander (supra) did not apply to librarians who are not

teachers becomes clear from the following observations in the said judgment.

"There are several sub-divisions of category No.4. One sub-division is trained graduate teachers. One sub-division is trained graduate teachers. The other sub-division is physical education teachers (senior). Both belong to the same category because they are in receipt of the same scale of pay. If the trained graduate teaches are entitled to the selection grade, it will be illogical to say that the physical education teachers, though they belong to the same category as the trained graduate teachers, will not be entitled to the award of the selection grade.

The Director by his letter dated 1st Decembe, 1972 has divided category No.4 into SL.No. Category Scale of Pay.

              (1)        Trained Graduate Teachers          550-30-700
              (2)       Language Teacher                          -do-
              (3)       Drawing Teachers                          -do-
              (4)       Physical Education Teacher                -do-
              (5)       Senior Domestic Science                   -do-
              (6)       Craft Teacher(Senior)                     -do-
              (7)       Music Teacher (Senior)                    -do-

All these seven kinds of teachers are described as "following categories" in the letter. This is wrong under the Presidential order they belong to one category of "trained graduate teachers and others, in the same scale", that is Rs.250-20-450-EE-25-550." ..............................

The controlling conception of the Presidential order is classification. Teachers are divided into classes or groups. They were placed into eight categories. These are separate categories. All teachers have been put into these groupings. We are centrally concerned with these groupings. The physical education teachers are included in one of them (see item No.4). The Order covers them. They are not left out in the cold. To exercise them from the benefit of the selection grade on the ground that the post is single or

solitary is to introduce the mathematics of posts. This is not the basis of classification.

The "categories"are the ruling conception of the scheme. Take this case. Category (4) is an individual category. Trained Graduate teacher, Language teacher, Drawing teacher, Physical Education teacher, Senior Domestic Science teacher, Craft teacher (senior) are all concrete examples of "others in the same scale". They are all placed in the same category. They all belong to the same class or group. All of them are entitled to selection grade if they satisfy the test of seniority subject to fitness and there are selection grade posts to go round."

8. Therefore, the judgment in the case of Sh. Abinash Chander (supra)

cannot have any application to the facts of the present case because that judgment

dealt with the benefit which was granted to the Physical Education Teachers and

thereafter withdrawn by the Director of Education, and which order was quashed

by the Court in the case of Sh. Abinash Chander (supra) by treating the Physical

Education Teachers as teachers as falling under category-4 of para-3 of the

Presidential order. As already stated above, once the Presidential order is to be

applied only to teachers, it cannot be applied to librarians such as the petitioner and

librarians cannot by a convoluted interpretation of category-4 in para-3 of the

Presidential order seek to get themselves included as teachers.

9. In my opinion, the very fact that librarians are getting an additional

emoluments being teaching allowance, shows that they otherwise were getting

some amount of benefit, and therefore, Director of Education in the present case

was justified in rejecting the claim of the petitioner for being treated as equal to a

teacher for being granted the Selection Grade benefit.

10. In my opinion, there may be an additional ground to dismiss the writ

petition on the ground of delay and laches inasmuch as, benefit of Selection Grade

in terms of the Presidential order dated 26.11.1971 ought to have been claimed by

the petitioner immediately thereafter. I may note that the petitioner from 1971 till

about the time of retirement in 1995 made no representation for the Selection

Grade. There is no averment in the writ petition that the Selection Grade is

available only if a person who is holding or entitled to hold a Selection Grade

retires from that post and thereafter only the petitioner could have claimed the

Selection Grade as argued on behalf of the petitioner before me. In fact, in my

opinion, this argument would also be misconceived because as per the Presidential

order dated 26.11.1971, Selection Grade is granted on the basis of seniority subject

to fitness i.e once a person derives the necessary seniority, he would be entitled to

the Selection Grade, subject to his fitness. Therefore, it was necessary for the

petitioner to state in the writ petition as to when did the petitioner firstly acquire

the right to get a Selection Grade. I put it to counsel for the petitioner as to whether

there is any averment in the writ petition of the date from which the petitioner first

became entitled to the Selection Grade, but the counsel for the petitioner could not

point out to me any averment as to when the petitioner became entitled to Selection

Grade having been stated in the writ petition. Therefore, the writ petition filed in

1997 for claiming benefit of a Presidential order dated 26.11.1971 i.e of 26 years

earlier, is quite clearly barred by delay and laches in absence of particulars as to

when petitioner otherwise had become entitled to the Selection Grade. I may

hasten to observe that the issue of delay and laches is a ground totally independent

of the other issues discussed above and which other issues are in themselves

enough to deny the petitioner the reliefs claimed in this writ petition.

11. In view of the above, there is no merit in the petition, which is

accordingly dismissed, leaving the parties to bear their own costs.

APRIL 10, 2013                                       VALMIKI J. MEHTA, J.
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