Government Of N.C.T. Of Delhi vs Smt.Pritam Devi
2013 Latest Caselaw 20 Del

$~ R-18
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                         Date of decision: January 3, 2013

+                               W.P.(C) No.3147/2001
      GOVERNMENT OF N.C.T. OF DELHI           ..... Petitioner
             Represented by: Ms.Avinash Ahlawat, Advocate with
             Ms.Latika Chaudhary, Advocate.
                       versus
      SMT.PRITAM DEVI                                       ..... Respondent

Represented by: None.

CORAM:

HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE VEENA BIRBAL

PRADEEP NANDRAJOG, J.(ORAL)

1. Regretfully, the matter calls for a remand before the Central Administrative Tribunal.

2. Relevant facts are that the respondent joined service in the Education Department in the State of Punjab. Having served there for a number of years, she was forced to try and seek employment out of Punjab inasmuch as her husband, an senior IPS Officer allocated to the State of Punjab, was under threat from the militants; so was his family, which means the respondent. Her husband Bua Singh, IPS was taken as an Officer on Special Duty in the Ministry of Home Affairs and he requested that the respondent could be accommodated at Delhi. At that time the respondent was drawing salary in Punjab as a Headmistress in the pay scale of `2000 - 3500/-.

3. Her request was considered by the Delhi Administration, and on November 12, 1991 it was, inter alia, conveyed to the respondent as under:-

"To The Under Secretary Education

Govt. of Punjab, Deptt. of Education (Edn. Cell) Chandigarh.

Sub. Taking of Smt. Pritam Devi, Headmistress on deputation with Delhi Admn. On Security grounds temporarily.

Sir, With reference to your letter No. 6 (41) - Edn. Cell- 91/1105 dated 2.5.91 on the subject cited above, I am to say that the appointment by transfer on deputation for a period f one year in this Dt. For the post of headmistress, in respect of Smt. Pritam Devi, working govt. High School, Meham (Jalandhar), can be considered on the following terms & conditions:-

1. That she will not claim for any seniority of other related benefits as admissible under the rules to the regular appointees of the Directorate of Education, Delhi Administration, Delhi. She may not be allowed to count her previous service for purpose of seniority.

2. That she will not be entitled for pay fixation/protection and pensionary benefits.

3. That the appointment of the teacher coming on deputation to Delhi Administration will be afresh in the pay scale of `1640 - 2900/- and will be subject to the general conditions of transfer of Government servants on deputation as laid down by the govt. of India, Ministry of Finance. She will draw her salary at the initial of the above pay scale.

4. That the teacher coming on transfer on deputation for a period of one year to this Administration shall not be entitled for promotion in a higher Grade or Higher post in the Administration while on deputation.

5. ............"

4. But, benefit of pay protection was granted to the respondent, meaning thereby the last drawn salary in the pay scale of `2000 - 3500/- was protected when she was taken on deputation as a Headmistress in the pay scale `1640 - 2900/-.

5. The respondent who joined temporarily on deputation as a

Headmistress requested to be permanently absorbed in the Education Department of the Government of N.C.T. of Delhi, and we note that with the promulgation of the Government of National Capital Territory of Delhi Act 1991, all departments of the erstwhile Delhi Administration became the departments of Government of N.C.T. of Delhi.

6. Vide order dated June 19, 1997, the respondent was permanently absorbed as a Headmistress in the pay scale of `1640 - 2900/-. The order reads as under:-

"The Administrator, Govt. of N.C.T. of Delhi is pleased to absorb permanently Smt. Pritam Devi, Head Mistress, Govt. Girls Sr.Sec. School No.2, East of Kailash on deputation from pay-scale of `1640 - 2900/-.

Her Pay- protection and past service benefit will be given as per relevant rules on the subject."

7. Soon after being absorbed permanently the respondent started raising all kinds of issues including her entitlement to be placed at a serial number in the seniority list of Headmistress by reckoning her past service rendered in the State of Punjab; she started claiming a right to be promoted as a Vice Principal; she started claiming a right to be placed in the pay scale of `2000

- 3500/- and to be paid salary in the replacement scale which was `7500- 12000/-, as against the replacement scale benefit given to her by the Department pertaining to the pay scale of `1640 - 2900/-.

8. The impugned decision dated December 4, 2000 passed by the Central Administrative Tribunal has referred to the fact that the order dated June 19, 1997 absorbing the respondent clearly indicated that her pay would be protected and past service benefits will be given as per relevant rules on the subject. The Tribunal has noted that no rule was shown on the subject and yet in spite thereof the Tribunal has proceeded to hold that the law declared by the Supreme Court in the decision reported as 2000 (1) SCC 644

SI Roop Lal & Anr. v. Lt.Govenor, Delhi would apply.

9. So holding, the directions issued by the Tribunal are that the respondents past service had to be counted while fixing her seniority as a Headmistress and thereafter in the promotional post of Vice Principal. On the issue of replacement scale, the Tribunal has held that since benefit of pay protection was given to the respondent and since while serving in the State of Punjab she was drawing salary in the pay scale of `2000 - 3500/-, replacement scale benefit had to be accorded by placing her in the pay scale of `7500 - 12000/- as against the pay scale of `6000 - 10500/- pertaining to the erstwhile pay scale of `1640 - 2900/-.

10. Since we are remanding the matter we would not be commenting upon the merits but would only highlight that the order of June 19, 1997 clearly indicates that the respondent was being absorbed as a Headmistress in the pay scale of `1640 - 2900/-. The next sentence pertaining to pay protection would obviously mean that basic pay received by the respondent while she was serving in the State of Punjab would be protected, meaning thereby that in the pay scale of `1640 - 2900/- her initial basic salary on permanent absorption which would not be less than what she was receiving while serving in the State of Punjab.

11. With reference to the benefit of past service, the order in question clearly indicates that the same has to be as per the relevant rules.

12. On the subject of deputationist being absorbed and seniority assigned the Supreme Court has visited the field from time to time in various decisions and we may list the same:-

(i) (1987) 4 SCC 576 K. Madhavan v. Union of India.

(ii) (1988) 2 SCC 233 R. Prabha Devi v. Government of India.

(iii) 1994 Supp. (3) SCC 376 T.K. Ponnnuswamy v. Govt. of Tamil Nadu.

(iv) (1998) 3 SCC 218 K. Chandraiah v. K. Anjaiah.

(v) (1998) 6 SCC 186 Union of India v. G.R.K. Sharma.

(vi) (2000) 1 SCC 644 Sub-Inspector Rooplal v. Lt. Governor.

(vii) (2006) 8 SCC 129 Indu Shekhar Singh v. State of UP.

13. The aforesaid decisions were considered by a Division Bench of this Court in the judgment delivered on July 22, 2010 : WP(C) No.3845/2010 UOI & Anr. v.Pankaj Agnihotri which concerns itself with a decision pronounced by a Full Bench of the Central Administrative Tribunal.

14. The aforesaid decisions of the Supreme Court would bring out the limited application of the law on the subject as declared by the Supreme Court in Sub-Inspector Rooplal's case (supra), and needless to state not in the manner it has been applied by the Tribunal in the instant case.

15. On the issue of placement in the pay scale, suffice would it be to state that the initial letter where under the respondent was temporarily taken on deputation as a Headmistress and the subsequent letter by which she was permanently absorbed clearly record that initial deputation and later on absorption, would be in the pay scale of `1640 - 2900/- and to said extent the contra view taken by the Tribunal pertaining to the replacement scale benefit to be granted to the respondent is clearly wrong and to said extent her claim in the O.A. filed by the respondent is dismissed.

16. As regards entitlement of the respondent to seniority position with reference to past service rendered in the State of Punjab, the matter has to be decided with reference to the rules applicable and the law declared by the division Bench of this Court in Pankaj Agnihotri's case (supra).

17. Since the Tribunal has not culled out the relevant facts with reference to the rule position on the subject we set aside the impugned order dated December 04, 2000 and remit the matter to the Tribunal to re-adjudicate O.A.No.2106/1999 on the subject of respondent's entitlement to have her service reckoned while in service in the State of Punjab for purposes of seniority as a Headmistress and needless to state her further entitlement to

be promoted as a Vice Principal keeping in view her seniority position.

18. The other issue raised by the respondent pertaining to the replacement scale has already been rejected by as after setting aside the impugned order and thus we clarify that the said issue need not be gone into by the Tribunal.

19. Since the matter stands remanded in the absence of any representation from the side of the respondent we direct that the Tribunal would proceed to serve a notice upon the respondent intimating the respondent the date when the Tribunal would be reconsidering the Original Application filed by the respondent.

20. There shall be no order as to costs.

(PRADEEP NANDRAJOG) JUDGE

(VEENA BIRBAL) JUDGE JANUARY 03, 2013 skb