Mrs.Sulochana vs University Of Delhi And Orr.
2013 Latest Caselaw 4417 Del

R-9

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No. 9546/2006

%                                                     26th September, 2013

MRS.SULOCHANA                                              ......Petitioner
                          Through:       Mr. H.S. Sharma, Advocate


                          VERSUS

UNIVERSITY OF DELHI AND ORR.                 ...... Respondents

Through: Mr. Mohinder J.S. Rupal, Advocate

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-Ms. Sulochana seeking

benefits of One Time Upgradation Movement (OTUM) Scheme of

respondent No. 1/University of Delhi which is on the lines of Assured

Carrier Progressive (ACP) scheme.

2. The facts of the case are that petitioner was appointed as a Library

Attendant with the respondent No.4-college/Shaheed Bhagat Singh College

on 22.7.1968. Petitioner was granted her first promotion as Library

Assistant on15.12.1973 w.e.f 1.12.1973. Petitioner got benefits of 4th and 5th

Pay Commissions' Reports and ultimately petitioner's pay scale was revised

to Rs. 4500-7000. Petitioner seeks benefit of OTUM Scheme/ACP Scheme

stating that she is entitled to financial benefits/promotions of which the

petitioner has been ignored. Petitioner superannuated from the respondent-

school on completing the age of 60 years on 31.12.2005.

3. A reading of the counter-affidavit, filed by both the respondents show

that the petitioner has rightly been in the opinion of this Court denied the

benefits which were claimed. Before I refer to the counter-affidavit of the

respondent No. 1, first let us refer to para 2 of the preliminary objection of

the counter-affidavit filed by the respondent nos. 3 and 4- employer/college

and which shows that the petitioner has got the necessary promotions or

financial upgradations under the OTUM Scheme. Petitioner also did not

have an illustrious career because she absented herself from duty on

numerous occasions and was issued numerous show cause notices.

Petitioner was even once impeached for interfering with official duties of

another employee. This para 2 of the preliminary objections of the counter-

affidavit of respondent nos. 3 and 4 reads as under :

"2. That the petitioner, was appointed as a Library Attendant, w.e.f. 22.07.1968 on a pay scale of 80-110, and served a comprehensive tenure. She was promoted as Senior Library Attendant in 1971 with a pay scale of `95-155. She was re-

promoted as Library Assistant in the scale of `110-180. She was also given the apposite proceeds under the One Time Upward Movement Scheme ("OTUM"), w.e.f. 01.01.86 and her pay scale of 1350-2200 was phased out by pay scale of `1400- 2300 w.e.f. 01.01.1986. Her pay scale was subsequently revised up to `4500-7000, w.e.f. 01.01.1996, as per the recommendations of the 5th Pay Commission, consecutively. At the time of her superannuation, the petitioner had already received three promotions/financial upgradations, one re- designation of her post, and several financial benefits from the office she held. She also received timely up-gradations as well as all due advancements on time and as per Government of India rules and regulations. As contended by the counsels of the petitioner, the petitioner's career was not a very illustrious one. She regularly absented herself from her duties and was served numerous show cause notices. The petitioner replied to these, but in a manner out rightly disapproved by the administrative authorities, which never found her excuses valid enough so as to justify her misdemeanours. At one instance, she was even impeached for interfering with official duties of another colleague. Even after all these delinquencies, the college authorities tolerated her and continued to condone her erratic and ill-mannered behaviour. Copy of documents evidencing the same are annexed herewith as Annexure-R3/1."

(underlining added)

4. In the counter-affidavit of the respondent Nos. 3 & 4/college it is also

stated that the writ petition is barred by delay & laches because the scheme

came into force in the year 1998 and whereas the present writ petition is

filed in 2006. This aspect, I am not able to agree because petitioner is stated

to have been making representations and, therefore, I do not think in the

facts of the present case, delay and laches will hit the petitioner.

5. The following paragraphs of the preliminary submissions of the

counter-affidavit of the respondent No. 1/University of Delhi will also show

that petitioner has already got benefits of two promotions or financial

upgradations inasmuch as the object of OTUM Scheme/ACP Scheme was

that to prevent financial stagnation and such financial stagnation does not

take place if either two promotions are granted or instead of a promotion a

financial upgradation i.e a higher pay-scale is granted. Petitioner has had the

benefits of two financial upgradations, one because of her promotion to the

post of a Library Assistant on 15.12.1973 w.e.f 1.12.1973 and the second

because of a higher pay-scale of ` 1400-2300 w.e.f 1.1.1986. This scale was

in fact subsequently revised to Rs. 4500-7000 as per the recommendations of

the Pay Commission. Under the ACP Scheme, if a person had got two

promotions or financial upgradations before 8.4.1998, no further financial

upgradation was to be granted under the scheme to such an employee and as

already stated above, petitioner has got two financial upgradations, first at

the time of her promotion as Library Assistant on 15.12.1973 w.e.f

1.12.1973 and thereafter when she got a higher pay-scale of Rs. 1400-2300

w.e.f 1.1.1986. The following paras of the preliminary objections of the

respondent No. 1/University of Delhi are relevant and the same reads as

under :

"III. Even on merits, the petitioner is not entitled to the reliefs prayed for. It is submitted that the petitioner was appointed to the post of Library Attendant in respondent No. 3 College on 22.7.1968 in the pay scale of ` 80 - ` 110. Thereafter, the petitioner was promoted to the higher post of Library Assistant on 1.12.1973 in the pay scale of (` 110 - ` 180 ). Pursuant to Third Pay Commission recommendations w.e.f. 1.1.1976, the pay scale of Library Assistant in which post the petitioner was working was revised to ` 260 - ` 400. It was later revised to ` `950 - ` 1500 w.e.f. 1.1.1986 pursuant to Fourth Pay Commission recommendations.

IV. It is submitted that UGC vide its communication dt. 27.12.1985, with a view to remove disparities in the pay scale of non teaching, technical and library staff working in various Universities, formulated an on time upward movement scheme. The said scheme was considered by the Executive Council of the University of Delhi its meeting held on 31.12.1985 and after examining the same adopted it w.e.f. 1.1.1986. Clause 3 of the Scheme was to the following effect:

"With a view to remove discrepancies in scales of pay etc., the commission has agreed to the removal of discrepancies in the pay scales of non teaching, technical and Library Staff by giving the upward movement as a very special case as under where: No promotion has been given in the last 8 years of regular satisfactory service;

Where persons have ben stagnating and their service has been satisfactory;

Where marginal adjustments have been made but discrepancies yet exist to a considerable extent. Where the selection grade is less than the next grade, they may be given the next grade subject to 6 years service in the core or selection grade or both combined."

V. It is submitted that as would be seen from Clause 3(a) of the Scheme, only those employees who were not granted promotion in last 8 years after having put in regular service were entitled to benefit under the scheme. In the present case, the petitioner was last promoted from the post of Library Attendant to the post of Library Assistant on 1.12.1973 and in terms of the Clause 3(a) was eligible for grant of benefit under the one time upward scheme, and the petitioner was granted the benefit and the petitioner was granted the next higher pay scale of ` 1400 -` 2300 w.e.f. 1.1.1986.

It is submitted that the subsequently the pay scale of Rs. 1400 - 2300 was revised to Rs. 4500-7000 w.e.f. 1.1.1996 as per the recommendations of the Fifth Pay Commission. It is submitted that benefits accruing to the petitioner under the one time upward movement scheme were given to her.

VI. With regard to the plea of the petitioner that she was not given the benefit under ACP scheme, its submitted that the petitioner has not placed the Scheme on record and has not shown how she is entitled to the benefits being prayed for in the Writ Petition. It is submitted that the case of the petitioner in this regard was examined earlier in 2003 but it was found that she is not entitled to benefits under the same as she did not fulfill the requirements stipulated therein.

Under the ACP Scheme, if a person has got two promotions before 8.4.1998, the person would not be entitled to the benefit of the upward movement scheme. Clause 6 of the Scheme provides that any promotion or up-gradation given to an employee shall be treated as up-gradation for the purposes of the ACP scheme. In the present case, the petitioner got a promotion in the year 1973 and was given a financial upgradation in so far as pay scale is concerned in the year 1986. The petitioner as such had one promotion and upgradation as such for the purposes of the ACP Scheme she has had two upgradations defined in the Scheme. Having regard to the same, the petitioner was not entitled to grant any further upward movement, promotion or financial benefit, under the ACP

Scheme. As stated earlier the claim of the petitioner was considered and since she did not qualify for benefits under the ACP Scheme, in view of the above, her case was rejected in the year 2003 and rightly so. Clauses 6 & 7 of the ACP Scheme are reproduced below for ready reference:

"6. Any promotion/up-gradation given to an employee of the University shall be treated as up- gradation for the purposes of the ACP Scheme. The benefits of any upward movements, any personal pay scales, any in-situ promotions, any financial upgradations, any stepping up exercises, etc., already availed of, shall be adjusted against ACP.

7. Those employees who have already been given Second Upward Movement (SUM) under personal promotion scheme etc. before 8.4.1998 shall not be eligible for any pay up-gradation under the ACT."

(underlining added)

6. In my opinion, therefore, for the benefits claimed by the petitioner of

two financial upgradations, it is seen that the same have already been

granted to the petitioner. Para 2 of counter-affidavit of respondent Nos.3

and 4 also shows petitioner got two promotions. No relief can thus be

granted on the claim that petitioner has not got two promotions under the

scheme. Further, in the scheme it is itself clarified that promotion does not

mean actual promotion, and grant of higher pay-scale will be treated as

promotion. This clarification rightly so provided because object of any ACP

Scheme is that there are no avenues of promotion which are available, and

hence to prevent stagnation, a higher pay-scale should be granted. Two

higher pay-scales were granted to the petitioner prior to 8.4.1998 as stated in

para III of counter-affidavit of respondent No.1/University, and hence the

petitioner is not entitled to any relief as claimed in the writ petition.

7. I may note that the writ petition on its own was extremely

defective because there was no reference to the relevant paras of the ACP

Scheme and nor was ACP Scheme attached. In fact, on this aspect, the

respondent No. 1 contended under preliminary objections of its counter-

affidavit at pages 102 and 103 that the petition was liable to be dismissed in

this scope. Therefore, the writ petition ordinarily would have been

dismissed on account of lacking necessary particulars, however, I have

decided the same on merits in view of the facts which have emerged from

the records of this Court in the form of counter-affidavits filed by the

respondent No. 1/University of Delhi and respondent Nos. 3 & 4/college.

8. Finally, I must to conclude put on record that the facts in the counter-

affidavit of the respondents have to be taken as correct because petitioner

has not filed rejoinder-affidavits to the counter-affidavits of respondents.

9. In view of the above, there is no merit in the writ petition and the

same is, therefore, dismissed, leaving the parties to bear their own costs.

SEPTEMBER 26, 2013/ godara                        VALMIKI J. MEHTA, J