Delhi High Court
Ms.Sarita Tiwari & Anr. vs M/S Ganga International School & ... on 2 March, 2015
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No.6456/2014
% 2nd March, 2015
MS.SARITA TIWARI & ANR. ..... Petitioners
Through: Mr. Ashok Agarwal, Advocate.
versus
M/S GANGA INTERNATIONAL SCHOOL & ORS. ..... Respondents
Through: Mr. Akhil Sibal and Mr. Kamal
Gupta, Advocates for R-1 and 2.
Ms. Purnima Maheshwari, Adv. for
R-3.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. By this writ petition filed under Article 226 of the Constitution
of India, two petitioners, seek the relief of being granted by their erstwhile
employer/respondent no.1/school, monetary emoluments as per the 6 th
Central Pay Commission Report which became applicable to schools in
terms of the circular of the Directorate of Education dated 11.2.2009.
2. It is an admitted fact that petitioner no.1 worked in the
respondent no.1-school till 31.3.2009 and petitioner no.2 worked in the
WP(C) 6456/2014 Page 1 of 5
respondent no.1-school till 3.2.2009. Both the petitioners resigned from
their services with the respondent no.1/school w.e.f 31.3.2009 and 3.2.2009
respectively. The circular of the Directorate of Education dated 11.2.2009
allowed schools to clear the arrears by 31.10.2009 and therefore the cause of
action accrued to the petitioners for grant of benefits of the 6 th Central Pay
Commission Report and monetary emoluments thereunder lastly on
31.10.2009. A writ petition therefore had to be filed in around the period of
three years, and which is the limitation period applicable if the petitioners
had chosen to file a suit against the respondent no.1-school for recovery of
monies on the basis of the circular of the Directorate of Education dated
11.2.2009.
3. The present writ petition however has been filed in September,
2014 ie much after the limitation period expiring in October, 2012, and, even
the legal notice preceding the writ petition was given by the petitioners to
the respondent no. 1 only on 20.3.2014 ie beyond the three years period
expiring on 31.10.2012.
4. Powers under Article 226 of the Constitution of India are
exercised in accordance with the laws and not to cause violation of the laws.
What is a limitation period for a suit being time barred, is applied qua a writ
WP(C) 6456/2014 Page 2 of 5
petition to which Limitation Act, 1963 does not apply, by applying the
doctrine of delay and laches. There can be overlooking of the doctrine of
delay and laches only in those cases where a representation is given by a
petitioner and which is pending for consideration, and in which
circumstances depending on the facts of a particular case, since
representation is pending consideration, no cause of action can be said to
have arisen for the petitioner to approach the court, however, in the present
case, once the limitation commenced definitely w.e.f 31.10.2009, and no
representation of the petitioners was pending for grant of monetary
emoluments, there is no reason why a writ petition filed in September, 2014
i.e beyond 31.10.2012 should be entertained by the Court. Writ petition is
therefore clearly barred by the doctrine of delay and laches.
5. Counsel for the petitioners relies upon a judgment delivered by
this Court in W.P.(C) No. 237/2013 titled as Deepika Jain Vs. Rukmini
Devi Public School & Ors. decided on 23.9.2013, however, this judgment
nowhere shows that the issue with respect to limitation and the doctrine of
delay and laches was considered and decided in this writ petition, and
therefore the judgment in the case of Deepika Jain (supra) relied upon by
the petitioner will not in any manner help the petitioner. For the sake of
WP(C) 6456/2014 Page 3 of 5
convenience the subject judgment dated 23.9.2013 passed in W.P.(C)
No.237/2013 itself is reproduced as under:-
"1. By this writ petition, petitioner seeks implementation of
th
the 6 Pay Commission Report and her consequential up-
gradation of salary as also payment of arrears of salary for the
period from 1.1.2006 to 11.10.2007.
2. The Director of Education by its circular dated 11.2.2009
has ordered the schools in Delhi to make necessary payments in
terms of the 6th Pay Commission Report.
3. I have held in many cases, including the case of Meenu
Thakur Vs. Somer Ville School & Ors. W.P.(C) 8748/2010
decided on 13.2.2013 that paucity of funds is not a ground to not
pay amounts as per the 6th Pay Commission Report and the order
of the Director of Education dated 11.2.2009. A Division Bench
of this Court in LPA 286/2010 titled as Rukmani Devi Jaipuria
Public School Vs. Sadhna Payal & Ors. decided on 11.5.2012
has also held that paucity of funds is not a ground not to make
payments as per the 6th Pay Commission Report.
4. Counsel for respondent no.1-school seeks to draw
attention of this Court to paras 7,8 etc of the order of the Director
of Education dated 11.2.2009 and argues that unless there is a
fee hike and parents deposit the higher tuition fees, there is no
liability of the school to make payment in terms of the order of
the Director of Education dated 11.2.2009.
5. I am afraid I cannot agree with the argument because
paras 1 to 3 of the circular dated 11.2.2009 make it clear that a
fee hike is not mandatory and schools have to explore payment
from the existing funds and the existing reserves to meet any
shortfall in payment of salaries and allowances etc as a
consequence of increase in the salaries and allowances of
employees. It is further made clear in para 3 of the circular that
fee hike takes place only after presenting a detailed financial
statement indicating income and expenditure on each account, to
the Parent Teacher Association and other steps have also been
taken for increase of the tuition fees. Therefore, it is clear that
no school can claim paucity of funds as the basis for refusing to
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follow the order of the Director of Education dated 11.2.2009
and the ground that fee hike has not taken place.
6. In view of the above, the writ petition is allowed and
disposed of by directing the respondent no.1-school to make
payment to the petitioner of all the amounts in terms of the order
of the Director of Education dated 11.2.2009 for the period from
1.1.2006 to 11.10.2007. Petitioner will be entitled not only to
arrears which would be payable to her but also the enhancement
of salary in terms of the 6th Pay Commission Report for the
period from 1.1.2006 to 11.10.2007 as prayed for in the writ
petition. Amounts be paid to the petitioner within a period of
three months from today alongwith interest at 6% per annum
simple from the dates on which the amounts became due till the
date of payment. In case the payment is made after a period of 3
months to the petitioner, then, petitioner will be entitled to
interest at 9% per annum simple for the period after three
months. Parties are left to bear their own costs."
6. In view of the above, the writ petition is dismissed by applying
the doctrine of delay and laches. No costs.
MARCH 02, 2015 VALMIKI J. MEHTA, J.
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