Delhi High Court
Vijay vs Govt. Of Nct Of Delhi & Anr. on 24 August, 2016
$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Dated: 24th August, 2016.
+ W.P.(C) 7319/2015 & CM Nos. 13436/2015, 16333/2015, 19618/2016
VIJAY ..... Petitioner
Through : Ms. Esha Mazumdar, Mr. Setu Niket,
Advocates.
versus
GOVT. OF NCT OF DELHI & ANR. ..... Respondents
Through : Mr. Anuj Aggarwal, ASC for GNCTD
with Ms. Niti Jain, Advocate for R1, 2.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE I.S.MEHTA
G.S.SISTANI, J (ORAL)
1. Challenge in this writ petition is to the order dated 30 th April, 2015
passed in OA No. 3615/2013 by the Central Administrative Tribunal
(hereinafter referred to as 'the Tribunal'). As rightly noticed by the Tribunal,
when the petitioner approached the Tribunal, it was the second round of
litigation.
2. The grievance of the petitioner is that the petitioner was not granted
promotion being an Assistant Teacher (Nursery) and she was discriminated
with respect to Assistant Teacher (Primary). The petitioner had filed a writ
petition in Delhi High Court, which was then transferred to the Tribunal and
registered as TA No. 1469/2009. This TA No. 1469/2009 was decided on 28 th
October, 2010. The operative portion of the order reads as under :-
9. In the matter of interpretation the most cardinal
principle is literal constructions with purpose and no
provision of the rules should be interpreted in a
manner to make the other provision as redundant.
The recruitment rules for the post of TGT in the
Department of Education, Govt. of NCT of Delhi
promulgated on 11.12.1991 prescribe qualification for
TGT for direct recruitment, which is fulfilled by the
applicant by promotion from the feeder category and
the mode of promotion is by promotion from Assistant
Teachers of MCD having minimum 5 years regular
service as Assistant Teacher and promotion is to be
given to Assistant Teachers of Primary Schools.
Accordingly, what has been required on a discerned
reading is a feeder category of Assistant Teacher
working in MCD in a Primary School. The
interpretation given that Assistant Teacher (Nursery)
is not an Assistant Teacher (Primary) is not eligible
for promotion is an attempt on the part of the
respondents to read out the recruitment rules, which
cannot be coutnenanced. Assistant Teacher working
in MCD in a primary school includes where the
schools are run both at nursery and primary level is
inclusive of Assistant Teacher (Nursery) working in
the primary school and has to be treated as a feeder
category for the post of TGT. MCD has wrongly not
forwarded the cases of such Teachers to the Education
Department of Government of NCT of Delhi, as a
result of which claim of applicant has been prejudiced
as well as denied promotion as TGT, which is a
fundamental right guaranteed to a government servant
as held by the Apex Court in Union of India & Others
v. Hemraj Singh Chauhan & others, 2010 (3) SCALE
272.
10. Resultantly, for the foregoing reasons, TA is
allowed to the extent of directing MCD to deem the
category of applicant as a feeder category for the post
of TGT in Education Department of Government of
NCT of Delhi and forward the claim of applicant to
the Government of NCT of Delhi, which, in turn, shall
consider the claim of applicant, subject to
qualification prescribed under the Rules for
promotion as TGT, from the due date, with all
consequences, within a period of three months from
the date of receipt of a copy of this order. No costs.
3. The complaint of the petitioner is that despite the aforesaid directions
issued by the Tribunal in TA 1469/2009 on 28th October, 2010 having
attained finality, the petitioner was not granted promotion from the date due.
Resultantly, another OA being No. 3615/2013 (subject matter of the writ
petition) was filed which was decided by the Tribunal on 30th April, 2015 by
the impugned order. The operative portion of the order reads as under :
6. In the aforementioned order, the respondents
were directed to consider the claim of the applicant
"from the due date, with all consequences". It is
noted that the applicant has not been able to establish
her claim that her juniors were promoted as TGT
earlier to the date of her promotion. The applicant
has also not produced any seniority list that could
through light on her seniority vis-à-vis other Teachers
(Primary/Nursery) whom she considered as her
juniors. The applicant has also not pin pointed the
DPC and the year in which she should have been
considered for promotion. In such a situation the
words "due date" cannot be interpreted to mean any
date different from the date of DPC in her case.
Further, the learned counsel for the applicant has
admitted that if the relief, as prayed for is granted, it
will affect the seniority position of many TGTs who
were promoted prior to the order of this Tribunal
dated 28.10.2010 but has not made any one of them as
a party in this OA.
7. Considering such consequences, this OA is
considered to be suffering form the defect of non-
joinder of necessary parties. The judgment of Hon'ble
Supreme Court in K. V. Jankiraman (supra) does not
support the claim of the applicant in as much as the
applicant has been unable to establish her case for
retrospective promotion and that she was kept away
from work by the authorities from any specific date.
8. In the above background and for the reasons
stated, we do not find any merit in this OA and the
same is dismissed. No costs.
4. Counsel for the petitioner submits that the Tribunal has erred in
observing that the onus was on the petitioner to produce the seniority list and
to point out the names of those teachers, who feature junior to her and who
have been promoted. Counsel contends that being State and having regard to
the fact that records are being maintained by the respondents, it was upon the
respondents to fairly disclose the names of such persons.
5. Ms. Mazumdar submits that based on a query raised under the Right to
Information Act, a copy of which has been placed on record, she was able to
ascertain that one Shalu Wadhwa, who was junior to her was promoted as
TGT on 13th November, 1996, while, the petitioner was granted promotion
from 30th May, 2011. The petitioner submits that there is no explanation as to
how the magical date of 30th May, 2011 appears, because the petitioner
should have been granted promotion either from the year 1996 or with effect
from 28th October, 2010, the date after passing of the order of the Tribunal.
6. Learned counsel for the respondents submits that the petitioner has
been working with the MCD and MCD would be a proper and necessary
party, however, the petitioner has failed to implead the MCD before the
Tribunal as also before this court.
7. After some hearing in the matter, it is agreed that the impugned order
of the Tribunal dated 30th April, 2015 be set aside and the matter be
remanded back to the Tribunal for fresh hearing.
8. Leave granted to the petitioner to implead MCD as a party. Leave also
granted to the petitioner to place additional documents on record before the
Tribunal. The Tribunal, if considers it appropriate, may direct the respondent
to produce the relevant record so as to enable the Tribunal to reach a
conclusion as to from which date, the petitioner would be entitled to
promotion.
9. Legal grounds of both the parties are kept open.
10. The parties are directed to appear before the Tribunal on 12th
September, 2016.
11. This writ petition is disposed of in the above terms.
CM Nos. 13436/2015, 16333/2015, 19618/2016
In view of the order passed in the writ petition, all these applications
have been rendered infructuous and are disposed of as such.
Dasti.
G.S.SISTANI
(JUDGE)
I.S.MEHTA
(JUDGE)
AUGUST 24, 2016
j
