Smt. N. Annapurna vs The Education Officer And Ors.
2017 Latest Caselaw 1024 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No.771/2011

%                                              22nd February, 2017

SMT. N. ANNAPURNA                                          ..... Petitioner
                          Through:       Mr. Sunil Kr. Mund and Mr.
                                         Amarnath Jaiswal, Advocates.
                          versus

THE EDUCATION OFFICER AND ORS.           ..... Respondents

Through: Mr. Varun Nishal, Adv. for R-1 & 3 to 5.

Mr. Sethu Ramalingam, Adv.

for R-2.

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 under Article 226 of the Constitution of India,

the petitioner seeks the relief of adding of her services as a teacher with

the respondent no.2-school/Dr. K.R.B.M School from 18.7.1980 to

15.7.1987 for the purpose of sanctioning of pension and pensionary

benefits. Petitioner pleads that the period from 18.7.1980 to 15.7.1987

be added to the qualifying years of service for the purposes of granting

her pension and pensionary benefits. Respondent no.2/school started

receiving the grant-in-aid from the respondent no.3/Director of

Education (DOE) w.e.f. 16.7.1987 and earlier the period of the service

of the petitioner from 18.7.1980 to 15.7.1987 with the respondent

no.2/school was when the respondent no.2/school did not receive any

grant-in-aid from the respondent no.3/DOE.

2. When the respondent no.2/school received grant-in-aid

from the respondent no.3/DOE, the petitioner was admittedly given a

fresh appointment specifically in terms of the letter dated 16.7.1987 of

the respondent no.2/school. This letter dated 16.7.1987 has been

annexed by the petitioner as Annexure P-2 to the writ petition. This

letter dated 16.7.1987 informs the petitioner that on her appointment as

Assistant Teacher with the respondent no.2/school, her pay-scale is

fixed in the scale of pay of Rs.1200-30-1560. In the writ petition paras

2 (v) & (vi) petitioner pleads that senior scale of pay granted to the

petitioner w.e.f 16.7.1999 should not have been from 16.7.1999 but

should have been instead from 18.7.1992 on account of the petitioner's

appointment being taken not from 16.7.1987 but from 18.7.1980.

These paragraphs read as under:-

"(v) The Respondent No.2 school having conceded that the Petitioner was appointed with effect from 18.07.1980, ought to have fixed the pay scale w.e.f the time when the school was admitted to grant in aid by granting increments, taking her initial appointment date i.e 18.07.1980 into consideration and ought to have granted her the senior scale of pay by 18.07.1992 i.e after completion of 12 years, but the school denied the same perpetrating gross injustice.

(vi) That against the aforesaid action of the school in fixing the minimum of the scale of the Petitioner at the time the school was admitted to grant in aid and as well as granting the Senior Pay Scale w.e.f. 16.07.1999 instead of 18.07.1992, the Petitioner made several representations including ventilation through personal approach to Respondent No.2, leading to mere forwarding by Respondent No.2 to Respondent No.1 seeking clarification about the treatment of the total service rendered in either substantive or in any officiating capacity or temporary capacity under the management of the Respondent No.2 school as total service or not for the purpose of pension and pensionary benefits. In this connection, it is respectfully submitted that the Hon'ble High Court of Delhi as well as the Hon'ble Supreme Court of India have been pleased to hold that the pay scale of those who were working in the recognized schools prior to admitting to grant in aid, have to be fixed taking into consideration the earlier service rendered by them as the school was a recognized one. A copy of memorandum dated 16.07.1987 is annexed herewith and marked as Annexure-P/2."

3. Petitioner has pleaded in a writ petition that she made

various representations to the respondent nos. 1 and 3 to add the period

of service from 18.7.1980 to 15.7.1987 for determining her total

qualifying years of service for pensionary benefits, and which are

referred to in the communications of the respondent no.2/school to the

respondent no.3/DOE dated 17/23.10.2002, 16.1.2003, 23.1.2003 and

3.3.2009. Petitioner thereafter had served a legal notice to the

respondent no.3/DOE through the respondent no.1 on 18.7.2009.

Respondent no.2/school rejected the stand of the petitioner in her legal

notice by the reply of the school dated 21.8.2009. Respondent

no.3/DOE through the respondent no.4 rejected the claim of the

petitioner by its letter dated 21.10.2009. Petitioner therefore has filed

this writ petition in this Court on 4.2.2011.

4. Learned counsel for the petitioner, in support of the

argument that the qualifying service of the petitioner for the purpose of

calculation of pension and pensionary benefits should include the

period from 18.7.1980 to 15.7.1987 (the period when the respondent

no.2/school was not receiving the grant-in-aid) relies upon a judgment

of a learned Single Judge of this Court in the case of P.M. Lalitha

Lekha Vs. Lt. Governor and Ors. 186 (2012) DLT 538. In this

judgment a learned Single Judge of this Court by applying Section 10

of the Delhi School Education Act, 1973 held that qualifying years of

service means total years of service of a teacher in a school, whether

the same be after the grant-in-aid or before the grant-in-aid. After

holding the employee entitled to qualifying service of the total period

of service, including the period of pre grant-in-aid, the learned Single

Judge in P.M. Lalitha Lekha's case (supra) however apportioned the

financial liabilities towards pensionary benefits of the employee

between the Director of Education and private management of the

school by holding that for the period of service of pre grant-in-aid, only

the school management was financially liable and not the Director of

Education.

5. The issue requiring determination is that whether

petitioner who retired on 30.6.2006 is entitled to pension by taking her

service period not from 16.7.1987 to 30.6.2006 but the period of

service of the petitioner qualifying for pension should be taken from

18.7.1980 to 30.6.2006. For determining the main issue there are two

issues which arise for determination. The first issue is that whether the

period of service of the petitioner from 18.7.1980 to 15.7.1987 should

be added as a qualifying service period for the purpose of grant of

pensionary benefits in view of the ratio of the judgment in P.M.

Lalitha Lekha's case (supra). The second issue is that whether in spite

of the ratio in the case of P.M.Lalitha Lekha (supra) the petitioner is

not entitled to add to her service period for determining qualifying

service the period from 18.7.1980 to 15.7.1987, inasmuch as, the

petitioner firstly is estopped in the year 2011 when the writ petition is

filed from challenging the scale of pay granted way back to the

petitioner when she was appointed by the respondent no.2/school by

the letter dated 16.7.1987 at a pay-scale of Rs.1200-30-1560 because in

effect the petitioner by seeking to add the period from 18.7.1980 to

15.7.1987 for qualifying the years of service for determining

pensionary benefits will in effect be challenging the scale of pay

granted to the petitioner way back on 16.7.1987 and the petitioner

acted upon and took benefit of which for around 15 years till 2002 and

only when she first raised the issue. Secondly if the petitioner in 2002

or in 2011 (when the writ petition was filed) is allowed to challenge the

letter dated 16.7.1987 of her appointment and which challenge is time

barred and hit by the doctrine of delay and laches.

6. So far as the issue of determination of the expression

"qualifying years of service" for determination of pensionary benefits,

petitioner no doubt can take benefit of the ratio of the judgment of a

learned Single Judge of this Court in the case of P.M.Lalitha Lekha

(supra) with the clarification that if the pensionary benefits were to be

granted then the liability of the respondent no.3/DOE would have been

only limited to the period post the grant-in-aid from 16.7.1987, and

that for the period of service before the petitioner from 18.7.1980 to

15.7.1987 with the respondent no.2/school, the pensionary liability for

this period will not be upon the respondent no.3/DOE but only upon

the respondent no.2/school exclusively. However, in my opinion, the

writ petition is liable to be dismissed on the grounds of estoppel as also

application of doctrine of delay and laches by applying the principles

of limitation contained in the Limitation Act, 1963.

7. When the respondent no.2/school received grant-in-aid,

the petitioner was given a specific and fresh appointment by the

respondent no.2/school in terms of the letter dated 16.7.1987, and

which letter reads as under:-

      "Ref. No.F.AES/RBM/57/87                               Dated 16th July' 87
                                MEMORANDUM

Smt. N. Annapurna is hereby informed that she has been selected as an Assistant Teacher in the Andhra Education Society Dr. K. Ramesh Babu Memorial School New Delhi-65, in the scale of pay of Rs.1200.00 plus allowances, under the following terms and conditions:

1. She will be allowed the initial pay of Rs.1200.00 in the Scale of Pay of Rs.1200-30-1560 EB 40-2040 plus allowances as admissible from time to time.

2. She will be on probation for a period of one year.

3. During the period of probation she will be liable for termination with one month's notice.

4. During the period of probation, she will have to give one month's notice to the authorities, if she wants to leave the job.

5. She has to produce two character certificates from two different gazette officers at the time of joining. She is also required to produce a Medical certificate of fitness from a Hospital/Dispensary of the Delhi Administration, Delhi. If the offer of appointment is acceptable to her She must report to duty to the Headmistress on 16th July' 87 at 8.00 A.M. This appointment is subject to the approval of the Directorate of Education, Delhi Administration Delhi.

Sd/-

MANAGER C.C.

1. Smt. N. Annapurna

2. The District Education Office Zone-S-19.

3. Personal File."

8. Petitioner has indubitably taken benefit of and acted upon

this letter dated 16.7.1987 giving a specific pay scale. Accordingly, the

petitioner also got senior scale from 16.7.1999. Today, if the petitioner

is allowed to claim addition to the qualifying years of service, the

period from 18.7.1980 to 15.7.1987, then, effectively the petitioner is

allowed not only to challenge the terms and conditions of her

appointment by the letter of appointment dated 16.7.1987, and which

would be after a period of 23 years (writ petition being filed on

4.2.2011), in fact the petitioner will be further allowed to challenge the

decision of granting senior pay scale from 16.7.1999 i.e a fact which

took place around 12 years prior to filing of the writ petition. This

cannot be allowed. The claim of the petitioner is therefore clearly

barred by principles of limitation contained in the Limitation Act and

the writ petition is liable to be dismissed therefore by applying the

doctrine of delay and laches. That the principles of the Limitation Act

apply to writ petitions for the writ petition being dismissed as being

barred by the doctrine of delay and laches has been so held by the

Supreme Court in the case of State of Orissa and Another Vs. Mamata

Mohanty (2011) 3 SCC 436 and the relevant paras of which judgment

read as under:-

"52. In the very first appeal, the respondent filed writ petition on 11.11.2005 claiming relief under the Notification dated 6.10.1989 w.e.f. 1.1.1986 without furnishing any explanation for such inordinate delay and on laches on her part. Section 3 of the Limitation Act 1963, makes it obligatory on the part of the court to dismiss the Suit or appeal if made after the prescribed period even though the limitation is not set up as a defence and there is no plea to raise the issue of limitation even at appellate stage because in some of the cases it may go to the root of the matter.

53. Needless to say that Limitation Act 1963 does not apply in writ jurisdiction. However, the doctrine of limitation being based on public policy, the principles enshrined therein are applicable and writ petitions are dismissed at initial stage on the ground of delay and laches. In a case like at hand, getting a particular pay scale may give rise to a recurring cause of action. In such an eventuality, the petition may be dismissed on the ground of delay and laches and the court may refuse to grant relief

for the initial period in case of an unexplained and inordinate delay. In the instant case, the Respondent claimed the relief from 1.1.1986 by filing a petition on 11.11.2005 but the High Court for some unexplained reason granted the relief w.e.f. 1.6.1984, though even the Notification dated 6.10.1989 makes it applicable w.e.f. 1.1.1986.

54. This Court has consistently rejected the contention that a petition should be considered ignoring the delay and laches in case the petitioner approaches the Court after coming to know of the relief granted by the Court in a similar case as the same cannot furnish a proper explanation for delay and laches. A litigant cannot wake up from deep slumber and claim impetus from the judgment in cases where some diligent person had approached the Court within a reasonable time."

9. It is also seen that the petitioner at the very best by a

representation firstly made only in the year 2002 (in view of the letter

dated 17/23.10.2002 of the respondent no.2/school to the respondent

no.3/DOE) seeks to challenge the finality of the terms of her

appointment way back on 16.7.1987. By a representation of the year

2002, and assuming which extends the cause of action till the same was

rejected by the respondent no.3/DOE vide letter dated 21.8.2009,

petitioner cannot be allowed to challenge in the year 2002 a decision

taken around 15 years back on 16.7.1987 of granting a particular pay

scale to the petitioner of Rs.1200-30-1560/-.

10. Hence the writ petition is liable to be and is accordingly

dismissed by applying the principles of the Limitation Act and the

doctrine of delay and laches in view of the ratio of the judgment of the

Supreme Court in the case of Mamata Mohanty (supra). The writ

petition is also liable to be and is accordingly dismissed by applying

the doctrine of estoppel against the petitioner inasmuch as petitioner

acted upon and took benefit of her appointment to the respondent

no.2/school in terms of the letter of appointment dated 16.7.1987 and

petitioner cannot now question the terms of appointment and the pay

scale granted by the letter of 16.7.1987 by claiming that petitioner in

fact should be allowed a higher pay scale on account of earlier years of

service from 18.7.1980 to 15.7.1987.

11. In view of the above discussion, the writ petition will

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

FEBRUARY 22, 2017                             VALMIKI J. MEHTA, J
Ne/ib