Delhi High Court
Data Deen vs Directorate Of Education & Anr. on 22 February, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No.7732/2010
% 22nd February, 2017
DATA DEEN ..... Petitioner
Through: Mr. Rajat Aneja, Advocate with
Ms. Shifa Nagar, Advocate.
versus
DIRECTORATE OF EDUCATION & ANR. ..... Respondents
Through: Mr. Satyakam, Additional
Standing Counsel.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
C.M. No.6498/2012 (under Section 151 CPC by petitioner)
1. The relief which is claimed in this application is totally
beyond the scope of the present writ petition. By this interim
application, petitioner sought correction of lower scale of pay granted
to the petitioner on account of recalculation order of the respondent
no.3/employer. An interim application cannot be beyond the scope of
the main writ petition. If there is a fresh cause of action which is not
included in the scope of the cause of action of the main writ petition,
petitioner necessarily has to file appropriate independent proceedings,
but an interim application cannot become main writ petition and the
main cause of action for being decided in a pending writ petition based
on a different cause of action and whose scope of cause of action is not
the scope of cause of action as stated in the interim application.
This application is therefore dismissed and the interim
orders, if any, are vacated.
+W.P.(C) No.7732/2010
2. In this writ petition, the following reliefs are claimed:-
"It is, therefore, most respectfully prayed that this Hon'ble Court may
kindly be pleased to issue of a writ in the nature of MANDAMUS and/or
any other appropriate Writ, Order or Direction of like nature directing the
Respondents to treat the petitioner as a member of teaching staff, and to
remove the anomalies in fixation of Pay Scale of the Petitioner under
Fifth Pay Commission recommendation w.e.f. 01.01.1996, to remove the
anomaly on grant of 2nd ACP i.e. 01.05.2001, and to further direct the
Respondents to rectification the Pay Scale of the Petitioner
w.e.f.01.02.2009 i.e. the date of promotion to Laboratory Assistant, grant
of facility of Half Pay Leave to the petitioner since the date of his joining
i.e. 01.05.1977 and to further issue a Writ of MANDAMUS and/or any
other Writ, Rule, Order or Direction to Respondents to pay the arrears
with interest @ 10% in the light of the Order dated 12.01.2009 and
24.02.2009 passed by this Hon'ble Court in L.P.A.No. 4802008.
Any other relief, which this Hon'ble Court deem fit and proper in the
facts and circumstances of the present case may also be passed in favour
of the petitioner and against the respondents."
3. Counsel for the petitioner states that as of date the
omnibus prayer clause does not survive but what survives is the relief
which will arise as per averments made in para 3(xix) of the writ
petition and which para reads as under:-
"3(xix) That it is respectfully submitted that the Office Order dated
26.04.2010 thereby fixing the pay scale of the petitioner at Rs. 8530/- is
writ with anomalies in as much as if it is compared with the basic pay
scale of one of the deceased employee of the respondent No.3 namely
Kishan Chand, who expired on 002.06.2010 and was also working at the
post of Laboratory Assistant with the Respondent No.3, it is clearly
discernible that the said employee namely Late Shri Kishan Chand was
having basic pay of Rs. 8680/- as on 01.06.2010. It is pertinent to
mention here that late Shri Kishan Chand joined the services of the
respondent No.3 on 01.07.1982 as a peon whereas the petitioner joined
the services of the respondent nO.3 on 01.05.1977 as a peon and as such
the said employee namely Late Shri Kishan Chand was five years junior
to the petitioner. Moreover, the petitioner was promoted to the post of
Laboratory Assistant w.e.f. 01.02.2009 whereas Late Shri Kishan Chand
was promoted to the post of Laboratory Assistant w.e.f. 01.01.2010.
Thus, the conduct of the respondent No. 3 in discriminating against the
petitioner is violative of the fundamental right of equality guaranteed to
the petitioner under the Constitution of India. The Office order dated
17.07.2010 depicting the pay scale of the deceased Kishan Chand as on
01.06.2010 is hereby annexed ANNEXURE P-16 to the present
petition."
4. Effectively what is argued is that the scale of pay of the
petitioner is wrongly calculated because juniors to the petitioner are
receiving higher pay scales. Grant of pay scale is fact dependant i.e
depending on the facts, on the service conditions and facts as regards
services rendered of each employee. There is no law that if a junior is
getting higher pay, then, the senior must also get the higher pay,
inasmuch as, it is possible that a junior in service would have got
promotion to the higher post earlier or a higher pay scale earlier than
the senior person. It all depends upon the facts of each case.
5. In the present case admittedly petitioner as per the earlier
litigation got promotion to the post of Lab Assistant from 1.2.2009.
This is undisputed. Once petitioner got promotion to the post of Lab
Assistant from 1.2.2009, obviously the pay scale of Lab Assistant has
to be from 1.2.2009 and not from an earlier date. Pay scale/grade pay
in the post of Lab Assistant for the petitioner will commence from
1.2.2009 and not from an earlier date, just because and simply because
the petitioner chooses to compare himself with other employees of the
employer who have received certain higher pay scales.
6. In view of the above, no relief of higher pay scale can be
granted to the petitioner, inasmuch, as petitioner has received the
legally payable pay scale of Lab Assistant w.e.f 1.2.2009.
7. Dismissed.
FEBRUARY 22, 2017 VALMIKI J. MEHTA, J
Ne
