Delhi High Court
Mrs. R.K. Jodhka & Ors. vs Director Of Education & Ors. on 8 February, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No.1300/2016
% 8th February, 2017
MRS. R.K. JODHKA & ORS. ..... Petitioners
Through: Mr. J.R. Bajaj, Advocate with
Mr. D.R. Bhatia, Advocate.
versus
DIRECTOR OF EDUCATION & ORS. ..... Respondents
Through: Mr. Jasmeet Singh, Advocate
with Ms. Gayatri Aryan,
Advocate for respondent Nos.2
to 6.
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 a total of 27 petitioners.
These 27 petitioners seek payment of their salaries as per the scales of
pay of the 6th Pay Commission Report as made applicable to schools in
Delhi by virtue of the order of the Director of Education dated
11.2.2009. The dates of retirement of the different petitioners or
termination of services so far as petitioner no.12 as per the stand of the
school is concerned, are stated in Tables A, B and C of the counter
affidavit of the school represented by respondent nos.2 to 6. These
Tables read as under:-
" TABLE A
S. No. Name Party Position Retirement
Held Date
1) R.K. Jodhka Petitioner Offtg. 30.06.2011
no.1 Principal
2) Mrs. Petitioner TGT 30.11.2009
Varinder Kaur No.4
Lamba
3) Mrs. Petitioner PGT 31.01.2009
Harjinder No.7
Kaur Rekhi
4) Mrs. Jaswant Petitioner Aya 31.10.2010
Kaur no.8
5) Ms. Rani Petitioner TGT 31.03.2009
Parmar no.9
6) Mrs. Sudesh Petitioner TGT 31.03.2010
no.10
7) Mrs. Bachan Petitioner PGT 31.10.2012
Kaur Bindra no.11
8) Mrs. Petitioner TGT 31.03.2010
Davinder no.13
Kaur Jolly
9) Mrs. Petitioner Vice Principal 31.08.2009
Mandeep no.15
Chaudhry
10) Mrs. Petitioner TGT 31.01.2012
Paramdeep no.16
Kaur
11) Mrs. Avtar Petitioner Office Clerk 31.11.2010
Kaur no.19
12) Mrs. Amrit Petitioner PRT 04.04.2012
Vir Sikand no.20
13) Mr. S. Mohan Petitioner Watchman 31.08.2012
Singh no.22
14) Mrs. Swaraj Petitioner 31.03.2009
Pachauri no.26
TABLE B
S. No. Name Party Position Date of
Held termination
1) Mrs. Petitioner TGT 31.03.2012
Harvinder no.12 (Terminated)
Kaur Talwar
TABLE C
S. No. Name Party Date of
Retirement
1) Mrs. Parkash Kaur Petitioner 31.12.2014
no.3
2) Mrs. Manjeet Kaur Petitioner 31.01.2015
no.5
3) Mrs. Darshan Kaur Petitioner 30.09.2014
Sharma no.6
4) Mrs. Surinder Kaur Petitioner 30.06.2013
no.14
5) Mrs. Rajinder Kaur Petitioner 31.07.2013
no.17
6) Mrs. Sukhwinder Kaur Petitioner 30.11.2014
Jolly no.18
7) Mrs. Harjeet Kaur Petitioner 01.08.2014
Bhatia no.21
8) Mr. Rajinder Pal Singh Petitioner 31.03.2013
no.23
9) Mrs. Jasvinder Taneja Petitioner 31.12.2013
no.25
10) Late Mrs. Gurdip Kaur Petitioner 03.04.2015
(Through husband no.27
Satnam Singh Sohal)
11) Mrs. Tarwinder Kaur Petitioner 31.10.2015
no.24
2. No doubt, by virtue of the order of the Director of
Education dated 11.2.2009, a teacher of school is entitled to payment
of salary as per the 6th Pay Commission Report, however, such a
petitioner who approaches this Court must approach this Court within
limitation in view of ratio of the judgment of the Supreme Court in the
case of State of Orissa and Another Vs. Mamta Mohanty (2011) 3
SCC 436. Learned counsel for the respondent nos.2 to 6/school has
along with the counter affidavit relied upon a judgment passed by this
Court in more or less identical circumstances where the claim of the
teacher in a school in Delhi was denied on the ground of limitation and
which judgment is dated 16.4.2015 in W.P. (C) No.4107/2013 titled as
Dr. Avtar Singh Vs. Guru Nanak Public School & Ors. and which
short judgment reads as under:-
"1. Petitioner, who was the Principal of the respondent no.1/School
and who left the services of the School on 15.4.2009, claims that he
should be paid the benefits payable to employees of the School in terms
of 6th Central Pay Commission Report as adopted by the schools by the
circular of the Director of Education dated 11.2.2009.
2. Learned counsel for the respondents argues that the petitioner
left the school on 15.4.2009 and this writ petition is filed on 29.6.2013 i.e
well beyond the period of limitation of three years and therefore
monetary reliefs beyond the period of three years cannot be granted as
they become time barred.
3. The Supreme Court in its recent judgment in the case of State of
Orissa and Anr. Vs. Mamata Mohanty (2011) 3 SCC 436 has held 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. (See Lachhmi Sewak Sahu v. Ram Rup
Sahu: AIR 1994 PC 24 and Kamlesh Babu v. Lajpat Rai Sharma:
(2008) 12 SCC 577.)
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. (See Rup Diamonds v. Union of India: (1989) 2 SCC
356, State of Karnataka v. S.M. Kotrayya: (1996) 6 SCC 267
and Jagdish Lal v. State of Haryana: (1997) 6 SCC 538.)"
(underlining added)
4. The aforesaid paragraphs make it clear that though strictly the
Limitation Act, 1963 does not apply to writ petitions but the principle of
limitation will definitely apply, and on applying the principle of
limitation i.e a period of three years in this case, the writ petition would
be barred by the doctrine of delay and laches inasmuch as the cause of
action in this case accrued on 15.4.2009 when the petitioner left the
services of the School and he was not paid the benefits payable and
which were to be claimed by the petitioner in terms of the report of the
6th Central Pay Commission and the circular of the Director of Education
dated 11.2.2009.
5. In view of the above, I have no option but to dismiss the petition
on account of the petition being barred by delay and laches. No costs."
3. I have also recently examined this aspect afresh in the
judgment in bunch of cases with lead case being Ms. Preeti Sharma
Vs. Ganga International School and Ors. in W.P.(C) No.7792/2015
decided on 19.1.2017, and the relevant paras of this judgment in the
case of Ms. Preeti Sharma (supra) are paras 6 to 8, and which paras
read as under:-
"6. That Limitation Act does not strictly apply to writ petitions, but
principles of Limitation Act do apply by application of doctrine of delay
and laches in a writ petition is no longer res integra and has been so held
by the Supreme Court in the case of State of Orissa and Another Vs.
Mamata Mohanty, (2011) 3 SCC 436. Paras 52 to 54 of the judgment in
the case of Mamata Mohanty (supra) are relevant and these paras 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."
7. The reasoning of the case of Mamata Mohanty (supra) is that if
a suit to claim the same relief is time barred and has to be dismissed, then
at that stage a writ petition cannot be filed and the limitation period
provided by the Limitation Act be circumvented. Under Article 226 of
the Constitution of India orders are passed for the purposes of applying
the laws of this country and not defeating the laws of this country
including the Limitation Act. If limitation period is held not at all to
apply to writ petitions as such, then a suit which is time barred will be
filed as a writ petition for being entertained. Also, doctrine of delay and
laches in their application to a writ petition are considered in a liberal
manner, however, such doctrine of delay and laches is considered on
principles equivalent as contained either in Section 14 of the Limitation
Act or similar to acknowledgments of liability under Sections 18 and 19
of the Limitation Act i.e there is a ground for extension of limitation
period beyond the period provided under the schedule of the Limitation
Act.
8. Also, the issue of extension of limitation will arise provided a
cause of action arises i.e if a representation is filed by an employee and
pending for favorable consideration before an employer in terms of a
letter of the employer, then till an actual refusal a cause of action would
not arise for an employee to approach the Court, and in which case, since
limitation does not accrue till actual refusal, then in such circumstances,
the issue of delay and laches is considered liberally in favour of the
petitioner/employee. With this position of law let us turn to the facts of
the present case."
4. Therefore so far as petitioners who are stated in Tables A
and B above, since the writ petition has been filed on 12.2.2016, and
which is beyond the period of three years of the date of
retirement/termination of these petitioners (termination being disputed
and the same only being a retirement as per the case of petitioner no.12
and which aspect in any case will not make any difference to result),
the ratio of the judgment of the Supreme Court in the case of Mamta
Mohanty (supra) will apply and as also adopted by this Court in the
judgments in the cases of Dr. Avtar Singh (supra) and Ms. Preeti
Sharma (supra) as reproduced above. The writ petition, so far as
petitioners stated in Tables A and B are concerned, is dismissed by
applying the doctrine of delay and laches with the underlying principle
of limitation.
5. So far as petitioners who are stated in Table C are
concerned, such persons have approached this Court within the
limitation period i.e within three years of the date of their retirements.
However, such petitioners will only get amounts which are due from a
date of three years prior to filing of the writ petition and till the dates of
their retirements. Accordingly, so far as petitioners stated in Table C
are concerned, the respondent nos.2 to 6/school will be liable to pay to
such petitioners their arrears of salary in terms of 6 th Pay Commission
Report from 12.2.2013 till the dates of their respective retirements as
stated in Table C above. The respondent nos.2 to 6/school will make
payments of monetary emoluments to such petitioners within a period
of three months from today along with simple interest @ 5% per
annum from the dates the amounts became due till the amounts are
paid to these petitioners by the respondent nos.2 to 6/school.
6. Writ petition is partly allowed and partly dismissed and
disposed of in terms of aforesaid observations, leaving the parties to
bear their own costs.
FEBRUARY 08, 2017 VALMIKI J. MEHTA, J
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