Mr. Ram Kala vs Govt. Of Nct Of Delhi & Ors.
2017 Latest Caselaw 913 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P. (C) No.7400/2007

%                                                  16th February, 2017

MR. RAM KALA                                             ..... Petitioner
                          Through:       Mr. S.S.Nehra, Mr. Neeraj Dutt
                                         Gour and Mr. Rakesh Kumar,
                                         Advs.
                          versus
GOVT. OF NCT OF DELHI & ORS.               ..... Respondents
                   Through: Mr. Arjun Mitra and Ms.
                             Jaskaran Kaur, Advs. with Mr.
                             Hari Ram, Assistant Parvi
                             Officer Zone-29, for R-1 and 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 petition under Article 226 of the Constitution

of India, the petitioner seeks the relief of being granted arrears of

senior scale of pay as a TGT from 1.4.1997 till 7.1.2003 including

interest for this period on the arrears at 24% per annum simple.

Petitioner seeks the relief by seeking quashing of the impugned order

of the respondent no.2/Director of Education dated 21.4.2007, and

which order reads as under:-

                   "               ORDER
      ..........

..........

AND WHERAS, Sh. Ram Kala, Petitioner No.3 in Writ Petitioner No.3261/2001 has claimed the balance of arrears of Rs.14,244/- from 01/01/86 to 31/01/2000 and interest to the tune of Rs.13,674/- @ 24% from 01/02/2000 to 29/02/04. He further claimed, an interest amounting to Rs.43,881/- for the period from 01/04/97 to 06/01/03, on the grounds that the school management did not provide him the opportunity to exercise the option for fixing his pay in senior scale.

AND WHEREAS, the school management has submitted that they had permitted Sh. Ram Kala to exercise his option, but the department did not permit the same and re-fixed his increment from 01/01/87 due to which Petitioner No.3 continued to draw his salary on above re-fixation of pay till 31/01/2000, i.e. upto his date of retirement. According to Management, he never represented for an option. Instead, he filed an application for option on 25/02/02. Thus, school management cannot permit to change his option against the rule at a belated stage.

..........

..........

In respect of Sh. Ram Kala, TGT's claim that he was not allowed to submit his option by the School Management, I have examined the submission of Petitioner, school management as well as Department thoroughly. It is found that there is contradiction in the statement of Petitioner and the Management regarding option. It seems that no option was filed by the petitioner as stated by him. He also did not represent or file option till his retirement on 31/01/2000 or even till 24/02/02 but filed the same at a belated stage on 25/02/02 which does not hold a valid ground to allow him to exercise option as per rules. The option is to be exercised within one month of orders as per rules. Hence, his claim for balance payment of arrears is not maintainable.

Claim of Sh. Ram Kala regarding interest @ 24% on arrear of senior scale from 01/04/97 till the date of payment is not maintainable as there is no provision for payment of interest on the arrears of pay and allowances.

Sd/-

(VIJAY KUMAR) DIRECTOR OF EDUCATION"

2. The petitioner in this case is Sh. Ram Kala. It is seen that

before a person gets a senior scale as a TGT, such a person has to

exercise an option whether such a person/employee wants a senior

scale or he wants to remain in the existing scale with increments

inasmuch as it is perfectly possible in the facts of a particular case that

actually pay received at the lower grade, on account of subsequent

increments granted, would be higher than the base senior grade/scale

pay. If the employee exercises the option of base senior scale pay he

would on the day of grant of senior scale pay may in some cases

actually end up getting lesser total salary, and therefore, from such a

person an option is sought which has to be exercised as to whether

such an employee wants a senior scale at base pay or he wants to

continue till a particular point of time of the lower pay grade with

yearly increments already granted of an ordinary TGT but not at the

senior scale of pay inasmuch as pay-scale on account of increments at

the lower grade is higher than the base pay of the senior scale TGT.

This option has to be exercised in terms of the option form, and which

option form so far as the petitioner is concerned, and as exercised by

the petitioner reads as under:-

FORM OF OPTION (As per the Central Civil Services (Revised Pay) Rules, 1997) [See Rule 6(1)] For Sr. Scale as T.G.T.

(i) I.....................................hereby elected the revised scale effect from 1st January, 1986.

(ii) I....................................hereby elect to continue to the existing scale of pay of my substantive/officiating post mentioned below until:

*the date of my next increment ............... The date of my subsequent increment ............... Raising my pay to Rs.

I vacate or cease to draw pay in the ............... Existing scale

Existing Scale Rs.1400-40-1600-50-1650-EB-50-1450-EB-50-2250-EB- 2300-60-2600.

Signature...... Ram Kala.............. Name.............Ram Kala............ Designation.........T.G.T............. Office to which employed Shri Baij Nath Sec. School, Ishwar Nagar, New Delhi Date: 13-7-99 25-2-2002

Station: New Delhi.

3. This form of option which is exercised by the petitioner

shows that the option was exercised actually on 25.2.2002 because

below the date of 13.7.1999 there is another date written of 25.2.2002.

Petitioner/Sh. Ram Kala had however already retired earlier on

31.1.2000 and therefore it is found that he had not exercised his option

even till retirement and which option was exercised much later at

belated stage on 25.2.2002. Hence, the respondent no.2/Director of

Education in terms of the fourth last para of the impugned order dated

21.4.2007 has rightly denied the petitioner the pay-scale of a senior

scale TGT.

4. I have queried from counsel for the petitioner, so as

to find out that if counsel for the petitioner is correct in arguing that it

is the respondent no.3/school which prevented the petitioner from

exercising the option, then what is the correspondence which the

petitioner has entered into with the respondent no.3/school as to

petitioner being not given the option form for being exercised. It is seen

that alongwith the writ petition not a single document has been filed

which shows any letter/communication by the petitioner to the respondent

no.3/school that respondent no.3/school was not giving the option form to

the petitioner for such form being filled in by the petitioner and thereafter

to be submitted to the respondent no.3/school. Once this is so, therefore,

by the impugned order dated 21.4.2007, the respondent no.2/Director of

Education was justified in holding that once option was not exercised by

the petitioner for grant of senior scale, and which exercise of option was

mandatory, petitioner hence cannot be granted senior scale of the TGT for

the period from 1.4.1997 till 7.1.2003. Once principal is not payable,

hence interest will also not be payable. In any case, even if principal was

payable, interest is not payable against the respondent no.2/Director of

Education in view of the detailed reasoning given while disposing of

W.P. (C) No. 7138/2007 and which discussion shows that it was not on

account of the respondent no.2/Director of Education, but it was on

account of the respondent no.3/school, that, there was delay in grant of

senior scale arrears to the teachers of the respondent no.3/school.

5. In view of the above, the writ petition is dismissed, leaving

the parties to bear their own costs.

FEBRUARY 16, 2017/ib                            VALMIKI J. MEHTA, J