Delhi High Court
Ms. Preeti Sharma vs Ganga International School And ... on 19 January, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 7792/2015 & conn.
% 19th January, 2017
+ W.P.(C) No. 7792/2015
MS. PREETI SHARMA ..... Petitioner
Through: Mr. Ashok Aggarwal, Advocate
versus
GANGA INTERNATIONAL SCHOOL AND ORS. ..... Respondents
Through: Mr. P.D.Gupta, Sr. Adv. with Mr.
Kamal Gupta and Ms. Tripti Gupta,
Advocates for R-1 and 2.
Mr. Sanjoy Ghose and Mr. Rhishabh
Jetley, Advocates for R/GNCTD.
+ W.P.(C) No. 7861/2015
MS. RANJANA LONGJAM ..... Petitioner
Through: Mr. Ashok Aggarwal, Advocate
versus
GANGA INTERNATIONAL SCHOOL AND ORS. ..... Respondents
Through: Mr. P.D.Gupta, Sr. Adv. with Mr.
Kamal Gupta and Ms. Tripti Gupta,
Advocates for R-1 and 2.
Mr. Sanjoy Ghose and Mr. Rhishabh
Jetley, Advocates for R/GNCTD.
+ W.P.(C) No. 9251/2015
SH. ANIL KUMAR ..... Petitioner
Through: Mr. Ashok Aggarwal, Advocate
versus
GANGA INTERNATIONAL SCHOOL & ORS. ..... Respondents
Through: Mr. P.D.Gupta, Sr. Adv. with Mr.
Kamal Gupta and Ms. Tripti Gupta,
Advocates for R-1 and 2.
Mr. Devesh Singh, ASC with Mr.
Vinod Kumar Bhati, Adv. for R-3.
+ W.P.(C) No. 9253/2015
SH. NAVEEN VASHIST ..... Petitioner
Through: Mr. Ashok Aggarwal, Advocate
versus
GANGA INTERNATIONAL SCHOOL & ORS. ..... Respondents
Through: Mr. P.D.Gupta, Sr. Adv. with Mr.
Kamal Gupta and Ms. Tripti Gupta,
Advocates for R-1 and 2.
Mr. Devesh Singh, ASC with Mr.
Vinod Kumar Bhati, Adv. for R-3.
+ W.P.(C) No. 9254/2015
MS. SANTOSH RAJPOOT ..... Petitioner
Through: Mr. Ashok Aggarwal, Advocate
versus
GANGA INTERNATIONAL SCHOOL & ORS. ..... Respondents
Through: Mr. P.D.Gupta, Sr. Adv. with Mr.
Kamal Gupta and Ms. Tripti Gupta,
Advocates for R-1 and 2.
Mr. Devesh Singh, ASC with Mr.
Vinod Kumar Bhati, Adv. for R-3.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? YES
VALMIKI J. MEHTA, J (ORAL)
W.P.(C) No. 7792/2015
1. This writ petition under Article 226 of the Constitution of India
is filed by the petitioner/Ms. Preeti Sharma seeking payment of her salary as
per the Sixth Pay Commission Report which became applicable to schools
in Delhi, including the respondent no.1/school w.e.f 11.2.2009.
2. The facts of the case are that the petitioner worked with the
respondent no.1/school till 17.6.2013 when the petitioner resigned from her
services with the respondent no.1/school. The issue therefore is for
entitlement of payment to the petitioner of her salary as per the Sixth Pay
Commission Report till the petitioner worked in the respondent no.1/school
till 17.6.2013. To decide the aspect that the petitioner would be entitled to
receive salary as per the Sixth Pay Commission Report till 17.6.2013, the
defence of the respondent no.1/school as regards the Limitation Act,1963
and consequent application of doctrine of delay and laches will have to be
considered for deciding with respect to which is the period for which
petitioner should be granted her salary as per the Sixth Pay Commission
Report in terms of the order of the Director of Education dated 11.2.2009.
3. The present petitioner had earlier filed a writ petition for the
same relief along with various other petitioners being W.P.(C) No.
6516/2014. This writ petition was filed on 16.9.2014 and the same was
withdrawn on 6.2.2015 in terms of the following order which reads as
under:-
"O R D E R
06.02.2015
1. On account of misjoinder of petitioners who do not have common
questions of facts with respect to service with the respondent no.1 school, the
present writ petition is allowed to be withdrawn with liberty to file individual
cases so far as each of them are concerned.
2. Writ petition is allowed to be withdrawn with the aforesaid liberty.
3. It is made clear that this Court has not made any observation in one
way or the other on the merits or otherwise of the respective cases of the
parties."
4. Therefore, so far as the period of pendency of the earlier writ
petition being W.P.(C) No. 6516/2014 is concerned, petitioner will get the
benefit in that the present writ petition which is filed on 13.8.2015 will stand
shifted as theoretically being filed prior to 13.8.2015, lessening the period
from 16.9.2014 to 6.2.2015 when the earlier writ petition was withdrawn by
giving benefit to the petitioner of the principle underlying Section 14 of the
Limitation Act.
5. The period from 16.9.2014 to 6.2.2015 has been calculated
with the assistance of the counsels of the parties as a total period of 144
days. This period of 144 days when reduced or taken retrospectively before
13.8.2015 would take us to in around 1.4.2015. Therefore, on behalf of the
respondent no.1/school, it is agreed that the present writ petition can be
taken as having been theoretically filed on 1.4.2015, and the limitation
period for payment should be seen for entitlement up to the period of three
years before filing of the writ petition as on 1.4.2015.
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.
9. Petitioner will be entitled to her salary in terms of the Sixth Pay
Commission Report up to a period of three years prior to 1.4.2015 i.e w.e.f.
and after 1.4.2012. Petitioner resigned from her services with the respondent
no.1/school on 17.6.2013, and therefore, petitioner will be entitled to her
salary as per the Sixth Pay Commission Report from 1.4.2012 till 17.6.2013,
provided such amount is not already paid to the petitioner. It is held that for
the period of dues prior to 1.4.2012, the same would be time barred and
hence would not be payable to the petitioner in terms of the reasoning given
above and the ratio of the judgment of the Supreme Court in the case of
Mamata Mohanty (supra).
10. Learned counsel for the petitioner sought to place reliance upon
the show cause notice issued by the respondent no.3/Director of Education
dated 5.6.2009 and the letter of the respondent no.1/school to the respondent
no.3/Director of Education dated 6.2.2010 in support of the proposition for
extending the period of limitation and for holding the dues before 1.4.2012
as not being barred by limitation. In order to appreciate the issue, let me
reproduce the said show cause notice dated 5.6.2009 and the letter of the
respondent no.1/school dated 6.2.2010, and which read as under:-
" Show Cause Notice dated 5.6.2009
OFFICE OF THE DY. DIRECTOR
DISTRICT 'WEST-B'
'G' BLOCK, VIKAS PURI
No. DDE(WB)/Pr.Br./502 Dated:- 5/6/2009
SHOW CAUSE NOTICE
Whereas the teachers of Ganga International School, Hiran Kudna, Rohtak
Road, New Delhi have represented that they are not being paid the revised
salary, other benefits and arrears as per 6th Pay Commission.
And Whereas Section 10(1) of the Delhi School Education Act, 1973 provides
that:
"The scales of pay and allowances, medical facilities, pension, gratuity,
provident fund and other prescribed benefits of the employees of a recognized
private school shall not be less than those of the employees of the
corresponding status in school run by the appropriate authority. Provided
that where the scales of pay and allowances, medical facilities, pension,
gratuity, provident fund and other prescribed benefits of the employees of any
recognized private school are less than those of the employees of the
corresponding status in the schools run by the appropriate authority, the
appropriate authority shall direct, in writing, the managing committee of
such school to bring the same up to the level of those of the employees of the
corresponding status in schools run by the appropriate authority; provided
further that the failure to comply with such direction shall be deemed to be
non-compliance with the conditions for continuing recognition of an existing
school and the provisions of section 4 shall apply accordingly."
And Whereas the reply of the Manager dated 29.4.2009 states that the PTA
unanimously resolved that the Teachers and other staff would be paid according
to 6th Pay Commission pay-scales w.e.f. 01.04.2009.
And Whereas the Teachers and other staff shall not claim any arrears of salary
on account of the 6th Pay Commission pay-scales from 01.1.2006.
And Whereas P.T.A. body is not authorized to decide the pay and perks of the
teachers.
Now, therefore, the Managing Committee of Ganga International School
is directed to implement the recommendation of 6th Pay Commission,
failing which necessary action as deemed fit will be initiated.
This issues with the prior approval of Competent Authority.
Sd/-
(INDIRA RANI SINGH)
DY. DIRECTOR OF EDN.
DISTRICT WEST B
The Manager,
Ganga International School,
Hiran Kudna, Rohtak Road,
New Delhi"
Letter dated 6.2.2010 of the respondent no1/school
ISO 9001: 2008 Certified School
Ganga International School
English Medium Co-Educational Sr. Sec. School Affiliated to C.B.S.E
With Full Boarding & Day Schooling
Ref No. GIS/881/2009-10 February 6, 2010
The Education Officer,
Zone XVII, District West-B,
Directorate of Education, Government of Delhi,
G-Block, Vikas Puri,
New Delhi.
Subject: Implementation of the Sixth Central Pay Commission pay-
scales w.e.f 01.01.2007
Dear Sir,
Your kind attention is invited to letter No.DDE(WB)/Pr.Br./ dated nil of Deputy
Director of Education (District West B) (copy enclosed) on the subject cited
above selected from the office of the Govt. Girls Senior Secondary School,
Mundka, Delhi.
In this connection, I would like to bring to your kind notice that the Sixth
Central Pay Commission pay-scales have been implemented in this school
w.e.f. 01.4.2009.
So far as the arrears of salary from 01.01.2006 to 31.03.2009 are concerned,
they are being paid to the employees in installments. The arrears for January,
February and March, 2009 have already been paid. As we go on collecting
tuition fee from the students at revised rates, the arrears shall also continue to
be cleared.
With Kind Regards,
Sd/-
Charu Kapoor
PRINCIPAL."
11. So far as the show cause notice dated 5.6.2009 issued by the
respondent no.3/Director of Education is concerned, the same cannot be said
to be an acknowledgment of liability by the respondent no.1/school of
entitlement of payment to the petitioner, and therefore, petitioner cannot
take benefit of the same for the purpose of extending the period of limitation
and for holding that there is sufficient explanation for the delay in
approaching this Court.
12. So far as the letter of the respondent no.1/school dated 6.2.2010
is concerned, the last para of the same makes it clear that the said letter is an
acknowledgement of debt with respect to dues of teachers in the respondent
no.1/school in terms of the Sixth Pay Commission Report from 1.1.2006 to
31.3.2009 i.e a period prior to 1.4.2012. This last para of the letter dated
6.2.2010 talks of salary being paid as per the Sixth Pay Commission Report
from January to March, 2009, and for the remaining arrears i.e before
January 2009 the respondent no.1/school has stated that the same would be
paid on receiving the tuition fees from the students. Therefore, the letter
dated 6.2.2010 being only for the period from 1.1.2006 to 31.3.2009 cannot
help the petitioner to claim any payment prior to 1.4.2012.
13. In view of the above, this writ petition is allowed by holding
that the petitioner is entitled to payment of salary in terms of the Sixth Pay
Commission Report as applicable to schools in Delhi, including the
respondent no.1/school, by virtue of the order of the Director of Education
dated 11.2.2009. This period for salary being paid as per the Sixth Pay
Commission Report will be from 1.4.2012 till 17.6.2013 when the petitioner
resigned from the respondent no.1/school.
14. Since the case of the respondent no.1/school is that they have
paid the complete amount, and the petitioner disputes the same, let this
aspect as to what are the amounts if payable by the respondent no.1/school
to the petitioner, be examined by the Director of Education or his nominee
and the Director of Education or his nominee, after hearing the parties will
pass a speaking order which would be communicated to the parties.
Needful be done by the Director of Education within a period of four
months from today.
15. The writ petition is accordingly partially allowed, subject to the
aforesaid observations, leaving the parties to bear their own costs.
W.P.(C) No. 7861/2015
16. This writ petition will stand disposed of in terms of the
discussion and operative portion of the aforesaid judgment passed in W.P.
(C) No. 7792/2015 with the change that the petitioner's last date of
employment with the respondent no.1/school was till 8.7.2014. Also, the
petitioner will be entitled to similar benefit of deemed retrospective filing of
this writ petition instead of on 13.8.2015, theoretically from 1.4.2015.
17. The writ petition is accordingly allowed and disposed of.
W.P.(C) No. 9251/2015
18. In this case the petitioner's services with the respondent
no.1/school came to an end on 14.8.2008 and since the payment as per the
Sixth Pay Commission Report to teachers in the school has to be from
1.1.2006, and since limitation period expired three years after 14.8.2008
when the services of the petitioner came to an end i.e limitation period
expired on 14.8.2011 and to which date even if 144 days are added with
respect to pendency of the earlier writ petition, but since the present writ
petition has been filed on 23.9.2015, adopting the observations in the W.P.
(C) No. 7792/2015, thus this writ petition is accordingly dismissed.
W.P.(C) No. 9253/2015
19. This writ petition will also stand dismissed as observed while
dismissing W.P. (C) No. 9251/2015 inasmuch as services of the petitioner in
this writ petition with the respondent no.1/school came to an end on
8.7.2008. This writ petition is accordingly dismissed for the reasons given
while deciding W.P. (C) No. 7792/2015 along with reasons given for
dismissing W.P. (C) No. 9251/2015.
W.P.(C) No. 9254/2015
20. This writ petition will be allowed in terms of the discussion
given while allowing W.P. (C) No. 7792/2015 with the fact that the deemed
date of filing of this writ petition will be 144 days prior to 23.9.2015 i.e
while this writ petition is actually filed on this date of 23.9.2015, but with
the consent of the counsel for respondent no.1/school the date of filing is
taken to be deemed to be as 1.5.2015. Also, since petitioner's services still
continue with the respondent no.1/school, petitioner will get the entire
payment of salary as per the Sixth Pay Commission Report prospectively
and continuously from the date of three years before filing of the writ
petition till the filing on 1.5.2015 and the petitioner accordingly will be
entitled to her salary in terms of the Sixth Pay Commission Report as
applicable to schools by the order of the Director of Education dated
11.2.2009, and which amounts will be again determined by the Director of
Education or his nominee as stated above while deciding W.P. (C) No.
7792/2015.
21. The writ petition is accordingly allowed and disposed of,
leaving the parties to bear their own costs.
JANUARY 19, 2017 VALMIKI J. MEHTA, J
ib
