Usha Talwar vs The Chairperson, Navyug School ...
2017 Latest Caselaw 1552 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No.1623/2010

%                                                    23rd March, 2017

USHA TALWAR                                              ..... Petitioner
                          Through:       Mr. Piyush Sharma, Adv.
                          versus

THE CHAIRPERSON, NAVYUG SCHOOL EDUCATIONAL
SOCIETY & ORS.                            ..... Respondents

Through: Mr. Tarunvir Singh Khehar, Ms. Guneet Khehar and Mr. Charanjeet Singh, Advocates for R-1,3 and 4.

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/Smt. Usha Talwar seeks the relief of being

granted higher pay-scale on achieving the second stage of the Assured

Career Promotion Scheme (ACP Scheme) on completion of 24 years of

service. Petitioner seeks the relief of grant of the higher pay-scale of

ACP-II along with compound interest.

2. Petitioner joined the respondent no. 4/school as an

Assistant Teacher on 16.3.1985, the respondent no. 4/school being

controlled by the respondent no.1/society. Petitioner had earlier

worked with an NDMC school as an Assistant Teacher from

15.9.1973. Petitioner pleads that her total service so as to compute the

24 years of service period for ACP-II benefits should be by adding the

service of the petitioner in the NDMC school from 15.9.1973 to

16.3.1985 along with the service of the petitioner with the respondent

no. 4/school from 16.3.1985. Petitioner accordingly pleads that

petitioner is deemed to have completed 12 years of service on

15.9.1985 for grant of ACP-I and 24 years of service for grant of ACP-

II on 15.9.1997. In fact I may note that the admitted position is that the

subject ACP scheme came into force only subsequently on 9.8.1999,

and thus the petitioner claims that petitioner had already completed 24

years of service before 9.8.1999 i.e by 15.9.1997, and therefore both

ACP-I and ACP-II benefits should have been granted to the petitioner

immediately on commencement of the ACP scheme on 9.8.1999, but

petitioner on 9.8.1999 was only granted the benefit of ACP-I.

3. Petitioner in addition to the aforesaid facts for pleading

that petitioner is entitled to benefits additionally of ACP-II, petitioner

also relies upon the order dated 27.4.2007 of the respondent no.

4/school.

4. Respondent nos. 1 and 4 have filed their counter

affidavits. In this counter affidavit it is pleaded that petitioner was by

the order dated 23.12.2005 wrongly granted ACP scheme but that

order was erroneously issued and therefore the same was subsequently

withdrawn on 4.4.2006. On behalf of the respondent nos. 1 and 4, it is

also pleaded that petitioner's services with the respondent no. 4/school

is independent than the petitioner's services earlier with NDMC school

from 15.9.1973 to 16.3.1985, latter date being the date when the

petitioner joined the respondent no. 4/school. Respondent nos. 1 and 4

therefore have pleaded that since the period of 12 years have to be

counted from when the petitioner joined the respondent no. 4/school on

16.3.1985, and since the 12 years period stood completed only on

16.3.1997 hence the petitioner was granted the first ACP benefit w.e.f.

9.8.1999 but the second ACP benefit only became due to the petitioner

on 16.3.2009 and since the petitioner had already superannuated on

30.10.2006, therefore the petitioner could not be granted the second

ACP benefit. Learned counsel for respondent nos. 1 and 4 has also

argued that the writ petition filed is liable to be dismissed by applying

the doctrine of delay and laches as this writ petition is hopelessly

beyond the period of limitation.

5. At the outset, I would like to note that under every ACP

scheme, and which in some institutions is called as Modified Assured

Career Promotion (MACP) Scheme and in other institutions as Time

Bound Promotion (TBP) Scheme, the benefits of the higher pay-scales

of the higher promotion posts are granted inasmuch as promotional

posts are limited and since therefore everyone cannot be promoted to

the higher posts, in order to avoid stagnation and frustration among the

employees, benefits of the higher pay-scales of the promotion posts,

without actual promotion, are granted to employees on completion of

particular number of years of service with the employer. On

completion of particular number of years of service, the grant of ACP-I

and ACP-II benefits are not automatic, because for grant of benefit of

higher pay-scales of the higher promotion posts, the candidate must

also comply with the eligibility criteria for being appointed to the

higher promotion posts. As regards the ACP scheme applicable in this

case, this is specifically mentioned in para 6 of the Conditions wherein

it is provided that the candidate in order to get benefits of the ACP

scheme must fulfil the normal promotion norms of the higher

promotion posts.

6. The prayer of the petitioner for grant of the ACP-II benefit

from 9.8.1999 shows that petitioner is claiming through this writ

petition which is filed on 9.2.2010 an entitlement which, assuming the

case of the petitioner is to be accepted, arose on 9.8.1999 itself. If

petitioner was entitled to benefit of second stage benefit of ACP

scheme on 9.8.1999, and that as per the petitioner she was not given

this benefit, then the petitioner would have had to approach this Court

within the period of limitation i.e within three years from 9.8.1999, but

as already noted above this writ petition is filed i.e around 11 years

after 9.8.1999, and the same is therefore barred by limitation. Though

the Limitation Act, 1963 strictly does not apply to writ petitions the

underlying principles of the Limitation Act apply, whereby, the time

barred writ petitions are dismissed by applying the doctrine of delay

and laches. This is so held by the Supreme Court in the case of State

of Orissa and Another Vs. Mamta Mohanty (2011) 3 SCC 436, and

paras 52 to 54 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."

7. Therefore the claim of the petitioner for second ACP

benefit, arising to the petitioner from 9.8.1999 when the scheme came

into force for the first time, this claim is a claim which is hopelessly

time barred and is therefore is hit by the doctrine of delay and laches,

hence the claim of the petitioner for second ACP benefit is liable to be

and is accordingly dismissed by applying the doctrine of delay and

laches.

8. Let me now assume that the writ petition does not have to

be dismissed by applying the doctrine of delay and laches. What

would then be the position? I have already stated above that the

requirement of the ACP scheme is that the pay-scale of the higher

promotion post would only be granted on the candidate, petitioner in

this case, fulfilling the eligibility criteria for promotion to the higher

promotion post. In the present case, hierarchy of promotion so far as

the petitioner is concerned, the first stage is of Assistant Teacher (and

which was the post to which petitioner was appointed with the

respondent no. 4/school), with the first/next promotion post being the

post of Trained Graduate Teacher (TGT), and the second promotion

post being the post of Post Graduate Teacher (PGT). Petitioner has

already been granted the first ACP benefit of TGT post with effect

from 9.8.1999 and this is specifically admitted by the petitioner in para

6 of the writ petition. The issue therefore is that can the petitioner get

the ACP-II benefit i.e the pay-scale of a PGT. The answer to this has

to be clearly in negative for the reason that the petitioner had to satisfy

this Court, both by pleadings and filing documents, that what were the

recruitment rules for promotion to the post of PGT, and how the

petitioner satisfied such eligibility criteria for being promoted to the

post of PGT, but neither there is any pleading nor are documents filed

as to what are the recruitment rules for appointment to the post of PGT

and how the petitioner satisfies the eligibility criteria for being

promoted to the post of PGT, and therefore, in the complete absence of

pleadings and relevant documents, it cannot be held that even on merits

petitioner was entitled to and can claim the second ACP benefit.

Petitioner's claim for ACP-II is therefore rejected.

9. To complete the narration I would like to note that

petitioner has placed reliance upon the Circular dated 2.8.1995 issued

by the respondent no. 1/society, and which Circular in para 1 talks of

joinder of service of employees who served earlier as teachers with

NDMC school be added to the service as teachers with respondent no.

4/school for the purpose of pensionary benefit, and to which argument

the counsel for respondent nos. 1 and 4 countered by referring to para 3

of the same Circular to that as regard the seniority issue of the

candidates, that seniority would only be from their joining in the

respondent no.4/school, however, two views possible of this Circular

dated 2.8.1995, and I need not pronounce on the same, inasmuch as, I

am assuming for the sake of the present judgment that petitioner's

earlier service with NDMC school had to be added with the respondent

no. 4/school, but even if that is done since petitioner has failed to plead

and substantiate as to how petitioner can get ACP-II benefit of the post

of PGT, hence the petitioner cannot get the ACP-II benefit being the

pay-scale of a PGT.

10. In view of the aforesaid discussion, there is no merit in the

present writ petition, and the same is therefore dismissed, leaving the

parties to bear their own costs.

MARCH 23, 2017                                 VALMIKI J. MEHTA, J
ib/Ak/godara