Delhi High Court
Mrs. Krishan Kanta Sharma & Ors vs East Delhi Municipal Corporation ... on 26 November, 2020
$~S-1
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Delivered On: 26.11.2020
W.P.(C) 11200/2017
MRS. KRISHAN KANTA SHARMA & ORS. ..... Petitioner
versus
EAST DELHI MUNICIPAL CORPORATION
& ORS. ..... Respondents
Advocates who appeared in this case:
For the Petitioner : None
For the Respondents : Mr. Gaurang Kanth, Standing Counsel
(SDMC) with Ms. Biji Rajesh and Mr.
Shreesh Chadha, Advocates for Review
Petitioner
CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
HON'BLE MR. JUSTICE TALWANT SINGH
JUDGMENT
SIDDHARTH MRIDUL, J. (Open Court - via Video Conferencing)
The present matter has been taken up for hearing through Video
Conferencing on account of COVID-19 pandemic.
CM APPL.24318/2020 (Condonation of Delay)
The present application under Section 5 of the Limitation Act,
1963 read with Section 151 of the Code of Civil Procedure, 1908
instituted on behalf of the applicant/review petitioner praying as
follows:-
(a) Allow the present Application and condone the delay
of 157 which has been caused in filing the
accompanying Review Petition.
(b) Pass any other order(s) and further order(s) as may be
deemed fit in the interest of justice.
Having heard lerned counsel appearing on behalf of the
applicant/review petitioner and in view of the order we propose to
pass in these review petitions, the delay of 157 days in filing them is
condoned in the interest of justice.
The application is allowed and disposed of accordingly.
REVIEW PET.145/2020 & REVIEW PET.146/2020
1. The present Review Petitions Nos.145/2020 and 146/2020
under Order 47 Rule 1 read with Section 114 of the Code of Civil
Procedure, 1908 instituted on behalf of the East Delhi Municipal
Corporation/respondent No.1 and South Delhi Municipal
Corporation/respondent No.2 respectively, (hereinafter referred to as
the 'Municipal Corporations') pray as follows:-
(a) Review the order dated 17.01.2020 passed
by this Hon'ble Court in W.P.C No. 11200
of 2017 titled as "Krishan Kanta Sharma vs.
Ors. vs EDMC".
(b) Pass any other order(s) and further order(s)
as may be deemed fit in the interest of
justice.
2. It is the case of the Municipal Corporations in the present
petitions seeking review of the judgment and order dated 17.01.2020
(hereinafter referred to as the 'subject order), passed by this Court in
W.P.(C) 11200/2017 that the same is bad essentially on the ground
that it has incorrectly recorded a finding of fact in the subject order to
the effect that, 'there is nothing in the applicable rules to indicate that
the benefits of the ACP Scheme shall hinge upon one's number of
years of service'.
3. Mr. Gaurang Kanth, learned Standing Counsel appearing on
behalf of the Municipal Corporations states that the above finding is
contrary to the plain reading of the ACP Scheme itself, which clearly
provides that only an employee who serves regularly for a period of 12
years and 24 years sequentially are entitled to the first ACP Scheme
and second ACP Scheme, respectively.
4. Having heard Mr. Gaurang Kanth, learned counsel appearing on
behalf of the review petitioners at length and perused the decision of
this Court dated 16.11.2005 in W.P.(C) 148/1997, titled as 'Smt.
Urmil Chopra vs. The Commissioner & Anr.', as well as, the order
under review read in conjunction with the material placed on record,
we find ourselves unable to agree with the submission made on behalf
of the Municipal Corporations; for the reason that in Smt. Urmil
Chopra (supra) this Court clearly and unequivocally held that she
would be entitled to be considered as a Regular Community Worker
from the date on which she was first employed part time in that post.
5. The above ratio to the facts of the present case has been
considered by this Court vide order dated 17.01.2020 and applied as
follows:-
"1. Learned counsel for the Respondents does not dispute the fact
that the Petitioners stand on the same footing as Mrs. Urmil
Chopra, in whose W.P.(C) 148/1997 (Smt. Urmil Chopra v.
The Commissioner) relief was granted by a judgment dated
16th November, 2005. However, he seeks to distinguish its
applicability on two counts: first, that Mrs. Urmil Chopra has
put in 13 years of service, whereas the Petitioners have served
for a lesser length of time. As far as this objection is
concerned, the Court finds that there is nothing in the
applicable rules to indicate that the benefit of the ACP
Scheme shall hinge upon one's number of years of service.
2. The second point of distinction is made by referring to the
judgment of this Court dated 12th March, 2013 in W.P.(C)
1261/2012 (MCD v. Mrs. Raj Bala Mann and batch), where
the Court noted that Mrs. Urmil Chopra, although engaged as
a 'Community Worker (Part Time)' was, as a matter of fact,
working on a full time basis.
3. As far as the present petition is concerned, the situation is no
different, as has been noted by the CAT and in an order dated
17th October, 2008 of this Court in W.P.(C) 4009/2007
(Krishna Kant Sharma v. Municipal Corporation of Delhi)
that these Petitioners too, although termed as 'Community
Worker (Part Time)' were in fact working on a full time basis.
4. Thus, with there being no points of distinction between the
case of Mrs. Urmil Chopra and the case on hand, the Court
sees no reason why the Petitioners be denied the benefit
extended to Mrs. Urmil Chopra. Consequently, the impugned
order dated 6th February, 2017 of the CAT as well as the
order dated 6th April, 2017 in R.A. No. 83/2020 are hereby
set aside. A direction is issued to the Respondents to grant
each of the Petitioners the benefits of the 2nd financial
upgradation under the ACP Scheme from their respective due
dates. The arrears shall be paid not later than 12 weeks from
today, failing which the Respondents will be liable to pay
simple interest at 6% per annum on said arrears for the period
of delay.
5. The petition is disposed of."
6. A plain reading of the above extracted paragraphs reflects, that
this Court vide the order under review, held that the original
petitioners herein would be considered to have been engaged on a full
time basis, even though their initial engagement was characterized as
'Community Worker (Part Time)'; and would resultantly be entitled to
the benefit extended to Mrs. Urmil Chopra.
7. Mr. Gaurang Kanth, learned Standing Counsel appearing on
behalf of the review petitioners invites our attention to paragraph 1 of
the decision in Smt. Urmil Chopra (supra) to urge that the benefit
granted to her was only in the context of her entitlement to pensionary
benefits and did not extend to the consideration of the ACP Scheme.
8. In our considered view, if we were to accept this contention
urged on behalf of the Municipal Corporations, the same would result
in the consequence that the order under review failed to appreciate the
ratio in Smt. Urmil Chopra (supra) correctly and fell into error in
applying the same to the facts and circumstances of the present case.
9. It is trite to state that an error of law or an erroneous judgment,
cannot be corrected in a proceeding under review, even if the
argument of learned counsel for review petitioners is accepted.
10. We are, therefore, of the considered view that the review
petitions are devoid of merit and the same are accordingly dismissed,
leaving the Municipal Corporations to take appropriate steps, if so
advised, in accordance with law.
SIDDHARTH MRIDUL
(JUDGE)
TALWANT SINGH
(JUDGE)
NOVEMBER 26, 2020
dn
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