Kirori Mal Collage vs Dr Kusum Lata
2022 Latest Caselaw 2478 Del

                          *     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                                 Reserved on: September 23, 2022
                                                                 Pronounced on: October 10, 2022
                          +     LPA 206/2018
                                KIRORI MAL COLLEGE                                    .... Appellant
                                             Through:            Mr. Santosh Kumar and Ms. Ruchi
                                                                 Krishna Chauhan, Advocates.

                                                          Versus
                                DR KUSUM LATA                                       ..... Respondent
                                            Through:             Mr. S.K. Rungta, Sr. Advocate with
                                                                 Mr. Prashant Singh, Advocate.
                          CORAM:
                          HON'BLE MR. JUSTICE SURESH KUMAR KAIT
                          HON'BLE MR. JUSTICE SAURABH BANERJEE

                                                          JUDGMENT

SAURABH BANERJEE, J.

CM.APPL.5576/2020 in LPA 206/2018

1. Vide present application the respondent/applicant is seeking release of monetary benefits as per judgment dated 10.01.2020 and for release of already deposited amount of Rs.8,84,583/- alongwith the Fixed Deposit interest accrued thereon as per the revised calculation annexed.

2. Brief facts relevant for purposes of adjudication of the present application are that the respondent filed W.P.(C) 2496/2008 titled Kusum Lata vs. University Delhi & Ors. seeking appropriate reliefs primarily for quashing the appointment of respondent no.3 therein to the post of permanent Hindi Lecturer with effect from 1998; for directing the appellant/respondent no.2 therein to confirm the petitioner as a permanent

Signature Not Verified Digitally Signed By:BABLOO SHAH Signing Date:10.10.2022 15:35:56 lecturer in Hindi retrospectively from 1998 alongwith all concomitant service benefits against reservation for disability as per the provisions of the Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995-Act no.1 of 1996 and office memorandums and notifications issued by various authorities including respondent no.1 therein from time to time; for interest on the late payment calculated form the date such payment would become payable alongwith other ancillary reliefs. The said petition was allowed by the learned Single Judge vide order dated 19.01.2018 with the following directions:

"10. Consequentially, a mandamus is issued to Respondent- College to give the slot of visually handicapped in the year 1998 in the '100 Point Roster' (Annexure R-1) to petitioner as her entitlement to 3% reservation has to essentially relate back to the first available vacancy, which was in fact existing in the year 1997. Since petitioner has been erroneously appointed on part-time basis on post of Hindi Lecturer in the year 1997 whereas she should have been appointed against a regular vacancy of Hindi Lecturer, therefore, the relief granted to petitioner is confined to the prayer made in this petition i.e. the seniority of petitioner has to relate back to the year 1998 and not to the year 2001, as has been already granted by Respondent-College. All consequential benefits accruing up on grant of 3% reservation to petitioner w.e.f. the year 1998 shall follow.

However, it is clarified that the monetary benefits as a consequence of this decision will relate back to the year 1998 and not to three years prior to filing of this writ petition. Such a clarification is made for the reason that wherein petitioner's earlier writ petition was disposed of vide order of 22n November, 2007, liberty was granted to petitioner to claim seniority etc. and all consequential benefits from the year 1998. Since petitioner had filed the earlier writ petition in the year 2001, therefore, all

Signature Not Verified Digitally Signed By:BABLOO SHAH Signing Date:10.10.2022 15:35:56 consequential monetary benefits would relate back to period of three years prior to filing of W.P.(C) 1784/2001."

3. Aggrieved thereby, appellant filed the present appeal. Vide order dated 16.04.2018, this Court stayed the operation of the impugned order dated 19.01.2018 subject to appellant depositing the amount representing the monetary relief, to which the respondent was entitled within eight weeks, before the learned Registrar General of this Court.

4. The appellant, vide application C.M. No. 28075/2018 sought condonation of delay for permission to deposit an amount of Rs.8,84,583/- and after the said application being allowed, deposited the same with the Registrar General. This Court then, vide order dated 27.07.2018 directed the appellant to file a calculation sheet for computation of arrears of monetary benefits due to the respondent and further vide order dated 13.05.2019 directed the already deposited amount of Rs.8,84,583/- to be kept in a Fixed Deposit.

5. Thereafter, this Court vide judgment dated 10.01.2020 disposed of the present appeal with certain modifications to the impugned order dated 19.01.2018 in following terms:

"12. We are, therefore, not inclined to interfere with the said direction, even though, strictly in terms of the decision rendered in Pushkar Singh (supra), she may have been entitled to permanent appointment on a permanent full time post from the date when Ms. Pragya was appointed to the permanent post of Hindi Lecturer. At the same time, there is no denying the fact that the Respondent actually served only in part-time capacity between 16.07.1997- when she was appointed as part-time Hindi Lecturer, and 16.04.2001-

Signature Not Verified Digitally Signed By:BABLOO SHAH Signing Date:10.10.2022 15:35:56 when she was appointed to the temporary post of Hindi Lecturer against leave vacancy.

13. We, therefore, modify the directions issued by the learned Single Judge to the extent that, though her permanent appointment would notionally relate back to the year 1998, and her pay would accordingly be fixed on a notional basis from 1998, she would be entitled to actual payment of arrears from 16.04.2001. We also find that the learned Single Judge has not fixed a specific date in the year 1998 from which the respondent would count her seniority as a permanent Hindi Lecturer. Considering the fact that the Respondent was appointed as a part-time Hindi Lecturer in 1997, we direct that she would be deemed to be appointed on a permanent post of Hindi Lecturer in the Appellant College from 01.01.1998 onwards. On this basis, her seniority would be reckoned and her notional pay would be fixed for the purpose of computation of arrears of pay that she would be entitled to from 16.04.2001 onwards.

14. The Appellant college shall ensure that the Respondent is paid the arrears of pay is fixed within the next eight weeks."

6. Thereafter, the respondent has approached this court by way of the present application alongwith the revised calculation in terms of the judgment dated 10.01.2020. As per the said revised calculation, respondent claims to be entitled to receive an amount of Rs.14,27,503/- as against the already deposited amount of Rs.8,84,583/- by the appellant with the Registrar General.

7. In rebuttal, at the outset, learned counsel for appellant-college/non- applicant submits there being no dispute qua the judgment dated

Signature Not Verified Digitally Signed By:BABLOO SHAH Signing Date:10.10.2022 15:35:56 10.01.2020 and that the same has not been challenged and the only dispute is qua the quantum of the monetary benefits.

8. The appellant has opposed the present application contending that the respondent is entitled to arrears of pay for the period between 16.04.2001 and 12.02.2010, which as per calculations made by the appellant in terms of the directions of this Court are Rs.4,39,125/- towards notional benefits w.e.f. 01.01.1998 and financial benefits w.e.f. 16.04.2001 and not Rs.14,27,503/- averred by her or Rs.8,84,583/- deposited before the Registrar General and further that the respondent is not entitled to any interest on the sum as the same was not granted vide judgment dated 10.01.2020. The appellant also contends that the respondent has given incorrect calculation(s) as there are discrepancies qua the figures qua „Transport Allowance‟ and „Dearness Allowance‟. The appellant lastly contends that the respondent is wrongly claiming promotion as a Reader with effect from 01.01.2007 and, accordingly, wrongly claiming consequential benefits accruing to the higher pay scale as a result of such promotion.

9. In effect, it is the case of the respondent that she is entitled to an amount of Rs.14,27,503/- in terms of the calculation given by her in terms of the judgment dated 10.01.2020 whereas as per case of the appellant, respondent is entitled to Rs.4,39,125/- in terms of the calculation done by it as per judgment dated 10.01.2020 and not Rs.14,27,503/- as wrongly claimed by her or Rs.8,84,583/- as deposited by appellant before the Registrar General.

Signature Not Verified Digitally Signed By:BABLOO SHAH Signing Date:10.10.2022 15:35:56

10. The facts of the case and the proceedings before this Court reveal that the appellant voluntarily deposited an amount of Rs.8,84,583/- without giving any calculation before the Registrar General and of its own free will, i.e. without any force, protest or demur. Further the appellant has neither alleged any fraud or misrepresentation on the part of the respondent nor has it been its case that the said deposited amount was in excess of what was due and payable to the respondent or that it was a mistake on its part. Lastly, the appellant has never sought release of the said deposited amount at any stage whatsoever by itself and has instead merely made a passing reference thereto in its reply to the aforesaid application of the respondent without pressing it.

11. Keeping in view the aforesaid conduct of the appellant and the facts before us, we verily believe that the appellant being one of the premier colleges in India, would surely have deposited the said amount of Rs.8,84,583/- after doing proper calculations and tallying it with the available records, to which no objection/ dispute has been raised by it. This leads us to the inevitable conclusion that the respondent was well and truly entitled to the said already deposited amount of Rs.8,84,453/-. Thus, we cannot be wrong in holding that the respondent is eligible to receive the said already deposited amount of Rs.8,84,583/- or else there was no plausible reason for the appellant to voluntarily deposit the same on its own before the Registrar General. The appellant cannot be allowed to make a wrongful attempt to recover the already voluntarily deposited amount of Rs.8,84,583/- after a lapse of more than four years for no fault attributable to the respondent. We are of the opinion that the same is totally unjustified and cannot be permitted. We find support in Thomas Daniel v State of

Signature Not Verified Digitally Signed By:BABLOO SHAH Signing Date:10.10.2022 15:35:56 Kerala & Ors. 2022 SCC OnLine SC 536 wherein the Hon‟ble Supreme Court has held that the same should not be permissible in similar cases.

12. Accordingly, taking an overall view of the prevalent situation, especially the order dated 16.04.2018, pursuant whereto the appellant deposited an amount of Rs.8,84,583/- of its own free will, without giving any calculations and the subsequent judgment dated 10.01.2020 passed by this Court coupled with the aforesaid findings that the said amount is belonging to the monetary benefits of the respondent, we direct the release of the already deposited amount of Rs.8,84,583/- alongwith the interest accrued thereon with effect from lapse of eight weeks from 16.04.2018 till the date of its release within a period of four weeks from the date of this order. The respondent is accordingly directed to take proper steps for getting the same released from the Registrar General of this Court.

13. Upon release of the said amount, we direct the appellant to also release the remaining amount of monetary benefits due {less Rs.8,84,583/- alongwith Fixed Deposit interest}, if any, alongwith interest @ 7% per annum as above with effect from lapse of eight weeks from 16.04.2018 till the date of its release to the respondent within a further period of two weeks. However, if the appellant finds that the respondent is not entitled to any further monetary benefits, it shall pass a detailed order to that effect and communicate it to the respondent within two weeks thereafter.

14. Needless to say, if the respondent is still aggrieved with the outcome thereof and the subsequent release/non-release of the additional monetary benefits as per her revised calculation, she will be free to take appropriate steps in accordance with law before the appropriate forum.

Signature Not Verified Digitally Signed By:BABLOO SHAH Signing Date:10.10.2022 15:35:56

15. In view of the aforesaid directions, nothing further survives in the present application. As such the present application is disposed of in the above terms.

(SAURABH BANERJEE) (JUDGE)

(SURESH KUMAR KAIT) (JUDGE) OCTOBER 10, 2022 rr

Signature Not Verified Digitally Signed By:BABLOO SHAH Signing Date:10.10.2022 15:35:56