Krishan Kanta Sharma & Ors vs East Delhi Municipal Corporation & Ors.

Siddharth Mridul, J

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

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.

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’.

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.

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.

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.

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.

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.

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.

The petition is disposed of.â€​

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.

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.

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.

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.

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.