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Judgment
O R D E R
By Hon’ble Dr.Chhabilendra Roul, Member (A):-
The present Original Application has been filed by the applicant against orders dated 11.12.2017, vide which the respondents have stated that the order dated 8.8.2014 issued by the respondents promoting the applicant as Principal had become invalid, and also orders dated 26.12.2017 and 10.6.2021.
Brief facts of the case is that the applicant joined the respondent No.1, i.e. New Delhi Municipal Corporation on 4.11.1989 as a Senior Domestic Science Teacher. She was promoted as PGT (English) w.e.f. 19.11.1997 and for further she was promoted to the rank of Vice Principal w.e.f. 12.10.2010. On 28.3.2014, the Deputy Director (Education) granted Ex-India leave to the applicant w.e.f 1.4.2014 to 31.3.2015. Her leave period was treated as Extra Ordinary Leave (EOL) on non-medical grounds without pay and allowances for the said period. On 8.8.2014, the respondents promoted 10 Vice Principals / Deputy Education Officers to the rank of Principal. The applicant was one of those who were promoted to the rank of Principal. On 29.8.2014, the respondents have also posted the promoted Principals to various locations. Against the name of the present applicant, it was stated that she was on leave. After availing her extra ordinary leave, the applicant rejoined as Principal on 1.4.2015. At the time of joining on 1.4.2015, the applicant learnt that she has been promoted as Principal and accordingly, she has given her joining report as a Principal. Out of the 10 candidates who have promoted as Principal, four candidates did not submit their joining report in time and the respondents have reminded them to submit their joining report vide their letter dated 16.4.2015. However, these four candidates gave their joining report subsequently and their joining report was accepted by giving relaxation of joining time.
On 25.5.2015, the respondents vide their office order No. 714/SA-I/Education-Estt./2015 informed the applicant that she has been promoted as Principal and posted in Senior Secondary School Aurangzeb Lane in the scale of Rs. 15600+ 39100+ Grade pay of Rs. 7600/- w.e.f. 01.04.2015. The applicant gave representations dated 5.6.2015 and 18.8.2915 for release of his salary as per the re-fixation of her pay as per the rank of Principal from April 2015 onwards.
The respondents held DPC for promotion of Principal again on 24.6.2015. They promoted four Vice Principals to the rank of Principal and the case of the applicant was never considered because she was already treated as being promoted to the rank of Principal.
Vide order dated 11.12.2017, the respondents cancelled the promotion order of the applicant to the rank of Principal which was earlier ordered on 8.8.2014. Earlier the applicant has submitted her request through application dated 11.11.2016 requesting the respondents to grant her voluntary resignation w.e.f. 28.2.2017. The applicant has stated therein that this application should be treated as three months notice under the rules. Vide their order dated 22.12.2017, the respondents accepted her request for voluntary retirement w.e.f. 28.2.2017.
The applicant made request on 8.2.2018 to the respondents for withdrawing the order dated 11.12.2017 reverting her from the post of Principal to Vice Principal w.e.f. 1.4.2015 and also the order dated 26.12.2017 by which the respondents have directed that the pensionary benefits shall be given in the pay scale of Vice Principal. She subsequently submitted a series of representation to the respondents in this respect. The respondents replied to the same vide their order dated 10 June 2021 and they intimated that the applicant’s appeal dated 8.2.2016 and e-mail dated 20.1.2021 have been rejected. She filed her review application on 21.6.2021. This Review Application is still pending with the respondents. Being aggrieved, she has filed the present OA, seeking substantially the following relief(s):-
(1)quash and set aside the order dated 11.12.2017 issued by the Joint Director Education vide which the respondents have declared the applicants promotion as invalid and reverted her to the post of Vice Principal w.e.f. 1.4.2015.
(2)to set aside the order dated 26.12.2016 accepting the VRS request of the applicant w.e.f. 28.2.2017 and declaring that the pension of the applicant shall be drawn on the post of Vice Principal and set aside the order dated 10.6.2021 rejecting the request of the applicant for reconsideration of her case .
(3)to direct the respondents to refix her pay at the rank of Principal w.e.f. 1.4.2015 with all consequential benefits.
(4)to direct the respondents to pay the interest at rate of 8 percent Per annum on account of acceptance of her voluntary retirement after a gap of a period of one year from the date of her submission of application for VRS.
On admission of the OA notices were issued to the respondents and they have filed their counter affidavit to which the applicant has also filed his rejoinder to the same.
The applicant in her grounds of appeal as well as through the learned counsel for the applicant during arguments have tendered the following grounds for seeking the aforementioned relief(s):-
The impugned decision of the respondents dated 11.12.2017 and subsequent of fixing her retirement benefits at the rank of Vice Principal w.e.f.26.12.2017 are whimsical, arbitrary, unfair and discriminatory in nature. The applicant was on sanctioned extra ordinary leave. There was no information or intimation regarding her promotion and nor direction to join her immediately curtailing her extra ordinary leave (EOL). As she was not informed regarding her promotion to the post of Principal, she could only know about the said promotion after coming back from her leave and joining as Principal at the Senior Secondary School, Aurangzeb Lane, New Delhi.
The impugned order dated 11.12.2017 reverting her to the post of Vice Principal w.e.f. 1.4.2015 was also arbitrary. Relying upon the DOP&T OM dated 4.8.2004, the learned counsel for the applicant averred that this reversion order is untenable in the eyes of law because the applicant’s effective date of knowledge regarding her promotion to the rank of Principal was the date when she came back and joined as Principal. Prior to that there was no communication to the applicant while the applicant was on ex-India extra ordinary leave.
The respondents have given relaxation to four Vice Principals who were promoted along with the present applicant as Principal even they joined after considerable time gap since the date of promotion and the respondents regularized their promotion order. The respondents have discriminated against the present applicant by not giving the same relaxation to her. The promotion order dated 8.8.2014 was not conveyed to the applicant in contravention to the DOP&T OM No.20034/5/2002-Est(d) dated 4.8.2004. The counsel for applicant further stated that DOP&T OM No.22013/8/80-Estt. dated 28.9.1981 states:
“It is clarified that if on the basis of empanelment for promotion against vacancies arising in a vacancy year, a promotion order contains name of the person who is on a sanctioned leave, a copy of the same is to be endorsed to the officer at his leave address by registered/speed post etc along with necessary advice about the authority to whom he is to report for assuming charge of the higher post. If the officer assumes charge of the higher promotional post by curtailing leave, if necessary, within the currency of the vacancy of the vacancy year for which the panel is prepared, or within six months from the date of the promotion order, or before the last person borne on the panel is offered promotion without being required to be reassessed by a fresh DPC, whichever is later, the officer will not be required to be considered afresh by the next DPC and he will retain his seniority as per the position in the panel on the basis of which he has been promoted.”
The subsequent reversion order of the applicant to the rank of Vice Principal was illegal because there was no opportunity to the applicant and no show cause notice was given to the applicant as to why she was reverted back to the post of Vice Principal. The principal of natural justice has been violated in the instant case.
The respondents have promoted four more Principals and the case of the applicant was not considered treating her already promoted to the rank of Principal.
The learned counsel for the applicant cited the judgment of Hon’ble Apex Court in Union of India vs. Narender Singh [2008(2) SCC 750 wherein it was held:
“ 34. Tue it is that before such an action is taken and a person is actually reverted, he must be given an opportunity to show cause why the proposed action should not be taken. He may be able to satisfy the authorities that there was no such mistake. But even otherwise, principles of natural justice and fair ply require giving of such opportunity.”
The learned counsel for the applicant further cited the judgment of Hon’ble Apex Court in Shridhar vs. Nagar Palika, Jaunpur and other, AIR 1990 SC 307 and Sharawan Kumar Jha and others vs. State of Bihar and others, AIR 1991 SC 309. In both these cases, the Apex Court has also upheld the principle of natural justice and the petitioners therein were given the benefits because the authority concerned have taken action without giving opportunity to the affected employees.
The learned counsel for the applicant further stated that the respondents have committed another irregularity that they did not accept the VRS application of the applicant within the stipulated period of three months and they accepted the VRS application after the gap of nearly one year, thereby depriving the applicant the benefits of interest on gratuity and other retiral benefits for more than nearly of six months.
The applicant has stated that all these actions of the respondent amount to arbitrariness and malafide on the part of the respondents. In view of this, learned counsel for the applicant averred that the relief sought by the applicant should be granted.
Per contra, the learned counsel for the respondents relied upon the Counter affidavit filed on behalf of the respondents. The learned counsel for the respondents stated that the present applicant did not join her promotion post as required under DOP&T OM dated 4.8.2004. Therefore, the reversion order dated 11.12.2017 is a valid one. As she did not join as a Principal, her pay was fixed to the rank of Vice Principal on her return when she joined at the Senior Secondary School at Aurangzeb Lane, New Delhi. She was acting Principal in the said school and in due course of time she was reverted back as Vice Principal. Subsequently, her promotion order as Principal was also cancelled and she was reverted back to as Vice Principal. There was delay in accepting her VRS application of the applicant because she requested that her pay should be fixed for the rank of Principal and this matter was deliberated among various authorities within the respondents’ organization. In view of this, the learned counsel for the respondents stated that the actions taken by the respondents are perfectly legal and regular and the applicant should not be given any relief as prayed by her.
I have perused the records of the case thoroughly and heard the arguments advanced by the counsels carefully. In the instant case, the respondents have committed a series of goof ups in respect of the promotion and demotion of the present applicant. The respondents have not conveyed the decision of promotion of the applicant to the rank of Principal in an appropriate manner. It has been rightly pointed out by the learned counsel for the applicant that as per DOP&T OM dated 28.9.1981, the respondents were supposed to convey the promotion order of the applicant who was on ex-India leave to her permanent address. The applicant gave her telephone number and address during her ex-India leave. The respondents knew that she was on ex-India leave and they have the permanent address of the applicant. No registered post was sent to her permanent address. They could have obtained her personal e-mail by giving a call to her given phone number if the personal e-mail was not known to them.
The respondents admitted that the promotion order was sent to her erstwhile official mail i.e. that of the Principal / Vice-Principal. When she was on ex-India leave, she was not supposed and could not access her erstwhile official mail. The login and password protected email could not be accessed by her. Accessing such email would amount to misconduct and would have rendered her liable for disciplinary action.
In view of this, it is our considered view that the respondents have failed to communicate the promotion order to the applicant. Hence, the subsequent actions of the respondents based on her “alleged non-joining” on promotion within the stipulated period are illegal and irregular. The respondents cannot put the responsibility of “non-joining “on the applicant to cover up their own irregularity.
The second goof-up by the respondents is not allowing the applicant to join as Principal giving her the benefit of late joining after she returned from ex-India leave. The respondents have given relaxation to four others, who were promoted as Principal vide the same DPC. This amounts to discrimination and violation of Article 14 & 16 of the Constitution of India. DOP&T’s circular dated 29.03.2004 states that the promotion panel is valid for one year. Even if the period of delay in joining by the applicant was more than six months, the respondents could have relaxed this condition given the fact that the applicant was not properly communicated the promotion order. The period of six months should have started from the date of knowledge than the date of issuance of the promotion order. Keeping in view the circumstances of the case, particularly, the fact that the applicant was on ex-India leave and the respondents could not communicate to her effectively about her promotion, it is more appropriate to exercise the discretion as it has been exercised in respect of four others. Not giving the benefit to the applicant as Principal, without specifically cancellation the promotion order dated 8.8.2014 is blatantly illegal.
The third irregularity committed by the respondents pertains to reversion of the applicant to the rank of Vice Principal. The applicant has rightly pointed out that the reversion order dated 11.12.2017 was illegal /irregular as no show cause notice was issued to the applicant and no opportunity of being heard was afforded to her. There is clear violation of Principle of Natural Justice.
The fourth instance of irregularity is the next promotion of four Principals. This promotion was irregular in the sense that the applicant was not considered for promotion stating that she was already promoted or she, in the previous instant, had not opted to join as Principal. Both the reasons given are untenable because of the irregularity committed by the respondents in not–communicating the applicant regarding her promotion and also the fact that they themselves had not given her the rank and pay-scale of Principal.
The fifth instance of irregular or arbitrary decision pertains to the act of the respondents in acceptance of voluntary retirement request after the lapse of 3 months notice period. The respondents have failed to pay the retirement benefits in time, nor they have paid any interest on delayed payment of retirement benefits. Even if the respondents’ accepted on 22.12.2017 the Voluntary Retirement w.e.f. 28.2.2017, after the lapse of the 3 months notice period, it is their bounden duty to pay retirement benefits from that date (28.2.2017). As per catena of Supreme Court judgments, it is now settled law that the employer like the Government is bound to pay interest for delayed payment of retirement benefits, when such delay is not attributed to the government employee. Accordingly, the applicant is entitled to get interest on delayed retirement of such benefits.
In view of the above, the following orders are passed:
The orders dated 11.12.2017 and 10.06.2021 are quashed in respect of the applicant. The order dated 26.12.2017 is quashed to the extent the applicant’s retirement benefits are fixed on the post of Vice Principal.
The applicant shall be given promotion w.e.f. 1.4.2015 in the rank and Pay-scale of Principal with all consequential benefits. The difference in pay, if any, shall be paid to the applicant, with an interest of 8% P.A.
The applicant shall be paid 8% interest on delayed payment of retirement benefits w.e.f. the date of acceptance of her voluntary retirement and till the date of actual payment of such benefits.
The respondents are imposed a cost of Rs.50,000/- to be paid to the applicant as cost of litigation and for the undue harassment to which she has been subjected to.
All these directions shall be complied with within a period of 8 weeks from the date of receipt of a certified copy of this order.
The present OA is disposed of in terms of above directions.