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2006 DIGILAW 376 (DEL)

GOVERNMENT OF NCT OF DELHI v. VIJAY KUMARI

2006-02-28

B.N.CHATURVEDI, MUKUL MUDGAL

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MUKUL MUDGAL, J. ( 1 ) THIS writ petition challenges the order dated 1. 8. 2005 passed by the cat in O. A. No. 1138 of 2005. ( 2 ) ON 11th of January, 1986, three tier pay scales systems were made applicable to teachers by Fourth Pay Commission and were implemented vide notification dated 13. 4. 1986 and 22. 9. 1986. The three scales were (1) entry scale of Rs. 1400-2600; (2) Senior Scale (after 12 years) Rs. 1640-2900 and (3) selection Scale (after 12 years in Senior Scale and attainment of qualification) rs. 2000-3500. On 19th of December, 1991, the respondent was appointed as tgt (Natural Science) in the entry scale of Rs. 1400-2600 revised by the Vth Pay commission to Rs. 5500-175-9000. The Fifth Pay Commission also issued certain recommendations pertaining to Assured Career Progression Scheme (ACP Scheme) for the Central Government employees. On 25th of August, 2003, a notification was issued for application of ACP Scheme to teachers of the Directorate of Education w. e. f. 9th of August, 1999. ( 3 ) ACCORDING to the petitioner, the ACP Scheme replaced the existing scheme of three tier pay scale of Senior Scale/selection Scale w. e. f. 9. 8. 1999 and denied the senior scale. On 19th of April, 2004, the petitioner No. 4, Joint director of Education (Admn.) passed the orders withdrawing the benefits of senior scale granted to teachers after 9th of August, 1999. On 1st of August, 2005 the OA of the respondent before the Tribunal was allowed. Hence, this writ petition. ( 4 ) THE following facts are not in dispute that: a) The respondent was granted senior scale from 19. 2. 2003 when she had completed 12 years of service. b) The petitioner denied the senior scale to the respondent on the basis of a notification dated 25. 8. 2003, six months after the payment had been granted in sthe senior scale, which altered the conditions specified for grant of the acps and the senior scale. c) The Tribunal upheld that the benefit that accrued to the respondent under the ACPS then applicable, could not be taken away on the basis of a notification coming into force six months later. ( 5 ) WE have seen the notification. c) The Tribunal upheld that the benefit that accrued to the respondent under the ACPS then applicable, could not be taken away on the basis of a notification coming into force six months later. ( 5 ) WE have seen the notification. We see no instruction in the notification which seeks to take away the benefits already accrued and in our view, the Tribunal has rightly held that the senior scale that had been accorded to the applicant could not be withdrawn on the basis of the purported retrospective operation of the notification. The Tribunal has in our view rightly relied upon the the Supreme Court judgment in "p. Tulsi Das and Others vs. Government of Andhra Pradesh and Others", (2003) 1 SCC 364 . Para 14 of the judgment reads as follows:"on a careful consideration of the principles laid down in the above decisions in the light of the fact situation in these appeals we are of the view that they squarely apply on all fours to the cases on hand in favour of the appellants. The submissions on behalf of the respondent State that the rights derived and claimed by the appellants must be under any statutory enactment or rules made under Article 309 of the Constitution of India and that in other respects there could not be any acquisition of rights validly, so as to disentitle the State to enact the law of the nature under challenge to set right serious anomalies which had crept in and deserved to be undone, does not merit our acceptance. It is by now well settled that in the absence of rules under Article 309 of the constitution in respect of a particular area, aspect or subject, it is permissible for the State to make provisions in exercise of its executive powers under Article 162 which is coextensive with its legislative powers laying conditions of service and rights accrued to or acquired by a citizen would be as much rights acquired under law and protected to that extent. The orders passed by the Government, from time to time beginning from February 1967 till 1985 and at any rate up to the passing of the Act, to meet the administrative exigencies and cater to the needs of public interest really and effectively provided sufficient legal basis for the acquisition of rights during the period when they were in full force and effect. The orders of the High Court as well as the tribunal also recognised and upheld such rights and those orders attained finality without being further challenged by the Government, in the manner known to law. Such rights, benefits and perquisites acquired by the teachers concerned cannot be said to be rights acquired otherwise than in accordance with law or brushed aside and trampled at the sweet will and pleasure of the government, with impunity. Consequently, we are unable to agree that the legislature could have validly denied those rights acquired by the appellants retrospectively not only depriving them of such rights but also enact a provision to repay and restore the amounts paid to them to the State. The provisions of the Act, though can be valid in its operation "in futuro" cannot be held valid insofar as it purports to restore status quo ante for the past period taking away the benefits already available, accrued and acquired by them. For all the reasons stated above the reasons assigned by the majority opinion of the Tribunal could not be approved in our hands. The provisions of Sections 2 and 3 (a) insofar as they purport to take away the rights from 10-2-1967 and obligate those who had them to repay or restore them back to the State are hereby struck down as arbitrary, unreasonable and expropriatory and as such are violative of Articles 14 and 16 of the Constitution of India. No exception could be taken, in our view, to the prospective exercise of powers thereunder without infringing the rights already acquired by the appellants and the category of the persons similarly situated whether approached the courts or not seeking relief individually. The provisions contained in Section 2 have to be read down so as to make it only prospective, to save the same from the unconstitutionality arising out of its retrospective application. " ( 6 ) WE, thus, on the basis of the above precedent laid down by the Hon ble supreme Court, find no basis to interfere with the view taken by the Tribunal. The writ petition is dismissed. The writ petition and all pending CMs stand disposed of. .