Union of India Vs. Vijay Kumari [1993] INSC 347 (9 September 1993)

Jeevan Reddy, B.P. (J) Jeevan Reddy, B.P. (J) Pandian, S.R. (J)

CITATION: 1994 SCC Supl. (1) 84 JT 1993 (5) 307 1993 SCALE (3)697

ACT:

HEAD NOTE:

The Judgment of the Court was delivered by B.P. JEEVAN REDDY, J.- Leave granted.

2. Heard the counsel for the parties.

3. The appeal is preferred against the judgment of the Central Administrative Tribunal, Principal Bench, New Delhi, allowing the petition filed by the respondent in O.A. No. 2551 of 1990. The Union of India is the appellant.

4. The respondent, Vijay Kumari was appointed as a Lab.

Attendant in the Women's Polytechnic, Directorate of Technical Education, Delhi Administration on October 8, 1973 in the pay scale of Rs 950-1500. She continued in that post till February 22, 1988 i.e., for a period of about 15 years.

For the last four years i.e., from May 16, 1984 to February 22, 1988 she was teaching the students of two-year diploma course in Secretarial Practice (Hindi).

+ Arising out of SLP (C) No. 10526 of 1991 85 On February 23, 1988 she was promoted to the post of Junior Lecturer in the pay scale of Rs 2000-3200. On September 19, 1988 she was reverted to the post of Lab. Attendant with effect from August 23, 1988 under an order which reads as follows :

"In continuation of this Directorate order of even number dated July 24, 1988, and with prior approval of Secretary, Training and Technical Education, Miss Vijay Kumari, appointed as Jr. Lecturer, Secretarial Practice (Hindi), on purely ad hoc and emergent basis stands reverted to her original post of Laboratory Attendant, w.e.f. August 23, 1988."

5. Complaining against the said order, the respondent, Miss Vijay Kumari approached the Tribunal on December 3, 1990. She characterised the impugned order of reversion as mala fide, discriminatory and contrary to rules. The Union of India in its counter-affidavit disputed the various averments made by the respondent. It is stated that according to the rules in force up to June 18, 1988, she was not qualified for being appointed as Junior Lecturer.

According to those rules, only persons with a second division degree in B.A./B.Com. with two years' diploma in Secretarial Practice from the recognised university were eligible. Yet another qualification for eligibility was three years' teaching experience in the field of English/Hindi Stenography in a recognised institution. As against these prescribed qualifications, the respondent possessed a third division degree in B.A., a third division degree in M.A. Hindi and a diploma in Secretarial Practice.

It is stated that the respondent had undoubtedly performed the duties attached to the post of Junior Lecturer for a period of four years and thereafter was promoted temporarily as Junior Lecturer, but that was because no qualified persons were available for the said post. It is further stated that along with others the respondent's candidature was also considered "on the basis of proposed amended qualifications" but the Staff Selection Committee which met on May 19, 1988 did not find any of the candidates including the respondent suitable for the said post. It was proposed to call for fresh applications for filling up the said post, but before that could be done, the said post itself stood abolished by virtue of the order dated July 13, 1988 issued in implementation of revised staff structure based on Madan Committee recommendations.

6. The Tribunal relied upon two circumstances in favour of the respondent:

(a) The proceedings of the Delhi Administration, Directorate of Technical Education dated April 27, 1989 on the subject of "adjustment and drawal of pay of surplus staff'. Under this proceedings communicated to the Principals of various Polytechnics, the Delhi Administration directed that "the pay of the affected officials may be drawn as indicated therein". The said proceedings refers to 33 persons in various categories. It indicates which person shall draw pay against which post. A number of lady Junior Lecturers are permitted to draw pay against the posts of Lady Lecturers specified against their respective names.

The name of the respondent occurs at serial No. 5 as a Junior Lecturer. She is also permitted to draw the pay against the post of Lady Lecturer [Secretarial Practice (Hindi)], but this is limited only up to August 22, 1988.

The Tribunal says that while not limiting the period for any other person mentioned in the said proceedings, providing such limitation in the case of respondent alone amounts to discrimination; and (b) The letter from the Ministry of Human Resource Development, Department of Education, Government of India dated 86 September 25, 1987 addressed to the Secretary, Technical Education, Delhi Administration, which stated that :

.lm15 "The existing staff which will be declared surplus by virtue of the implementation of Madan Committee recommendations may be absorbed in the revised structure provided they fulfill the necessary prescribed qualifications in the required post. However, the existing staff members who do not have the requisite qualifications for appointment in a particular grade should be given an opportunity to upgrade/improve their qualifications within a period of 8 years and they be sent for this purpose to the appropriate institutions under the available schemes."

7. In the light of the said decision of the Government of India, the Tribunal said, the reversion of the respondent from the post of Junior Lecturer to her substantive post of Lab. Attendant is not tenable. She ought to be continued in the post of Junior Lecturer and be given an opportunity to upgrade/improve her qualifications within a period of eight years and thereafter absorbed in the appropriate post.

In this connection, the Tribunal also relied upon the opinion of the Delhi Administration, Service Department given on December 30, 1988 which reads as follows :

"If Smt Vijay Kumari continues on the post of Junior Lecturer on ad hoc basis, her extension on this higher post can be considered by the department. But in case she has already been reverted to the lower post as stated in X on pre-page, it may not be advisable to promote her again to this higher post even for a limited period unless the department feels justified to do so."

8. So far as the first circumstance relied upon by the Tribunal is concerned, the Tribunal has not taken care to verify whether the other Junior Lecturers mentioned in the said proceedings are similarly situated as the respondent.

Without such a verification and a finding, it would not be advisable to record a finding of discrimination or to rely upon the said circumstance as a factor in favour of the respondent. If the other lecturers mentioned in the said proceedings were regularly appointed lecturers, the respondent being only a temporarily-promoted Junior Lecturer cannot seek parity with them.

9. Be that as it may, the Tribunal seems to be in the right insofar as the, second circumstance is concerned.

There is no reason why the respondent should not be given the benefit of the decision of the Government of India which has been communicated to the Technical Education Department of the Delhi Administration on September 25, 1987.

10. But then the question arises whether she should be continued meanwhile in the category of Lab. Attendant or as a Junior Lecturer. Having regard to the relevant facts and circumstances of the case, the following directions, in our opinion, meet the ends of justice :

(i) If the post of Junior Lecturer in the Secretarial Practice (Hindi) is available today, whether under the designation of Junior Lecturer or Lady Lecturer as the case may be, and if no other person is holding that post, the respondent may be posted and continued in that post in terms of th6 Government of India's letter dated September 25, 1987;

(ii) in case the respondent cannot be posted as Junior Lecturer in terms of direction (i) given above, and if no other appropriate post is available 87 wherein the respondent can be adjusted a supernumerary post may be created in the category of Junior Lecturer within three months from today and the respondent posted and continued therein in terms of the aforesaid letter of Government of India; and (iii) in either event - whether she is posted and continued in terms of direction (i) or direction (ii), she will be entitled only to the salary of a junior lecturer from the date of her posting in such post. In either event, she will not be entitled to arrears of salary in the category of Junior Lecturer (as directed by the Tribunal).

11. The civil appeal is disposed of with the aforesaid directions. No costs.

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