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Delhi High CourtIndian Cases

Smt. Sudesh Bhatia vs Union Of India (Uoi) And Ors. on 18 August 2006

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Delhi High Court
Smt. Sudesh Bhatia vs Union Of India (Uoi) And Ors. on 18 August, 2006
Author: Manju Goel
Bench: Manju Goel

Manju Goel, J.

1. The petitioner joined respondent No. 4 as a teacher on 16.9.1973 vide an appointment letter dated 10.9.1973. At that time her salary was Rs. 185/- per month (all inclusive). In the year 1982 the school of respondent No. 2 was taken over by respondent No. 5. With effect from 1.5.1982 the petitioner was granted regular scales of pay as given to aided schools. The petitioner retired on 30.6.2002 on which date she was paid Rs. 1,01,750/- towards gratuity and Rs. 52,288/- towards leave encashment. The payments were made on the basis of her date of joining taken as 1.5.1982. The petitioner now claims gratuity treating her services to have commenced from 16.9.1973 apart from pension and balance of leave encashment treating the date of joining as 16.9.1973. The petitioner is also claiming leave travel concession and senior scale which she was entitled to on completion of twelve years apart from interest and cost.

2. When the petition came up for hearing for the first time on 16.3.2004, this Court passed the following order:

1. Apart from other reliefs claimed, petitioner claims entitlement to a senior scale under the Notification dated 12.8.1987. As per the said Notification, petitioner claims that she would be entitled to the benefit of senior scale with effect from 12.8.1987.
2. Writ petition filed in the year 2004 suffers from delay and laches as far as said claim is concerned. Other claims are within time. However, considering the fact that a recurring action accrues to the petitioner as her pensionary entitlement is also effected by the same, holding that the petitioner would not be entitled to arrears pertaining to the benefit of senior scale, issue notice to show cause to the respondents as to why rule nisi be not issued, returnable before the Joint Registrar on 20.4.2004.
3.Matter be placed before the Court after service is effected and pleadings are complete.
3. Therefore, what is left to be decided by this Court now is whether the petitioner is entitled to any pension assuming that she has earned senior scale on completion of twelve years of service. The claim for the arrears as per the senior scale, of course, is no more available. The petitioner’s claim for gratuity and leave encashment can also now be considered.

4. So far as the gratuity is concerned, respondents No. 4 & 5 concede that the same can be given also for the period of 1973 to 1982. However, the claim for pension is disputed on the ground that the petitioner was a member of the EPF which is a contributory provident fund and on her retirement all the money that has accrued to the provident fund including the employer’s share has been given to her and, therefore, she is no more entitled to any pension from the school which can be given only to those employees who had opted for pension scheme, which is a substitute of the contributory provident fund. The respondents rely upon the judgment of the Supreme Court in the case of Chander Sain v. State of Haryana and Ors. in which the Supreme Court held that if the staff of a college were members of the contributory provident fund, they were not entitled to pension in terms of the pension rules. The petitioner did not opt for the pension scheme and had opted for the contributory provident fund scheme. She has already taken all the benefits of the contributory provident fund scheme and has withdrawn the full deposit in that scheme including the employer’s share. The pension scheme was introduced in the schools sometimes in 1995. It is too late in the day for the petitioner to claim the benefit of the pension scheme which was an alternative to the contributory provident fund scheme. Therefore, petitioner’s claim for any pension has no merit.

5. So far as leave encashment is concerned, the same does not depend on the length of service. The same will depend on the leave accumulating in the leave account of the petitioner. The petitioner has not mentioned how much leave had accumulated to her credit and how the payment to her was not enough. Hence, her claim for leave encashment cannot be considered.

6. So far as the leave travel concession is concerned, it is available when a travel is undertaken. The petitioner has not mentioned what travel she has undertaken. Petitioner’s grievance is that she was denied the benefit of leave travel concession when she applied for it. No details of any such application is given. There is no force in the prayer for the benefit of leave travel concession.

7. Petitioner also claims interest on the overdue payment.

8. In view of the above, the petition is partly allowed. Respondents No. 4 & 5 are directed to pay gratuity to the petitioner considering her date of joining as 16.9.1973, subject to adjustment of the gratuity already paid to her, along with interest @8% per annum from the date of retirement till the date of payment. Rest of the claims of the petitioner are dismissed.