-Report by Anette Abraham
In a Delhi HC ruling, Hon’ble Justices Suresh Kumar Kait and Saurabh Banerjee directed Kirori Mal College, to pay arrears to a faculty whose permanent appointment was inappropriately deterred. In this case, Kirori Mal College v. Dr. Kusum Lata, the Hindi Lecturer, who was expected to receive permanent employment under the provisions of the PWD quota was deprived of her post in a slight that occurred in 1998.
The lecturer, Dr. Kusum Lata, was visually impaired and fell under the provisions of the Persons with Disability Act, 1995. She applied to Kirori Mal College under the advertisement that posted two vacancies: one for the permanent Hindi Lecturer post and another for part-time Hindi Lecturer. She was given the post of part-time lecturer on 16th July, 1997.
In the year 2000, another advertisement was posted by the college which detailed the availability of two posts, one – the post of Permanent Hindi teacher under the Scheduled Caste category and the other – a temporary post against leave vacancy. Dr. Kusum was allotted the position of temporary post on 16th April, 2001. Two more permanent posts for Permanent Lecturer were opened where one was reserved for candidates under Persons with Disability, the respondent was given the post of permanent employee on 4th March, 2006.
Kusum filed a writ petition in the year 2001, assailing the reservation that occurred in 2001 and contesting the lack of appointment she faced. The Court held that Kirori Mal College had failed to implement the reservation aptly and directed the college to pay for the arrears.
The College was told to pay a sum of Rs. 8,84,583/- to Dr. Kusum to make up for the loss in income she suffered due to incorrect appointment. Further, they were instructed to provide a detailed calculation sheet for the arrears and put the funds in a Fixed Deposit that Dr. Kusum could access within eight weeks. This judgement was then modified slightly by the Delhi High Court where the college was only expected to pay arrears from the year 2001 forward when she was slighted of her position and also the year the petition was filed.
- Learned counsel for the Petitioner has argued that the petition in which the impugned judgment was rendered was only filed in 2008, and that there was no challenge to the selection process undertaken in 1997, under which the Respondent was appointed on a part-time basis, prior to the filing of the said petition. Thus, the Petitioner’s challenge in the writ petition to the non-grant of the reservation to physically challenged category applicants in the 1997 selection process was greatly delayed and prevented by laches.
- The Counsel proceeded to contend that Dr. Kusum’s petition did not stand under the ambit of reservation since the quota that she falls under, physically challenged, is a horizontal reservation (Article 16 (1) ) and that of the Scheduled Tribe Reservation is a vertical reservation (Article 16 (4) ).
- The appellant additionally claims that the respondent provided inaccurate calculation(s), citing inconsistencies in the values for “Transport Allowance” and “Dearness Allowance.” Finally, the appellant claims that the respondent is incorrectly claiming promotion to Reader with effect from January 1, 2007, as well as concomitant advantages accruing to the higher pay scale as a result of such promotion.
The Delhi HC held that the circumstances of the case and the court proceedings show that the college freely paid a sum of Rs. 8,84,583/- before the Registrar General, without providing any calculations and on its own free choice. Furthermore, the appellant hasn’t charged Dr. Kusum Lata with any fraud or deception, nor has it made the argument that the money it deposited was more than what was owed to the respondent or that it was an error on its side. Last but not least, the appellant has never requested release of the aforementioned deposited sum on its own and has only made a brief mention of it in its response to the respondent’s application without pressing the matter.
Further, the Hon’ble Court held that, in light of the facts and the aforementioned conduct of the college, they strongly believe that the appellant, would have deposited the said amount of Rs. 8,84,583/- after making proper calculations and tallying it with the records available, to which it has not objected or raised a dispute. This caused the Court to draw the obvious conclusion that the respondent has a right to the aforementioned already-deposited sum of Rs. 8,84,453/-. Therefore, they concluded that the respondent is qualified to collect the aforementioned amount as the appellant had no good reason to voluntarily deposit it before the Registrar General. After more than four years have passed with no provocation or fault attributable to the respondent, the appellant cannot be permitted to undertake an improper endeavour to collect the previously voluntarily deposited sum.