Govt of NCT of Delhi & Ors v. Shashi Bala

order No.F.DB-3(12A) Estt.in/Spl.Cell/97/17385-17445dated 30.04.1998 based on the departments letter No.F.DE-3(31)/Estt.III/Spl.Cell/96/7766-7801dated

22.04.1997, followed by letter No.F.DE-3(144)/E-III/95/2424951-25031 dated

10.11.1997 and subsequent corrigendum ,No.DE-3(31)/Spl.Cell/96/E-III/25753-813 dated

27.11.1997 and in comphance with the directions passed by Hon'ble Supreme'Courton Civil Appeal No.1900 of 1997 titled Union of India & Ors. vs. Ishwar Singh Khatri & Ors. It is hereby ordered that the Directorate of •• Education will assign the proper seniority to the candidate as per their ranking in the select panel over the person appointed. In the interregnum,the incumbentwill not be WP(C)4370,5145, 5949,6507 7027, 7031 of2012 &379/2013 Page 7of 12 entitled for the notional pay fixation, since there was no mention of the pay fixation/notionalfixation in the order passedin Hon'bleSupremeCourt. Hence,the seniorityof the applicantin OA No.1691/94titledShri SohanbirSingh and Ors., OA No.569/1996,titledMs.N irmalaGupta Vs. DE OA No.208/1998titled Alam Chand Sharma Vs. DE and OA No.2098/1998titled Satpal Singh Saini Vs. DE and other petitionersshall be determinedin term of the directions passed by the Apex Court as per the select panel. The earlier order dated, 30.04.1998 hereby cancelled. These(sic) issuewiththe approvalofcompetentauthority. Sd/- (GitanjaliKundra) . Addl.Director of Education (Admn.)" Sufficewould it be to state that in the order it was specifically mentioned that the incumbents will not be entitled to any notional pay fixation since the Supreme Court had not so directed when Civil Appeal No.1900/1997 'UOI&Ors. v. IshwarSinzhKhatri&Ors'was decided,and this led to OA No.2618/2005beingfiled by 2 candidatesnamed KaranPriya Gautam and Raj Kumar Singh who questioned denial of notional pay fixation. Vide order dated October 30, 2006 the Tribunal dij^missedthe Original Applicationholding that since back-wageswas denied and only protectiongivenwas seniority,the two claimantscouldnot be directedto be given benefitof notionalpay fixationand on the issue of personsjuniorin the seniority list receivinghigher wages, the Tribunal observed that if a person joins before another person, the former would draw increments before the latter and that this was inevitable. One Ms.RitaTara also filed OA No.2154/2005claiming same benefit as was claimed by Karan Priya Gautam and Raj Kumar Singh. Her claim was rejectedby the Tribunal as WP(C)4370, 5145, 5949, 6507 7027, 7031 of2012&379/2013 Pfioe 8 of 12 (V per order dated July 27, 2000 following the decision dismissing OA-No.2618/2005. One Kiishna Kumari who filed OA No.1790/2008 however succeededwhen vide order dated May 15, 2009 the Iribunal decided in her favour directing that her pay be fixed notionally from the back date, a decisionwhich was set aside by a Division Bench of this Court by a cryptic order dated December 12, 2009 allowing WP(C) No.13987/2009 'Director of Education & Ors. v. Smt.Krishna KuinarV against which the Supreme Court refusedto grant Leave to Appeal as per the order dated October 14, 2011.

¶16Noting conflictingviews of the Tribunal, on December 16, 2009 disposingofOA No.536/2007'DeevtiArora v. Govt. OfDelhi' a Full Benchof the Tribunalheldthat benefitof pay-fixationon notionalbasis had to be grantedto the applicanttherein. The said decisionof the Tribunal currentlyawaits a conclusive,viewfrom the SupremeCourt where Leave to Appeal stands granted.

¶17This then is thepasthistorywhichwe need to note and whileso doing would simplyhighlightone fact : neitherdecisioni.e. the ones where benefit was denied nor the ones in which benefit was granted have taken note of the principle of 'Stepping Up' of pay.

¶18We may pithilystatethe law. On an adjudicationoi a claim by a personto be entitledto promotionin his favour from a retrospectivedate, the personbecomesentitledto senioritywith effectfrom the date he oughtto be promotedas per the law declaredby the Supreme Court in the decision reported as 1977 (3) SCC 399 S.B.Patwardhanv. State of Maharashtra subsequentlyreliedupon and followedby the SupremeCourt inthe decision reportedas 1990 (2) SCC 715 DirectRecruitEnsineers' Asscn. V. State of Maharashtra. But simultaneously applying the principle of 'No work no WP(C) 4370, 5145, 5949,6507 7027, 7031 of2012 &379/2013 Page 9of12 fS' pay' as held by the Supreme Court in the decisionsreportedas 2007 (H) SCC 632 Union of India v. B.M.Jha and 2007 (15) SCC 111 State of Harvana&Anr. v. S.K.Khoslaback-wagesmay be denied. But, actingas an exceptionto the principleof 'No work no pay', as held by the Supieme Court in the decision reported as 2007 (7) SCC 689 Commissioner, Karnataka Board v. C.Muddaiah where a Court holds that wheieas the personwas willingto work but was illegallyand unlawfullynot allowedto do so as an exceptionalcase benefitsas ifhe had workedcan be granted. But the principleof 'steppingup' of pay have to be applied across the board in all cases where a person who is senior gets less salary than his junior; requiring the salary of the senior to be stepped up and broughtat least at par with the junioras was held by the SupremeCourt in the decisionsreportedas 2009 (3) SCC 94 GurcharanSin2h Grewal&Anr. V. Punjab State Electricity Board & Ors., 2008 (7) SCC 245 Punjab State Electricity Board & Ors. v. Gurmail Sinsh and 2006 (12) SCALE 440 Commissioner and Secretary to Govt. OfHarvana v. Ram Sarup Ganda.

¶20The aforesaidopinionsare in fact the logicalculminationwhich flow from OM No.F.2(78)-EIII(A)/66dated February 04, 1966 which reads "In order to remove the anomaly of a Government servant promoted or appointedto a higher post on or after 1-4-1961 drawinga lower rate of pay in that post than another Government servantjunior to him in the lower grade and promoted or appointed subsequentlyto another identical post, it has been decidedthat in such cases the pay of the senior office in the higher post should be stepped up to a figure equal to the pay as fixed for thejunior officerin that higher post. The steppingup should be done with effect from the date of promotion or appointment of the junior officer and will be subject to the following conditions, namely:- WP(C) 4370, 5145, 5949, 6507 7027, 7031 of2012&379/2013 Pagel0ofl2 • \h

(a) Both the junior and senior officers should belong to the same cadre and the posts in which they have been promotedor appointedshould be identical and in the same cadre;

(b) The scales of pay of the lower and higher posts in which they are entitled to draw pay should be identical;

(c) The anomaly should be directly as a result of the applicationof FR 22-C. For example, if even in the lower post the junior officer draws from time to time a higher rate of pay than the senior by virtue of grant of advance increments, the above provisions will not be invoked to step up the pay of the senior officer. The orders refixing the pay of the senior officers in accordancewith the aboveprovisionsshall be issuedunder FR-27. The next increment of the senior officer will be drawn on completion of the requisite qualifying service • with effect from the date of refixation of pay." (Emphasis underlined)

¶21And we only highlight sub-para (a), as per which, even in case of appointmentin the same cadre,both thejunior andseniorofficershave to be given equal pay; requiringthe pay of the senior officerto be steppedup to bring it at par with the junior officer.

¶22Thus, since the Supreme Court has decided that the left over candidates from the list of 1492 empanelledcandidates would be accorded seniority above the candidateswho joined after the dispute arose and in the interregnumby which time the disputewas decided,law wouldenjoinsalary of said candidates to be fixed keeping in view their seniority and the salary drawn by the person immediatelyjunior and removing the difference by stepping up the pay of the senior. WP(C) 4370, 5145, 5949, 6507 7027, 7031 of2012 &379/2013 Page 11 ofl2 (7

¶23Followingthe law declaredby the SupremeCourt in the afore- , noted three decisions we fmd that the only corrective action which is requiredto be takenby us is to disposeofthe writpetitionsdirectingthatthe respondentswould be entitledto theirpays being steppedup and broughtat par with the pay received by persons immediatelyjunior to them in the combinedsenioritylist; and to be receivedby the respondentsfrom the date they joined service.

¶24Directing as aforesaid the writ petitions stand disposed of decliningreliefas claimed. Compliancebe made within 12 weeks.

¶25There shall be no order as to costs. JUDGE JANUARY 31, 2013 •qj2A^ SNA BIK JUDGE WP(C)4370,5145, 5949, 6507 7027, 7031 of2012 &379/2013 Page 12 of12

$' * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judsment Reserved on : January 28. 2013 Judsment Pronounced on : January 31, 2013 + W.P.(C) 7031/2012 GOVTOFNCTOFDELHI&ORS Petitioners Represented by: Mrs.Avnish Ahlawat, Advocate with Ms.LatikaChaudhary,Mr.NiteshSingh, Ms.Nazoo Sharma, Advocates. versus SHASHIBALA Respondent Represented by: A.K.Trivedi, Advocate. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE VEENA BIRBAL PRADEEP NANDRAJOG. J. For orders see WP(C) No.4370/2012. (PRADEEP NANDRAJOG) JUDGE (VEENABIRBAirr ' JUDGE JANUARY 31, 2013 dk Signed By:RAM DATT Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. IN THE HIGH COURT OF DELHI AT NEW % Judgment Reserved on : January 28, 2013 Judsment Pronounced on : January 31, 2013 + W,P,(C) 437mm2 GOVT. OF NCT OF DELHI AND ORS ..... Petitioners Represented by: Mrs.Avnisli Ahlawat, Advocate with Ms.Latika Chaudhary, Mr.Nitesii Singh, Ms.Nazoo Sharma, Advocates. versus SAROJKFIOSLAANDORS. Respondents Represented by: Mr.G.S.Vasisht, Advocate with Mr.Smriti Vasishst, Advocate for R.l to 3. AND W JiC) 5145/2012 GOVT.OF NCT OF DELHI AND ORS Petitioners Represented by: Mrs.Avnisli Ahlawat, Advocate with Ms.Latika Chaudhary, Mr.Nitesh Singh, Ms.Nazoo Sharma, Advocates. versus VEENA SHARMA Respondent Represented None. AND W.P.(C) 5949/2012 GOVT. OF NCT OF DELHI AND ORS Petitioners Represented by: Mrs.Avnish Ahlawat, Advocate with Ms.Latika Chaudhary, Mr.Nitesh Singh, Ms.Nazoo Sharma, Advocates. WP(C) 4370, 5145, 5949, 6507 7027, 7031 of2012 & 379/2013 Page I ofll2 versus VIR SINGH Respondent Represented by: None. W.P.fQ 6507/2012 GOVT. OF NCT OF DELFH AND ORS ..... Petitioners Representedby: Mi's.AvnishAlilawat,Advocate witli Ms.Latika Chaudiiary, Mr.Nitesh Singh, Ms.Nazoo Sharma, Advocates. versus USITAAGARWAL Respondent Representedby: Mr.RanaRanjitSingh, Advocate •7 WoPiQ 7027/2012 GOVT OF NCT OF DELHI & ORS Petitioners Representedby: Mrs.AvnisliAlilawat,Advocate with Ms.Latika Chaudhary, Mr.Nitesh Singh, Ms.Nazoo Sharma, Advocates. versus ASHWANI KUMAR SITARMA Respondent Represented by: None. WJiQ 7031/2012 GOVT OF NCT OF DELFE & ORS Petitioners Representedby: Mrs.AvnishAhlawat,Advocate with Ms.Latika Chaudhary, Mr.Nitesh Singh, Ms.Nazoo Sharma,, Advocates. WP(C)4370,5145, 5949,6507 7027, 7031 of2012 &379/2013 Page2of12 versus SHASHI BALA Respondent Represented by: A.K.Trivedi, Advocate. AND W.P.(C) 379/2013 GOVT. OF NOT OF DELHI AND ORS Petitioner Represented by: Mrs.Avnish Ahlawat, Advocate witli Ms.Latiica Cliaudhary, Mr.Nitesh Singh, Ms.Nazoo Sharma, Advocates. versus ANAND KUMAR Respondent Represented by: None. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJO'G HON'BLE MS. JUSTICE VEENA BIRBAL PRADEEP NANPRAJQG, J. 1. The genesis of the above-captionedwrit petition lies in the events which took place in the year 1984 when High School Educationin the Union Territory of Delhi was under the aegis of Delhi Administration and in particularthe Directorateof Education. The StaffSelectionBoard constitutedby the Director of Education headed by the Director himself notified 654 vacancies in various disciplines of Trained Graduate Teachers and invited applications from eligible candidates; a requisition was sent to theEmploymentExchangeto sponsornames of suitablecandidateswho had got their names registeredwith the Exchange. The selectionprocess being completed, the names of 1492 candidates were notified as having been selected to be appointed as Trained Graduate Teachers in various WP(C) 4370, 5145, 5949. 6507 7027, 7031 of2012 &379/2013 disciplines. And relevantwould it be for us to highlightthat displayedon the NoticeBoard(it was the era when internetdid not exist)were the names of 1492 candidateswith an announcement/commitment/assurance : 'The appointmentwill he in the order of merit. That appointmentwill be made in the Select List till the last candidate is appointed.' 2. It was further notifi