Central Administrative Tribunal - Delhi
Karan Priya Gautam S/O Shri Attar Singh ... vs Govt. Of Nct Of Delhi And Ors. Through The ... on 30 October, 2006
ORDER Meera Chhibber, Member (J)
1. By this O.A., applicants have challenged the order dated 7.5.2004 whereby they have been informed that they will not be entitled for the notional pay fixation since no such relief was given by the Hon'ble Supreme Court in the case of Union of India and Ors. v. Ishwar Singh Khatri and Ors. (Civil Appeal No. 1900/1987). They have further sought a direction to the respondents to fix their pay from the date of grant of seniority i.e. 1994 and pay all consequential benefits, including arrears.
2. It is submitted by the applicants that they had applied for the post of TGT in response to the advertisement issued in June, 1994. They were selected also but appointment letters were not issued. Being aggrieved, they filed OA No. 1238/96 and 1104/96, which were decided on 2.6.1997 as well as on 9.3.1999 (pages 21 and 17) whereby directions were given to the respondents to review the eligibility of the applicants for appointment to the posts of TGT (Natural Science), in accordance with the amended rules of 1993 and pass appropriate orders thereon.
3. Pursuant to the directions of this Tribunal, applicant No. 1 joined as TGT (Natural Science) w.e.f. 10.10.1997 while applicant No. 2 joined services on 02.7.1999. Both were given their seniority from 1994 vide orders dated 5.2.2002 and 12.10.2004 but in spite of it, they were denied their consequential benefits, which, according to the applicants, they were entitled to in law.
4. It is submitted by the counsel for the applicants that once the applicants were given seniority in 1994, they were entitled to the pay benefits as well. They even gave representations but their representations have been rejected vide order dated 7.5.2004. Grievance of the applicants is that similarly situated teacher, namely, Smt. Pratibha Rani was given pay fixation from the date of her selection and not from the date of joining. Similarly, in the case of Shri Nathi Ram, PET, his pay was fixed notionally by giving him due increments, therefore, applicants cannot be discriminated against.
5. O.A. is opposed by the respondents, on the ground that as per FR 17 (1), an officer begins to draw the pay and allowances attached to his tenure of a post with effect from the date when he assumes the duty of that post. In any case, simple empanelment does not give any right of appointment to the candidates. Moreover, in the earlier O.As. also, they had claimed appointment from 1994 but the same was not granted, therefore, that issue cannot be reagitated now. This O.A. is barred by the principle of constructive res judicata, therefore, it is liable to be dismissed.
6. On merits, they have submitted that the applicants had applied in pursuance to the advertisement issued in the year 1994 but they were not considered by selection, therefore, they filed O.A. 1238/96 and O.A. 1104/96 whereupon the Tribunal directed the respondents to review the eligibility of the applicants for appointment to the posts of TGT (Natural Science) in accordance with the amended rules of 1993.
7. It was pursuant to those directions that applicant No. 1 was considered and offered appointment to the post of TGT (Natural Science), which he joined on 10.10.1997 and was given seniority also from an earlier date. As far as applicant No. 2 is concerned, he was offered appointment w.e.f. 02.7.1999 and was assigned seniority also from an earlier date. They have submitted that no orders were passed by the Tribunal to give the applicants any other benefits, like notional pay fixation or back arrears, as is being claimed by the applicants now. Since it was the initial appointment, their pay has to be fixed from the date they joined the service. Therefore, when applicants gave representations, they were informed about the legal position vide order dated 7.5.2004. They have also relied on the case of Nirmla Gupta and Ors. v. Director of Education & Ors. (O.A. 569/96) wherein it was specifically held that since applicants had not worked as PGT during the intervening period, they cannot be granted pay and allowances on the assumption that they were not entitled to be appointed earlier. They have also relied on 2000 DRJ (55) 126 in the case of Gagan Kumar Singh and Ors. v. NCTD and Ors. and also Union of India and Ors. v. Rajinder Singh Rawat. As far as Smt. Pratibha Rani is concerned, respondents have stated that pursuant to the orders dated 7.5.2004 wherein it was clarified that the incumbents will not be entitled to the notional pay fixation, the benefit already granted to Smt. Pratibha Rani stands withdrawn and appropriate action is underway in this regard. With regard to Shri Nathi Ram, they have stated that it is wrong that his pay was fixed notionally from the date of his selection. Department is still reviewing his representation in reference to the rules and instructions, as applicable to the case. They have also placed on record show cause notice dated 4.9.2006, calling the explanation from DDE with regard to wrong notional pay fixation of Smt. Pratibha Rani and Shri Nathi Ram. They have also placed on record another show cause notice dated 6.6.2006 issued to the Deputy Director of Education (North-East) as to why action should not be taken against him for not complying with the departmental instructions with regard to the pay fixation of Smt. Pratibha Rani and Shri Nathi Ram. Respondents have, therefore, prayed that the O.A. may be dismissed.
8. On the other hand, counsel for the applicants relied on Union of India and Ors. v. K.V. Jankiraman and Ors. 1993 SCC (L&S) 387 and OA 161/HR/2003, decided on 19.5.2004 by Chandigarh Bench of the Tribunal. He has also relied on Para 26 under Govt. of India's orders printed under FR 22 to say that since juniors were drawing more pay, the pay of applicants needs to be stepped up at par with them.
9. We have heard both the counsel and perused the pleadings as well. This is a second round of litigation by the applicants. It is seen that when the applicants had approached this Tribunal in the first round of O.A, they had sought a specific direction to the respondents to appoint them to the posts of TGT (Natural Science) w.e.f. 22.4.1994 after quashing the letter whereby their candidature was cancelled. It is thus clear that in the earlier O.A. applicants had specifically sought appointment be given to them w.e.f. 22.4.1994 but the said relief was not granted. On the contrary, direction was given to the respondents to review the eligibility of the applicants in accordance with the amended rules of 1993 within two months from the date of receipt of copy of the orders and to pass appropriate orders within the time stipulated, under intimation to the applicants. It is settled law that if a relief is sought and not granted, it is deemed to have been rejected. However, after review, the applicants were given appointment which was given effect to on 10.10.1997 and 02.7.1999, meaning thereby that they had joined their services for the first time on the above dates, therefore, they could have drawn their pay only from those dates. Though counsel for the applicants strenuously argued that applicants should not be made to suffer for the fault of respondents and since they were given the seniority from an earlier date, there is no justification to deny them the pay fixation also from an earlier date but the law laid down is otherwise. Perusal of the judgments shows that the case of K.V. Janakiraman (supra) was related to denial of promotion by resorting to the sealed cover procedure even though person therein was exonerated and was not even visited with penalty of censure. It was in those circumstances, the Hon'ble Supreme Court held that since he was deprived from attending to the higher post without any fault on his part, the principle of `no work no pay is not applicable. Therefore, that deals with a different situation and cannot advance the case of applicants. As far as OA 161/HR/2003 passed by Chandigarh Bench of Tribunal is concerned, a specific direction was given that applicant therein shall have the consequential benefits from the date Shri Rajesh Sharma was so promoted whereas we have just noted above that no direction was given in the first O.A. 1104/96 and O.A.1238/96 in case of applicants that applicants shall be entitled to appointment from 1994 or any consequential benefits. Therefore, reliance placed by the applicants on the above O.A. is totally misplaced. On the other hand, it is seen that now the principle of `no work no pay is followed by Hon'ble Supreme Court as well as Hon'ble High Court of Delhi even in the case of wrongful denial of promotion. To quote the latest judgment, reference is made to the case of Harigovind Yadav v. Rewa Sidhi Gramin Bank and Ors. wherein though Hon'ble Supreme Court observed that applicant had been denied promotion erroneously for more than 16 years on one pretext or the other yet the only direction given was to promote him with effect from the date when his junior was promoted. It was made clear that he would be entitled to monetary benefit flowing from such promotion only prospectively and his pay would be refixed with reference to the respective date of promotion notionally. The same view was taken earlier also by Hon'ble Supreme Court in the case of State of Haryana and Ors. v. O.P. Gupta and Ors. . In that case, it was held that though promotion should be given retrospectively but since he had not worked on the post, no claim of arrears is made out. The above two cases related to promotion. We are more concerned with the cases where appointment is given belatedly due to the fault of respondents. Even on this point, it would be relevant to quote the judgment of Hon'ble Supreme Court in the case of Union of India and Ors. v. Rajinder Singh Rawat where the exact question that arose for consideration was whether the High Court was justified in granting relief of payment of back wages to the respondent for the period he had not actually served. In that case also, respondent's case was omitted from being considered on the ground that his chest was short by 2 cm and as such he did not possess necessary physical standard but since similar departmental candidates were given the relief, respondent's case was also considered by the appropriate authority and he was held entitled to the rank of Assistant Sub Inspector from 3.8.1992 the date on which panel of 1992 was released by protecting his seniority on notional basis but it was made clear that he would not be entitled to any pay and allowances of Assistant Sub Inspector for the back period and would be entitled to the same only from the date, he assumes the charge physically. Hon'ble High Court had granted the payment of back wages also to the respondent therein but the order passed by the High Court was not found to be justified by Hon'ble Supreme Court in granting payment of back wages for the period for which he had not actually assumed the charge. Accordingly, the order passed by Hon'ble High Court was set aside and the appeal of Union of India was allowed by the Hon'ble Supreme Court. Somewhat similar situation arose before the Hon'ble High Court of Delhi in the case of Gagan Kumar Singh (supra). In that case also, the appellants were entitled to be given appointment from the same date when appointments were given to the persons with lesser marks than the appellants and their seniority was also directed to be fixed from the same date but it was made clear they shall not be entitled to any salary or allowances for the past period and would be entitled to salary only from the date of their appointment.
10. If the facts of the present case are tested in the back drop of above judgments, we find that the case of applicants is fully covered by the above said judgment. In this case also, they were not even initially given the appointment but it was only on review that applicants were given the appointment protecting their seniority but they were denied the back wages or pay protection rightly because they had assumed the duties for the first time in Government service on the dates after they were given the appointment letter, naturally they would start getting their pay from that date only. Counsel for the applicants could not show us any provision under which though appointment itself is given from a subsequent date for the first time but person can claim salary or pay fixation from an earlier date. We, therefore, reject the contention of applicants counsel.
11. As far as the question of discrimination is concerned, we have seen that respondents have already issued show cause notice to the officers who were responsible for fixation of pay of Smt. Pratibha Rani or Shri Nathi Ram and we are sure they would pass necessary orders by following due process of law in respect of Smt. Pratibha Rani and Shri Nathi Ram also. In any case, the law is well settled in the case of State of Bihar and Ors. v. Rameshwar Prasad Singh etc. 2000 SCC (L & S) 845 wherein it was held that if the benefit is wrongly given to one person, it cannot be sought by others claiming violation of Articles 14 and 16 of the Constitution because law of equality is a positive concept and cannot be enforced in a negative manner. The benefit extended to some persons illegally or in an illegal manner cannot be claimed by others on the plea of equality. Wrong order or judgment passed in favour of one person would not entitle others to claim similar benefits.
12. In view of above, we find no merit even in the second argument of counsel for applicants. The O.A., therefore, being devoid of any merit is dismissed. No order as to costs.