Central Administrative Tribunal - Delhi
Priyanka Rawat vs Gnctd on 15 May, 2025
1
Item No. 23(C-6)
OA 636/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
OA No. 636/2023
Reserved on: 06.05.2025
Pronounced on:15.05.2025
CORAM
HON'BLE MR. SANJEEVA KUMAR, MEMBER (A)
HON'BLE MR. AJAY PRATAP SINGH, MEMBER (J)
1. Ms. Priyanka Rawat aged about 35 years (Group 'C')
Speech Therapist
D/o Sh. Mohan Singh Rawat
R/o 78, Delhi Government Flats
Sector 11, Rohini, Delhi-110085
........Applicants
Versus
1. GNCT of Delhi & Ors.
Through its Chief Secretary
A-Wing, 5th Level, Delhi Secretariat
IP Estate, New Delhi-02
2. Department of Health and Family Welfare
Through its Secretary
(GNCT of Delhi)
9th Level, Delhi Secretariat, New Delhi-54
3. The Medical Superintendant
Sanjay Gandhi Memorial Hospital
(GNCT of Delhi)
Mangolpuri, Delhi-110083
4. Delhi Subordinate Services Selection Board
Through its Chairman
FC-18, Karkardooma Institutional Area
Delhi-92
5. Dr. Baba Saheb Ambedkar Medical College
Through Director Principal
Sector-6, Rohini, Delhi
........ Respondents
For Applicant:- Mr. Anmol Pandita with Mr Mohan Singh Rawat,
Advocates
For Respondents:- Mr. Girish C Jha, Mr. B.C. Bhatt for UOI, Advocates
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Item No. 23(C-6)
OA 636/2023
ORDER
As Per: Hon'ble Ajay Pratap Sing, Member (Judicial) Applicant is working as Speech Therapist by means of this application has invoked jurisdiction of this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 seeking directions to the respondents to grant notional seniority from the date of last candidate appointed including pay fixation with all consequential benefits including notional increments and benefits under MACP Scheme w.e.f. November, 2016 and to rectify the Board recommendation meeting dated 06.04.2022 along applicant's joining to 2016 instead of 10.05.2022.
FACTS IN BRIEF
2. The DSSB issued employment notification no. 01/2014 for four vacancies of Speech Therapist in Department of Health and Family Welfare, Department of GNCTD. Out of four vacancies, two for Unreserved, two for OBC category. Applicant belongs to OBC category participated in selection. On 06.01.2016, the DSSSB declared final result and under OBC category two candidates namely Ms-Shilpi Verma and Ms. Upasana Verma were placed in the panel. In the OBC category, applicant was placed in the reserve/wait list Panel as evident from Result notice No.361 dated 06.01.2016.
3. It is also the case of the applicant as set out in the OA that final result was declared on 01.01.2016, but DSSSB sent dossier of Ms. Shilpi Verma placed at serial no.2 in OBC category On 9.9.2016 to user department of Health & family Welfare, GNCTD and respondent no.2 - user hospital and had received on 7.10.2016.
3Item No. 23(C-6) OA 636/2023
4. Reminders were sent to Ms. Shilpi Verma vide letters date of 19.12. 2016, 28.01.2017, 27.2.2017 and 15.4.2017 and the user-department returned the dossier of Ms. Shilpi Verma to DSSSB vide letter dated 01.06.2017 as after sending four reminders, Ms. Shilpi Verma failed to join the duty till date.
5. Applicant filed O.A No. 2749 of 2017 seeking direction to the respondents to appoint the applicant. This Tribunal vide Order dated 22.9.2020, held that the DSSSB has power to regulate its affairs and are violative of any specific provisions of law and accordingly dismissed the O.A. The applicant challenged the Order dated 22.09.2020 in WP
(c)No. 76371 /2020 in the matter of Priyanka Rawat vs. Government of NCT of Delhi and Hon'ble High Court of Delhi and vide order dated 13.12.2021, observed that because of delay on the part of departments, appears to be responsible and chances of applicant though at serial no.1 in waitlist, got marred as DSSSB sent dossier on 09.06.2016, first reminder to Ms. Shilpi Verma only on 19.12.2016 ad followed by reminder on 28.1.2017, 27-2-2017 and 15.4.2017. The respondents taken time to revert and vide order dated 08.07.2022, Hon'ble High Court of Delhi vide Order dated 08.07.2022 observed that Order dated 07.04.202.2, has been complied with and applicant has already been appointed and jointed duty and Their Lordships disposed off the petition, in view whereof, no further orders were called for.
6. The DSSSB have taken decision to nominate the applicant and not done rectification of date of joining and the applicant was given an offer of appointment on 10.5.2022, and applicant's last counterpart Ms. 4 Item No. 23(C-6) OA 636/2023 Upasana Verma joined in year 2016. The applicant is seeking notional seniority from the date of last candidate was appointed with all benefits, including pay fixation with all consequential benefits including notional increment and benefits under MACP w.e.f. November, 2016 and treat joining date in case of applicant as 2016 instead of actual joining on 10.05.2022.
7. Per-Contra, respondents have contested the claim of applicant by filing the counter affidavit. The Respondent No(s) 3, 4 and 5 have filed separate counter affidavit stating that applicant was appointed on 20.05.2022 in Delhi Government Hospital, Dr Baba Sahib Ambedkar Medical College, Rohini, Delhi and the Respondent No. 5 is a user department. Applicant is seeking fixation of pay on joining in Level-6, Pay Scale of Rs 35,400 and instead of 2022, the applicant's pay be fixed from Nov, 2016.
8. Respondents No.5 stated in their counter reply affidavit that appointment of applicant was effected from late of her joining after medically declared fit and there is no provision, rules or guidelines to grant notional benefits of increment, MACP from retrospective date of joining and no benefits from retrospective date can be granted. There are no DOPT rules or guidelines regarding grant of notional benefits i.e. increment, MACP to a government servant, who has joined service much after the claimed date of benefits.
9. Respondent No.4, DSSSB stated in the counter reply affidavit that the applicant was considered and was selected vide result notice no. 1370 dated 06.04.2022 and on declaration of result of the applicant, Hon'ble High Court vide order dated 8.7.2022 disposed of the petition 5 Item No. 23(C-6) OA 636/2023 by observing that no further orders are called for. Hon'ble High Court was satisfied by the action taken by the respondents and reliefs sought regarding notional benefits, pay fixation and MACP Scheme, pertains to user department.
SUBMISSIONS
10. Learned counsel for the applicant argued and can be summarized as under.
(1) Advertisement No. 1/2014 for four posts of Speech Therapists in Department of Health & family welfare, Dept of GNCT, Delhi for post Code no.03/2014 with two OBC and two UR categories. The applicant is OBC candidate, placed in the wait list at serial no.1 in result dated 06.01.2016. The DSSSB, belatedly sent dossier on 09.09.2016 of Ms. Shilpi Verma, placed at serial no. 2 in OBC category and on 07.10.2016 received dossier. The four reminders were sent to Ms. Shilpi Verma but she did not join and last reminder was sent on 15.4.2017 and on 01.06.2017, the user department returned the dossier to DSSSB. On 09.06.2017 - user department sent letter to DSSSB to send name of applicant from waitlist. The DSSSB did not nominate the applicant as waitlist panel had expired on 05.01.2017 and dossier was received to operate waitlist after 05.01.2017. Hon'ble High Court of Delhi in WP(C) NO. 7637 /2020 filed by applicant and on 1.4. 2022, DSSSB taken corrected measure for the error occurred in the Board and nominated the applicant and appointed on 6.4.2022 without granting notional seniority and pay-fixation after last selected candidates we.f. 02.01.2017, date of the last selected candidate in OBC Category 6 Item No. 23(C-6) OA 636/2023
(ii) DSSSB notification dated 13.06.2013, stipulates waitlist and from panel not joining within one year of validity of panel than candidates from waitlist entitled for consideration for offer of appointment and Hon'ble High Court of Delhi in WP(C) No. 7637/2020 vide Order dated 13.12.2021 in case of the applicant observed that because of delay of the two department, DSSSB and user department/DOHFW, the applicant's case could not be considered from wait list/reserve panel.
(iii) DSSSB took corrective measure for error occurred in board and offer of appointment was issued on 10.05.2022 and the applicant joined on 20.5.2022 whereas Ms. Upasana Verma, last selected OBC candidate joined 02.01.2017 and other candidates joined in Nov, 2016. Hence, the applicant be entitled for notional seniority w.e.f. 2.1.2017, the date on which MS. Upasana Verma joined with notional increments and benefits under MACP and actual be paid from the date of actual joining service on 20.05.2022.
11. Mr. Girish C. Jha, learned counsel appearing for the Respondent No.3 and 5 supported the action of Respondent No. 5, not granting notional seniority and pay fixation from 2.1.2017 and granted from actual date of joining w.e.f. 20.5.2022, as there is no provisions in any rule to allow a candidate to join Government service from present, actual date and grant benefits from back date or date from joining of last OBC candidate w.e.f. 02.01.2017 meaning thereby that the applicant joined on 20.05.2022 and cannot be allowed to said to be joined fresh from back date for all types of notional benefits. There are no extant DOPT rules/guidelines regarding grant of notional benefits i.e. increment, MACP etc. to one who has joined much later to the 7 Item No. 23(C-6) OA 636/2023 claimed date of benefits to be given. So also the present OA is covered by the law laid in the case of Union of India Vs. Ishwar Singh Khatri, 1992 Supp (2) SCC 84.
12. Admitted facts in the present case that DSSB taken a decision to take a corrective measure for error occurred and operated waitlist panel. So also issued offer of appointment on 06.04.2022 and filed compliance report in W.P.(C) 7637/2020 and Hon'ble High Court of Delhi in WP (C) 7637/2020. Their Lordships vide order dated 087.07.2022 observed that "petition is listed for compliance of order dated 7.4.2022 and the said order has been complied with. The petitioner has already been appointed and has joined the duties and no further orders are called for and petition as disposed off."
13. The dispute in the present case is that the stand of the applicant that pursuant to delay on the part of user department and user hospital, appointment of applicant was due to delay on part of the respondents and entitled for notional seniority and pay-fixation from the date of 2.1.2017, joining of Ms. Upasana Verma last candidate in OBC category instead of the date of actual joining of applicant w.e.f 20.5.2022, with all consequential benefits. The stand of the respondents that applicant filed OA No. 2749/2017 and same was dismissed vide Order dated 22.09.2020. The applicant filed WP(C) 7637/2020 and meanwhile, DSSSB filed compliance report and allowed applicant to join on 22.05.2022. Hon'ble High Court vide final order 8.7.2022, Their Lordships, held that no further Orders are called for. So also stand of the respondents that there is no extant DOPT rules or guidelines 8 Item No. 23(C-6) OA 636/2023 regarding grant of notional benefits to a Government servant who joined a service much after the claimed date of benefits to be given.
DISCUSSION
14. The issue which arises for our consideration -"whether the applicant has been wrongly deprived due consideration for offer of appointment by operating the reserve list/waitlist and the applicant is entitled for notional seniority and pay-fixation from the date of last selected candidate?"
15. Now Coming to the factual aspects of the matter in hand. The user department-Health & Family Welfare Department, GNCTD sent requisition and DSSSB had advertised 4 vacancies (2 UR and 2 OBC) of Speech Therapist in Health & Family Welfare, GNCTD Therapist under post code no 03/2014 vide advertisement no. 01/2014. Result was declared on 06.01.2016 and selected four candidates (2 UR & 2 OBC) and declared names of two wait listed candidates (1 UR & 1 OBC) and on 9.9.2016 as per norms of DSSSB forwarded the dossiers of selected candidates.
16. The User department/DOHFW sent first reminder only on 09.12.2016 followed by reminders sent on 28.01.2017, 27.02.2017 and 15.4.2017 to Ms. Shilpi Verma- OBC Candidate, who has secured the second position in the OBC category.
17. The user department vide letter dated 9.6.2017 had returned the dossier of Ms. Shilpi Verma after cancellation due to non-acceptance of offer of appointment. The select panel/waiting list was valid for the period of only one year from the declaration of result upto 5.1.2017 9 Item No. 23(C-6) OA 636/2023 and DSSSB received the dossier after expiry of the waitlist panel and the applicant at Serial No.1 in the reserve list/wait list could not be nominated from waitlist against returned dossier of Ms. Shilpi Verma
- OBC category candidate.
18. Applicant filed O.A. No. 2749/2017 and same was dismissed vide Order dated 22.9.2020. Thereafter, applicant filed W.P. (C) No. 7637/2020 before the Hon'ble High Court of Delhi and vide Order dated 13.12.2021, Their Lordships observed and relevant paragraph(s) 3 to. 3.2 reads as under:-
"3. Clearly, because of the procrastination, for which the two departments i.e., DSSSB and user department/DoHFW presently appear to be responsible, the chances of the petitioner, who was at serial no.1 in the reserve panel/waiting list, got marred.
3.1. This aspect has been put to Mrs Avnish Ahlawat, who appears on behalf of both the recruiting agency i.e., DSSSB and the user department/DoHFW.
3.2. Mrs Ahlawat says that she will revert with instructions.
[emphasis supplied]
19. Thereafter, vide order dated 08.07.2022 in WP.(C) 7637/2020, Their Lordships observed that "petition is listed fort compliance of order dated 7.4.2022 and petitioner has already been appointed and has joined the duties and disposed of."
20. The supplementary result notice no. 1370 dated 6.4.2022 was issued by respondents and the Board has taken a decision by taking a corrective measure for the error occurred in Board and nominated the applicant. The result from waitlist of the applicant was declares as a case of rectification of error occurred in the Board. 10 Item No. 23(C-6) OA 636/2023 The applicant has been appointed vide order dated 20.5.2022 and in revised pay - matrix Level-6 (Pre-Revised) Pay Band of Rs 9300- 34800 +GP of Rs. 4700 as per 6th CPC.
21. The philosophy of the Indian Constitution, as it stands evolved from precedent to precedent, has broadened the horizons of the right of the employees and they have been assured and ensured protection against arbitrariness in discrimination.
22. Hon'ble Supreme Court in case of Union of India versus Ishwar Singh Khatri and Ors., 1992 Supp (3) SCC 84. The relevant paragraph(s) 7 to 9 read as under:-
"7. Therefore, in the premises we have to conclude that the Selection Board prepared the panels containing 1492 candidates as against the then available vacancies. In view of this conclusion, it goes without saying that the selected candidates have a right to get appointment. We, therefore, see no reason to disturb the judgment of the Tribunal.
8. It is made clear that the Administration shall fill up all the existing vacancies within one month from today till the panels in question are exhausted. With this direction, the appeal is dispoled of. In the circumstances of the case, there will be no order as to costs.
9. Before parting with the case we must notice one other aspect. During the pendency of the proceedings before the Tribunal and also in this Court, Delhi Administration appears to have appointed some fresh candidates. We do not want to disturb their appointments nor itis proper for Delhi Administration to disturb them. Needless, however, to state that the candidates in the panels when appointed pursuant to our order must get their seniority as per their rankings in the select panels over the persons appointed in the interregnum."
(emphasis supplied)
23. In the case of Kushewar Prasad Singh Vs. State of Bihar & Ors. (2007) 11 SCC 447 held as under:-
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Item No. 23(C-6) OA 636/2023 "13. it is settled principle of law that a man cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law. It is sound principle that he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned.
To put it differently, 'a wrong doer ought not to be permitted to make a profit out of his own wrong'."
24. In the matter of Union of India & Ors. Vs. Major General Madan Lal Yadav (Retd.) [1996] 3 SCR 785, it was observed as :-
"In Broom's Legal Maxims(10th Edn.) p. 191 wherein it was stated;
...it is a maxim of law, recognised and established, that no man shall take advantage of his own wrong; and this maxim, which is based on elementary principles, is fully recognised in Courts of law and of equity, and, indeed, admits of illustration from every branch of legal procedure."
25. In the case of Ravi Raj And Ors. vs. Union of India And Anr., decided on 2 May, 2022 in W.P.(C) 3408/2019. The Hon'ble High Court of Delhi has held as under:
"13. In Dinesh Kumar Kashyap and Others vs South East Central Railway and Others, (2019) 12 SCC 798 decided on 27.11.2019, the Supreme Court has held inter-alia as under:
"....6. Our country is governed by the rule of law. Arbitrariness is an anathema to the rule of law. When an employer invites applications for filling up a large number of posts, a large number of unemployed youth apply for the same. They spend time in filling the form and pay the application fees. Thereafter, they spend time to prepare for the examination. They spend time and money to travel to the place where written test is held. If they qualify the written test they have to again travel to appear for the interview and medical examination, etc. Those who are successful and declared to be passed have a reasonable expectation that they will be appointed. No doubt, as pointed out above, this is not a vested right. However, the State must give some justifiable, non-arbitrary reason for not filling up the post. When the employer is the State it is bound to act according to Article 14 of the Constitution. It cannot without any rhyme or reason decide 12 Item No. 23(C-6) OA 636/2023 not to fill up the post. It must give some This is a digitally signed Judgement. plausible reason for not filling up the posts. The courts would normally not question the justification but the justification must be reasonable and should not be an arbitrary, capricious or whimsical exercise of discretion vested in the State. It is in the light of these principles that we need to examine the contentions of SECR.
12. Another argument raised is that recruitment policy is an executive decision and the courts should not question the efficacy of such policy. Neither the appellants nor this Court is questioning the efficacy of the policy contained in the letter dated 2-7-2008. All that has been done is to ensure implementation of the policy by Respondent 1, especially when it has failed to give any cogent reason to justify its action of not calling for candidates from the replacement list of extra 20 per cent candidates.
14. While allowing the appeals we issue the following directions:
14.1. The benefit of this judgment shall only be available to those appellants who had approached CAT;
14.2. The appellants shall not be entitled to any back wages;
14.3. The appellants shall, for the purpose of seniority and fixation of pay be placed While the respondents were instructed to take a view in this regard, nothing worthwhile has been done in the last three years.
14.4. The appellants shall be entitled to notional benefits from the date of such deemed appointment only for the purposed of fixation of pay and seniority. ..."
14. The said dicta lay down the law (emphasis supplied)
26. In case of Director of Education and Anr. Vs. Smt. Krishna Kumari in WP (C) No. 13987/2009 vide judgment dated 21.12.2009 by the Hon'ble High Court of Delhi, Their Lordships upheld order dated 15.05.2009 passed in O.A. No. 179 of 2008 by this Tribunal and issued a direction to the petitioners to 13 Item No. 23(C-6) OA 636/2023 accord notional pay-fixation to TGT-from 1984 and seniority. Relevant paragraph(s) 2, 4 & 5 are extracted herein below:-
"2. The respondent was granted notional appointment and seniority as TGT with effect from 1984 on the basis of the judgment of the Supreme Court in Union of India v. Ishwar Singh Khatri & Ors. 1993 (2) SCALE 730. The petitioners, however, sought to deny notional pay fixation to the respondent, on the ground that the Supreme Court had only talked about assigning proper seniority but had not granted the relief of notional pay fixation. This led to the filing of the aforesaid Original Application by the respondent. As aforesaid, the Original Application of the respondent has been allowed by the Learned Tribunal.
3. The submission of the learned counsel for the petitioners before us is that the respondent could not be given notional pay fixation of pay. We see no justification in the stand of the petitioners.
4. Once the respondent had been granted notional seniority from 1984, i.e. she is being treated as being in service from 1984 onwards, the said fiction has to be given its full effect, including for purposes of pay fixation. Therefore, the pay of the respondent ought to have been fixed as if she had joined in the year 1984 and on the basis that she had earned the increments, and benefitted from wage revision, which may have taken place in the meantime. She would also be entitled to benefits under the Assured Progression Scheme.
5. In our view, there is no error in the order of the Tribunal, and the same appears to be perfectly legal and justified. We may, however, clarify that the pay fixation from 1984 is only notional and that, by itself, would not entitle the respondent to seek arrears of pay for the period for which she has actually not worked. Accordingly, the writ petition is dismissed."
(emphasis supplied)
27. In Case of Delhi Subordinate Services Selection Board and Vs. Mohd. Vaquar Khan in WP (C ) No. 4021/2024 was decided by the Hon'ble High Court of Delhi vide judgment dated 18.03.2024. The Tribunal, in OA. No. 4293 of 2018, vide order 14 Item No. 23(C-6) OA 636/2023 dated 16.5.2023, considered a similar O.A and set aside decision of respondents to not to operate waitlist panel and granted all consequential benefits on a notional basis with reference to his batch mates as per merit position and allowed the O.A. The DSSSB filed WP (C) 4021/2024 before the Hon'ble High Court of Delhi and Their Lordships upheld the order dated 16.5.2023 passed by this Tribunal. Relevant paragraph(s) 10 to 12 read under:-
"10. From a perusal of the aforesaid, we find that the learned Tribunal has noted that not only was the stand of the petitioners that the wait panel had expired on 07.06.2017, was contrary to their own action of operating the said list till 29.06.2018, when the candidature of the candidate at serial no.1 was cancelled, but was also discriminatory qua the respondent. The learned Tribunal, therefore, observed that the petitioners being model employer ought to have applied the same yard stick for all candidates, including the respondents.
11. In the light of the aforesaid findings of the learned Tribunal, we have considered the submissions of the learned counsel for the parties and are of the view that there is no infirmity to the approach adopted by the learned Tribunal. We find that, as noted by the learned Tribunal, despite the candidate who was placed at serial nos.1 not coming forward for verification of his documents, the petitioners continued to issue notices to him till as late as 22.03.2018 and it was only on 29.06.2018 that his candidature was cancelled. In our view, once it is the petitioners' own stand that the select list and the wait list were to expire on 07.06.2017, there was no reason as to why communications were being sent to the candidate placed at serial no.1 till as late as March 2018 to furnish his documents for verification.
12. The petitioners themselves being responsible for the delay in cancellation of the candidatures of the candidates placed at serial nos.1 & 2, cannot deprive the respondent of his entitlement to be appointed to the post of PGT (RDU). It is expected from recruitment agencies, like the petitioners, to take prompt actions to fill up a post after the result of the examinations are declared. In case, the selected candidates are not able to furnish the requisite documents in time, steps 15 Item No. 23(C-6) OA 636/2023 should be taken to cancel their candidatures without any undue delay. Furthermore, the process for verification of the documents furnished by the selected candidates must also be carried out expeditiously so that in case they are not found to be in order, the candidates placed in the waitlist can be appointed without any delay."
[emphasis supplied]
28. What comes out loud and clear from the facts of the case in hand and law laid down by Hon'ble Supreme Court, Hon'ble High Court of Delhi and Division Bench of this Tribunal extracted herein above and the facts of the matter in the case in hand. The Respondents have already admitted the error and rectified the error occurred and wrongly deprived the applicant and the applicant had valuable right for due consideration for offer of appointment in accordance with law. The Respondents have already appointed the applicant and joined on 20.05.2022 but ought to have rectified their mistake and granted notional seniority from the date of last selected candidate and pay-fixation without arrears of pay for the period for which she actually not worked.
CONCLUSION
29. We have already analyzed in detail the issue and the issue is decided in favour of the applicant and against the respondents. Applicant had been wrongly deprived and not considered for appointment in accordance with the rules.
30. The respondents are directed to grant notional seniority and notional pay fixation to the applicant from the date of last selected candidate appointed pursuant to result notice no. 361 dated 16 Item No. 23(C-6) OA 636/2023 6.1.2016 and the notional pay fixation by itself would not entitle the applicant to seek arrears of pay for the period for which the applicant has actually not worked.
31. Respondents are directed to complete the said exercise within a perid of four months from the date of receipt of certified copy of this Order.
32. Resultantly, the present OA stands allowed in above indicated terms and accordingly disposed of.
33. However, there shall be no order as to csots.
34. As a sequel, any pending Misc. Applications(s), if any, shall stand closed.
(Ajay Pratap Singh) (Sanjeeva Kumar)
Member (J) Member (A)
/abhay/