Central Administrative Tribunal - Delhi
Smt. Deepti Arora vs Govt. Of Nct Of Delhi on 10 February, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.536/2007 New Delhi, this the 10th day of February, 2009 HONBLE MR. JUSTICE V.K.BALI, CHAIRMAN HONBLE MR. L.K.JOSHI, VICE CHAIRMAN (A) Smt. Deepti Arora, Wife of Shri Rakesh Kumar Arora, Aged about 43 years, R/o 1654, Outram Lines, Kingsway Camp, Delhi-110009 Applicant (By Advocate: Shri S.S. Tiwari) Versus 1. Govt. of NCT of Delhi, through Chief Secretary, Govt. of NCT of Delhi, New Sectt. near Indira Gandhi Stadium, I.P. Estate, New Delhi-110002 2. Director of Education, Directorate of Education, Old Sectt. Delhi-110054 3. Deputy Controller of Accounts (Education), Directorate of Education, Old Sectt. Delhi-110054 Respondents (By Advocate: Shri Vijay Pandita) ORDER Mr. L.K. Joshi, Vice Chairman(A):
The Applicant, a Trained Graduate Teacher (TGT) under the second Respondent, is aggrieved by the fact that she has not been given the benefit of notional seniority from 1997, fixed on the direction given by this Tribunal in OA No.32/1999 by order dated 26.09.2000, in the fixation of her pay, as a consequence of which her junior is drawing more pay than the Applicant. Her representation regarding notional fixation of pay has been rejected by a communication dated 29.01.2007 stating that the third Respondent has rejected her claim. The aforesaid communication has been challenged in this OA.
2. The relevant facts of the case are that the Applicant herein had earlier approached this Tribunal in OA No.32/1999 challenging the memorandum dated 19.11.1998 of the Director of Education of Government of NCT of Delhi by which she was informed that her representation for recruitment to the post of TGT (Social Science) had been considered and rejected by the competent authority. This was because of the fact that she had not been given any marks for her post-graduation in Commerce and M.Phil. (Commerce) on the ground that Commerce was not her `teaching subject. The Tribunal in its order dated 26.09.2000 gave the following directions:
(i) Respondents are directed to allot the marks to the applicant for possessing the post-graduation degree of M.Com and M.Phil (Commerce) at that time, in accordance with the relevant Recruitment Rules of 11.12.91. This shall be done within a period of two months from the date of receipt of a copy of this order with intimation to the applicant.
In case the applicant attains the minimum cut-off marks required for appointment to the post of TGT (Social Science) the respondents shall thereafter immediately appoint her in that post in any future vacancies.
In the facts and circumstances of the case, in case the applicant is appointed as TGT (Social Science) she will be entitled for proforma fixation of seniority from the date her junior in merit has been appointed but we make it clear that she shall not be entitled to any back wages for the period which she has not worked.
3. Pursuant to the above, the second Respondent herein directed the Deputy Director of Education by his order dated 26.07.2001 to issue her letter of appointment from the date her junior in merit had been appointed. It also directed that she would not be eligible for back-wages. The Deputy Director issued a letter of appointment, which, inter alia, mentioned that:
She will be entitled for proforma fixation of notional seniority from the date her junior in merit has been appointed but she shall not be entitled to any back Wages for the period which she has not worked as per the direction of the Honble CAT dated 26.9.2000 in the OA No.32/99 (Smt.Deepti Arora V/s GNCT of Delhi & Ors). (emphasis added) By order dated 1.10.2004 she was placed at seniority number 6719A.
4. On 15.07.2005 the Applicant made a representation stating that Miss Shalini Kumari, TGT, junior to the Applicant, was drawing more pay than her and the latters date of increment was shown as 1st March, whereas the Applicants date of increment had been shown as 1st August. She requested for stepping up of her pay to the level of her juniors pay. The Vice-Principal of the School, where the Applicant was teaching, issued an order dated 7.09.2006 fixing the Applicants salary at Rs.6025.00, same as her junior, and changing the date of her increment from 1st August to 1st March. This order was never implemented. Her representation dated 15.07.2005 was rejected by order dated 27.01.2007, adverted to above. The impugned order is reproduced below:
No.SKV/Dhakka/07/39 Dated 29/01/2007 With reference to her application dated 15/07/05 regarding fixation of Notional Pay, Mrs. Deepti Arora TGT (Social Science) is hereby informed that her case was forwarded to Competent Authority for their approval. Her case has been rejected by the DCA Education as per contents of Addl. D.E. (Admn) Order No. DE.3(144)/E-III/95/6534-89, dated 07/05/04, that no Notional pay fixation is allowed in any case on the decision of the Court, on account of restoration of seniority with retrospective effect. (emphasis added)
5. The order dated 7.05.2004 quoted in the impugned order was passed following the directions of the Supreme Court in Civil Appeal No.1900 of 1987, Union of India and others Vs. Ishwar Singh Khatri and others. It will be necessary to make an advertence to the aforesaid judgement of the Supreme Court. The facts in this case were that in 1982-83, Delhi Administration selected 1492 candidates for the post of T.G.Ts. and prepared a panel containing 1492 names. The panel was displayed on the notice board and stated specifically that the appointment will be in the order of merit, that the appointment will be made from the select list till the last candidate is appointed. The Delhi Administration appointed about 50 per cent of empanelled candidates and, while the rest of the candidates were waiting for appointment, issued an advertisement for fresh selection. Some fresh panels were prepared and candidates from these panels appointed. The candidates in the earlier panel approached this Tribunal, which allowed their claim directing that the candidates in the earlier panel would have precedence in appointment over the candidates in later panel and that no fresh panel should be prepared till the aforesaid panel is exhausted. This order was challenged before the Supreme Court, which upheld the order of the Tribunal and also held, vis-`-vis those persons who were appointed from fresh panel, thus:
Before parting with this case we must notice another aspect. During the pendency of 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 is it 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. The order dated 7.05.2004, adverted to above, was passed pursuant to the direction given by the Supreme Court. The order, inter alia, stated thus:
..in compliance with the directions passed by the Honble Supreme Court on Civil Appeal No:1900 of 1997 [actually 1987] 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 candidates as per their rankings in the select panel over the persons appointed in the interregnum. The incumbents will not be entitled to notional pay fixation, since there was no mention of the pay fixation/notional fixation in the orders passed by Honble Supreme Court. (emphasis added) It is on the basis of this order dated 7.05.2004, the Applicants representation for fixation of pay notionally from the retrospective date was rejected.
6. The learned counsel for the Applicant takes serious exception to the assertion of the Respondents that fixation of notional seniority would not necessarily mean notional fixation of pay also from the date of seniority. He would contend that the Respondents had lost sight of the fact that once seniority is correctly fixed with retrospective effect, the consequences of the same should be correct fixation of pay at par with the person immediately junior to the Applicant. It is contended that it is a settled proposition of law that under normal circumstances a senior cannot draw less pay than his junior. Reliance is placed on Paluru Ramkrishnaiah and others Vs. Union of India and another, (1989) 2 SCC 541 and Telecommunication Engineering Service Association (India) and another Vs. Union of India and another, 1994 Supp (2) SCC 222.
7. It is also urged that the order dated 7.05.2004 was passed by the Respondents with reference to the judgement of the Supreme Court in Ishwar Singh Khatri (supra) in which the Applicant was not a party and, therefore, the order dated 7.05.2004 has no relevance in her case. In the Applicants case, she had been denied appointment due to the fault of the Respondents for which she could not be made to suffer disadvantage in perpetuity by getting lesser pay than her junior.
8. The learned counsel for the Respondents, on the other hand, is totally unwilling to concede the point and has tenaciously contested the cause of the Applicant. It is urged that the Tribunal by its order dated 26.09.2000 in OA No.32/1999 had only directed that the Applicant should be given proforma seniority from the date the person junior to her in the merit list had been appointed and following these directions, her seniority has been fixed at serial number 6716A vide corrigendum dated 1.10.2004 placed at Annex-D of the OA. The Vice-Principal of the school, where the Applicant was teaching, had, on the Applicants representation, inadvertently fixed the pay of the Applicant notionally with retrospective effect by order dated 7.09.2006 under the impression that it was a matter regarding stepping-up of salary. It is wrong as no notional fixation of pay is allowed on account of restoration of seniority with retrospective effect, contends the learned counsel for the Respondents. It is further submitted that FR 17 (1) does not permit granting of wages for the period a person has not worked. Reliance has been placed on Union of India Vs. R. Swaminathan, (1997) 7 SCC 690, Mrs. Nirmala Gupta & Others vs. the Lt. Governor-cum-Administrator of Delhi & Others, OA No.569/96, decided on 18.01.2000, Karan Priya Gautam & Ors. Vs. Government of NCT of Delhi & Ors., OA No.2618/2005, decided on 30.10.2006 and Ms. Rita Tara Vs. The Director of Education, Government of NCT of Delhi and Ors., OA No.2154/2005, decided on 17.07.2007.
9. The various judicial precedents cited in this case need careful scrutiny. Paluru Ramkrishnaiah and others (surpa) was decided by a Bench of three learned Judges of the Apex Court. There was a batch of seven Writ Civil Miscellaneous petitions before the Supreme Court. The writ petitioners, who had been appointed Supervisors Grade `A in various ordnance factories between 1962 to 1966 were before the Supreme Court with the prayer that the same relief may be granted to them as granted to 75 appellants in Civil Appeal No.441 of 1981 by its order dated 2nd February, 1981. The appellants in Civil Appeal No.441 of 1981 had come before the Supreme Court in Civil Miscellaneous Petition pleading that the directions of the Court had not been complied with properly. The grievance of the appellants before the Supreme Court in the aforesaid Civil Appeal No.441/1981 was that while several Supervisors Grade `A had been promoted to Chargeman II after two years service in that grade, the appellants were not promoted immediately after completion of two years in the grade of Supervisor Grade `A. The plea of the appellants did not find favour with the High Court. It was against the judgement of the High Court of Allahabad, the Civil Appeal No.441 of 1981 was filed. The Supreme Court, in its judgement dated 2nd February 1981, inter alia, held as follows:
..The Government now appears to insist that in so far as the appellants are concerned they cannot be considered for promotion unless they complete three years of service. We see no justification for any such differential treatment being given to the appellants. If a large number of other persons similarly situated have been promoted as Chargeman Grade II after completing two years of service, there is no reason why the appellants should also not be similarly promoted after completing the same period of service We, therefore, direct that concerned authorities will consider the case of the appellants for promotion as Chargeman Grade II and promote them to said posts unless they are found to be unfit. If the appellants are promoted, they will naturally have to be promoted from the date on which they ought to have been promoted. The above said appellants came up before the Apex Court in the Civil Miscellaneous petition for implementation of the above directions in letter and spirit and, inter alia, made the following prayer:
(iii) issue appropriate directions to the respondents to give all consequential benefits to the appellants, including payment of arrears. While deciding the CMP, it was observed by the Supreme Court that:
It is now not disputed that the appellants of this appeal have in pursuance of the order of this Court dated February 2, 1981 been given a back date promotion to the post of Chargeman II synchronizing with dates of completion of two years service as Supervisor `A. The grievance of the petitioners, however, is that this promotion tantamounts to implementation of order of this Court dated February 2, 1981 only on paper inasmuch as they have not been granted the difference of back wages and promotion to higher posts on the basis of their back date promotion to Chargeman II..certain writ petitions filed in Madhya Pradesh High Court were allowed by that Court on April 4, 1983 relying on the judgement of this Court dated February 2, 1981 in Civil Appeal No.441 of 1981. Against the aforesaid judgement of the Madhya Pradesh High Court dated April 4, 1983 Special Leave Petitions (Civil) Nos.5987-92 of 1986 were filed in this Court by the Union of India and were dismissed on July 28, 1986. The findings of the Madhya Pradesh High Court in its judgement dated April 4, 1983 thus stand approved by this Court. In this view of the matter to put them at par it would be appropriate that the appellants in Civil Appeal No.441 of 1981 may also be granted the same relief which was granted to the petitioners in the writ petition before the Madhya Pradesh High Court. As regards back wages the Madhya Pradesh High Court held:
It is the settled service rule that there has to be no pay for no work i.e. a person will not be entitled to any pay and allowance during the period for which he did not perform the duties of a higher post although after due consideration he was given a proper place in the gradation list having deemed to be promoted to the higher post with effect from the date his junior was promoted. So the petitioners are not entitled to claim any financial benefit retrospectively. At the most they would be entitled for refixation of their present salary on the basis of the notional seniority granted to them in different grades so that their present salary is not less than those who are immediately below them.
.. .. ..
The petitioners are also entitled to get their present salary re-fixed after giving them notional seniority so that the same is not lower than those who are immediately below them.
20. In our opinion, therefore, the appellants in Civil Appeal No. 441 of 1981 deserve to be granted the same limited relief. (emphasis added) Thus, while the Supreme Court has held that any person promoted with retrospective effect would not be eligible for back wages, he would be entitled for notional pay fixation and increments so that on joining the post their pay is not less than their immediate juniors.
10. In Telecommunication Engineering Service Association (India) and Another (supra), the Supreme Court considered in SLP, the order of this Tribunal in Review Application No.195 of 1992 in OA No.2667 of 1991. One of the issues was (2) Whether in the facts and circumstances, they are entitled to re-fixation of inter-se seniority on the said basis and promotion with retrospective effect together with back wages. The Supreme Court noted thus:
5. On the second question whether petitioners were entitled to payment of arrears of pay and allowances from the respective dates of their promotion, the Tribunal took the view that the High Court and the various Benches of the Tribunal do not appear to have considered the magnitude of the problem arising out of the large scale revision of seniority and promotions consequent thereto retrospectively. It took the view that ..there has to be no pay for no work although after due consideration a person is given a proper place in the gradation list having deemed to be promoted to the higher post with effect from the date his junior was promoted. At the most he would be entitled to re-fixation of his present pay on the basis of notional seniority granted to him so that his present salary would not be less than those who are immediately below him .. The Tribunal gave the following orders and directions:
. . .
(2) We hold that the applicants are entitled to
the benefit of the judgment of Allahabad High
Court dated 20-2-1985 except that in the
event of refixation of seniority and notional
promotion with retrospective effect, they
would be entitled only to refixation of their
present pay which should not be less than
that of those who were immediately below
and that they would not be entitled to back
wages. We order and direct accordingly.
. . .
(8) It would be noticed that the judgment of Allahabad High Court was .. delivered in 1985 which was affirmed by this Court on 8-4-1986. Most of the petitioners before the Tribunal filed their applications claiming promotion from earlier date on the basis of Allahabad High Court judgment only in 1988. They will get refixation of their seniority and notional promotion with retrospective effect and would be entitled to fixation of their present pay which should not be less than those who are immediately below them and the question is only whether they would be entitled to back wages from the date of notional promotion. We are of the view that the Tribunal was justified . in declining to grant back wages except with effect from the date they actually worked on the higher post. The same view was taken by this Court in the aforesaid judgement of Paluru Ramkrishnaiah where this Court declined similar relief. (emphasis added)
11. Similar issue came up for consideration of the Supreme Court in State of Haryana and others Vs. O.P.Gupta and others, (1996) 7 SCC 533. Some engineers of the Department of Irrigation of the Government of Haryana had approached the Supreme Court in Sushil K. Arora Vs. State of Haryana, Civil Appeal No. 3837 of 1990, challenging the seniority list. Therein the Supreme Court had directed the State Government to prepare seniority list in accordance with Rule 9 of the relevant recruitment rules ignoring instructions running counter to the rules. As a result promotions were given to 90 engineers. The respondents in the case before the Supreme Court (O.P.Gupta and others) had approached the High Court, filing writ petitions and claiming arrears of pay. The High Court directed payment of arrears from the deemed date given in the seniority list to the date of their posting in the posts on promotion. This judgment was challenged before the Supreme Court by the State Government. The Supreme Court held thus:
7. This Court in Paluru Ramakrishnaian V. Union of India (SCR at p.109: SCC p.556, para 19) considered the direction issued by the High Court and upheld that there has to be no pay for no work, i.e., a person will not be entitled for any pay and allowance during the period for which he did not perform the duties of the higher post, although after due consideration, he was given a proper place in the gradation list having been deemed to be promoted to the higher post with effect from the date his junior was promoted. He will be entitled only to step up the scale of pay retrospectively from the deemed date but is not entitled to the payment of arrears of the salary. The same ratio was reiterated in Virender Kumar, GM N.Rlys. V. Avinash Chandra Chaddha (SCC p.482, para 16).
12. The same issue was considered by the High court of Rajasthan in Union of India and Ors. Vs. C.A.T. & Ors. in D.B. Civil Writ Petition No. 4227 of 2002, decided on 10.09.2003 (reported in J.S.Kalras Administrative Tribunal Full Bench Judgments 2002-03, Chandigarh Law Publishers, Pages 346-352). The question before the High Court, arising from a writ petition challenging an order dated 11.02.2002 of a Full Bench of this Tribunal, was whether an employee who was not promoted earlier due to administrative lapse, on his retrospective notional promotion to higher post subsequently with effect from the date his juniors have been promoted would be entitled to arrears of pay and allowances with retrospective date. The High Court held thus:
Thus, in our view a person will not be entitled to any pay and allowances during the period for which he did not perform the duties on higher post, he was given proper place in gradation list having been deemed to be promoted to the higher post w.e.f. the date his junior was promoted. No employee can be held to be entitled to claim any financial benefits retrospectively. At the most he may be entitled to re-fixation of the salary on the basis of the notional seniority granted to him in different grades and he may also be entitled to the pensionary benefits (emphasis added)
13. Yet another case of delayed promotion on wrong interpretation of rules came up before the Apex Court in Hargovind Yadav Vs. Rewa Sidhi Gramin Bank and other, (2006) 6 SCC 145. The relevant rules prescribed promotion on the basis of seniority-cum-merit. The promotions were, however, made on merit-cum-seniority basis, in which persons junior to the appellant were promoted, while the appellant before the Supreme Court was overlooked. The High Court of Madhya Pradesh rejected the plea of Hargovind Yadav, the petitioner before the High Court, that the selection was wrongly made. That is how he came before the Supreme Court against the judgment of the High Court. The Supreme Court, while giving relief to the appellant, directed that he should be promoted from the date his junior was promoted and further observed that :
However, he will be entitled to monetary benefits flowing from such promotion only prospectively, though the pay is to be refixed with reference to the retrospective date of promotion. (emphasis added)
14. The Respondents case rests on the premise that the grant of deemed seniority by the Tribunal/Court would not entitle the petitioners for refixation of pay from the date such seniority has been bestowed. It is argued that in Union of India and others Vs. Ishwar Chandra Khatri and Others (1992) 21 Administrative Tribunal Cases 851, the Supreme Court only directed that petitioners be given seniority as per rankings in the select panels over the persons who had been appointed in the interregnum. The Court did not give any direction about notional fixation of pay. Following this argument the order dated 7.05.2004, adverted to above, was passed by which the pay of the petitioners was fixed only from the date they joined the post and not notionally from the date of their deemed promotion, thus denying them the benefit of accrual of increments between the period of deemed promotion and their actual date of joining the post. We have ascertained from the learned counsel for the parties that the order dated 7.05.2004 was not challenged before the Supreme Court. It was challenged before this Tribunal. We shall shortly advert to the relevant OA.
15. In Mrs. Nirmala Gupta and Others Vs. Lt. Governor of Delhi (supra), the background of the case was that the applicants therein had been included in the panel prepared by the respondents for appointment to the post of PGT. A number of appointments were made from the select panel. However, before the applicants could be appointed, the respondents issued a fresh notification for making further appointments. The applicants approached the Tribunal in OA No.842/1991. The Tribunal directed, inter alia, that:
.. all the candidates included in the panel of selected candidates prepared till June 1984 for the posts of Trained Graduate Teachers shall be appointed against the existing or future vacancies and that the persons in the said panels shall have precedence in appointment over persons included in any subsequent panel and not so far appointed and further that no fresh panel for the appointment on the posts of Trained Graduate Teachers in the categories covered by the said panels, shall be prepared until the said panels are exhausted and offers for appointment have been made to all persons included in the said panels. The above order was upheld by the Supreme Court and the applicants therein were given appointment as PGTs. (It may be mentioned that the applicants have been referred to us Trained Graduate Teachers instead of Post Graduate Teachers. However, it would not make any difference, while we are considering this order in the instant case.) The claim of the applicants in the OA No.569/96, inter alia, was for fixation of pay in terms of their deemed appointments from an earlier date and payment of arrears of pay. The Tribunal held thus:
The other claim of the applicants is that they are entitled to pay fixation and financial benefits from the date they would have been normally appointed but for the action of the respondents to operate subsequent panels. We do not consider that the applicants are entitled to these reliefs. Admittedly, the Applicants had not worked as PGTs during the intervening period. In view of this, they cannot be granted pay and allowances on the assumption that they were entitled to be appointed earlier. In our view it would be sufficient compensation if they maintain their seniority over subsequent panels so that their prospective service interests are protected.(emphasis added)
16. Another Coordinate Bench of this Tribunal considered the same issue in OA No.2618/2005 Karan Priya Gautam and Another Vs. The Secretary (Education) and Another (supra).
The issue has been noted thus by the learned Bench:
By this OA applicants have challenged the order dated 7.5.2004 whereby they have been informed that they will not be entitled for notional pay fixation since no such relief was given by the Honble Supreme Court in the case of Union of India and Ors. Vs. 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. The learned Bench noted the judgments of the Supreme Court in Hargovind Yadav (supra) and State of Haryana and others Vs. O.P.Gupta and Ors. (supra) and Union of India and Ors. Vs. Rajinder Singh Rawat, (1999) 9 SCC 173 to reject the argument for arrears of pay. The Bench then held thus:
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[s]. In this case also they were not even initially given the appointment but it was only on review that applicants were given appointment protecting their seniority but they were denied 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 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 the applicants counsel. (emphasis added)
17. In Ms. Rita Tara Vs. The Director of Education, OA No.2154/2005 decided on 27.07.2007 the issue was more explicitly stated by another Coordinate Bench of this Tribunal:
Learned counsel for applicant contended that the decision of the Tribunal in Ishwar Singh Khatris case (supra) when affirmed by the Apex Court, applicant was granted seniority over and above those who had been appointed during the interregnum and she was placed on a substantive post on regular basis notionally from the back date. Accordingly as per FR 22 (1) (a) and FR 27 (3) (c), applicant cannot be denied fixation of pay as well as the stepping up of pay w.e.f. 18.10.1989 as an anomaly existed by which juniors appointed later on are getting more salary. The learned Bench rejected the claim on the following considerations:
Under FR 17 (1), an employee shall begin to draw pay and allowances attached to his tenure of a post with effect from the date of assumption of that post and as the applicant was not even borne in the cadre when she was given notional seniority, the relief claimed in the OA cannot be allowed;
The applicant has failed to bring to our notice any provision under FR, rules of law on the subject as to grant of pay fixation notionally from the date she had not assumed the duty attached to the post;
The case is covered by the order in Karan Priya Gautams case (supra); and The Rajasthan High Court in Union of India and others Vs. CAT and others (supra) had held that arrears of back wages cannot be granted.
18. A learned single Member Bench of this Tribunal also considered this matter in OA No.203/2006, Shashi Aggarwal and Another Vs. Secretary, D.S.S.S.B. and others decided on 12.10.2006. In an earlier OA No.3087/2003, the respondents therein, had been given directions to consider the case of the visually handicapped applicants for selection as T.G.T. by giving them benefit of reservation for handicapped persons and [C]onsequential benefit of seniority should accrue to them. The learned single Member Bench rejected the Applicants claim for back wages and notional pay fixation on several counts. It was observed that the Tribunal had given them only the benefit of seniority and did not deem it fit to grant them back wages or notional fixation of pay. Therefore, they were barred by the principle of constructive res judicata in making the prayer for grant of notional pay fixation or back wages. It was unambiguously stated that :
by no stretch of imagination can it be said that applicant would be entitled for grant of back wages or fixation of pay even before she finally joined the job . She cannot claim fixation of pay from an earlier date. (emphasis added) The learned Bench also observed that:
in the case of Hargoind Yadav Vs. Rewa Sidhi Gramin Bank and Ors. reported in 2006 (6) SCC 145, Honble Supreme Court observed that even though appellant had been denied promotion erroneously for more than 16 years yet direction was given to promote him with effect from the date when his junior was promoted, however, making it 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 retrospective date of promotion notionally. (emphasis added).
It further observed that:
the Tribunal had protected the applicant only to the limited extent by saying that she should be given seniority from the same date when the persons from same advertisement were given appointment but that was done with a view to see that applicant does not suffer in her future prospects for getting further promotions in life. No back wages were granted knowing the facts fully well, therefore, applicant can neither claim back wages nor pay fixation. (emphasis added) The Bench also distinguished between cases of retrospective promotion and retrospective appointment by observing:
Once again we would like to say that case of promotion is different from initial appointment itself and the same principle cannot be adopted in the present facts of the case because FR 17 (1) makes it absolutely clear that an officer shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date when he assumes the duties of the post and shall cease to draw them as soon as he ceases to discharge those duties. (emphasis added) It then categorically observed further:
17. As far as increments are concerned, increments are earned only after putting in one year of service. Since the applicant had not joined duties, the question of performing duties prior to 3.8.2005 did not arise, therefore, under no circumstances could she have earned the increments prior to 3.8.2005.
19. It is noticed from the various decisions of the Tribunal, cited above, that the judicial precedent of Paluru Ramkrishnaiah and others (supra) has not been brought to the notice of any bench. Second, Hargovind Yadav (supra), State of Haryana and others Vs. O.P.Gupta and others (supra) and Union of India and Ors. Vs. CAT and Ors. have been cited to deny payment of back wages. However, the positive aspect of re-fixation of pay from the deemed date of promotion has not been noted. In Shashibala Aggarwal (supra) the learned Bench has noted this but has not appreciated its import. As we have noted, the Supreme Court and the High Courts of Allahabad, Madhya Pradesh and Rajasthan have consistently held that while back wages cannot be paid on the principle of no work no pay, yet the benefit of notional fixation of pay retrospectively can be given. Seniority from retrospective date has to mean deemed appointment from that date. It would be anomalous assertion that seniority would be counted from back date, but it would not count as deemed appointment from the same date.
20. We are also not persuaded that different yardstick would apply in cases of retrospective promotion and retrospective appointment for retrospective fixation of pay, as has been hinted in Shashi Bala Aggarwal (supra). Promotion is considered as a mode of appointment. In M. Ramachandran Vs. Govind Ballabh & Ors., JT 1999 (7) SC 271, the Supreme Court has held thus:
There is no dispute that appointment/recruitment to any service can be made from different sources, i.e., by direct appointment, by promotion or by absorption/transfer. The source of recruitment can either be internal or external. Internal sources would relate to cases where the appointments are made by promotion or by transfer and absorption. It would, therefore, not be appropriate to hold that the ratio laid down by the Supreme Court in Paluru Ramkrishnaiah (supra), Hargoind Yadav (supra) and State of Haryana Vs. O.P.Gupta (supra), where the benefit of retrospective fixation of pay has been given in the cases of retrospective promotion, would not apply to cases of retrospective appointment.
21. The various orders of the Tribunal cited above have, among other cases, also relied on Union of India and others Vs. Rajinder Singh Rawat, (1999) 9 SCC 173. In a very brief judgment, the Supreme Court has struck down the judgment of the High Court granting back wages on retrospective appointment. It does not consider the issue regarding fixation of pay on notional basis from a retrospective date.
22. The Respondents learned counsel has also placed reliance on Union of India and Another Vs. R. Swaminathan and Others (supra) to show that in some circumstances, junior can get more pay than the senior. In this case the issue related to interpretation of FR 22 (1) (a) (1), whether the seniors were eligible for stepping up their pay because the juniors were getting higher pay than the seniors. R. Swaminathan, the respondent before the Supreme Court, had approached the Madras Bench of this Tribunal in OA No.1324 of 1993 praying that his pay should be stepped up because his junior, one J.N. Misra, had his salary fixed at Rs.3125/- on promotion as Accounts Officer, whereas his (R. Swaminathans) salary was fixed only at Rs.2675/- on promotion to the same post. The Tribunal allowed this OA. The Apex Court noted that J.N. Misra had officiated in the promotional post on account of local ad hoc promotion granted to them. The juniors, therefore, got higher pay than his senior on account of fixation of pay under FR 22. The Government had issued some instructions dated 4.02.1996, under which this anomaly could be resolved by stepping up of the pay of the senior employee. The conditions were that (i) the junior and the senior employee should belong to the same cadre, (ii) the scale of pay of the junior and the senior employee should be the same and (iii) the anomaly should be the direct result of the application of FR 22 (1) (a) (1). The Supreme Court held that the anomaly in the case before it was not a result of application of FR 22 (1) (a) (1). It also held that those who got local ad hoc promotions for short durations and got an increment would get the benefit of fixation of pay under FR 22 (1) (a) (1) and there would be no case for a senior employee to demand stepping up of the pay. Since this case is obviously distinguishable both in facts and law, this would have no relevance in the instant case.
23. FR 17 (1), which has been invoked in the aforementioned orders of the Coordinate Benches of this Tribunal to hold that retrospective fixation of pay on notional basis would not be possible, reads thus:
F.R. 17.(1) Subject to any exceptions specifically made in these rules and to the provision of sub-rule (2), an officer shall begin to draw the pay and allowance attached to his tenure of a post with effect from the date when he assumes the duties of that post, and shall cease to draw them as soon as he ceases to discharge those duties:
Provided that an officer who is absent from duty without any authority shall not be entitled to any pay and allowances during the period of such absence. We are unable to agree with the aforementioned proposition of the Coordinate Benches. There is nothing in F.R. 17 (1) to prohibit notional refixation of pay from a retrospective date in case appointment is given notionally from a retrospective date for purposes of seniority. It has been held by the Honourable Supreme Court in a catena of cases, some of which have been cited in the preceding paragraphs, that an employee would not be eligible for payment of back wages/arrears of wages if notional seniority is granted to the person from a back date. However, there is nothing in F.R. 17(1) to draw the inference that the employee would not be eligible to get the benefit of notional fixation of pay and notional accrual of increments from the date of his notional seniority.
23. On the basis of above discussion, we are of the considered opinion that the Applicant would be eligible for relief in the instant OA for re-fixation of her pay notionally from the date her seniority was fixed so that her pay would not be less than her junior. However, since Coordinate Benches of this Tribunal have held in the cases cited above that an employee would not be entitled to re-fixation of pay retrospectively on notional basis on being granted appointment from a retrospective date, it would be judicially prudent to refer this issue to be decided by a Full Bench.
( L.K. JOSHI ) ( V.K. BALI ) Vice Chairman (A) Chairman /dkm/