Delhi High Court
Govt Of Nct Of Delhi & Ors vs Nez Begum Khan on 27 March, 2012
Author: Badar Durrez Ahmed
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on 27.03.2012
+ W.P.(C) 1704/2012
GOVT OF NCT OF DELHI & ORS ..... Petitioners
versus
NEZ BEGUM KHAN ..... Respondent
Advocates who appeared in this case:
For the Petitioner : Ms Avnish Ahlawat
For the Respondent : None.
CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE V.K.JAIN
JUDGMENT
BADAR DURREZ AHMED, J. (ORAL)
This writ petition is directed against the order dated 01.03.2011, passed by
the Central Administrative Tribunal, Principal Bench, New Delhi in OA No.
2154/2010. The sole question which arises for consideration in this writ petition is
whether the respondent is to be given notional pay fixation from 1984 or from 1994
when she was actually appointed.
It is not in dispute at all that the respondent had been given seniority with
effect from 1984. This was pursuant to the decision of the Supreme Court in the
case of Union of India v. Ishwar Singh Khatri & Ors. 1993 (2) SCALE 730.
The respondent had been selected along with several others for the post of
Trained Graduate Teacher (Urdu) in 1984. However, that appointment was nor
given to her.
There is a history behind this and the same is apparent from the Supreme
Court decision in the said case of Ishwar Singh Khatri (supra). It had been
contended on behalf of the petitioners herein that the number of vacancies were
only 654 and it is for that reason that only 654 persons were appointed in 1984.
However, the Supreme Court, repelling this contention, held that the Selection
Board prepared the panels containing 1492 names as against the then available
vacancies. The Supreme Court observed that "it goes without saying that the
selected candidates had a right to get appointment". Therefore, the Supreme Court
did not see any reason to disturb the decision of the Tribunal in directing that those
candidates who had been selected and had found place in the panel ought to have
been given appointment. The Supreme Court also made it clear that the
administration should fill up all the existing vacancies within one month from the
date of the judgment of the Supreme Court till the panels in question were
exhausted.
It is, therefore, clear that the Supreme Court in the case of Ishwar Singh
Khatri (supra) had categorically held that the number of vacancies in 1984 for the
post of Trained Graduate Teacher was 1492 and not 654 as contended by the
petitioners herein. Thus, it is to be taken as granted that the number of vacancies
were 1492 and consequently, the respondent being one of the persons empanelled
in 1984 was definitely entitled to get appointment in 1984 itself. Unfortunately,
because of the stand adopted by the petitioner, the respondent and similar situated
persons did not get appointments till the matter travelled to the Supreme Court and
was ultimately conclusively decided by the Supreme Court in the case of Ishwar
Singh Khatri (supra). As a result of the said decision of the Supreme Court, the
petitioner has been granted appointment, but only in 1994. It is pertinent to note
that as regards seniority also, the Supreme Court observed as under:-
"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 respondent, therefore, was granted seniority w.e.f. 1984, but was not
granted any notional pay fixation with effect from 1984. Being aggrieved by this,
the respondent had moved a representation before the petitioner, who had rejected
the same by a letter dated 24.05.2010, wherein it was stated as under:-
"As per Supreme Court decision (copy enclosed),
she was given seniority from back date i.e. 1984
instead of 1994. But she was not entitled to
notional pay fixation, as nothing was mentioned in
that order.
As per order No. DE 3 (144)/E-III/95/6584-89
dated 07.05.2004 (copy enclosed) issued by
Additional DE (Admn.), the incumbent will not be
entitled for notional pay fixation from the back
date."
Being aggrieved thereby, the respondent moved the said original application
before the Tribunal, wherein the impugned order dated 01.03.2011 has been
passed, allowing the respondent's said application. The Tribunal had placed
reliance on a Full Bench decision of the Tribunal in the case of Deepti Arora,
whereby notional pay fixation had been allowed to teachers who were similarly
placed to the respondent. The Tribunal also placed reliance on the decision of this
Court in the case of Director of Education & Anr. v. Smt. Krishna Kumari
decided on 21.12.2009 in WP(C) No. 13987/2009. We must point out that the
matter before the Division Bench of this Court in the case of Smt. Krishna Kumari
(supra) is identical to the matter which is before us. This Court, while considering
the case of Smt. Krishna Kumari (supra) observed as under:-
"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.
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.
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."
A review application had also been filed on behalf of the Director of
Education in the said case of Smt. Krishna Kumari (supra), which also came to be
dismissed by a detailed order dated 07.01.2011.
The matter was carried further to the Supreme Court by way of SLP(C) No.
CC 16284-16285/2011 which was disposed of by the Supreme Court by an order
dated 14.10.2011. The Supreme Court noted the statement of the learned senior
counsel appearing on behalf of the Director of Education that the Special Leave
Petition had become infructuous because the order passed by the Central
Administrative Tribunal had been complied with. Accordingly, the Special Leave
Petitions were disposed of as having become infructuous. This clearly showed that
the petitioner had accepted the order of the Tribunal as confirmed by this Court in
Smt. Krishna Kumari (supra).
In view of the foregoing, we do not see how the petitioner could have filed
this petition when the Tribunal was merely following the decision of this Court in
Smt. Krishna Kumari (supra) as also the directions given by the Supreme Court in
the case of Ishwar Singh Khatri (supra).
As a consequence, the writ petition deserves dismissal. It is dismissed.
There shall be no order as to costs.
BADAR DURREZ AHMED, J
V. K. JAIN, J
MARCH 27, 2012
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