Judgment:
1. MA 94/2006 has been filed by Respondent No. 4 seeking deletion from array of parties.
2. None is present on behalf of applicant. None was present on his behalf even on 01.08.2006. Thus, we proceed to adjudicate the matter in terms of Rule 15 of CAT (Procedure) Rules, 1987 after taking into consideration respective pleadings, material on record and hearing learned Counsel for Respondents.
3. In this OA, applicant seeks direction to Respondents to grant him notional seniority as observed vide order dated 08.12.1999 by Honble Delhi High Court in Civil Writ Petition No. 4283/1999 w.e.f. 20.08.1999 i.e. the date when his junior (Respondent No. 4) was allowed to join.
Further relief sought is to remove anomaly between basic pay of applicant and Respondent No. 4 by granting him equal pay as of said respondent as on 23.10.2000 thereby bringing his pay at par with said respondent.
4. Admitted facts are that in June 1998 in response to an advertisement in National dailies calling applications for post of Assistant Teachers in schools under Directorate of Education, Govt. of NCT of Delhi, applicant applied for post in question. Grievance of large number of candidates had been that though they were short listed for selection and their names were sent to respective department for being appointed, there had been delay in appointment and persons with lesser marks were issued with appointment letters over-looking meritorious candidates. In this backdrop, 13 such candidates approached Honble Delhi High Court vide CWP No. 4283/1999, which was disposed of vide order dated 08.12.1999 with following observations/directions: It is stated by Mr. Raman Duggal that the persons who are short listed for selection, their names are being sent to the respective departments for being appointments. This process in respect of these petitioners be also completed as expeditiously as possible and in any case within two weeks. If the posts are available with the appointing authority i.e. the Departments to which the names are sent, and they have already given appointment to the persons with lesser marks, appointments to these petitioners should be given immediately subject to fulfilling all necessary requirements/formalities by the petitioners for such appointment and their notional seniority be also fixed from the date from which the person with lesser marks is already given appointment. However, these petitioners 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.
With the aforesaid directions, this writ petition stands disposed of.
5. Applicant was made to run from pillar to post to secure his appointment and was also made to remain out of job from June 1999 to 22.10.2000. He indeed joined the post in question on 23.10.2000. In this OA, he has prayed that he be granted notional seniority over respondent No. 4 as he was more meritorious than said respondent and remove anomaly in pay scale. He had submitted a representation followed by reminders and approached this Tribunal vide OA No. 1433/2004, which was disposed of vide order dated 04.06.2004 with direction to Respondents to consider and pass appropriate speaking order within the time limit prescribed therein. Since said direction was not complied with, he preferred CP No. 94/2005. After issuing notice in C.P., Respondents passed order dated 19.03.2005 and, therefore, said CP was dismissed vide Order dated 12.07.2005. Vide order dated 19.03.2005, Respondents observed as follows: As per the directions of Honble CAT representation of Shri Babu Ram, Assistant Teacher (Primary) has been considered and it is found that he has already been awarded notional seniority at Sl. No. 1202 below Shri Harikishan, Seniority No. 1201 and above Shri Ramji Lal Meena, Seniority No. 1203 and Shri Vinod Kumar Tyagi (Respondent No. 2), senority No. 1249 respectively which is as per the merit list provided by the DSSSB. As regards to point No. 2, it is stated that fixation of basic pay at least equal to his junior cannot be granted as per rules as Shri Babu Ram, physically joined w.e.f. 23.10.2000 whereas Shri Vinod Kumar Tyagi (Respondent No. 2) joined physically on 20.08.1999.
Accordingly, I dispose of the representation of Shri Babu Ram, Assistant Teacher (Primary).
6. Respondents resisted applicants claim and stated that they had placed a requisition for 480 posts of Assistant Teachers to Delhi Subordinate Service Selection Board (DSSSB). In response to which, said agency had sent 474 dossiers in between 28.05.1999 to 16.06.1999. Again vide letter dated 21.10.1999, 77 dossiers of provisionally selected candidates, which included applicant's dossier, were sent to Office of Directorate of Education for appointment as Assistant Teacher. A clarification was sought from DSSSB whether the 71 dossiers of provisionally selected candidates were in excess, who clarified that dossiers of candidates who scored lower had been sent first than the candidates having higher scores. Since there was no consolidated list of provisionally selected candidates, his dossier was sent and he was nominated along with others to the Districts of Dte. of Education vide letter dated 15.09.2000. As such, there was no lapse on part of Education Department. In the final seniority list of Assistant Teachers (Primary) (Male) circulated vide letter dated 24.12.2003, applicant, who scored 42.3 marks, had been placed at seniority No. 1202 above Shri Vinod Kumar Tyagi (respondent No. 4), who scored 36.34. Moreover, a detailed and speaking order dated 19.03.2005 had already been passed on the subject. Since he joined physically on 23.10.2000 vis-`-vis Shri Vinod Kumar Tyagi, respondent No. 4, who joined on 20.08.1999, both were granted same pay scale. His request for pay parity is not tenable as Shri V.K. Tyagi joined earlier than applicant almost more than a year ago. Reliance was placed on 1997 (1) ATJ 1 (Full Bench) B.L.
Somayajulu and Ors. v. The Telecom Commission and Ors. wherein it had been held that stepping up can be granted only where there is a provision in law in that behalf and only in accordance with rules.
Every claim must be based on an enforceable legal right. Reliance was also placed on (1997) 7 SCC 690 Union of India and Anr. v. R.Swaminathan and Ors. wherein in has been held that juniors officiating in promotional posts on account of their local ad hoc promotion while seniors not so officiating before their regular promotion cannot be termed as anomaly and seniors, therefore, not entitled to stepping up of their pay with reference to their juniors pay.
7. Applicant has also filed rejoinder refuting the contentions raised by Respondents and reiterating contentions raised vide O.A.8. On examination of facts of present case vis-`-vis direction issued by Honble High Court in W.P. No. 4283/1999 vis-`-vis order passed on 19.03.2005, we are satisfied that applicant has been accorded seniority not immediately before respondent No. 4, who has been placed at serial No. 1249, but much higher to him i.e. at serial No. 1202. On this count, we do not find any justification in the claim laid. As far as alleged anomaly in pay is concerned, we find that applicant as well as respondent No. 4 were granted same pay scale. The alleged anomaly arose due to respondent No. 4 joining the post earlier than the applicant.
Perusal of direction issued by Honble High Court in specific indicates that officials who were denied appointment, were made entitled to only notional seniority and not salary or allowances from earlier date and they were entitled to salary only from the date of their appointment.
It is not the case of applicant that he has been denied salary from the date of his appointment i.e. 23.10.2000. Moreover, State of Andhra Pradesh and Ors. v. G. Sreenivasa Rao and Ors. (1989) 10 ATC 61 (SC) it has been held that: 15. Equal pay for equal work does not mean that all the members of a cadre must receive the same pay packet irrespective of their seniority, source of recruitment, educational qualifications and various other incidents of service. When a single running pay scale is provided in a cadre the constitutional mandate of equal pay for equal work is satisfied. Ordinarily grant of higher pay to a junior would ex facie be arbitrary but if there are justifiable grounds in doing so the seniors cannot invoke the equality doctrine. To illustrate, when pay fixation is done under valid statutory rules/executive instructions, when persons recruited from different sources are given pay protection, when promotee from lower cadre or a transferee from another cadre is given pay protection, when a senior is stopped at efficiency bar, when advance increments are given for experience/passing a test/acquiring higher qualifications or incentive for efficiency; are some of the eventualities when a junior may be drawing higher pay than his seniors without violating the mandate of equal pay for equal work. The differentia on these grounds would be based on intelligible criteria which has a rational nexus with the object sought to be achieved.
9. The aforesaid judgment, in our considered view, squarely applies to present case. Therefore, we do not find any justification in the contention raised by applicant. Reliance placed on judgments in the OA is, therefore, mis-placed and not applicable in the facts of present case. Accordingly, OA lacks merit and is dismissed. No costs.