Judgment:
Mrs. Meera Chhibber, Member (J)
1. Applicant has challenged letter dated 7.5.2004 which is stated to have been conveyed to her along with letter dated 4.4.2008 by the Principal, Government Girls Senior Secondary School, Urdu Medium after the applicant had superannuated on 31.1.2007. She has further sought a direction to the respondents to refund amount of Rs.1,48,747/- deducted from the applicant by illegally withdrawing 7 notional increments which were already given to her during her service. In clause (v) she had further sought a direction to the respondents to grant her senior scale on completion of 12 years but at the time of arguments, this relief was not pressed.
2. The brief facts as stated by the applicant are that in 1982-83, Delhi Administration notified the vacancies of Trained Graduate Teacher (hereinafter referred to as TGT). After interviewing the candidates, a panel of 1492 candidates was prepared. In the panel it was specifically mentioned that the appointment will be in the order of merit and appointments will be made from the selected list till the last candidate is appointed. Even in the minutes of the meeting of the Staff Selection Board it was mentioned that the life of the panel of the selected candidates will be valid for indefinite period. Applicant was one of the selected candidates but she was not issued the appointment letter. At the first instance only 527 candidates were appointed and later on 127 more candidates were appointed. At this stage, the affected candidates filed a case which was allowed by the Tribunal and letter dated 5.3.1985, issued by the Directorate of Education which restricted the panel of the actual notified vacancies, was quashed with a direction to the respondents that all the candidates included in the panel of selected candidates prepared till June, 1984, for the post of TGT teacher shall be posted/appointed against the existing or future vacancies and the persons in the said panel shall have precedence in appointment over persons included in any subsequent panel and so far appointed and further that no fresh panel for appointment on the posts of TGT in the categories covered by the said panel, shall be prepared until the said panels are exhausted and offers for appointments have been made to all the persons included in the said panel. Order of the Tribunal was challenged by the Delhi Administration. The Writ Petition was dismissed and even the SLP was dismissed by observing that the selected candidates have a right to get appointment. It was further made clear that the candidates in the panel when appointed must get their seniority as per their ranking in the select panel over the persons appointed in the interregnum.
3. It was pursuant to the above directions passed by the Hon’ble Supreme Court that applicant was physically appointed on 2.5.1991. Further, pursuant to the orders dated 14.2.1996 and 19.11.1996, pay of the applicant was fixed at the minimum w.e.f. 20.1.1984 vide letter dated 9.12.1997, i.e., the date of initial appointment with a direction that the financial benefits shall be given with effect from 2.5.1991. She continued to get her salary on the basis of above said fixation till superannuation on 31.12.2007. It was after her retirement that she got a letter from the Principal informing her that her retirement benefits would be calculated on the basis of revised pay by withdrawing the 7 notional increments which were already given to her. She immediately gave a representation on 20.5.2008 for restoration of the 7 notional increments w.e.f. 20.1.1984 to 2.5.1991 which were withdrawn vide letter dated 4.5.2008. However, she was informed vide letter dated 7.7.2008 that amount of Rs.1,35,772/- is payable to the applicant by way of DCRG but she has already been overpaid Rs.1,35,662/-, therefore, no balance payment is to be made to here. Moreover, recovery of Rs.13,085/- from leave account of the official was made. Thus total recovery of Rs.1,48,747/- was made from the applicant which is absolutely wrong, illegal and unconstitutional. She approached the Public Grievances Commission who directed the department to reconsider the case of the applicant with regard to grant of notional increments because as per the normal procedure the pay of the applicant has to be fixed with effect from 20.1.1984 if she was given seniority from the said date. However, ultimately the representative of the department filed status report stating therein that the arrear, pay bill of salary as re-employed teacher in respect of applicant, Mrs. Usha Aggarwal from March, 2009 to September, 2009 have been paid to the applicant. Even difference of arrears arising out due to revised pay scale has been paid to the applicant. Nothing more is due to her. In view of above, the case was closed by the Public Grievance Commission.
4. Being aggrieved, applicant gave a representation because this was not the dispute raised by the applicant. She even gave represention on 4.2.2010 to the Lt. Governor apprising him that one Smt. Shakuntla Gupta of the same panel was appointed subsequently but in her case 7 notional increments had not been withdrawn and she got all the retirement benefits on the basis of last pay drawn by the applicant without any deduction. Similarly, number of other teachers, namely, Smt Rajni Jain, G.G.S.S. School, Idgah Dehi, Ms. Raj Johra, Government Boys Senior Secondary School, Rohtak Road, Delhi and Ms. Sawtantra Narang, S.K.B. No.1, Krishna Nagar, Delhi, who are of the same panel as of the applicant and at present in service are enjoying the benefit of 7 notional increments but only applicant has been deprived of 7 increments for no fault of her. In spite of above representation, no reply was given to the applicant. She, therefore, had no other option but to file the present OA.
5. Counsel for the applicant placed reliance on judgment passed by this Tribunal in the case of Smt. Deepti Arora OA 536/2007, Shri Satya Pal Singh Saini OA No. 3214/2002 and Smt. Sudha Devi OA No. 3053/2011 wherein the following order was passed:-
“The applicant challenges refixation of pay seeking to recover Rs.1,82,877/-. The complaint of the applicant is that following the grant of notional pay to her along with similarly situated others vide order dated 30.04.1998 by the Director of Education but without a show cause notice and granting an opportunity of rebuttal vide order dated 07.05.2004, Director of Education has withdrawn the earlier order and in terms thereof vide Annexure A/1 recovery is being sought. Applicant challenges the same.
2. The matter seems to be covered vide order of Full Bench of this Tribunal in the case of Smt. Deepti Arora Vs. Govt. of NCT of Delhi and Others in OA 536/2007 dated 16.12.2009. The Tribunal held on the basis of Hon’ble Supreme Court judgment mentioned in the judgment that on the basis of ratio laid down by the Hon’ble Supreme Court categorically on retrospective appointment or promotion, an employee would be entitled to refixation of pay on notional basis. Therefore, the refixation on the notional basis adverted to by the respondents vide order dated 30.04.1998 is correct and the order dated 07.05.2004 will not stand scrutiny of law and justice. Therefore, Annexure A/1 and Annexure A/2 are hereby quashed. It is further directed that the respondents are to refund the recovered amount from the applicant with the interest @ 9% from the date of receipt of recovery to date of payment.
3. It is also further directed that based on the notional fixation of 30.04.1998, the pay and allowances of the applicant shall be recalculated and a due and paid statement should be given to the applicant along with all the consequential benefits”.
6. Similarly in the case of Satya Pal Singh Saini following relief was granted:-
“(i) The pay of the Applicant shall be re-fixed notionally from the date of retrospective appointment. (ii) To grant the increment notionally for each year thereafter till the date of Applicant actual joining the post. (iii) Though no back pay and allowances from the retrospective date of appointment upto the actual date of joining would be admissible but the basic pay of the Applicant as on the date of joining would be worked out on the basis of (i) and (ii) above. The consequentially admissible arrears of pay and allowances would be paid to the Applicant. In case, there was recovery, the same would be re-examined in the light of our order and necessary action taken. (iv) The seniority of each Applicant would be maintained as per the merit/rank obtained in the Panel of June 1984”.
7. When confronted with these judgments, counsel for the respondents sought adjournment on various dates on the ground that the matter is pending before the Hon’ble Supreme Court.
8. When the matter was called out today, i.e. 1.5.2012 counsel for the respondents informed us that SLP has been dismissed as infructuous vide order dated 14.10.2011. Thereafter, Writ Petition No. 1704/2012 by the title of Government of NCT of Delhi and Others Vs. Nez Begum Khan has been decided by the Hon’ble High Court on 27.3.2012 by referring to the judgment in the case of Director of Education and Another Vs. Smt. Krishna Kumari ( W.P. No. 13987/2009) wherein it was held 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 and 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.”
9. Reference was also made to the order dated 14.10.2011 passed by the Hon’ble Supreme Court in SLP against Smt. Krishna Kumari whereby SLP was dismissed as having become infructuous. It was thus held as under:-
“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”.
10. From above, two things are clear that letter dated 7.5.2004 stands quashed already and it has been held that such teachers who were given retrospective appointment with effect from 1984 would be entitled to notional increments as well.
11. In view of above, the present OA is allowed. Orders dated 4.4.2008 and 7.5.2004 are quashed. Respondents are directed to fix her retrial benefits after adding the increments already granted to her and pay her the arrears on account of refixation of retrial benefits along with due and drawn statement. Respondents shall also refund the amount of Rs.1,48,747/- deducted from the retrial dues. This shall be done within 2 months from the date of receipt of a copy of this order.
12. OA is allowed with the above directions. No costs.