Smt. Sushma Rani Vs. Govt. of Nct of Delhi Through the Chief Secretary New Secretariat New Delhi and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1115303
CourtCentral Administrative Tribunal CAT Principal Bench New Delhi
Decided OnOct-18-2012
Case NumberO.A.No.730 of 2012
JudgeTHE HONOURABLE MR. G. GEORGE PARACKEN, MEMBER (J) & THE HONOURABLE MRS. MANJULIKA GAUTAM, MEMBER (A)
AppellantSmt. Sushma Rani
RespondentGovt. of Nct of Delhi Through the Chief Secretary New Secretariat New Delhi and Others
Excerpt:
(oral) george paracken, member (j): the applicant in this oa is seeking the following reliefs: “that the honble tribunal may graciously be pleased to pass an order of quashing the impugned order remark/order dt.18.1.2012 passed by the respondent no.4 regarding reviewing the pay of the applicant on the basis of order dt. 7.5.2004, declaring to the effect that the same are illegal, arbitrary and against the judgment passed by the honble tribunal, and consequently pass an order directing the respondents to restore the pay of the applicant with all the consequential benefits if re-fixed in compliance of the impugned order. that the honble tribunal may graciously be pleased to pass an order directing the respondents not to re-fix the pay of the applicant and also not to recover any amount from the retirement benefits of the applicant in compliance of the order dated 7.5.2004. that the honble tribunal may graciously be pleased to pass an order of quashing the impugned order dated 7.05.2004. any other relief which the honble tribunal deem fit and proper may also be granted to the applicant.” 2. the respondents have filed their reply denying that the order dated 07.05.2004 passed by the additional director of education is illegal and arbitrary. it has been further stated that in similar cases of notional fixation of tgts of the 1984 panel, the respondents have filed slp no.cc 16284-16285/2011 titled as director of education, gnctd and anr. v. krishana kumari before the honble apex court and even though it has been disposed of on 14.10.2011, they have decided to file a fresh review petition in the supreme court for which government counsel has been appointed on 26.03.2012. further, according to them, in another case, namely, gnctd and ors. v. naz begaum khan, filed before the honble apex court and the apex court vide order dated 08.08.2012 granted stay in that case. 3. we have heard the learned counsel for the applicant shri yogesh sharma, and the learned counsel for the respondents mrs. harvinder oberoi. we have also gone through the pleadings on record. it is quite unfortunate that the respondents are making wrong statements. they have created an impression that in similar cases the honble apex court has issued a stay order. however, the fact of the matter is that vide annexure r1 order dated 08.08.2012 produced by the respondents, the apex court has stayed the contempt proceedings pending before the honble high court in writ petition no.1704/2012 - nee begum khan v. govt. of nct of delhi and anr.. as far as this case is concerned, it is covered by a number of orders passed by this tribunal. it is very well in the knowledge of the respondents that this tribunal had already quashed and set aside the order dated 07.05.2004 passed by the additional director of education. 4. in fact, the controversy in the matter has already been settled by the full bench of this tribunal in oa no.536/2007 - smt. deepti arora v. govt. of nct of delhi and ors., vide its order dated 16.12.2009, which reads as under: “the simple question, which we are called upon to answer in this reference is whether an employee would be entitled to re-fixation of pay retrospectively on notional basis on being granted fresh appointment to a post or being given promotion to a post from retrospective date. the matter is no longer res integra. the honourable supreme court in 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 has already decided this matter. in paluru ramkrishnaiah and others (supra), the petitioners were before the honourable supreme court in civil miscellaneous petitions for proper implementation of its earlier judgment in civil appeal number 441/1981, by its order dated 2.01.1981, in which the petitioners were the appellants, and in which it had directed that the petitioner-appellants should be given seniority retrospectively in the grade of chargeman ii under the director general of ordnance factories. it had been prayed that the aforesaid directions had not been followed in true letter and spirit because they had not been given the benefit of notional fixation of salary. the supreme court considered, with approval, a judgement dated 4.04.1983 of the madhya pradesh high court in which it held as follows: “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. (emphasis added) the supreme court held that the petitioners before it also deserved to be granted the same limited relief. 2. in telecommunication engineering service association (supra), the supreme court considered the order of this tribunal in review application no.195 of 1992 in oa no.2667 of 1991 in which the issue of payment of back wages and notional fixation of pay on the re-fixation of inter-se seniority had been considered. the supreme court upheld the tribunals decision ‘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. (emphasis ours) 3. the reference was necessitated because even after these judgments of the honourable supreme court, which were reiterated in state of haryana and others vs. o.p. gupta and others, (1996) 7 scc 533 and hargovind yadav vs. rewa sidhi gramin bank and others, (2006) 6 scc 145, the learned coordinate benches of this tribunal passed several orders, e.g., in mrs. nirmala gupta and others vs. the lt. governor-cum-administrator of delhi and others, oa no.569/1996, decided on 18.01.2000, karan priya gautam and ors. vs. government of nct of delhi and ors., oa no.2618/2005, decided on 30.10.2006, ms. rita tara vs. the director of education, government of nct of delhi and ors., oa no.2154/2005, decided on 17.07.2007 and shashi aggarwal and another vs. secretary, d.s.s.s.b. and others, oa no.203/2006 decided on 12.10.2006. the common strain in all these orders is that any such employee, adverted to in the reference order, would not be eligible for re-fixation of pay on appointment or promotion to a post on retrospective basis. we shall quote here the observation of a bench of this tribunal in shashi aggarwal (supra), which is as follows: “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) 4. in view of the ratio laid down by the honourable supreme court categorically, we are of the opinion that on retrospective appointment or promotion, the employee would be entitled to re-fixation of pay on notional basis. the reference is answered thus. 5. since this reference also has decided the issue in smt. deepti arora vs. government of nct of delhi, oa 536/2007, in which the aforesaid reference was made, the oa also stands decided by this order.” 5. thereafter this tribunal has passed a similar order in oa no.3214/2002 - shri satya pal singh saini v. the administrator, govt. of nct of delhi and ors., decided on 12.02.2010, and its relevant part reads as under: “10. having considered the total facts and circumstances of the cases; and having been guided by the legally settled ratio in the matter, and in view of our detailed analysis of the issues, we come to the conclusion that the original applications have merits and are allowed. in the result, the following directions are issued to the respondents to consider the cases afresh in view of our above observations and pass specific, appropriate and separate orders in case of each applicant :- (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. 11. let a copy of this order be placed in each of the oas. in view of the typical nature of the case, the respective parties will bear their own costs.” 6. again a similar order has been passed in oa no.2720/2011 - smt. saroj khosla and others v. govt. of nct of delhi and others on 11.01.2012 and directed the respondents to extend the same benefits given to the applicants in oa no.536/2007 and in oa no.3214/2002. 7. yet again the matter was considered by this tribunal in oa no.3053/2011 - smt. sudha devi v. govt. of nct of delhi and others and directed the respondents to follow the decision in oa no.536/2007, decided on 16.12.2009. the respondents were also directed to refund the amount to the applicant with interest at the rate of 9% from the date of receipt of recovery to the date of re-payment. 8. further, this tribunal considered exactly similar issue as in the present oa in oa no.3547/2011 - smt. sumitra devi jain and anr. v. govt. of nct of delhi and others, decided on 27.03.2012. the operative part of the order reads as under: “9. we have heard learned counsel for the parties. undisputedly, the case of the applicants is squarely covered by the order of the coordinate bench dated 16.01.2012 in oa no.3053/2011 (supra) which ahs been passed after due consideration of the earlier order of this tribunal in ma no.1586/2007 in oa no.3214/2002 and connected cases and the judgment of the apex court in slp civil appeal no.1900/1987 (supra). we, therefore, allow this oa and consequently, direct the respondents to pass appropriate orders in the case of the applicants also as they have done in the cases of the applicants in oa no.3053/2011 (supra) and pay the resultant monetary benefits within two months from the date of receipt of a copy of this order. there shall be no order as to costs.” 9. in the above facts and circumstances of the case, we allow this oa and quash the impugned order remark/order dated 18.01.2012 passed by respondent no.4 regarding reviewing of the pay of the applicant on the basis of order dated 07.05.2004. consequently, we direct the respondents to restore the pay of the applicant with all consequential benefits if re-fixed in compliance of the aforesaid order. the respondents are also entitled for interest at the rate of 9% from the date the amount has been recovered till the date of actual re-payment. the aforesaid directions shall be complied with, within a period of two months from the date of receipt of a copy of this order. there shall be no order as to costs.
Judgment:

(Oral)

George Paracken, Member (J):

The applicant in this OA is seeking the following reliefs:

“That the Honble Tribunal may graciously be pleased to pass an order of quashing the impugned order remark/order dt.18.1.2012 passed by the Respondent No.4 regarding reviewing the pay of the applicant on the basis of order dt. 7.5.2004, declaring to the effect that the same are illegal, arbitrary and against the judgment passed by the Honble Tribunal, and consequently pass an order directing the respondents to restore the pay of the applicant with all the consequential benefits if re-fixed in compliance of the impugned order.

That the Honble Tribunal may graciously be pleased to pass an order directing the respondents not to re-fix the pay of the applicant and also not to recover any amount from the retirement benefits of the applicant in compliance of the order dated 7.5.2004.

That the Honble Tribunal may graciously be pleased to pass an order of quashing the impugned order dated 7.05.2004.

Any other relief which the Honble Tribunal deem fit and proper may also be granted to the applicant.”

2. The respondents have filed their reply denying that the order dated 07.05.2004 passed by the Additional Director of Education is illegal and arbitrary. It has been further stated that in similar cases of notional fixation of TGTs of the 1984 panel, the respondents have filed SLP No.CC 16284-16285/2011 titled as Director of Education, GNCTD and Anr. V. Krishana Kumari before the Honble Apex Court and even though it has been disposed of on 14.10.2011, they have decided to file a fresh review petition in the Supreme Court for which Government counsel has been appointed on 26.03.2012. Further, according to them, in another case, namely, GNCTD and Ors. v. Naz Begaum Khan, filed before the Honble Apex Court and the Apex Court vide order dated 08.08.2012 granted stay in that case.

3. We have heard the learned counsel for the applicant Shri Yogesh Sharma, and the learned counsel for the respondents Mrs. Harvinder Oberoi. We have also gone through the pleadings on record. It is quite unfortunate that the respondents are making wrong statements. They have created an impression that in similar cases the Honble Apex Court has issued a stay order. However, the fact of the matter is that vide Annexure R1 order dated 08.08.2012 produced by the respondents, the Apex Court has stayed the contempt proceedings pending before the Honble High Court in Writ Petition No.1704/2012 - Nee Begum Khan v. Govt. of NCT of Delhi and Anr.. As far as this case is concerned, it is covered by a number of orders passed by this Tribunal. It is very well in the knowledge of the respondents that this Tribunal had already quashed and set aside the order dated 07.05.2004 passed by the Additional Director of Education.

4. In fact, the controversy in the matter has already been settled by the Full Bench of this Tribunal in OA No.536/2007 - Smt. Deepti Arora v. Govt. of NCT of Delhi and Ors., vide its order dated 16.12.2009, which reads as under:

“The simple question, which we are called upon to answer in this reference is whether an employee would be entitled to re-fixation of pay retrospectively on notional basis on being granted fresh appointment to a post or being given promotion to a post from retrospective date. The matter is no longer res integra. The Honourable Supreme Court in 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 has already decided this matter. In Paluru Ramkrishnaiah and others (supra), the petitioners were before the Honourable Supreme Court in Civil Miscellaneous Petitions for proper implementation of its earlier judgment in Civil Appeal number 441/1981, by its order dated 2.01.1981, in which the petitioners were the appellants, and in which it had directed that the petitioner-appellants should be given seniority retrospectively in the grade of Chargeman II under the Director General of Ordnance Factories. It had been prayed that the aforesaid directions had not been followed in true letter and spirit because they had not been given the benefit of notional fixation of salary. The Supreme Court considered, with approval, a judgement dated 4.04.1983 of the Madhya Pradesh High Court in which it held as follows:

“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. (emphasis added)

The Supreme Court held that the petitioners before it also deserved to be granted the same limited relief.

2. In Telecommunication Engineering Service Association (supra), the Supreme Court considered the order of this Tribunal in Review Application No.195 of 1992 in OA No.2667 of 1991 in which the issue of payment of back wages and notional fixation of pay on the re-fixation of inter-se seniority had been considered. The Supreme Court upheld the Tribunals decision ‘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. (emphasis ours)

3. The reference was necessitated because even after these judgments of the Honourable Supreme Court, which were reiterated in State of Haryana and others Vs. O.P. Gupta and others, (1996) 7 SCC 533 and Hargovind Yadav Vs. Rewa Sidhi Gramin Bank and others, (2006) 6 SCC 145, the learned Coordinate Benches of this Tribunal passed several orders, e.g., in Mrs. Nirmala Gupta and Others Vs. the Lt. Governor-cum-Administrator of Delhi and Others, OA No.569/1996, decided on 18.01.2000, Karan Priya Gautam and Ors. Vs. Government of NCT of Delhi and Ors., OA No.2618/2005, decided on 30.10.2006, Ms. Rita Tara Vs. The Director of Education, Government of NCT of Delhi and Ors., OA No.2154/2005, decided on 17.07.2007 and Shashi Aggarwal and Another Vs. Secretary, D.S.S.S.B. and others, OA No.203/2006 decided on 12.10.2006. The common strain in all these orders is that any such employee, adverted to in the reference order, would not be eligible for re-fixation of pay on appointment or promotion to a post on retrospective basis. We shall quote here the observation of a Bench of this Tribunal in Shashi Aggarwal (supra), which is as follows:

“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)

4. In view of the ratio laid down by the Honourable Supreme Court categorically, we are of the opinion that on retrospective appointment or promotion, the employee would be entitled to re-fixation of pay on notional basis. The reference is answered thus.

5. Since this reference also has decided the issue in Smt. Deepti Arora Vs. Government of NCT of Delhi, OA 536/2007, in which the aforesaid reference was made, the OA also stands decided by this order.”

5. Thereafter this Tribunal has passed a similar order in OA No.3214/2002 - Shri Satya Pal Singh Saini v. The Administrator, Govt. of NCT of Delhi and Ors., decided on 12.02.2010, and its relevant part reads as under:

“10. Having considered the total facts and circumstances of the cases; and having been guided by the legally settled ratio in the matter, and in view of our detailed analysis of the issues, we come to the conclusion that the Original Applications have merits and are allowed. In the result, the following directions are issued to the Respondents to consider the cases afresh in view of our above observations and pass specific, appropriate and separate orders in case of each Applicant :-

(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.

11. Let a copy of this order be placed in each of the OAs. In view of the typical nature of the case, the respective parties will bear their own costs.”

6. Again a similar order has been passed in OA No.2720/2011 - Smt. Saroj Khosla and Others v. Govt. of NCT of Delhi and Others on 11.01.2012 and directed the respondents to extend the same benefits given to the applicants in OA No.536/2007 and in OA No.3214/2002.

7. Yet again the matter was considered by this Tribunal in OA No.3053/2011 - Smt. Sudha Devi v. Govt. of NCT of Delhi and Others and directed the respondents to follow the decision in OA No.536/2007, decided on 16.12.2009. The respondents were also directed to refund the amount to the applicant with interest at the rate of 9% from the date of receipt of recovery to the date of re-payment.

8. Further, this Tribunal considered exactly similar issue as in the present OA in OA No.3547/2011 - Smt. Sumitra Devi Jain and Anr. v. Govt. of NCT of Delhi and Others, decided on 27.03.2012. The operative part of the order reads as under:

“9. We have heard learned counsel for the parties. Undisputedly, the case of the applicants is squarely covered by the order of the Coordinate Bench dated 16.01.2012 in OA No.3053/2011 (supra) which ahs been passed after due consideration of the earlier order of this Tribunal in MA No.1586/2007 in OA No.3214/2002 and connected cases and the judgment of the Apex Court in SLP Civil Appeal No.1900/1987 (supra). We, therefore, allow this OA and consequently, direct the respondents to pass appropriate orders in the case of the applicants also as they have done in the cases of the applicants in OA No.3053/2011 (supra) and pay the resultant monetary benefits within two months from the date of receipt of a copy of this order. There shall be no order as to costs.”

9. In the above facts and circumstances of the case, we allow this OA and quash the impugned order remark/order dated 18.01.2012 passed by Respondent No.4 regarding reviewing of the pay of the applicant on the basis of order dated 07.05.2004. Consequently, we direct the respondents to restore the pay of the applicant with all consequential benefits if re-fixed in compliance of the aforesaid order. The respondents are also entitled for interest at the rate of 9% from the date the amount has been recovered till the date of actual re-payment. The aforesaid directions shall be complied with, within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs.