Govt. of NCT of Delhi and Ors. v. Anand Kumar T.

1. The genesis of the above-captioned writ petition lies iri thc events which took place in the year 1984 when High School Ilducation iu the Union Temitory of Delhi was under the aegis of Delhi Administration and in parlicular the Directorate of Education. The Staff Selection Board constituted by the Director of Education headed by tlie Director himself notified 654 vacancies in vaiious disciplines of 'frained Graduate Teachers and invited applications fi'om eligible candidates; a requisition was sent t[9] the Ernployment Exchange to sponsor nautes of suitable canclidates who had got their names registered with the Exchange. The selection process being cornpleted, the names of 1492 candidates were notified ars having been selected to be appointed as Trained. Graduate 'feachers in various WP(C) 437 0, 5 | 45, 5949, 6507 7 027, 7 03 1 of 20 12 & 37 9 /20 13 Page 3 of l[2] Y\. ? disciplines. And relevant would it be for us to highliglrt that displayed onl the Notice Board (it was the era when internet did not exist) were the names of 1492 candidates with an announcernent/commitrnent/assttrance: 'The appointment will be in the order of merit. That. appointment will be made in the Select List till th.e last candtdate is appointed.'

2. It was further notified: 'Tlrc life of the panel of selected candidates will be vctlidfor infinite period........ That tlrc panel of selected candidates vvill rernai.n valid till all the candtdates are offered appotntnxents'.

3. And relevant would it be to highlight that aforesaid commitment/assurance notified was based on decisions taken in the files by the Director of Education in consultation.with the valious District Level Education Officers, fi'om whom presumably, data was gatheled perlaining to the number of existing vacancies in various schools established and rr-rn by the Directorate of Education, I)elhi Adrninistlatiou'

4. But, at the first instance only 527 candidates were issued letters. offering appoinlment; and in the order of merit. It was lollowed by letters offering appointment issuecl to further I27 candiclates. 'fhus, only 654 candidates were issued lellers offering appointrnent; and this was thc number of vacancies originally notified. However, as would be apparent to '{ the reader, the nurnber was far less than the numb er l492,being the nutnber of candidates enlisted as per merit position in the' Select [,ist with an assurance that all of them would be given appointrnent and that appoiutment wiil be made till the last candidate is appointed.

5. I The act of the Director of Education to advertise and invite applications fiom eligible candidates to filI vacaricies in the uext year resulted i[1] a large number of candidates approaching the Centlal WP(C) 4370,5145,5949,6507 7027,7031 of 2012 &37912013 Page 4 ol' l[2] Administrative Tribunal whose nanle was entered in the Select List of 1492 IV candidates but to whom letters offering appointment were uot issued. They relied upolt the assurances contained when the Select List was notified; being the ones we have noted herein above in para I and 2. 'fhe Departtnent defended the onslaught by urging two points. Firstly, it was impermissible to appoint candidates in excess of the vacancies notified and secondly that only 654 vacancies existed. But, the Department could not justily its act of assuring to the 1492 selected candidates that: 'The appointntent will be in the order of nterit. That appointntent will be nmde in the Select List till the Iast candidate rs appointed.'.........'TIee lrfu of the pan.el. of selected. candidates will be valid for infinite period....-..."Tha.l: t,lte pa.nel of selected candidates wtll rentain valid till att the candida.tes are offered appointmehts'.

6. The verdict was in the favour of the candiclates and a direction was issued to exhaust the panel of 1492 candidates befblc appointments were of'fered to others. The challcngc by the Depaftment to the decision taken by the Tribunal failed before the Supretne Coutt when Civil Appeal No.1900/I987 'UOI & Ors. v. Ishwar Si.' was dismissed by the'Supreme Court on August 04, 1989. And we would only highlight that the decision of the Tribunal was directly challenged,*,[1] before the Supreme Coufi because the law then declared was that decisions ' by the Central Administrative Tribunals could not be challenged before the High C5urt undel Article 226 of the Constitution of India.

7. While disrnissing CA No.19001I987, thc Supretne Courl returned a categorical finding of fact that the Selection Board prepared thc panel containing 1492 natnes against the then available vacancies. Noting that in the interregnum i.e. during pendency of proceedings before Tribural WP(C) 4370,5145,5949,6507 7027,7031 of 2012 &37912013 Page 5 of l[2] rr as also the Supreme Couft ceftain dppointnents wele tnade, expressly statilg that the Suprerne Couft did not intend to disturb said appointments, directiols were issued that candidates who would be appointed pursuant to tlre decision clated August 04, I9B[9] passed by the Supretnc Court clismissing CA No.1900/1987, would get their seniority as per their ranlciltg in the select panels over tlrc persons appointed.in the interregnwn''

8. Matter attaining finality before the Suprerne Court, the Delhi Administration gave appointrnent to the remaining empanelled candidates a1d we are informecl that the period of giving appointrnent stretched on for 3 to 4 years, plobably for the reason perlaining to the vacaucies the satlre got fi||ed Llp over the next few years when other candidates were given employment. g. Another lound of litigation ensued. 'Ihe empauelled candidates in the list of 1492 candidates who got employment as also their seniolity in telms of the order clated August 04, 1989 passed by the Supreme'Court started clairning back-wages fiom the year 1984 onwards. Ihe basis of their clairn was that as determinatively held by the Supreme Couri l[gzvacancies existed as of the yeal 1984, but for the Deparltnent depriving thern the opporlunity to serve they would have served ancl eatned wages. 'fhe issue pertaining to seniority was also raised by few teachers. -ri: 10. OA No.I6gIlI994 filed by 10 pel'sons was disposed of by thc \ Tribgnal on Febru ary 14, 1996 on the subject of thc seniority, a tnatter with ' which we are not directly concerned. A Contempt Petition filed thereafler pertaining to seniority was disposed of by the Tributtal on September 03, Igg[7], an issue with which ollce againwe are not directly concerned.

11. Another OA No.56911996 filed by 10 tearchers on the subject of seniority was decided by the Tribunal on January 18, 2000, birt we need to WP(C) 4370,5145,5949,6507 7027,7031 of 2012 &37912013 Page 6 of l[2] lts highlight that the order in question notes that there was a clispute pertainiirg to pay fixation. Ignoring that the issue of pay-fixation had 2 elements: (i) Notional fixatiol of pay frorn the date the left ovel candidates fi'otn amongst tlre Select List of l4g[2] were overlooked for i:rornotion and other candidates in the uext year were appointed, and (ii) back-wages; the Tribunal only decided the latter holding that having not worked, the clairnants cannot bc paid babk-wages. Disposing of RA No.56/2000 in original Application 12.

13.

14. No.56911996, the Tribunal held that the issue of notionalpay fixation based on seniority had to be treated as a subsequent one giving rise to a fi'esh cause of action, which they can impugn by filing fi'esh OA and this the 'hibunal did when it was pointecl out to it that in the Original Application, alternatively to the prayer for back-wages, a prayer was tnade f,or notional fixation of pay with reference to seniority which issne had been overlooked by the Tribunal. On May 07,2004 the Directorate of Education passed an order.J which reads as under:- "fn supersession of order No'F'DB-3(I2A) Estr.IIVSpI.CelIlgT 117385-17445 dated 30.04.1998 based ot[1] itt" depaftments letter No'F'DE- 3(31)/Esu.ilI/Spl.CeIIl96l7766-780i dated 22.04.1997, followed by letter No.F.DE-3(144)lE-III19512424951- 25031 dated 10.11.1997 and subsequent corrigendum No.DE-3 (3 1)/Spl.C eIIlg6lE-IIIl2s[7] s3-BI[3] dated

27. Il.Igg[7] and in compliance with the directions passed by Hon'ble Suprerne Court on civil Appeal No.1900 of IggT titled Union of India & ors. vs. Ishwar singh l(hatri & Ors. It is hereby oldered tlrat the Directorate of Education will assign the proper seniority to the carndidate as per their ranking in the select panel over the pefson appointed. In the interuegnutn, the incumbent will not be WP(C) 4370,5145,5949,6507 7027,7031 of 2012 &37912013 entitled for the notional pay fixatiou, since there was no rnention of the pay fixatiol/lotional fixation in the otder passed i[1] Hon'ble Supreme Court. Hence, the seniority of ilre appticant in oA No.1691194 titled shri sohanbir singh and or-s., oA No.5 6911996, titled Ms.N irrnala Gupta Vs.

DE OA No.208/1998 titled Alam chand sharma vs. Dll and oA No.209Bl1998 titled Satpal Singh saini vs. DE and other petitioners shall be determined in teiln of the directions passed by the Apex Court as per the select panel. lhe earlier order dated 30.04.1998 hereby cancelled These (sic) issue with the approval of competent authority.' I[1] --'.l 'lt ^ sd/- (Gitanjali Kundra) Addl.Director of Educalion (Adrnn')"

15. Suffice would it be to state that in'the order it was specifically mentioned that the incunbells will not be entitled to any notional pay fixation since the Supreme Coutt. had not so clirected when Civii Appeal No.1900/ IggT 'UOI & Ors. v. Ishwar Singh l{hatri & Ors 'was clecicled, and this led to OA No.261 812005 being filed by 2 candidates named Karau Priya Gautam and Raj I(umar Singh who questioned denial of notional pay fixation. Vide order dated October 30, 2006 the 'fi'ibunal disrnissed thc original Application holding that since back-wages was denied and only protection given was seniority, the two clairnants could not be directed to be given benefit of notional pay hxation and on the issue of persotrs jr-rrrior in the seniority list receiving higher wages, the Tribunal observecl that if a pelson joins before another person, the former would draw iucrements before the latter and that this was inevitable. One Ms.Rita Taret also filed OA No.2 15412005 claiming salne benefit as was claimed by Karal Priya Gautam and Raj I{urnar singh. Her claim was rejected by the I-ribunal as WP(C) 4370,5145,5949,6507 7027,7031 of 2012 &37912013 Page B ol'12 r[- { per order dated July 27, ZOOO following the clecision clismissing OA[1] No.261812005. One Iftishna I(urnari who filed OA No.179012008 however succeeded when vide order dated May 15, 2009 the Tribunal decided in hel favour directing that her pay be fixed notionally fi'om the back date, a decision which was set aside by a Division Bench of this Court by a cryptic order dated December 12,2009 allowing WP(C) No.13987/2009 'Directot" of Education & Ors. v. SmLISi ' against which the Supreme Court refused to grant Leave to Appeal as per the order dated October 14,

2011.