GOVT OF NCT OF DELHI & ORS v. ASHWANI KUMAR SHARMA

1. The genesis of the above-captioned writ petition lies in thc events which took place in the year 1984 when High School Education in the Union Territory of Delhi was under the aegis of Delhi Administt'ation and in particular the Directorate of Education. fhe Staff Selection Board constituted by the Director of Education headed by the Dircctor himself notified 654 vacancies in various disciplines of fiained Graduate 'feachers and invited applications fi'onr eligible candidates; a requisition was sent tp the Employment Exchange to sponsor names of suitable canclidates who had got their names legistered with the Exchange. 'fhe selection process being completed, the names of 1492 candidates were notilied as having beetr selected to be appointed as Trained Graduate Teachers in variotts WP(C) 4370,5145,5949,6507 7027,7031 of 2012 &37912013 Page 3 ol'12

4. But, at the first instance only 527 candidates wcre issued letters offerilg appointrnent; and in the order of nerit. It was followed by letters offering appointment issuecl to fuither I27 candidates. 'Ihus, only 654. candidates were issued letters offering appointment; and this was thc nurnber of vacancies originally notified. I{owever, as would be apparent to the reader, the number was far less than the nrunb er 1492, being the nurnber of candidates enlisted as per merit position in the Select List with an assuralce that all of them would be given appointrnent and that appoiuttnent /+' will be made till the last candidate is appointed

5. The act of the Dilector of Education to advet'tise and invite applications fion eligible candidates to fill vacancies'in the next year resulted in a large number of candiclates approaching the Centlal WP(C) 4370,5145,5949,6507 7027,7031 of 2012 &37912013 Page 4 of l[2] I t0 Administrative Tribunal whose nane was enteted in the Sclect List of 1492 candidates but to whom letters offering appointment were not issued. 'Ihey relied upotl the assurances contained when the Selecl List was notified; being the ones we have noted herein above in para I anci 2. 'fhe Deparlment defended the onslaught by urging two points. Firstly, it was irnpermissiblc to appoint candidates in excess of the vacancies notified and secondly that only 654 vacancies existed. But, the Department could not justify its act of assuling to the 1492 selected candidates that: 'The appointntent vti.l.l be in. the order of merit. That appointntent wiII be made in the Select List l:i,ll the last candidate,s appointed.'.........'The life of tlte trtan.el of selected candidates will be vatid for infinite period........'That th.e panel. of selected candidates will rentain valid till all tlte candida,tes are offired appoin.ttrtents'.

6. The verdict was in the favour of the candidates and a dircction was issued to exhaust the panel of 1492 candidates before appoinlments were offcred to othels. The challcnge by the Depattmeut to the decision taken by the 'fiibunal failed before the Supretne Coutt when Civil Appeal No.1900/I987 'UOI & Ors. v. Ishwar S.' was dismissed by the Supreme Court on August 04, 1989. And we would onty highlight that the decision of the Tribunal was directly challengecl before the Supreme Couft because the law then dcclated was that decisions by the Central Adrninistrative Tribunals could not be challenged before thc High Court under Article 226 of the Constitutiol of Ildia.

7. Wrile dismissing CA No.1 90011987, thc Supreme Courl leturned a categorical finding of fact that the Selection Board prepared the panel containing 1,492 nartes against the then available vacancies. Noting that in the intenegnum i.e. during pendency of proceedings before Tribunal WP(C) 4370,5145,5949,6507 7027,7031 of 2012 &31912013 Page 5 of l[2] ! Y" rl,t as also the Supreme Court cerlain appointments wclc made, exprcssly stating that the Supleme Court did not intencl to distr"u'b said appointments, directions were issued that candidates who would be appointed pursuant to the decision dated August 04, 1989 passed by the Supremc Court dismissing CA No.1900/1987, would get their seniority as per their ranlcing in the select panels over the persons appointed, fit the interregnttm.

8. Matter attaining finality before the Supleme Courl,,,}. Delhi Administration gave appointrnent to the remaining empanelled candidates and we are infonned that the periocl of giving appointment stt'etchecl on fol 3 to 4 years, probably fol the reason pertaining to the vacancies the bame got filled up over the next few years when other candiclates were given employrnent.

9. Another round of litigation ensued. I'he empanelled candidates in the list of I4g[2] candidates who got ernployment as also their seniority in terirrs of the orcler dated August 04, I9B[9] passed by the Supreme'Court starled clairning baclc-wages fi'om the year 1984 onwards. The basis of their clairn was that as determinatively held by the Supreme Court 1492 vacancies existed as of the year 1984, but for the Deparltleut depriving them the opportturity to serve they would have served and eatned wages. The issue perlaining to seniority was also raised by few teache4s.:

10. OA No.169I|1994 filed by 10 persons was disposed of by the Tribunal on Februairy 14, 1996 on the subject of the seniority, a matter with which we are not directly concerned. A Contempt Petition filed thcreaftcr pertaining to seniority was disposed of by the Tribunal on Septernber 03, 1997, an issue with which once againwe are not directly conceured' 1 1. Another OA No.56 911996 filed by 10 teachels on the subject of seniority was'decided by the Tribunal on January 18, 2000, but we need to WP(C) 437 0, 5 1 45, 59 49, 6501 7 027, 7 03 1 of 20'12 & 37 9 120 13 Page 6 of l[2], -'t,] highiight that the order in question notes that there was a.lisp.,te n.rrr,rl,r[ to pay fixation.

12. Ignoring that the issue of pay-fixation had 2 elements: (i) Notional fixation of pay fiom the date the left over candidates fi'orn atlongst tlre Select List of L492 were overlooked for protlotion and other candidates in the next year were appointed, and (ii) back-wages; the 'fribrutul oniy decidecl the latter holding that having not worked, the clairnauts cannot bc paid back-wages. Disposing of RA No.56/2000 in Original Application I 13.

14. No.569/1996, the Tribunal held that the issue of notional pay fixation based on seniorify had to be treated as a subsequent one giving rise to a fiesh cause of action, which they can irnpugn by filing fi'esh OA anct this the 'Iribunal did when it was pointecl out to it that in the Original Application, alternatively to the prayer for back-wages, a prayer was made for notional fixation of pay with leference to seniority which issue had been overlooked by the Tribunal. On May 07,2004 the Directorate of Edr-rcation passed an order which reads as under:- "In supersession of order No.F.DE-3(I2A) Estt.III/SpI.CeIIl97 117385-17445 dated 30.04.1998 based on the departments letter No.F.DE- 3(31)/Estt.III/Spl.CeIll96l7766-7801 dated 22.04-1997, followed by letter No.F.DE-3(144)|E-III19512424951- 25031 dated 10.[1] 1.1997 and subsequent corrigendum. No.DE-3 (3 1 )/Spl. C eIIl[9] 6lE-IIIl2st s[3] -813 dated

27. II.1997 and in compliance with the directions passed by Hon'ble Supletr.e Court on Civil Appeal No.1900 of 1997 titled Union of India & Ors. vs. Ishwar Singh Khatri & Ors. It is hereby ordered that the Directorate of Education will assign the ploper seniority to the candidate as per their ranking i[1] the select panel over thc person appointed. In the inteilegnurn, the incumbent will not be WP(C) 4370,5145,5949,6507 1027,7031 of 2012 &379/2013 Page 7 of l[2] t-.r I I,/ 1,) entitled for the notional pay fixation, since there was llo mention of the pay hxation/notional fixation in the order passed in Hon'ble Supreme Courf. Hence, the seniority of ihe applicant in OA No.1691194 titled Shri Sohanbir Singh and ors., oA No.56911996, titled Ms.N irrnala Glpta Vs.

DE OA No.20Bl1998 titled Alam Chand shanna vs. DE and oA No.2098/1998 titled satpal Singh saini vs. DE and other petitioners shall be determined in terrn of the directions passed by the Apex Court as per the select p4nel. The earlier orcler dated 30.04.1998 hereby cancelled. These (sic) issue with the approval of competent authority' sd/- (Gitanjali Kundra) Addl.Director of Education (Admn')"

15. Suffice would it be to state that in tire order it was specifically mentioned that the incumbents will not be ertitled to any notional pay fixation since the supreme court. had not so directed when civii Appeal No.1900/ Ig97 '(JOI & Ors. v- Ish'A'ar Sineh l{h'atri & Ors ' wets clecidcd' and tlris led to OA No.2618/2005 being filed by 2 candidates named I(aran Priya Gautam and Raj I(umar Singh who questioued denial of notional pay fixation. Vide orcler clated October 30, 2006 the 'hibunal disrnissed thc Original Application holding that since back-wages was denied and only protection given was seniority, the two claimants could not be directed to be given benefit of notional pay fixation and on the issue of persous junior irl the seniority list receiving higher wages, the Tribunal observed that if a person joins before another person, the fbnler wottld draw incremetlts' before the latter and that this was inevitable. One Ms.Itita'I'ara also filed OA No.215412005 claiming same benefit as was claimed by I(aran Priya Gautam and Raj I{umar Singh. Iler claim was rejected by the I'r'ibunal as WP(C) 4370,5145,5949,6507 7027,7031 of 2012 &.37912013 Page B ol' l[2] l\ per order clated July 27, 2000 following the decision dismissing OA No.26 1812005. One Krishna Kumari who filed'OA No. 179An008 however succeecled when vicle order dated May 15,2009 thc Tlibunal 'dccided in her favour directing that her pay be fixed notionally fiom the back date, er decision which was set aside by a Division Bench of this Couft by a cryptic order dated December 12,2009 allowing WP(C) No.1398712009 iDirector of Education & Ors. v. Srnt. ' agaitlst which the Suptelllc Court refused to grant Leave to Appeal as per the order dated October 14, I 2OII.

16. 1 8.. Noting conflicting views of the Tribunal, otr Decetnber 16, 2009 disposing of OA No.536/2007 'Deepti Arora v. Govt. O.f Delhi' a F-r-rll Bench of the Tribunal held that benefit of pay-fixation on notional basis hacl to be granted to the applicant therein. The said decision of the Tribunal currently awaits a conclnsive view fi'orn the Supreme Cottrt whet'c Leave to Appeal stands granted.