Manju Rani (Asst. Teacher) vs Municipal Corporation Of Delhi & Ors

Rajveer Singh Verma, Member (J)

By way of the present Original Application, the applicant has prayed for the following reliefs:-

“i. Allow the present O.A. by directing the respondents to grant seniority, notional pay fixation with other consequential benefits as have been allowed to the other similarly situated persons in view of the judgments of the Hon'ble Supreme Court in K.C. Sharma vs. Union of India & Ors. and in K.I. Shephard & Ors. vs. Union of India & Ors.

ii. Award the cost of proceedings; and

iii. Pass any other or further order(s) as this Hon'ble Tribunal deems fit, in the interest of justice.”

Brief facts of the present case are that the applicant had applied for the post of Primary Teacher under Advertisement No. 02/98 dated 11.06.1998 and was selected in the SC category, but was denied appointment on the ground that she did not belong to the SC community of Delhi. After legal challenges by similarly placed candidates, she was eventually appointed as Assistant Teacher on 11.04.2008. Due to this delayed appointment caused by the respondents’ unlawful action, she was denied seniority benefits. However, similarly situated candidates were granted seniority and notional pay fixation, either through court orders or administratively by the respondents. The applicant relies upon the decision rendered by this Tribunal in O.A. No. 1917/2011 decided on 15.02.2012 and the decision rendered by the Hon’ble Supreme Court in K C Sharma Vs. Union of India & Ors., 1998 (1) AISLJ 54 and in K I Shephard & Ors. Vs. Union of India & Ors. AIR 1988 SC 68, which mandate that benefits granted in rem should be extended to all similarly situated persons. She submitted a representation dated 24.02.2014 seeking similar benefits, but no action was taken. Consequently, she filed OA No. 2667/2014, which was disposed of by this Tribunal on 07.08.2014 with a direction to the respondents to dispose of the representation of the applicant and pass a speaking and reasoned order. In compliance of the directions of this Tribunal, the respondents issued an order dated 22.09.2015 rejecting the claim of the applicant. The applicant contends that the impugned order is arbitrary, discriminatory, and violative of Articles 14 and 16 of the Constitution. Hence, she has filed the present application seeking grant of seniority and notional pay fixation.

Opposing the grant of relief, learned counsel for the respondents relied upon the averments contained in the counter affidavit. He submitted that the claim of the applicants is legally untenable and deserves dismissal. He contended that the relief sought by the applicant is contrary to FR 17(1), which clearly provides that pay and allowances accrue only from the date an employee assumes charge of the post, not retrospectively. He submitted that since the applicant was appointed after 01.01.2004, she is governed by the new pension scheme and is not entitled to the benefits of the old pension scheme under the CCS (Pension) Rules. It is further argued that the applicant, having joined service in or after 2004, cannot claim increments or parity with those who joined prior to 01.01.2004.

3.1. He emphasized that seniority can only be granted from the date an employee enters the cadre, and not from a date when the applicant was not borne in service.

3.2. He also raised a preliminary objection that the present O.A. is barred by limitation under Section 21 of the Administrative Tribunals Act, as it has not been filed within the prescribed time. Relying on various judgments of the Hon’ble Supreme Court, it is argued that limitation must be decided at the threshold and repeated representations do not extend the limitation period.

3.3. It is further contended that inordinate delay and laches disentitle the applicant from any relief, irrespective of merits. The respondents assert that the O.A. is not maintainable and amounts to abuse of the process of law. They also rely on judgments of the Hon’ble Delhi High Court and the Tribunal, wherein similar claims for retrospective seniority, notional increments, and old pension benefits were rejected. Hence, the respondents pray for dismissal of the present OA.

We have heard learned counsel for the respective parties and perused the pleadings available on record.

Analysis

In the conspectus of the facts on record, it is evident that the applicant, having been duly selected pursuant to Advertisement No. 02/98, was denied appointment on grounds which were subsequently rendered unsustainable in law. The delay in her induction into service was not attributable to any lapse on her part, but was solely the consequence of the respondents’ erroneous and unlawful action.

At this juncture, it is apposite to advert to the legal position governing such situations. The Hon’ble Supreme Court in K.C. Sharma vs. Union of India & Ors., 1998 (1) AISLJ 54, has categorically held that once a benefit is extended pursuant to a judicial pronouncement on a question of law, the same cannot be confined only to the litigating parties but must be extended to all similarly situated persons. This principle, rooted in Articles 14 and 16 of the Constitution, ensures that equals are treated equally and prevents arbitrary discrimination.

Similarly, in K.I. Shephard & Ors. vs. Union of India & Ors., AIR 1988 SC 686, the Hon’ble Supreme Court emphasized that where a class of employees has been wrongfully deprived of appointment or service benefits, the relief granted must operate in rem so as to restore parity amongst all affected individuals. The Court further underscored that administrative authorities cannot pick and choose beneficiaries once a legal principle has been settled.

Also, the Hon’ble High Court of Delhi vide its judgment dated 21.12.2009 passed in WP(C) No.13987/2009 in the matter of Director of Education and Anr. Vs. Smt. Krishna Kumari has held as under:-

“4. 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.”

Applying the aforesaid principles to the facts of the present case, it is not in dispute that similarly situated candidates, who were denied appointment on identical grounds, have already been granted seniority and notional pay fixation either pursuant to judicial orders or administratively by the respondents themselves. Once such benefits have been extended, denial of the same to the applicant would amount to invidious discrimination and cannot be countenanced in law.

The respondents, however, have sought to justify the denial of relief by placing reliance upon FR 17(1), contending that pay and allowances accrue only from the date an employee actually assumes charge of the post. While the said proposition is unexceptionable in the ordinary course, the same cannot be applied in a mechanical manner to defeat a claim arising out of the respondents’ own illegality. It is well settled that the principle of “no work no pay” embodied in FR 17(1) admits of exceptions, particularly where an employee has been kept out of service for no fault of her own. In such cases, courts have consistently invoked the doctrine of restitution to undo the prejudice caused by administrative arbitrariness.

The respondents have further contended that seniority cannot be granted from a date when the applicant was not borne in service. This submission, though prima facie attractive, overlooks the settled distinction between actual appointment and notional placement in service. Where the initial denial of appointment is found to be illegal, the affected employee is entitled to be notionally placed in service from the date her batchmates were appointed, for the limited purpose of seniority and consequential benefits.

The objection regarding limitation under Section 21 of the Administrative Tribunals Act also does not merit acceptance. The grievance of the applicant pertains to denial of seniority and consequential benefits, which constitutes a continuing cause of action. Moreover, the applicant had been diligently pursuing her remedies, including submission of representation and earlier proceedings before this Tribunal, culminating in the impugned order dated 22.09.2015. In such circumstances, the plea of delay and laches cannot be invoked to defeat a substantive and recurring right.

The contention of the respondents regarding applicability of the New Pension Scheme on account of the applicant’s appointment after 01.01.2004 also cannot be sustained. Once it is held that the applicant is entitled to be notionally treated as having entered service along with her batch, the legal fiction so created must be carried to its logical conclusion. The applicant cannot be placed in a disadvantageous position merely because of the respondents’ wrongful action. Consequently, she would be entitled to be governed by the pension regime applicable on the date of such notional entry into service, i.e., the Old Pension Scheme under the CCS (Pension) Rules.

Relief

In view of the aforesaid discussion, this Tribunal is of the considered opinion that the applicant is entitled to be granted the same relief as has been extended to other similarly situated persons. The denial of such benefits to her is arbitrary, discriminatory, and violative of Articles 14 and 16 of the Constitution.

Accordingly, the impugned order dated 22.09.2015 is hereby set aside. The respondents are directed to:

i. treat the applicant as having been notionally appointed from the date on which candidates of her batch were appointed;

ii. grant her notional seniority from the said date;

iii. extend all consequential benefits, including notional pay fixation and benefits under the ACP/MACP Schemes, by reckoning her service from the date of such notional appointment; and

iv. extend to the applicant the benefit of the Old Pension Scheme, treating her as having entered service prior to 01.01.2004 for all relevant purposes.

The aforesaid exercise shall be completed within a period of three months from the date of receipt of a certified copy of this order.

The O.A. is accordingly allowed. Pending M.As, if any, stand disposed of. There shall be no order as to costs.