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Judgment
O R D E R
In the present OA, preferred against the order dated 13.12.2022 denying the notional pay fixation, the applicant has prayed for the following reliefs:
"i)Quash the order dated 13/12/2022 for denial of consequential benefit of notional fixation to the Applicant.
ii) Direct the Respondents to consider the Applicant for notional pay fixation as per the seniority assigned to her.
iii) Direct the Respondents to step-up the salary of the Applicant at par with her immediate junior in the seniority list from the date of her joining the service.
iv) Direct the Respondents to award MACP benefits as per the seniority of the Applicant.
v)To pass such further order or orders/Directions as this Hon’ble Tribunal may deem fit and proper in accordance with law and in the light of the facts and circumstances of the present application.”
The facts of the case, in brief, as indicated in the OA are that the applicant had applied for the post of TGT (English) (Female) in response to an advertisement bearing No.52/10 issued by the respondents for filling up 36 posts of TGT (English) (Female) in the Directorate of Education, GNCT of Delhi. The applicant was rejected by DSSSB vide result notice dated 17.09.2014.
Aggrieved by the above, the applicant filed OA No.1049/2015 wherein this Tribunal by its order dated 29.04.2019 ordered for interpolation of her name at the appropriate place with all the consequential reliefs. The applicant on 27.06.2022 filed a representation for inclusion of her name in seniority list for the block year 2014-16, which was granted after the order dated 17.08.2022 of this Tribunal in CP No.413/2019. She filed a representation dated 21.09.2022 protesting against the incomplete implementation of the order of this Tribunal as the applicant has been denied consequential benefits of notional pay fixation vide order dated 13.12.2022.
The respondents in their counter reply have stated that the applicant had approached this Tribunal earlier in OA No.1949/2015, which was disposed of vide order dated 29.04.2019.
Thus, it is evident that no consequential benefits were accorded to the applicant by the Tribunal though the case of the applicant was very much within the knowledge of the Tribunal. It is also contended that the principle of constructive res judicata is applicable here and the applicant is now precluded from praying for relief in question. It is also submitted that consequent upon Contempt Petition No.413/2019 before the Tribunal, the respondents vide order dated 17.08.2022 partially modified the seniority list and the name of the applicant was inserted below one Monika Gupta, TGT (English) with seniority No.13636 and above Ms. Tejinder Kaur, TGT (English) with seniority No.13637. It is also submitted that the applicant's representation for grant of notional increment was duly considered and the Principal, JMSKV Jafrabad, Delhi vide its order dated 13.12.2022 passed the following order:
"As per SO (Admn) (OSD) file no.867/AB/N/E-II dated 26.11.2022 and No.1405/ZV dated 28.11.2022, the Competent Authority has denied the grant of Notional Increment to Smt. Perminder Kaur TGT (English) (Emp.ID20200510)".
Further, learned counsel for the respondents based on the counter reply has submitted that in fact the applicant was employed with the Municipal Corporation of Delhi as Primary Teacher in EDMC Primary School, Naveen Shahdara, Delhi with effect from 01.07.2015 till being relieved by the Principal, EDMC, Primary School, Naveen Shahdara with effect from 24.09.2020. During the stay, her salary and all consequential benefits including annual increments from the period i.e. from 01.07.2015 to 24.09.2020 was paid but she did not disclose before the Tribunal about her services rendered as above. Now, she is claiming double annual increments in terms of notional pay fixation, which is not fair.
I have heard both the counsels and perused the pleadings on record.
It is not in dispute that this Tribunal vide its order dated 29.04.2019 had ordered for interpolation of applicant’s name at appropriate place. The order of the Tribunal reads as follows:
"5.We fully agree with the decision given by the Hon'ble High Court of Delhi to the effect that similarly situated persons who acquired a qualification which is higher than the qualification prescribed for appointment to the post of TGT (English) and since the case of the applicant is similar to that of Neelam Rana and is eligible for TGT (English), thus the present O.A. is allowed. Accordingly, we direct the respondents to quash and set aside the result notice No. 217 dated 17.09.2014 to the extent of declaring ineligibility or/non-allocation of applicant to the post code 52/10 and direct the respondents to consider applicant for the said post, if she is otherwise eligible. The said exercise shall be done within two months from the date of receipt of a certified copy of this order. The name of the applicant shall be interpolated at appropriate place. No costs."
Subsequently, the applicant filed CP No.413/2019 in OA No. 1949/2015 wherein the Tribunal in its order dated 17.08.2022 held as follows:
“3.Learned proxy counsel for the respondents Shri Rohit Bhagat under instructions from the Departmental Representative, submits that the issue with regard to the seniority of the applicant is under active consideration and the necessary order will be passed positively within 15 days.
4.In view of the aforesaid, present CP is closed. Respondents are granted two weeks’ time to comply with their aforesaid undertaking. Notices are discharged. However, it is made clear that in case the undertaking given on behalf of the respondents and noted hereinabove is not given effect, the petitioner shall be at liberty to approach this Tribunal for revival of the CP, by way of Misc. Application.”
The name of the applicant was included in the seniority list for the block year 2014-16 after the order dated 17.08.2022 of this Tribunal in the above C.P. Once the seniority has been granted, as a natural corollary to above, the applicant is also entitled for notional fixation of pay as prayed. The plea taken by the respondents that the applicant was employed during the period of 01.07.2015 to 24.09.2020 as Assistant Teacher in MCD cannot be a ground for depriving her service benefits, as it has no connection with his current employment with the respondents. It cannot be lost sight of that the seniority of the applicant has already been granted and the applicant cannot be denied the consequential benefits of notional pay fixation. It is not in dispute the requisite seniority was accorded to her vide orders dated 17.08.2022 and 25.08.2022 for block years 2014-2016 by modifying the order dated 13.04.2021, but it would be unjust to deny the applicant benefits of notional pay. The premise on which the relief is sought to be denied by the respondents does not appear to be convincing, as bereft of notional pay fixation, such seniority has no meaning and in fact as a corollary to this Tribunal ordered regarding grant of seniority, notional pay of the applicant should have been fixed. I thus find no justification for the stand taken by the respondents.
Consequently, the OA is allowed and the impugned order dated 13.12.2022 denying consequential benefits of notional pay fixation is set aside. The respondents are directed to fix the notional pay of the applicant in line with seniority granted to her vide order dated 25.08.2022 along with all consequential benefits in accordance with relevant rules within a period of three months from the date of receipt of a certified copy of this order. However, the applicant will not be entitled for any back-wages. No order as to costs.