Ashok Yadav Vs Union Territory of Chandigarh and Others

Learne d counsel for the petitioner subm i ts that the petitioner was entitle d for not i onal fixation for the period 01.1 0 .2012 to 07.07.2015 upon bein g offered the same post for which he had b een earlier selected, and from th e same d a te.

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Brief f a cts which we notice for adjudic a tion of this writ petition are tha t the wr i t petitioner was initially appoi n ted as a Scientific Assistant o n 14.08.2006; thereafter he was selected f o r the post of TGT Maths Maste r in Edu c ation Department on 07.12.2010.

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An ad v ertisement was issued on 05.08. 2 017 for selection on the post o f Master s /lady Masters Mathematics. T h ere were four posts in the sai d subject , out of which three were meant fo r General Category and one wa s reserve d for OBC category. The petitioner was declared selected in th e

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CWP-12609-2025 (O&M)

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final m e rit list and was placed at No.1 in the waiting list in OBC category . One A j ay Kumar was selected, whose appointment was challenged b y one R a minderjit Kaur in OA No.212/ C H/2010 claiming that marks o f written test were not to be included in the final merit list. Ajay Kuma r resigne d and the petitioner being next in the merit list was appointed vid e order d a ted 09.11.2010. He was therefor e impleaded by Raminderjit Kau r as resp o ndent in OA No.212/CH/2010 which was decided holding tha t marks o f written tests were not to be a d ded to the final merit. The orde r dated 11.05.2011 was challenged befor e this Court and then before th e Supre m e Court, and the order dated 1 1 .05.2011 was upheld. The meri t was th e refore re-casted excluding marks of written test, and the petitione r was re m oved from service vide order dated 28.08.2012. Since he wa s already working on the lower post of Sc i entific Assistant, he was reverte d back t o the post of Sr. Quality Assuran t Establishment, where he joine d back o n the post on which he was hol d ing lien. Other candidates fro m differe n t streams also approached the T ribunal in another OA No.1000 - CH-20 1 0 titled as ‘Shalu Chawla vs. Union Territory, Chandigarh Administration’ , and the Tribunal agai n held that marks of written tes t were n o t to be added to final merit list. Consequently, the last candidat e namely Arpana Mahajan was ordered t o be removed vide order date d 16.11.2012. She challenged her termination before the Centra l Admin i strative Tribunal (CAT) which w a s allowed on the ground that sh e was n o t the least meritorious candid a te. The order dated 28.03.201 3 passed by the CAT in her favour wa s challenged by the respondent s before t his Court in CWP-16336-2013. A fter examining the case at lengt h , the or d er of the Tribunal was modifi e d holding that only five mark s

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CWP-12609-2025 (O&M)

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assigned to the descriptive test were req u ired to be excluded while mark s of rem a ining written test (95 marks) were to be included for consideratio n of the m erit. Directions were therefore i ssued for revising the merit list . Applyi n g the said judgment, the meri t list was again revised and th e petitio n er (herein) was found to be the t o p-scorer in his category and wa s therefo r e reinstated on the post of teach e r (Maths). The petitioner was re - appoin t ed on 07.07.2015. He was ho w ever not given the benefit o f service from his original date of app o intment i.e.09.11.2010, and th e appoin t ment was treated as a fresh appointment. He submitted a represe n tation, and after considering th e same, the order was passed o n 12.12.2018, whereby following decision was taken:

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“Reference your request da ted 05.12.2017 on the

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s ubject cited above.

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It is to inform you that you r request for the grant of c onsequential benefits by giving th e seniority, confirmation w .e.f. 07.12.2010 has been consid e red by this office and it a s been decided that you are en t itled for seniority from i n tial appointment i.e. 15.11.2010.

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Further, your request for the grant of financial b enefits for the period you serve d in Ministry of Defence (D GQA), Muradnagar, Ghaziab a d, U.P. as Scientific A ssistant for the period w.e.f. 01.1 0 .2012 to 07.07.2015 has b een considered and not acceded t o .”

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In the m eanwhile, the petitioner had a l so preferred OA No.1001/2018 ,

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wherei n he claimed as under:

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“i) It is therefore respectfu l ly prayed that direction m ay kindly be issued to the re s pondents to treat the o riginal appointment of the app l icant vide letter dated 0 9.11.2010 (Annexure A-4) as the actual date of a ppointment with all consequential benefits in favour of the

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CWP-12609-2025 (O&M)

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a pplicant on his being reinstated i n service on the basis of m erit revised under the directions of Hon'ble High Court a fter excluding the pay earned by h im during the period he r emained out of service, from previous employer by a vailing the lien.

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ii) Respondent No. 1 and 2 m ay kindly be directed to r efix the pay of Applicant on th e basis of his original a ppointment dated 09.11.2010, by granting the increments fo r the entire period prior to his re i nstatement on his being

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r eappointed.”

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Taking note of the order dated 12.12.20 1 8, as well as the facts which ha d come o n record, the CAT refused to grant him notional fixation for th e period f rom 01.10.2012 to 07.07.2015, a nd at the same time held that i n case hi s pay on the post on which he he l d lien earlier was higher than th e pay fix e d in the current department, the s ame can be protected and he ca n be plac e d in the pay appropriately.

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Learne d counsel submits that similarl y placed persons namely Arpan a Mahaj a n and other persons who had b een terminated from service o n accoun t of the earlier view taken by the CAT, had been given the benefi t of noti o nal pay fixation, and the petitioner too therefore being similarl y placed, is entitled for the notional pay fi x ation.

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The no t ional pay fixation in ordinary s e nse is granted when a person i s treated to be in continuous service on t h e said post. In the present case , the pe t itioner’s termination from serv i ce was not challenged by hi m earlier. He has been offered appointmen t only on the basis of a judgmen t passed i n another case, where the Court d irected for revising the merit lis t . After t h e merit list was revised, the pe t itioner was offered appointment . He wa s granted confirmation and senio r ity from 07.12.2010, but for th e

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CWP-12609-2025 (O&M)

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period f rom 01.10.2012 to 07.07.2015, s ince he was working on anothe r post o f Scientific Assistant where h e had drawn actual pay an d allowa n ces, the benefit of notional pay f i xation has been denied.

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In our opinion, no person can be all o wed to draw dual salary, eve n notion a lly. Once the petitioner had ad m ittedly been working on anothe r post fo r which he was drawing regular s alary and increments, there is n o occasion to give him notional fixation f or the present post and also giv e him in c rements.

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We als o notice that the CAT has already protected the petitioner, if he ha s been d r awing higher salary during the s aid period. Thus, for the perio d from 01.10.2012 to 07.07.2015, on ac c ount of continuing on the othe r post, i n case he has drawn increments r e sulting in his being placed at th e higher level in the pay, the same woul d be protected. No further relie f could h ave been granted to him, other t h an what has been already grante d by the C AT.