*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 2nd May, 2011.
+ W.P.(C) 2199/1996
% K.K. JAIN ..... Petitioner
Through: Mr. A.K. Jain, Advocate.
Versus
UOI & ANR. ..... Respondents
Through: None.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? No
2. To be referred to the reporter or not? No
3. Whether the judgment should be reported No
in the Digest?
RAJIV SAHAI ENDLAW, J.
CM No.6032 & 6033/2011 (for restoration of the writ petition dismissed in default on 4 th February, 2011 and for condonation of delay in applying therefor).
1. On the condition that the counsel for the petitioner to argue on the merits of the writ petition today itself and to which the counsel for the petitioner applicant has agreed, for the reasons stated in the applications, W.P.(C)2199/1996 Page 1 of 6 the same are allowed. The delay in applying for restoration is condoned and the writ petition is restored to its original position. W.P.(C) No.2199/1996.
2. The counsel for the petitioner has been heard. In the facts as mentioned herein below, need is not felt to hear the counsel for the respondents and the counter affidavit filed by the respondents and to which there is no rejoinder has been filed, perused.
3. The petitioner joined the Indian Navy in July, 1959 and retired from the post of Commander in the Indian Navy in the year 1983. The petitioner as per the terms of his employment was entitled to pension.
4. The petitioner in response to an advertisement published by the respondent no.2 M/s. Hindustan Shipyard Limited in the year 1987 applied and was selected for the post of Regional Manager. It is the case of the petitioner that the advertisement pursuant to which he had applied and was selected did not indicate that there could be any deduction, on account of pension being received by him, out of the employments payable to him by W.P.(C)2199/1996 Page 2 of 6 the respondent no.2. Upon such deduction being made by the respondent no.2 from the emoluments of the petitioner with effect from the first payment itself, the petitioner started representing and ultimately in the year 1996 filed this writ petition for declaration that no part of the pension earned by him as a Naval Officer is liable to be deducted from his salary as Regional Manager with the respondent no.2 and for a direction to the respondent no.2 to release the salary so deducted on the basis of the pension. The relief of quashing of Clause 4 of the Central Civil Services (CCS) (Fixation of pay of Re-employed Pensioners) Orders, 1986 and similar clause in another Office Memorandum dated 29 th October, 1986 on the basis whereof such deduction was made was also claimed.
5. Notice of the writ petition was issued and detailed counter affidavit filed by the respondent no.2. The petitioner inspite of opportunity did not file any rejoinder thereto. Rule was issued on 20 th January, 1998 since whereafter none had been appearing for the petitioner. The counsel for the petitioner however on enquiry states that the petitioner is still alive. W.P.(C)2199/1996 Page 3 of 6
6. The respondent no.2 in its counter affidavit has pleaded that the petitioner prior to joining the respondent no.2 and after retiring from the Indian Navy was working in another company (the counsel for the petitioner states that he has no knowledge of the same); that the petitioner in his application in response to the advertisement had himself stated that the minimum starting salary expected by him was as per the Government of India Rules applicable from time to time; that in the offer of appointment issued to the petitioner itself it was stated that the pay would be fixed as per the Government of India Rules and the petitioner was asked to submit a certificate from the Indian Navy regarding his pension for the purpose of fixation of pay; that the petitioner had conveyed his acceptance to the offer of appointment and joined duty on 30 th November, 1987; that the pay of the petitioner was fixed under the law applicable in the case of all re-employed pensioners i.e. the pension amount received by the re- employed pensioners is to be ignored only to the extent it is provided for in the rules; that the pay scale of the petitioner was fixed in accordance with CCS (Fixation of pay of Re-employed Pensioners) Orders, 1986; that subsequently on clarification by the Government of India that the W.P.(C)2199/1996 Page 4 of 6 petitioner was governed by the BPE'S OM dated 29.10.1986, the pay of the petitioner was re-fixed accordingly; that the advertisement for employment was under the rules and provisions applicable; the application made by the petitioner in pursuance thereto was also as per the rules applicable; the offer of appointment made to the petitioner was also as per the rules and accepted as per rules and thus the petitioner is not entitled to the relief. The averments in the counter affidavit are supported by the documents filed therewith.
7. As aforesaid there is no denial thereof inspite of opportunity.
8. The counsel for the petitioner has also not during the arguments controverted any of the averments in the counter affidavit. The argument is only on the basis of the advertisement aforesaid.
9. He also argues that pension is a right of the petitioner by virtue of having already rendered service and the same could not have been taken into account in fixing the pay of the petitioner on re-employment. W.P.(C)2199/1996 Page 5 of 6
10. Once it is admitted that the pay scale received by the petitioner is as per the terms of offer of appointment which was accepted by the petitioner, in my opinion the petitioner has no case on the basis of the advertisement aforesaid. Moreover the petitioner in his application for appointment pursuant to the said advertisement also confirmed that his pay was to be as per the rules and thus it cannot be said that the petitioner was not aware. Similarly the existence of the rules in accordance where with the pay was so fixed is also not controverted. In the circumstances, neither any case for challenge has been made out nor has the petitioner been able to satisfy as to how the said rules can be said to be illegal or on what grounds the striking down thereof is claimed.
11. There is thus no merit in the writ petition. The same is dismissed. No order as to costs.
RAJIV SAHAI ENDLAW (JUDGE) MAY 02, 2011 pp W.P.(C)2199/1996 Page 6 of 6