A.K. Karmakar & Ors. vs Union Of India & Ors.
2008 Latest Caselaw 1289 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


+                     WP (C) No.16697-16734 of 2004


                                                  Reserved on: 10.07.2008
%                                              Date of decision: 08.08.2008


A.K. KARMAKAR & ORS.                                 ...PETITIONERS
                   Through:               Ms. Tamali Wad &
                                          Mr. O.P. Agarwal, Advocates.


                                      Versus


UNION OF INDIA & ORS.                                ...RESPONDENTS
                    Through:              Mr. A.K. Bhardwaj, Advocate for
                                          Respondents 1, 4 & 5.

                                          Mr. S.K. Taneja, Sr. Advocate
                                          with Mr. Rajesh Gupta &
                                          Mr. T.K. Tiwari, Advocates for
                                          Respondent No.3.


CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.        Whether the Reporters of local papers
          may be allowed to see the judgment?                 No

2.        To be referred to Reporter or not?                  No

3.        Whether the judgment should be
          reported in the Digest?                             No

SANJAY KISHAN KAUL, J.

1. The petitioners were working in various units of the

Central Industrial Security Force (CISF) as

Constables/Security Assistants, Head Constables and

Assistant Sub-Inspector in different pay-scales when they

joined respondent No.3, National Thermal Power

Corporation Ltd. (NTPC), on deputation basis in 1996.

The initial period of deputation was fixed as one year and

was to be governed by the standard terms and conditions

of deputation applicable to Central Government

employees as per OM dated 5.1.1994. The para 2 of the

appointment letter dated 22.7.1996 and 20.8.1996

whereby the petitioners were so appointed on deputation

reads as under:

"2. They will be on deputation for a period of one year and will be governed by the standard terms and conditions of deputation applicable to Central Govt. Employees circulated vide OM No.2/29/91- Estt. (Pay-II) dated 05.1.1994."

2. Insofar as pay and allowances are concerned, Clause 4 of

the Office Memorandum dated 5.1.1994 reads as under:

"4. Exercise of option

4.1 An employee appointed on deputation/foreign service may elect to draw either the pay in the scale of pay of deputation/foreign service post or his basis pay in the parent cadre plus deputation (duty) allowance thereon plus personal pay, if any.

4.2 The borrowing authority should obtain the option of the employee within one month from the date of joining the ex-cadre post unless the employee has himself furnished the option.

4.3 The option once exercised shall be final. However, the employees may revise the option under the following circumstances which will be affective from the date of occurrence of the same.

(a) when he received proforma promotion or is appointed to non-functional selection grade in his parent cadre.

(b) when he is reverted to a lower grade in his parent cadre;

(c) when the scale of pay of the parent post on the basis of which his emoluments are regulated during deputation/foreign service or of the ex-cadre post held by the employee on deputation/foreign service is revised either prospectively or from a retrospective date.

(d) Based on the revised/same option of the employees, in the event of proforma promotion, appointment to non-functional Selection Grade revision of scales of pay in the parent cadre, the pay of deputationists will be refixed with reference to the revised entitlement of pay in the parent cadre. However, if the initial option was for the pay scale of the deputation post and no change in option already exercise is envisaged the pay already drawn in deputation post will be protected if the pay refixed is less.

Note: Revision in the rates of DA, HRA or other allowances either in the parent or borrowing organization shall not be an occasion for revision of the earlier option.

4.4. If the pay of an employee in his cadre post undergoes downward revision, the pay in the ex- cadre post is also liable to be refixed on the basis of the revised pay and in accordance with the revised option or existing option if the employee does not revise his option."

3. The object of the Office Memorandum is apparent from

the "Subject" as also Clause 2 which reads as under:

"OFFICE MEMORANDUM 05.01.1994

Subject:- Transfer on deputation/foreign service of Central Govt. employees to ex-cadre posts under the Central Govt./State Govts. Public Sector Undertakings/Autonomous Bodies/Universities/ Administration, Local Bodies etc. and Vice-versa -

Regulation of pay, deputation (duty) allowance, tenure of deputation/foreign service and other terms and conditions - regarding.

A need has been felt for some time past to consolidate at one place the various instructions/orders that have been issued from time to time and are still in force on the above mentioned subject. It was also felt necessary to review the entire matter and bring about rationalization and uniformity in the instructions/orders. Accordingly it has been decided to bring out a self-contained O.M. on the subject incorporating the provisions of various orders quoted in the margin, with suitable modification, where necessary. The Ministry of Finance, etc. are requested to bring to the notice of all administrative Ministries concerned the contents of this O.M. for information, guidance and compliance.

2. APPLICATION

2.1 These orders will apply to all Central Govt. employees who are regularly appointed on deputation/foreign service in accordance with Recruitment Rules of the ex-cadre posts under the same or some other Departments of Central Govt. or under the State Governments/Union Territories Administration/Local Bodies or Under Central/State PSUs/Autonomous Bodies or Under Central/State PSUs/Autonomous Bodies etc. (where such foreign service has been permitted in relaxation of appointment on immediate absorption conditions.) These orders will also cover the cases of regular appointment as per Recruitment Rules in the Central Government on deputation/foreign service of employees of State Governments/Central/State PSUs/Autonomous bodies, Local Bodies, etc. However, the following cases shall not be covered under these orders for whom separate orders exist:-"

4. The petitioners on being sent on deputation were posted

to the security wing of the Administrative Department of

NTPC and are stated to have exercised their option and

elected to draw their basic pay and emoluments in their

parent cadre, i.e. CISF, as the scales of pay in the parent

cadre were on the higher side in comparison with the

borrowing department of NTPC.

5. A perusal of Clause 4.3 of the OM dated 5.1.1994 shows

that though ordinarily the option once so exercised was

final, the employees had an opportunity to seek revision

of the same under certain exceptions. One such

exception was in the event the pay-scales of the ex-cadre

post held by the employee on deputation/foreign service

being revised either prospectively or from a retrospective

date.

6. The petitioners worked on deputation with the NTPC for

eight (8) years and claimed that they were assigned W-3

grade which is a grade for a workman as per the policy,

rules and regulations of the NTPC. This assignment of W-

3 grade is sought to be supported by reference to the

pay slips issued to the petitioners where it is so

mentioned.

7. It is the case of the petitioners that there were no posts

available in the NTPC for the deputation of the petitioners

working as Constables, Head Constables, Assistant Sub-

Inspectors, etc. and thus the posts on which the

petitioners worked during the period of deputation were

ex-cadre posts. This is stated to be the reason why the

appointment letter itself specified the applicability of the

Memorandum dated 5.1.1994.

8. In the year 2001, the pay-scales in NTPC underwent an

upward revision retrospectively w.e.f. 1.1.1997 and the

said pay-scales became more lucrative than the pay and

allowance which the petitioners were entitled to in their

parent cadre posts. The petitioners, thus, sought to

exercise their option by making a representation through

proper channel whereby they wanted to be governed by

the pay and allowance of NTPC. Such change of option

was sought to be exercised in terms of Clause 4.3(c) of

the OM dated 5.1.1994. This request of the petitioners

was not acceded to which has resulted in filing of the writ

petition.

9. The petitioners, in fact, state that the last pay certificate

issued to the petitioners before their repatriation to their

parent cadre in August/September 2004 specifically

stated the pay-scales admissible to the own employees

of the NTPC being the W-3 grade. The reason for denial

of this change of option by the respondents is stated to

be the fact that there was no cadre of force having the

rank and structure of Inspector, Sub-Inspector, Assistant

Sub-Inspector, Head Constable and Constable in the

NTPC and thus the petitioners were held not to be

holding any ex-cadre posts. It is, thus, the stand of the

respondents that the OM would only apply if the

petitioners were holding an ex-cadre post.

10. A further grievance raised by the petitioners is that in the

year 2003-2004 special incentives and cash awards were

released to all employees of respondent No.3 Corporation

other than the persons like the petitioners. It is, in fact,

stated that other CISF personnel were released the said

amount. The petitioners, thus, allege to have been

discriminated against without any rational criteria.

11. The plea of the learned counsel for the petitioners was

that not only the appointment letter made it clear that

the deputation of the petitioners was in terms of OM

dated 5.1.1994, but the petitioners were asked to

exercise their option which they did exercise to be

governed by the pay and allowances of the parent cadre.

Thus, if the petitioners were to continue to be on the

strength of their own cadre in their parent organization

and the OM was not to be applied there was no question

of exercise of any such option for drawing of pay and

allowances. The added plea is that in pursuance to the

Government of India, Ministry of Home Affairs dated

10.10.1997, the pre-revised pay-scales of the petitioners

were rationalized and they were given revised pay-scales

due to rationalization of rank structure and pay-scales of

non-gazetted cadres of Central Police Organisations

including CISF. No option of revision was entailed since

the petitioners had already opted for the basic pay and

allowances of the parent department and the petitioners

automatically became entitled to the revised scales

granted by the CISF. It is only when the petitioners

sought to exercise their option under Clause 4.3(c) that

the petitioners were to be entitled to the higher pay-

scales of the NTPC.

12. Learned counsel for respondent No.3, on the other hand,

sought to rely upon an agreement dated 23.8.1991. The

said agreement provides in sub-clauses (iii) and (iv) of

Clause 2.0 as under:

"iii) The following allowances shall be regulated under the rules of the borrowing organization

On NTPC rules:

              a)   HRA        On Basic Pay plus Deputation
              b)   CCA        Pay actually being drawn.
              c)   Washing Allowance
              d)   Children Education Allowance
              e)   Transport Subsidy
              f)   Medical Facilities.

iv) The following will be regulated as per the rules of the lending organization

On CISF rules:

a) Leave and Leave Travel Concession.

              b)     Group Insurance Coverage.
              c)     Joining Time and Joining Time Pay."

13. It may be noted at this stage that the applicability of the

aforesaid agreement is seriously disputed by the

petitioners on the ground that the same pertained to a

period prior to the issuance of the appointment letters to

the petitioners in 1996 and if these terms and conditions

had to apply, there would have been no occasion to refer

to the OM dated 5.1.1994 in the appointment letter itself.

No reference of this agreement dated 23.8.1991 had

been made either in the appointment letter or otherwise.

14. The respondents seek to explain away the last pay

certificates issued to the petitioners as having

inadvertently mentioned the pay-scales on account of a

pure and simple computer generated error. It was

further pleaded that the said certificate mentioned the

pay-scale as 5000-9590 which was not the pay-scale of

the petitioners nor was the said pay-scale ever applied to

the petitioners.

15. Learned counsel for the respondents pleaded that a

distinction must be carved out between mere

deputationist and deputationist holding ex-cadre posts

with the borrowing department. It was, thus, submitted

that it is not necessary that the deputationist would

automatically hold an ex-cadre post. The petitioners are

alleged to have held no ex-cadre posts and did not have

any post or rank with the NTPC.

16. The respondents also submitted that there was, in fact,

no revision in the scale of pay of ex-cadre posts and thus,

there was no occasion to exercise the option.

17. On the second plea raised on behalf of the petitioners

about there being distribution of special incentives and

cash awards it is submitted that the same arose on

account of the Silver Jubilee celebrations of the NTPC

when gold coins were given to its employees. The

decision in this behalf is stated to have been taken by

the Inter office memorandum dated 6.10.2000, the

relevant portion of which is as under:

"It has also been decided that a packet of sweets not exceeding Rs.100/- per packet should also be distributed to all employees along with Gold Coins. Apart from this sweet packets of same value need to be distributed to the following:

a) CISF and other associates through their respective Heads like Unit Commandant."

18. Thus, a conscious decision was taken that gold coins

were to be distributed to regular employees of the NTPC

alone and not to CISF persons. The same was an act of

benevolence only for its regular employees and was

governed by the inter office memorandum. It has been

explained that regular employees of NTPC are defined in

Clause 3.0 of NTPC Rules and such regular employees

form a separate class which does not include the

petitioners.

19. We have examined the submissions of the learned

counsels for the parties.

20. The second claim of the petitioners can be dealt with first

as it is dependent purely on an administrative

decision/guidelines in the form of an inter officer

memorandum dated 6.10.2000. A reading of the office

memorandum clearly shows that the CISF personnel were

to receive only sweet packets on the occasion of the

Silver Jubilee celebrations of the NTPC. The gold coins

were to be distributed to the regular employees of the

NTPC. It is not in dispute that the petitioners were not

regular employees and had gone on deputation and

cannot claim as a matter of right such benevolence on

the part of the NTPC. The claim of the petitioners being

contrary to the inter office memorandum dated

6.10.2000 is not sustainable and is, thus, rejected.

21. The main dispute really pertains to the petitioners not

being granted the benefit of the change of their option

whereby they sought to be governed by the terms and

conditions of pay and allowances of the NTPC on account

of the revisions of such pay and allowances which made

it more lucrative for the petitioners. The answer to the

claim of the petitioners depends upon the terms of

deputation of the petitioners as there can be no right

accrued upon the petitioners to claim the said amount,

they being not regular employees of the NTPC. In this

behalf as to what should form the terms of such

deputation, one has to necessarily peruse the

appointment letters. The appointment letters are clear in

their terms and Clause 2 specifically stipulates that it is

the OM dated 5.1.1994 which would apply to the case of

the petitioners.

22. The OM in its "Subject" itself stipulates that it applies to

the transfer on deputation/foreign service of Central

Government employees to ex-cadre posts. If the

deputation of the petitioners was not on an ex-cadre

posts there would have been no rationale for inclusion of

the Office Memorandum as a term and condition of the

deputation.

23. In our considered view the respondents cannot rely upon

an earlier agreement of 23.8.1991 for such terms and

conditions of deputation as the same did not form a part

of the appointment letter issued to the petitioners. The

petitioners were made aware of their terms of deputation

as per the appointment letter. It is nobody's case that

the appointment letter has been issued under a mistake

and such a plea, if raised, in any case would not have

been sustainable.

24. The petitioner initially exercised their option to be

governed by the pay and allowances of their parent

cadre in terms of Clause 4. The revision of the pay and

allowances in the parent cadre, thus, automatically

applied in the case of the petitioners. The change of

option was sought when the pay and allowances of NTPC

became more lucrative. The option for such change is

permissible as per sub-clause (c) of Clause 4.3.

25. The petitioners having exercised their option in terms of

the aforesaid Office Memorandum dated 5.1.1994 which

had been made applicable in the case of the petitioners

as per their appointment letter, the respondents cannot

be permitted to plead that the Office Memorandum does

not apply. We are, thus, unable to accept the contention

of the learned counsel for respondent No.3 that there is

no ex-cadre post on which the petitioners were appointed

as there were no equivalent posts available when the

petitioners were sent on deputation. The appointment of

the petitioners on deputation has to be treated as one on

an ex-cadre post in view of there being no direct post

available for the appointment of the petitioners on

deputation.

26. We are of the view that nothing much turns on the

respondents specifying the pay-scales as W-3 in the last

pay certificate. The respondents seek to explain away

the same as a computer generated error and as a

method of identification by the Finance Department

especially as the petitioners were alleged to be not in W-

3 grade. In our view what is relevant is the applicability

of the OM dated 5.1.1994 in an unequivocal manner as

per Clause 2 of the appointment letter. The petitioners

were within their rights to have exercised the right of

change of option.

27. A writ of mandamus is issued directing respondent No.3

to give the benefits to the petitioners of such change of

option from the date they sought such change till they

were repatriated to their parent cadre and the difference

in the emoluments be remitted to the petitioners within a

period of three (3) months from today.

28. The petition is allowed in the aforesaid terms leaving the

parties to bear their own costs.

SANJAY KISHAN KAUL, J.

AUGUST 08, 2008                              MOOL CHAND GARG, J.
b'nesh