Shri E. Sreedharan vs Union Of India & Others
2008 Latest Caselaw 2172 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P. (C.) No.2356/2002

%                        Date of Decision: 05.12. 2008

Shri E. Sreedharan                              .... Petitioner
               Through: Mr.Tarun Johri Advocate

                                  Versus

Union of India & Others                            .... Respondents
                Through: Mr.V.S.R.Krishna Advocate for respondent
                         nos. 1 to 3.
                         Mr. Atul Chitale with Ms. Shweta Majumdar
                         and Ms. Smreti Rajgarhia Advocates for
                         Respondent no.4.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR

1.   Whether reporters of Local papers may be YES
     allowed to see the judgment?
2.   To be referred to the reporter or not?     YES
3.   Whether the judgment should be reported in YES
     the Digest?



ANIL KUMAR, J.

*

1. The petitioner seeks a Writ of Mandamus/Certiorari for deleting

the words "Less Rs.4000/- as pension" in the second line of para (iii) of

respondent No.1‟s letter dated 18th September, 1992 and for release of

all the withheld amounts with interest.

2. Brief facts to comprehend the controversies are that the petitioner

retired from Indian Railways on 30th June, 1990. After his retirement,

through a process of selection by Public Enterprises Selection Board,

which was approved by Appointments Committee of the Cabinet, the

proposal for the appointment of the petitioner as CMD, Konkan Railway

Corporation was approved. According to the Appointments Committee

of the Cabinet, his scale of pay was to be in terms of Schedule „A‟ of pay

of Rs.9000-10000 for a period of five years or till the completion of the

Konkan Railway Project, whichever was earlier. The

D.O.No.90/E(O)/II/7/22 dated 30th October, 1990 regarding the

decision of the Appointments Committee of the Cabinet is as under:-

"The Appointments Committee of the Cabinet have approved the proposal for appointment of Shri E. Sreedharan as CMD, Konkan Railway Corporation Limited in Schedule „A‟ scale of pay of Rs.9000-10,000 for a period of five years or till the completion of the Konkan Railway Project, whichever is earlier."

3. In terms of the decision of the Appointments Committee of the

Cabinet, an order No.90/W2/KRC/1 dated 31st October, 1990 was

issued which also stipulated that in pursuance of Article 65 of the

Memorandum and Article of Association of the Konkan Railway

Corporation Limited, New Delhi, the petitioner, retired Member

Engineering, Railway Board, is appointed as Chairman-cum-Managing

Director of Konkan Railway Corporation in Schedule „A‟ of scale of pay

of Rs.900-250-10000 for a period of five years from the date he takes

over or till the completion of the Konkan Railway Project, whichever is

earlier.

4. The Public Enterprises Selection Board has a selection procedure

and guidelines and the relevant eligibility criteria for short listing

candidates are as under:-

"Eligibility Criteria for short-listing candidates

Following eligibility criteria with regard to pay scales and age of the candidates have been presently laid down:-

Schedule 'A'

Pay -scales: Rs.13,000-500-15,000 (pre-revised)/Rs.27,750- 750-31,500 (revised)

Eligibility criteria: Candidates from PSEs should be holding posts in the pay scales of Rs.8,250-9,250 (Pre-1.1.1992 scale)/ (Rs.10,500-400-13,500-(post 1.1.1992 scale)/23750-28550 (post 1.1.1997 scale) and above with IDA or equivalent with central government DA formula for minimum period of two years. In the case of internal candidate, the qualifying service in the above grade is one year. Government officers in the rank of Additional Secretary to the Government of India, holding posts in the equivalent scale of pay with adequate experience in the relevant field will be eligible for consideration.

In the case of Defence Service Officers, Lt.General in Army and equivalent in other services are eligible."

5. The petitioner joined as the Chairman-cum-Managing Director of

Konkan Railway Corporation with effect from 31st October, 1990. He

was, however, issued a letter after two years of joining by an Under

Secretary (D), Railway Board, dated 18th September, 1992 conveying the

sanction of the President to the appointment of petitioner as Chairman-

cum-Managing Director of KRC with effect from 31st October, 1990.

The said letter No.90/E(O)II/7/22 dated 18th September, 1992 had a

stipulation regarding pay, being clause 1(iii), whereby the basic pay of

the petitioner was reduced by Rs.4,000/- per month on account of

pension he was receiving. Clause 1(iii) of the said letter dated 18th

September, 1992 is as under:-

"iii) Pay: Shri Sreedharan will draw basic pay of Rs.9000/- less Rs.4000/- as pension per month in the revised scale of Rs.9000-250-10000 (Schedule „A‟) from the date of his assumption of office as CMD/KRC."

6. The petitioner aggrieved by reduction of his pay by Rs.4,000/- per

month on account of pension made a representation dated 9th

November, 1992. The petitioner categorically stated in his

representation made to the Secretary, Railway Board, that if his pension

of Rs.4,000/- is reduced from his pay at the lowest stage of Rs.9,000,

he would be left with a pay of Rs.5,000/- only, from which also

provident fund of Rs.750/-; house rent of Rs.500/-; car conveyance at

the rate of Rs.400/- and income tax of Rs.2,000/- would be deducted

and, therefore, an amount of Rs.3,850/- will be deducted besides other

recoveries, such as electric charges of about Rs.170/-, water charges of

Rs.50/- and professional tax of Rs.50/- which will leave only a salary of

Rs.1,080/- which would be also without the contribution towards VPF

which is necessary to reduce the incidents of income tax.

7. It was categorically represented by the petitioner in his

representation sent immediately after receiving the said letter dated 18th

September, 1992, as to how the Government expected him to function

as the Chief Executive of an important public sector undertaking which

has an annual turnover of Rs.400 crores with a take home salary of

Rs.1,080/-. It was pointed out that the take home salary of a full-time

Director of the same organization is approximately Rs.7,300/- and the

take home salary of all other Heads of Departments is more than

Rs.5,000/-. In the circumstances, it was contended that while

appointing him, he was given a salary of Rs.9000-250-10000 and there

was no proposal for the decision to deduct the alleged amount of

Rs.4,000/- as pension from his salary. The petitioner very categorically

pleaded that the salary drawn by the Chief Executive of the said

organization could not be less than the salary drawn by nearly half of

the executives in the same organization.

8. The petitioner also contended that as a Member (Engineering),

Railway Board, he was drawing a salary of Rs.8000/- plus dearness

allowance of Rs.2,000/-, and thus, he was getting a total salary of

Rs.10,000/- and therefore he could not be posted to a post where salary

was less than the salary he was drawing while in service. In that

context, it was pleaded that the case of the petitioner is of appointment

and not of re-employment or extension of service. The petitioner

claimed that his pay should be fixed as Rs.10,000/- in the grade of

Rs.9000-250-10000 and no deductions towards pension should be

made.

9. No reply to the pleas and contention raised by the petitioner in

his representation was given. The petitioner, therefore, made another

representation dated 6th October, 1993 referring to his earlier

representation dated 9th November, 1992. The representation dated 6th

October, 1993 was made to the Department of Public Enterprises,

Ministry of Industry, Government of India.

10. Despite the categorical representations made by the petitioner,

his pleas and contentions were not adjudicated and the petitioner

retired from Konkan Railway Corporation Limited on 14th December,

1997. From the correspondence filed by the parties, it appears that a

decision declining the request of the petitioner was conveyed by letter

dated 15th January, 1998, however, the copy of the said letter has not

been placed on record by either of the parties.

11. In 1997, an Office Memorandum of Ministry of Industries,

Department of Public Enterprises, dated 10th December, 1997 was

issued stipulating that in order to grant greater operational freedom to

the public sector enterprises and with a view to rationalize and simplify

the existing set of guidelines to public enterprises, the Government has

cancelled 696 guidelines issued over a period of time by Bureau of

Public Enterprises and the Department of Public Enterprises on various

aspects of operation by public sector enterprises. It appears that the

deduction of Rs.4000/- as pension from the salary of the petitioner was

made on the basis of an Office Memorandum, i.e., BPE No.2(57)/68-

BPE(GM) dated 23rd September, 1969 which also stood cancelled

pursuant to the Office Memorandum dated 10th December, 1997.

12. The Office Memorandum dated 23rd September, 1969 had been in

respect of re-employment of retired Government Officers in public

enterprises. The OM contemplated that the limits of pre-retirement pay

of Rs.3,000/- per month will cease to apply and such retired persons

will be allowed pay in the prescribed salary scale less pensionary

equivalent to retirement benefits. The said OM also stipulated that it

will not be applicable to those Government Officers who had exercised

their option in terms of Ministry of Finance OM of even number dated

26th February, 1969 and who had been permanently absorbed in public

enterprises and that they will draw their pay in addition to the pro rata

pension according to the provisions of OM of even number dated 26th

April, 1969.

13. The Department of Personnel & Training had issued yet another

OM dated 21st September, 2000 stating that fixation of pay on re-

employment are applicable only to persons who are re-employed in civil

services and posts in connection with the affairs of the Union

Government and the orders including Ministry of Railways‟ OM

NO.97/PL/68/32-Pt dated 7th July, 2000 is not applicable to Central

Government employees who are re-employed in public sector

undertakings/autonomous bodies after their retirement from the

Government service. It was also clarified that in case Konkan Railway

Corporation had adopted orders on fixation of pay on re-employment in

principle and policy only then will the pay of the pensioner be regulated

in terms of OM dated 31st July, 1986 and 19th November, 1997 on re-

employment. In view of these OMs dated 10th December, 1997 and 21st

September, 2000, the petitioner again made representations and

challenged the decision communicated to the petitioner vide

communication dated 15th January, 1998. In his representation which

was made on 6th February, 2001 to Secretary, Railway Board, and

representation dated 12th July, 2001, it was contended that the case of

the petitioner is not of re-employment or extension of service, rather it

was a case of appointment which was approved by Appointments

Committee of the Cabinet. It was categorically asserted that the

Railway Board‟s letter dated 18th September, 1992 stipulating deduction

of Rs.4,000/- as pension from his pay was not in order and sought

refund of the amount already deducted with interest. The

representations by the petitioner by letters dated 6th February, 2001

and 3rd May, 2001 were rejected by the letter dated 14th September,

2001 bearing D.O.No.19/90/E(O)II/7/22 on the ground that the orders

of DoPT on fixation of pay of retired Government officials for their re-

employment in Government offices are not applicable in case of

appointment in public sector undertakings and the fixation of pay of

retired Government officials on their re-employment was to be governed

by OM dated 23rd September, 1969 and, therefore, the pay of the

petitioner was rightly fixed by deducting Rs.4,000/- as pension from his

salary. Against the decision dated 14th September, 2001, the petitioner

made representations dated 28th September, 2001 and 21st January,

2002, however, the claims of the petitioner were rejected and the

decision communicated by letter dated 7th February, 2002 stating that

the OMs dated 23rd March, 1969; 29th October, 1996 and 6th March,

1989 were withdrawn in December 1997 and that the cancellation did

not envisage cancellation retrospectively and consequently the

petitioner is not entitled to fixation of pay without deduction of

Rs.4,000/- as pension.

14. After the respondents finally declined the request of the petitioner

by order dated 7th February, 2002, the writ petition was filed by the

petitioner on 12th April, 2002. In the writ petition after reply was filed,

the petitioner filed rejoinder and thereafter additional affidavits dated

2nd November, 2003 and 19th April, 2006 along with the relevant

documents. The respondent No.1 through the Ministry of Railways filed

the reply to the writ petition and other replies dated 13th August, 2004

and 1st November, 2006 to the additional affidavits filed by the

petitioner.

15. The respondents have contested the petition mainly contending

that the matter was examined in the Ministry of Railways in

consultation with the Department of Public Enterprises which is the

nodal department for such orders and it has been decided that the pay

of the petitioner had been fixed correctly. The respondent No.1 stated

that under the rules there is no provision for fresh appointment,

applicable to the persons who retire from the Government service on

attaining the age of superannuation and the orders of DOP & T on

fixation of pay of retired Government official on their re-employment in

Government offices, are not applicable in the cases of appointments in

public sector undertakings. It is contended that the fixation of pay of

retired Government officials on their re-employment in public

enterprises is governed by the circulars and office memorandums

issued by Bureau of Public Enterprises now renamed as Department of

Public Enterprises. According to respondent No.1 the base instructions

as contained in Cabinet Secretariat O.M No.2(57)/68-BPE(GM) dated

23rd September, 1969 and others office memorandums, being O.M

No.BPE-3/3/85-S&A Cell dated 29th October, 1986 and O.M

No.1/1/86-S&A Cell dated 6th March, 1989 are relevant.

16. According to O.M dated 23rd June, 1969 the pay of retired

Government officials on re-employment in public enterprises is to be

fixed in the prescribed scale minus the pension. Regarding the O.M

No.20(5)/95-DPE(GM) dated 10th December, 1997 relied by the

petitioner, it was contended that even though by virtue of this OM, the

OM dated 23rd June, 1969 had been withdrawn, it is not with

retrospective effect and, therefore, the case of the petitioner could not

be reopened on the basis of the same. It was categorically contended

that the appointment of the petitioner in a public sector undertaking is

re-employment or extension of service which is to be regulated by

instructions laid down by the Department of Public Enterprises.

Regarding Public Enterprises Selection Board it was alleged that the

procedure laid down does not speak about pay fixation on appointments

and, therefore, the plea of the petitioner that there is no mention, in his

order of appointment, about deduction of pensionary benefits drawn by

him, is irrelevant. The respondents also relied on (2001) 4 SCC 31,

V.S.Mallimath v. Union of India & Anr to contend that the case of the

petitioner is of re-employment and not of fresh appointment and the

pensionary benefits are liable to be deducted from his basic salary.

17. I have heard the learned counsel for the parties in detail and have

also perused the writ petition, reply, rejoinder, additional affidavits filed

along with the documents and replies to the additional affidavits. The

learned counsel for the respondents has also raised the plea of delay

and latches in the written submission. However, from the perusal of the

replies filed and the replies to the additional affidavits, it is apparent

that no such plea had been taken earlier by the respondent for

declining the relief to the petitioner.

18. This cannot be disputed that the Konkan Railway Corporation Ltd

is a public company, an independent entity and the appointment of the

petitioner as Chairman-cum-Managing Director was in accordance with

Article 65 of Memorandum of Association. Nothing has been produced

to show that the Konkan Railway Corporation which is an independent

Corporation had adopted the rules and orders of Ministry of Personnel.

The office memorandums dated 21st September, 2000 contemplates that

its orders on fixation of pay on re-employment are applicable only to

persons who are re-employed in Civil services and posts in connection

with the affairs of the Union government. It further states that the

orders are not applicable to Central Government employees who are re-

employed in Public sector undertakings/autonomous bodies after their

retirement from the Government Services. This OM dated 21st

September, 2000 refers to the Office Memorandum of the Ministry of

Railways dated 7th July, 2000. It also clarifies that the orders about

fixation of pay on re-employment, in principle and policy, shall be

applicable to Konkan Railways Corporation only if the said corporation

adopts them. From the reading of this office memorandum it is

apparent that it has been clarified that the orders on fixation of the pay

on re-employment were to be applicable only if they had been

specifically adopted by the Konkan Railways. It does not contemplate

that, after a particular date, the orders on fixation of the pay on re-

employment shall be applicable only if they are adopted specifically by

the Konkan Railways and prior to that date the orders were applicable

without being adopted by the Konkan Railways Corporation.

19. This is apparent that the Appointments Committee of the Cabinet

in its order dated 31st October, 1990 had approved the proposal for

„Appointment‟. The respondent No.1 on the basis of OM dated 23rd

September, 1963 wants to contend that the proposal for `Appointment'

was in fact a proposal for `Re-employment' of the petitioner as there

could not be an `Appointment' after retirement from Ministry of Railway

to the Konkan Railway.

20. What was the proposal before the Appointments Committee of the

Cabinet, is not apparent from the record and has not been established.

Learned counsel for the respondent No.1 has rather contended that the

proceedings of Appointments Committee of the Cabinet are confidential

and even the respondent No.1 is not aware of the same. He also

admitted that the Appointments Committee of the Cabinet, despite the

office memorandum dated 23rd September, 1969, could have approved

the appointment without applying the same.

21. From the representations made by the petitioner against the

deduction of the amount of pension from his salary as the CMD of

respondent No.4, it is contended that no such proposal was given to

him that while appointing him as the CMD of respondent No.4, the

amount of his pension, would be deducted from his emoluments as

CMD of the respondent no.4 as that would have left him with the

salary as the CMD of Konkan Railway less than many of the Directors

and other employees of the same Corporation. If, according to the

petitioner, no such proposal was given to him then it is necessary to

know as to what was the proposal considered by the Appointments

Committee of the Cabinet. The respondents since 1992, when the letter

dated 18th September, 1992 was issued stipulating that the amount of

pension which he was receiving shall be deducted from his salary as the

CMD of Konkan Railway, has not made any endeavor to know as to

what was the proposal before the Appointment Committee of the

Cabinet and what was approved by the Committee. If the plea of the

learned counsel for the Railways is to be believed then they never had

any access to the proceedings of the Committee. If that be so then how

can respondent No.1 continuously contend that the amount of the

pension which is received by the petitioner is to be deducted from his

salary as the CMD of respondent No.4 pursuant to the office

memorandum.

22. Though this Court does not have before it the proposal which was

considered by the Appointment Committee of the Cabinet, there can be

only two eventualities. If the Office Memorandum dated 23rd

September, 1969 was before the Appointments Committee of the

Cabinet pursuant to which there could only be re-employment of the

petitioner with the respondent No.4, the Committee would not have

used the word "approved the proposal for Appointment" in place of

proposal for re-employment. If the appointment was in terms of Office

Memorandum dated 23rd September, 1969 pursuant to which the

amount of pension was to be deducted from the salary of the petitioner

as CMD of respondent No.4, then while stipulating the scale of pay as

Rs.9000-10000, the Appointments Committee of the Cabinet would

have categorically incorporated that the amount of pension received by

the petitioner shall be deducted from his salary. The Committee is the

highest body approving the appointments and it is not expected that

they would use the word `Appointment' in place of `Re-employment' and

while approving the pay scale and fixing the pay scale, if they had

approved reduction of amount of pension from the salary approved by

them, not mention so.

23. At the time of consideration of the proposal for appointment, if

the Appointments Committee of the Cabinet had not considered the

reduction of the amount of pension from the scale of pay approved by

the Committee in terms of the office memorandum dated 23rd

September, 1969, in that case the respondent No.1 without

approaching the Appointments Committee of the Cabinet could not

amend or modify the approval of the proposal for appointment of the

petitioner. Despite the matter being argued on various dates, no effort

has been made by respondent No.1 to produce anything to show that

any clarification was even tried to be taken from the Appointments

Committee of the Cabinet whether the salary payable to the petitioner

as CMD would be after deducting the pension which the petitioner was

receiving. The petitioner had been appointed to a prestigious post of a

Corporation which was given a prestigious project and in the

circumstances what transpired before the Appointments Committee of

the Cabinet could not be modified or amended by the respondent No.1,

Ministry of Railways, on the basis of its own presumptions. The

respondent no.1 cannot amend the approval granted by the

Appointment Committee of the Cabinet nor can contend that the effect

of office memorandum should have been considered by the said

committee.

24. Learned counsel for respondent no. 1has very emphatically relied

on V.S. Malimath (supra) which was a case pertaining to the salary of a

Member of National Human Rights Commission. In the said case, it

was held that the services rendered by a Member of National Human

Rights Commission is to be treated as service in connection with the

affairs of Union and, therefore, the pension received for such service

was held to be deductable under Rule 3 of the Salaries, Allowances and

other conditions of Services Rules, 1993. Proviso to Rule 3

contemplates that if the Member of the National Human Rights

Commission is in receipt of the pension other than the disability or war

pension in respect of any previous service under the Government or the

Union or the Government of the State, then his salary in respect of

service as a Member shall be reduced by the amount of pension.

Apparently, the case of the V.S. Mallimath (supra) is clearly

distinguishable as Rule 3 of (Salaries, Allowances and Other Conditions

of Services), Rules, 1993 specifically contemplated deduction of pension

from the salary payable to the Member of National Human Rights

Commission whereas there is no such rule of Konkan Railway

Corporation that the salary of the Chairman-cum-Managing Director

shall be reduced by the pension, if any, received by such Chairman-

cum-Managing Director for the services rendered by him to the Union

Government. The service of a member to the National Human Rights

Commission cannot be equated with the service in a Corporation. On

the basis of ratio of said judgment it cannot be inferred that the service

as CMD of respondent no.4 has to be treated as service in connection

with the affairs of the Union.

25. The ratio of said decision does not substantiate the plea of the

respondent no.1. A decision is only an authority for what it actually

decides. What is of the essence in a decision is its ratio and not every

observation found therein nor what logically follows from the various

observations made in it. The ratio of any decision must be understood

in the background of the facts of that case. It has been said long time

ago that a case is only an authority for what it actually decides, and not

what logically follows from it. It is well settled that a little difference in

facts or additional facts may make a lot of difference in the precedential

value of a decision. In Ambica Quarry Works v. State of Gujarat and

Ors. (1987) 1 SCC 213a the Supreme Court had observed:-

"The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it."

Similarly in Bhavnagar University v. Palitana Sugar Mills Pvt Ltd

(2003) 2 SC 111 (vide para 59), the Supreme Court had observed:-

" It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision."

26. Learned counsel for the Railways has also very emphatically

contended that the services of persons who retire from Government

service on attaining the age of superannuation are normally utilized as

an extension of service or re-employment in service and there is no

provision or rule prescribing fresh appointment. Learned counsel for

the petitioner refuting the contention of the counsel for the Ministry of

Railways had contended that `re-employment; is when an employee who

has worked earlier and who superannuates and whose settlement dues

are paid and if such a person is appointed on the same post or similar

post in the same Department and in the same channel of promotion.

Whereas extension of service is allowing a person to continue after

superannuation in the same post on the same terms and conditions,

perks and privileges as he was getting before superannuation, and in

case of extension of service his settlement entitlements are not paid.

27. The petitioner superannuated from the Railways as the Technical

Member of the Railway Board. Admittedly, he was not given extension

of service as he had not continued as a Member of the Railway Board.

For re-employment, the employment should be on the same post or

similar post in the same Department or in the same channel of

promotion. This cannot be disputed that Konkan Railway Corporation,

whose Memorandum of Association is on the record of the case, is a

distinct legally entity. The Chairman-cum-Managing Director of such

an independent Corporation cannot be termed equivalent to a Member

of the Railway Board in the present facts and circumstances nor can

such a post be treated as similar. In any case, if the Appointment

Committee of the Cabinet had to `re-employ' the petitioner as a

Chairman-cum-Managing Director of Konkan Railway, they would have

specified that the petitioner is `re-employed' as the Chairman-cum-

Managing Director of the Konkan Railway Corporation in their order

dated 30th October, 1990. The said order of the Appointment

Committee of the Cabinet use the word `appointment' and even the

Ministry of Railways in its order dated 30th October, 1990 issued

pursuant to the decision of the Appointments Committee of the Cabinet

used the word "appointment". The committee which is the apex body for

approval of appointments would not use `Appointment' when they were

allegedly approving `Re-employment. Two years thereafter, while

allegedly sending the letter of employment to the petitioner, the Ministry

of Railway could not contend that the case of the petitioner was of `re-

employment' and not of `appointment' and that from the pay approved

by the Appointments Committee of the Cabinet, the amount of pension

was liable to be deleted. The Ministry of Public Grievances and Pension,

Department of Personnel and Training and the Department of Public

Enterprises are the parties to the petition. However, no counter affidavit

or any reply has been filed by them nor has it been disclosed as to what

was the proposal put up before the Appointment Committee of the

Cabinet which was approved by the committee and whether the

proposal included reduction of pay by the amount of pension received

by the petitioner. In absence of any of these things, pleas taken by the

respondent No.1 are just without any basis. Though the appearance

has been put on behalf of Konkan Railway Corporation Limited,

however, even the said respondent where the petitioner was employed

as Chairman-cum-Managing Director, has not filed any reply nor have

they refuted the pleas and contentions raised by the petitioner. The

petitioner in its earliest representation dated 9th November, 1992 to the

impugned letter dated 18th September, 1992 of the Ministry of Railways

had categorically raised the plea and had contended that on being

appointed as the Chairman-cum-Managing Director of Konkan Railway

Corporation, which was entrusted with a prestigious task to build the

Konkan Railways, the Chairman could not be expected to have a salary

of Rs.5,000/- whereas full time Directors of the same organization were

drawing a salary of about Rs.7,300/-. Even from the sum of Rs.5,000/-,

other amounts were deductable which was leaving the petitioner only

with a salary of Rs.1,080/-. None of the representations of the petitioner

and the pleas raised therein were properly considered and by

communication dated 15th January, 1998, after the retirement of the

petitioner, his request not to deduct the amount of pension was

rejected. While rejecting the request of the petitioner not to deduct the

amount of pension, the respondents had not relied on their own office

memorandum dated 10th December, 1997 because of which other

representations were made by the petitioner seeking to set aside the

order dated 15th January, 1998. The copy of order dated 15th January,

1998 declining the request of the petitioner has not been filed despite

the fact that the writ petition was vehemently argued on various dates.

The respondents have also failed to file the copies of O.M No. BPE-

3/3/85-S&A Cell dated 29th October, 1986 and O.M No.1/1/86-S&A

Cell dated 6th March, 1989.

28. The representations were decided by the respondents by decision

dated 7th February, 2002 and the writ petition was filed on 12th April,

2002. Therefore the respondent no.1 cannot even succeed on the plea of

delay and latches which has also not been taken by them in the

pleadings. Though this ground that the petitioner is not entitled for any

relief in the writ petition on account of delay and latches has not been

taken specifically, but considering the entirety of facts and

circumstances, the plea has been considered and it has to be held that

the relief cannot be denied to the petitioner on account of alleged delay

and latches.

29. The plea of the learned counsel for the petitioner that deduction

of amount of pension from the pay scale of the petitioner in case of an

independent entity like Konkan Railway Corporation would also lead to

very anomalous situations cannot be rejected outright. It was

contended that had the tenure of the petitioner continued till after 5th

Pay Commission which was applicable from 1st January, 1996 under

which the amount of the pension was increased substantially, on

account of deduction of the amount of pension, which was more than

the amount of the salary, if the plea of the respondents are to be

accepted then such a re-employed employee would be working without

getting any thing, as his pension would be more than his salary and the

amount of pension is to be deducted from his salary.

30. For the forgoing reasons the inevitable inference is that the

petitioner appointment as CMD of an independent Corporation was not

re-employment in Civil Services or on a post in connection with the

affairs of the Union Government. The petitioner was `Appointed' to the

post of CMD of the Respondent no.4 and his salary was fixed as

Rs.9000-10000 and the amount of pension which was received by the

petitioner was not deductable from his salary. Consequently all the

amounts which have been deducted by the respondents from the salary

of the petitioner were illegal and the respondents are liable to refund all

the amounts to the petitioner.

31. In the facts and circumstances and for the foregoing reasons,

therefore, clause 3 of letter No.90/E(O)II/7/22 dated 18th September,

1992 stipulating deduction of Rs.4,000/- as pension per month from

the revised scale of Rs.9,000-250-10,000 is set aside holding that the

respondents were not entitled to deduct any amount on account of

pension from the scale of pay of the petitioner of Rs.9000-250-10000.

Consequently, the respondents are also directed to pay the entire

amount deducted by them, on account of pension, from the pay of the

petitioner as Chairman cum Managing Director of Konkan Railway

Corporation and pay the entire amount along with simple interest at the

rate of 12% per annum within four weeks. Considering the facts and

circumstances, the respondent No.1 shall also pay a costs of

Rs.30,000/- to the petitioner. With these directions the writ petition is

allowed.

December 05, 2008                                ANIL KUMAR, J.
'Dev'