M.T.N.L. vs Ganga Singh Negi
2009 Latest Caselaw 2047 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    L.P.A. No.644 of 2008 & C.M. No.14893 of 2008


         M.T.N.L.                                     ...... Appellant
                          Through: Mr. M. Mariarputham, Sr. Advocate with
                                   Mr. Anurag Chaudhary and Mr. Rahul
                                   Ravindran, Advocates.

                          versus

         GANGA SINGH NEGI                       ..... Respondents

Through: Mr. V. Shekhar, Sr. Advocate with Mr. Zango Sherpa, Mr. Jatin Rajput and Mr. Prashant, Advocates.

CORAM:

HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE NEERAJ KISHAN KAUL

%                               O R D E R
                                14.05.2009

1. The present appeal arises out of the decision of the

learned Single Judge dated 28th August, 2008. Brief facts of the case

are as follows:

2. The respondent was appointed as Assistant Manager

(Legal) in MTNL with effect from 23.3.1995 in the pre-revised pay

scale of Rs.5400-9050/-. He was thereafter promoted from Assistant

Manager (Legal) to Deputy Manager (Legal) with effect from 20.4.1999

and thereafter from Deputy Manager (Legal) to Manager (Legal) on

23.5.2002. The respondent while working as Assistant Manager

(Legal) was aggrieved by fixation of his pay in the pay scale of

Assistant Manager (Legal) from the date of coming into force of the

revised pay scales. He, accordingly, filed a writ petition in this court

being Writ Petition (Civil) No.1029 of 1998 and prayed for direction to

the appellants to fix his pay correctly. During the pendency of that

writ petition, the respondent was promoted to the post of Deputy

Manager (Legal) with effect from 20.4.1999 and then to the post of

Manager (Legal) with effect from 23.5.2002. The Writ Petition (Civil)

No.1029 of 1998 was disposed of by this court vide order dated

11.8.2003 which is extracted herein below :-

"In view of the reply filed by respondent, this application can be disposed of. It is the case of the petitioner that the petitioner was promoted as Deputy Manager with the respondent and in 1997 the pay scale of the posts of Assistant Manager and Deputy Manager were merged and, therefore, from April, 1999 till he was promoted to the post of Manager, he will be entitled to the pay scale of Rs.14500-350-18700/-. The next contention of the learned counsel for the petitioner is that on being promoted from May, 2002, the petitioner shall be entitled to the pay scale of Rs.17500-400-22300/-. My attention has been drawn, in this regard, to page 242 of the paper-book where pay scales of public sector executives have been prescribed. According to the petitioner, the petitioner after his promotion as Manager would fall into E 6 Grade.

On the other hand, Mr. Ravi Sikri, learned counsel for the respondent has contended that the petitioner is not entitled to the pay scale of Rs.17500-22300/-. However, he has contended that the petitioner could be given the pay scale of Rs.16000-20800/-, which is next pay scale on provisional basis. In the reply it has been admitted that there has been some confusion regarding the equal pay scale of Assistant Managers and the Deputy Managers caused by the merging of both the pay scales in the year 1997 and till such time the confusion is sorted out by the competent authority of the respondent, the petitioner is not entitled to the pay scale as has been demanded by the petitioner.

To my mind when the confusion is created by the respondent in their office why the petitioner be denied the benefit of the pay scale when admittedly the petitioner was promoted as Deputy Manager in April, 1999. Therefore, the petitioner should be paid the pay scale of

Rs.14500-18700/- on promotion which he was entitled to and the same has also been admitted in para 9 of the reply filed by the respondent, from April, 1999 till his promotion in the month of May, 2002. Respondent has stated that thereafter provisionally they can fix the pay of the petitioner in the pay scale of Rs.16000-400- 20800/- till the confusion is sorted out. Counsel for the petitioner says that let the respondent give to the petitioner the pay scale of Rs.16000- 400-20800/-provisionally without prejudice to the rights to challenge the same as and when the respondent fix the pay scale of the petitioner. Let respondent pay to the petitioner from May, 2002 in the pay scale of Rs.16000-400-20800/- as prayed by the respondent in their reply provisionally. It will be open for the parties to approach this Court after a decision is taken by the respondent to fix the pay scale of the petitioner.

In view of these observations, application stands disposed of.

CW No.1029/1998

In view of the order passed in the application, writ petition stands disposed of in terms thereof. Dasti."

3. Pursuant to the aforementioned order passed by this

court in Writ Petition (Civil) No.1029 of 1998, the appellants had

appointed a Committee to examine the question of fixation of pay of

the respondent and the Committee appointed by the appellants gave

its recommendations dated 7.11.2003. Based upon the

recommendations of the Committee, the appellants passed an order

dated 15/16.12.2003 vide which the decision of the Committee was

communicated to the respondent and he was informed as follows :-

"1. Your pay has been fixed in the IDA pay-

scale of Rs.4800-200-5800-225-8275, subsequent upon the DPE guidelines dated 25.7.95. This pay-scale is the equivalent of the

pre-revised IDA pay scale of Rs.3000--5040 (Model IDA) in which you were appointed.

2. On promotion to Dy. Manager on 20.4.99, you have been fixed in the IDA pay-scale of Rs.5400-9050 (pre-revised), which has been revised to Rs.13000--18250 (Revision w.e.f. 1.1.97).

On promotion from Dy. Manager to Manager on 23.5.2002, you have been fixed in the next IDA pay-scale of Rs.14500--18900."

4. The respondent was aggrieved by the aforesaid

communication dated 15/16.12.2003 and filed the writ petition out

of which this appeal arises seeking quashing of the said

communication as also the recommendations of the Committee dated

7.11.2003. The respondent also prayed for directions to the effect

that his pay to the post of Manager (Legal) be fixed in the scale of

Rs.17500-22300/-. While the writ petition was pending in this court,

the appellants issued yet another office order dated 16.12.2004

which was in supersession of all earlier orders in regard to the pay

scale granted to the respondent right from the date of his

appointment as Assistant Manager (Legal). The said office order

dated 16.12.2004 reads as follows :-

"Office order

In supersession of all earlier orders in this regard, the grades and pay scales of Sh. G.S Negi, Manager (Legal), MTNL Delhi, are hereby fixed in IDA pay scales, as under:

Sl. No.              Fixation        To                 Grade         Scale
                     w.e.f.

1                    27.3.1995       31.12.1996         E2            4800-200-
                                                                      5800-225-
                                                                      8275(1992
                                                                      IDA revision)





 2                    1.1.1997      19.4.1999      E2           10750-300-
                                                               16750 (1997
                                                               revision)

3                    20.4.1999     22.5.2002      E3           13000-350-
                                                               18250 (1997
                                                               IDA revision)

                     23.5.2002     ----           E4           14500-350-
                                                               18700 (1997
                                                               IDA revision)



      This issues with the approval of competent authority.               Hindi
version will follow.

                                                                NK Chhoker

                                                                  GM(HR-1)"

5. The respondent filed an application for amendment

seeking to amend the prayer clause to include therein the challenge

to the aforesaid office order. The said application was allowed by this

court vide order dated 28.1.2005.

6. The learned Single Judge has rightly held, in our view,

that the order dated 11.8.2003 passed in Writ Petition (Civil) No.1029

of 1998 has finally decided the matter regarding fixation of pay of the

respondent upto the rank of Deputy Manager (Legal) and what was

left to be considered by the appellants in the said order was fixation

of pay of the respondent to the post of Manager (Legal) while granting

him the pay scale of Rs.16000-20800/- provisionally. The said order

dated 11.8.2003 was not challenged by the appellants and became

final between the parties. In our view, the learned Single Judge was

correct in observing that the appellants could not sit in appeal over

the order of this court dated 11.8.2003 and re-fix the pay of the

respondent while he was holding the post of Assistant Manager

(Legal) or Deputy Manager (Legal) because his pay in these two ranks

stood finally determined by the order dated 11.8.2003. This court in

Writ Petition(Civil) No.1029 of 1998 has directed that the respondent

will get the pay scale of Rs.14500-18700/- when he was promoted to

the post of Deputy Manager (Legal) with effect from April, 1999. The

learned Single Judge took note of the fact that there was dispute

between the parties with regard to pay scale to be granted to the

respondent yet, he was promoted to the post of Manager (Legal) with

effect from May, 2002. The respondent was demanding pay scale of

Rs.17500-22300/- whereas the counsel appearing on behalf of the

appellants, at the time of hearing of the earlier Writ Petition being

Writ Petition (Civil) No.1029 of 1998, made a statement on 11.8.2003

that the pay of the respondent at the time of his promotion to the

post of Manager (Legal) could be provisionally fixed in the pay scale of

Rs.16000-20800/- and his claim for fixation of pay in the scale of

Rs.17500-22300/- shall be re-examined by the respondent. The

learned Single Judge rightly held that when the pay of the

respondent was fixed in the pay scale of Rs.14500-18700/- with

effect from April, 1999, when he was promoted to the post of Deputy

Manager (Legal) then how could his pay be fixed in the same pay

scale or in a lesser scale when he was promoted to the post of

Manager (Legal) with effect from May, 2002.

7. We are in agreement with the finding of the learned

Single Judge that admittedly the pay scale of Rs.16000-20800/- was

a step higher to the scale of Rs.14500-18700/- granted to the

respondent at the time of his promotion to the post of Deputy

Manager (Legal) and, therefore, the respondent had made out a case

for grant of pay scale of Rs.16000-20800/- with effect from May,

2002, when he was promoted to the post of Manager (Legal).

8. It was sought to be contended on behalf of the appellants

that the post of the Manager is a post in Grade E-4 and even as late

as 8.9.2008 the scale notified for the said Grade E-4, i.e., the post of

Manager was Rs.14500-18700/-. It was further submitted on behalf

of the appellants that office order dated 23.3.2004 also specified the

pay scale of Grade E-4 to be Rs.14500-350-18700/-. Per contra it

was submitted by the learned senior counsel appearing on behalf of

the respondent that the office order dated 17.3.1997 issued by the

appellants clearly showed that Grade E-3 was equivalent to the post

of Assistant Manager, Grade E-4 was equivalent to the post of Deputy

Manager and Grade E-5 was equivalent to the post of Manager (page

195 of the paper book). In support of the said arguments, reliance

was also placed on office order dated 16.12.2004 issued by the

appellants wherein Grade E-4 was shown as equivalent to the pay

scale of Deputy Managers, Grade E-5 was shown as equivalent to the

pay scale of Manager and Grade E-6 was shown as equivalent to the

pay scale for the post of DGM (page 332 of the paper book). Further

learned senior counsel for the respondent also relied on the views of

Dr. S. Balasubramanian, Independent Director of the appellants

dated 21.8.2007 on implementation of IDA pay scales to directly

recruited executives of MTNL (page 131-133 of the paper book). On

the basis of the said document it was sought to be contended by the

respondent that the appellants had always understood Grade E-4 to

be equivalent to the post of Deputy Manager and that the Manager

was entitled to the scale of Rs.16000-20800/-. Reliance was also

placed on the examination and recommendations of the committee

appointed by the appellants to look into the representations of

executives to urge the point that the Manager had been placed by the

appellants in the scale of Rs.16000-20800/- (page 107 of the paper

book).

9. Thus, placing reliance on the above documents, it was

argued on behalf of the respondent that the appellants have always

understood Grade E-4 to be equivalent to the post of Deputy Manager

and Grade E-5 to be equivalent to the post of Manager. It was also

urged that the appellants had always placed the post of Manager in

the scale of Rs.16000-20800/- and the post of Deputy Manager in

the scale of Rs.14500-18700/-. It was further argued that it was not

open to the appellants to now urge at this belated stage that the

Grade E-4 was equivalent to the post of Manager.

10. In view of the documents relied on by the respondents

and whose veracity has not been denied by the appellants, we are in

agreement with the contention of the respondent that Grade E-4 was

equivalent to the post of Deputy Manager and not the Manager and

as per the appellants' own understanding/circulars and office orders,

the pay scale for the post of Manager was Rs.16000-20800/- and the

pay scale for the post of Deputy Manager was Rs.14500-18700/-. It

was, thus, clearly now impermissible for the appellants to rely on an

office order dated 8.9.2008 to contend and urge that Grade E-4 was

for the post of Manager which fell in the pay scale of Rs.14500-350-

18700/-.

11. Moreover, as rightly held by the learned Single Judge,

the matter regarding fixation of pay of the respondent upto the rank

of Deputy Manager (Legal) stood finally decided vide order dated

11.8.2003 passed in Writ Petition (Civil) No.1029 of 19987 also in the

said order the counsel for the appellants had made a statement that

the pay of the respondent at the time of his promotion to the post of

Manager could be provisionally in the scale of Rs.16000-20800/- and

his claim for fixation of pay scale in the scale of Rs.17500-22300/-

would be re-examined by the appellants. Clearly, this statement was

made by the counsel for the appellants in the light of various office

orders issued by the appellants from time to time as also the internal

documents of the appellants whereby the appellants themselves have

understood and placed Grade E-4 as equivalent to the post of Deputy

Manager in the pay scale of Rs.14500-18700/- and placed Grade E-5

equivalent to the post of Manager in the Grade of Rs.16000-20800/-.

12. Learned Single Judge was right in holding that the

impugned communication dated 15/16.12.2003 which was based on

the recommendations of the Committee dated 7.11.2003 and the

subsequent office order dated 16.12.2004 were clearly in derogation

of the order passed by this court in Writ Petition (Civil) No.1029 of

1998 dated 11.8.2003 and correctly, therefore, set them aside. The

learned Single Judge, in our view, also rightly allowed the Writ

Petition and directed the appellants to fix the pay of the respondent

in the pay scale of Rs.16000-20800/- with effect from 23.5.2002

when he was promoted to the post of Manager (Legal) and pay him

the arrears of salary, if any.

13. Learned senior counsel for the respondent also brought

to our notice that the status and pay scale of various posts as

explained by the respondent had been consistently followed by the

appellants in case of other officers. Reference was made to the case

of Sh. R.C. Sen (page 332 of the paper book), who was in the Grade of

E-4 and had been placed in the pay scale of Rs.14500-350-18700/-

and thereafter on being promoted to the Grade of E-5 was placed in

the pay scale of Rs.16000-400-20800/-. Reliance was also placed by

the respondent on the case of Sh. S.R. Sayal (page 333 of the paper

book) who was granted the pay scale of Rs.14500-350-18700/- in the

E-4 Grade, which was equivalent to the post of Deputy Manager.

Respondent argued that it was only in the case of the respondent

that the said benefit was being denied. It was also urged before us by

the respondent that the order dated 11.8.2003 passed in Writ

Petition (Civil) No.1029 of 1998 had not been challenged by the

appellants and had become final between the parties. The said

contention had been rightly accepted by the learned Single Judge as

well. The counsel for the respondent also urged that the appellants

had always understood the pay scale for the post of the Manager to

be Rs.16000-20800/- and no concession had been granted in the

previous round of litigation. In fact, as per the respondent, he had

claimed the pay scale of Rs.17500-22300/- in Writ Petition (Civil)

No.1029 of 1998 and what the court had granted to him on the basis

of the statement made by the counsel for the appellants was the pay

scale of Rs.16000-20800/-.

14. There is clearly merit in the submissions of the

respondent. In the light of the discussion herein above, the order of

the learned Single Judge warrants no interference. Accordingly, the

appeal is dismissed. The pending application stands disposed of as

well.

CHIEF JUSTICE

NEERAJ KISHAN KAUL, J.

MAY 14, 2009 'AA'