Govt Of Nct And Anr. vs J.S.Khatri & Ors
2009 Latest Caselaw 4640 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P. (C.) No. 5436/2008

%                         Date of Decision: 13.11.2009

Govt of NCT and Anr.                                         .... Petitioners

                         Through: Mr.S.D.Salwan, Advocate.

                                   Versus

J.S.Khatri & Ors                                         .... Respondents

                         Through: Mr.M.K.Bhardwaj, Advocate.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE VIPIN SANGHI

1.     Whether reporters of Local papers may be                 YES
       allowed to see the judgment?
2.     To be referred to the reporter or not?                   NO
3.     Whether the judgment should be reported in               NO
       the Digest?


ANIL KUMAR, J.

*

1. The petitioners, Secretary, Industries Department, Government of

NCT and another have impugned the order dated 14th February, 2008

passed in O.A No.2420/2006, J.S.Khatri V. Government of NCT of Delhi

& Ors setting aside the order dated 8th February, 2002 of the petitioners

declining full pension of 33 years service to the respondent. The

Tribunal also directed the petitioners to calculate the pension of the

respondent and giving him benefit of 33 years of service and to pay the

arrears of pensions within three months from 14th February, 2008 and

also to pay simple interest at 9% per annum from the date the pension

became due till it is actually paid to the respondent.

2. The respondent had contended that he was appointed in Khadi

and Village Industries Commission (referred to as KVIC) and worked on

the post of Assistant Development Officer from 9th December, 1966 till

30th June, 1983. The respondent was confirmed by order dated 21st

May, 1986.

3. The respondent was on deputation from KVIC to Industries

Department, Delhi Administration w.e.f 01.07.83. By order dated 8th

July, 1983, while he was on deputation, on the recommendation of

DPC/SSB and on approval of Lt. Governor of Delhi, the respondent was

appointed on the post of Development Officer with effect from 1st July,

1983. While appointing him, it was also stipulated in the order dated 8th

July, 1983 that he will not be entitled for any benefit of his past service

rendered by him in KVIC.

4. The respondent, thereafter, was transferred to Delhi Khadi and

Village Industries Board (DKVIB) by transfer order dated 22nd

November, 1983. The order stipulated that pursuant to formation of

separate board for Khadi and Village Industries and on allotment of

separate building, the staff working against the strength of KVIC

including the respondent were directed to get their record shifted to the

new premises.

5. The respondent, thereafter, was promoted as Deputy Director

from 1st April, 1988 and later on regular basis from 22nd July, 1988 and

the terms and conditions applicable to the employees of Delhi

Administration in industries department became applicable mutatis

mutandis to the respondent.

6. The petitioner served with DKVIB till November, 1992 and he was

repatriated to industries department on 13th November, 1992. The order

repatriating the respondent to the industries department categorically

stipulated that he is relieved from the services of the board with effect

from 13th November, 1992 and he was directed to report to industries

department as parent department for his further postings in Khadi and

Village Industries Commission. The board also sent a communication

on 16th November, 1992 to Khadi and Village Industries Commission

stipulating categorically that respondent has been relieved from the

department with effect from 13th November, 1992 and that from the

records of the DKVIB it is apparent that he was never absorbed by the

board and he continued to be on deputation for almost 10 years. The

letter dated 16th November, 1992 from the board to the commission is

as under:-

DO No.DKVIB/Admn/2(12)/85-86/2399

Nita Bali, IAS Delhi Khadi and Village Industries Managing Director Board, 1, Canning Lane, Kasturba Gandhi Marg, New Delhi-110001.

Dated 16/11/92

Dear Sh.Yashveer Singh,

As discussed with you in Lucknow, Sh.JS Khatri has been repatriated and relieved from this department wef 13/11/92 (A/N). We have verified from the records that Sh.JS Khatri, Dy.Director was never absorbed by this Board and continued to be on deputation for almost 10 years. Since Sh.JS Khatri's services are not required by this Board any more. You are requested to kindly allow him to join Khadi Commission immediately. I am enclosing the copy to repatriation order for your information.

With Regards,

Yours sincerely,

(Nita Bali)

To Dr. Yashveer Singh, Chairmen Khadi Vill.Inds.Commission 3, Irla Road, Vile Parle(W) Bombay-56

7. Consequent to the repatriation of the respondent with effect from

13th November, 1992, the respondent was taken provisionally on the

strength of the industries department with effect from 14th November,

1992 against a vacant post of Assistant Manager by order

No.Admn.2(1)79/D1/4997. By said order, the pay of the respondent

was provisionally fixed at Rs.2540 by granting notional increment and

he was allowed to draw salary on that rate with effect from 14th

November, 1992 in the scale of Rs.1640-60-2600-EB-75-2900.

8. The respondent had submitted a representation dated 30th May,

1994 which was disposed of and order was communicated to

respondent by communication dated 31st January, 1996 whereby

respondent was ordered to be treated on foreign service with usual

terms and conditions from his earlier transfer from industries

department to board upto the date of his promotion on the ex-cadre

post of Deputy Director on 22nd July, 1988. The respondent was also

allegedly relieved from the industries department on 31st January, 1996

and he was directed to report to Khadi and Village Board. The

respondent thereafter continued with the board and retired on 28th

February, 2002 as a Deputy Director with the pay scale of Rs.10,000-

15,200/-. The respondent in the circumstances had served three

different organizations as under:-

Sl.No.               Organisation          Service rendered      Period

1.        Khadi          and        Village From 9.12.66 to 16     years         6

          Industries Commission (A 30.06.83              as months           22

          Central              Pensionary Asstt.Development days

          Autonomous Body)                Officer





 2.        Industries Deptt. (Govt. of From 01.07.83 to 5             years         21

          Delhi) (Pensionable Deptt.)     21.07.88          as days

                                          Development

                                          Officer

3.        Delhi Khadi and Village From 22.07.88 to 4                     years         3

          Industries Board, (Govt. of 12.11.92              as months              20

          Delhi)         (Non-Pensionable Dy.Director             days

          org.)

4.        Industries Deptt. (Govt. of From 13.11.92 to 3                 years         2



                                          Dy.Director             days

5.        D.K.V.I.B (Govt. of Delhi)      From 1.02.96 to 6          years         27

                                          28.02.02          as days

                                          Dy.Director (i.e till

                                          the       date    of

                                          superannuation)

9. The respondent therefore, made a request to the Managing

Director of the board to get the pension papers finalized which were

forwarded to the petitioners and which was declined leading to the

institution of the petition before the Central Administrative Tribunal by

the respondent.

10. It is apparent in the circumstances that though initially the

respondent was on deputation in the industries department, however,

later he was appointed as per rules and was relieved from the

Commission/respondent No.2 and respondent ceased to have any lien

in the Commission. The respondent not having a lien at KVIC was also

confirmed by the petitioners.

11. What also emerges is that whenever the respondent was sent to

DKVIB, it was on account of internal arrangement between the

petitioners and DKVIB. From the correspondence between the DKVIB

and the petitioners, it cannot be doubted that the respondent had not

been absorbed in DKVIB and thus he had retained his lien in the

industries department/petitioners. On the basis of the letter dated

31.1.1996 also, it cannot be held that the respondent did not have his

lien in the industries department. The respondent was repatriated by

DKVIB in 1992 on the premise that he was never absorbed by DKVIB

and he continued to be on deputation for almost ten years. The stand

of the Commission was also that respondent could not be repatriated to

the Commission as he was relieved from the services of Commission

with effect from 30.6.1983. The plea of the petitioners that respondent

No.1 was an employee of DKVIB in the facts and circumstances cannot

be accepted and the finding of the Tribunal holding that the respondent

No.1 had rendered more than ten years' service in the industries

department cannot be faulted. The finding of the Tribunal that there

was no connivance of the respondent no.1 with DKVIB and Commission

has not been challenged nor it can be faulted in the facts and

circumstances.

12. Since the respondent had his lien in the industries department

and he had completed more than ten years of service, the respondent

becomes entitled for the benefit of 33 years of service for purposes of

fixation of his pension, as the respondents service with KVIC and with

the respondent G.N.C.T.D was pensionable. The order of the Tribunal

dated 14.2.2008, therefore, does not suffer from any illegality requiring

interference by this Court in exercise of its jurisdiction under Article

226 of the Constitution of India. Writ petition is, therefore,

misconceived and it is without merit. The writ petition is, therefore,

dismissed. Considering the facts and circumstances, the petitioner shall

also pay a cost of Rs.10,000/- to the respondent No.1.

ANIL KUMAR, J.

November 13, 2009                                               VIPIN SANGHI, J.
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