Union Of India & Ors. vs Navrang Lal
2010 Latest Caselaw 2248 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            W.P. (C.) No.3226/2007

%                         Date of Decision: 28.04.2010

Union of India & Ors.                                       .... Petitioner
                          Through Mr. Satpal Singh, Advocate


                                   Versus

Navrang Lal                                               .... Respondent
                Through            Nemo

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

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.

*

The petitioners/Union of India through the General Manager,

Northern Railway & Ors. have impugned the order dated 1st August,

2006 passed by the Central Administrative Tribunal, Principal Bench in

OA 1821/2005 titled as Navrang Lal Vs. Union of India and Ors.,

allowing the application of the respondent for protection of his last

drawn pay in the construction division before he was repatriated to his

parent division with Northern Railways, Bikaner, Rajasthan.

Brief facts to comprehend the disputes are that the respondent

was appointed as daily rated casual mate w.e.f. 11th January, 1977 in

the scale of Rs. 210-270. Temporary status in the grade of 225-308

was granted to him and thereafter he was regularized as Gangman in

Group-'D' post on 31st March, 1997.

The respondent continued to work as a mate in Construction

Division till he was repatriated to his substantial post in the parent

division on 23rd June, 2001. After repatriation to the parent division,

petitioner No. 3 sought protection of his pay on the basis of an order

passed by the Tribunal in the matter of Liakat Ali Vs. Union of India &

Ors. being OA 1917/2000 decided on 29th November, 2001 which order

was confirmed by the High Court in WP(C ) No.-7417/2001 titled as

Liakat Ali Vs. Union of India & Ors. by order dated 19th August, 2003.

On the basis of the said decision of the Tribunal, which was confirmed

by the High Court, the respondent claimed from the petitioner that in

the Construction Division, he had a pay scale of Rs. 3050-4590 while

on repatriation he was downgraded to the scale of Rs. 2550-3600. On

failure of the petitioners to protect his pay of Rs. 3050-4590, the

respondent filed an original application being OA No. 1821/2005.

Before the Tribunal, the reliance was placed on behalf of the respondent

to Bhadei Rai Vs. Union of India & Ors., (2005) 11 SCC 298, holding

that though an employee who is repatriated may not be entitled for

regularization on higher group post, however, such an employee is

entitled to relief of pay protection.

The application before the Tribunal was contested by the

petitioners on the ground that the original application was barred under

the principal of res judicata as the respondent had earlier filed an

original application being OA No. 1583/2001 assailing the order dated

26th March, 2001 whereby the respondent was repatriated as ad hoc

mate in Construction Division to his parent division in a substantive

post and the said OA was dismissed by order dated 23rd May, 2002.

The petitioners had contended that pay protection ought to have been

sought while challenging the order dated 26th March, 2001. The plea of

the original application of the respondent being barred by principal of

res judicata was repelled on the ground that in OA No. 1583/2001, pay

protection was not sought by the respondent and what was sought was

his repatriation as ad hoc mate in the Construction Division to his

parent division and the plea that the respondent is entitled to be

regularized as mate in the Construction Division. The Tribunal also

held that had the original application No. 1583/2001 been allowed, the

question of protection of pay would not have arisen and only after

adjudication of the prayer against the repatriation from mate in the

Construction Division to his substantive post, the question of pay

protection has arisen. In the circumstances, it was held that the issue

of protection of pay after repatriation had arisen only after the prayer

against the repatriation was finally decided. Since, the question of pay

protection was not raised in the earlier petition which was filed against

the repatriation and the said plea was not available to the respondent at

that time nor the Tribunal had adjudicated about the pay protection in

its order dated 23rd May, 2002, the subsequent original Application

filed by the respondent for pay protection was not barred by the

principal of res judicata. Since the pay protection was the subsequent

cause of action, which could not be taken at the time of repatriation as

it was challenged, the same is not even barred by the principal of

constructive res judicata.

The Tribunal relied on judgment of the Supreme Court in Bhadei

Rai (supra) and Inder Pal Yadav Vs. Union of India, (2005) 11 SCC 301

and distinguished the decision cited by the petitioners, 1996 (1) ATJ

625 (SC) Union of India and Anr. Vs. Moti Lal & Ors. and has held that

respondent's pay which he last drew on the date when he was

repatriated from Group-'C' post to Group 'D' post would be protected.

The learned counsel for the petitioner has assailed the order of the

Tribunal primarily contending that since the respondent is working in

the Group-D post and so he is not entitled for the emolument of Group-

'C' post.

The learned counsel for the petitioner, is however, unable to

distinguish the decision of the Supreme Court in the case of Inder Pal

Yadav (supra) and Bhadei Rai I(supra). In Inder Pal Yadav (supra), the

Apex Court had held that while the employees cannot be granted the

relief that they should not be reverted to a lower post or if they have

been promoted by reason having worked in the projects then they are

entitled to continue in such projects, nevertheless, if such employees

are directed to join their parent cadre or other project in future, while

posted to their parent cadre or on such other projects they shall be

entitled to the same pay as that of their contemporaries unless the

posts held by such contemporary employees at the time of such

reposting of such employees is based on selection. The Supreme Court

had further held that it would be open to Railway Administration to

utilize the services of such employees in the open line and they could

for the purpose of determining efficiency and fitment take into account

the trade tests which may have been passed by such employees as well

as the length of service rendered by such employees in the different

projects subsequent to their regular appointment.

In Bhadei Rai (supra), the employee had started his services in

the Railways at daily rate working as khallasi and he was conferred

temporary status later on. That employee was also granted promotion

on ad hoc basis to the post of rigger in the pay scale of 121-1500 and

he continued to work for a long period between 1985 to 1999 on the

promoted post of rigger carrying a higher scale of pay, which was also a

Group 'C' post. The said employee was however, regularized and

absorbed in lower Group 'D' Post in 1999 although he had completed

more than 20 years of service on higher Group 'C' post of rigger. On

his repatriation, he claimed absorption and regularization on the higher

Group 'C' post where he had worked on ad hoc basis for 20 years which

claim was rejected and rejection of claim was up held by the Supreme

Court. The Apex Court, however, protected the pay which he had last

drawn before his repatriation from Group 'C' post to Group 'D' Post

relying on the ratio of judgment in Inder Pal Yadav (supra).

In case of respondent also, he worked as a mate in the

Construction division for a long time before he was repatriated on 23rd

June, 2001 to his substantive post in the parent division, petitioner No.

3. Applying the ratio of Inder Pal Yadav (supra) and Bhadei (supra),

the respondent shall be entitled for protection of his pay which he had

been drawing in Construction Division in the grade of Rs. 3050-4590

though on repatriation, he was given the scale of Rs. 2550-3600. In the

circumstances, the plea of the learned counsel for the petitioner that

though the respondent is working in Group 'D' post and he will not be

entitled for the pay scale of Group 'C' post on which he had worked for a

long time, cannot be accepted and the decision of the Tribunal on this

ground cannot be faulted on the ground as has been raised by the

learned counsel for the petitioners.

In the circumstances, learned counsel has failed to make out any

such illegality, irregularity or such perversity in the order of the Central

Administrative Tribunal, Principal Bench which has been impugned

before us which shall necessitate any interference by this Court in

exercise of its jurisdiction under Article 226 of the Constitution of India.

The writ petition, in the facts and circumstances is, therefore,

without any merit and it is dismissed.

ANIL KUMAR, J.

April 28, 2010                                   MOOL CHAND GARG, J.
'rs'