K.K. Jain vs Uoi & Anr.
2011 Latest Caselaw 2332 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                              Date of decision: 2nd May, 2011.

+                                  W.P.(C) 2199/1996

%        K.K. JAIN                                             ..... Petitioner
                            Through:      Mr. A.K. Jain, Advocate.

                                     Versus
         UOI & ANR.                                          ..... Respondents
                            Through:      None.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                     No

2.       To be referred to the reporter or not?              No

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

RAJIV SAHAI ENDLAW, J.

CM No.6032 & 6033/2011 (for restoration of the writ petition dismissed in default on 4 th February, 2011 and for condonation of delay in applying therefor).

1. On the condition that the counsel for the petitioner to argue on the

merits of the writ petition today itself and to which the counsel for the

petitioner applicant has agreed, for the reasons stated in the applications,

the same are allowed. The delay in applying for restoration is condoned

and the writ petition is restored to its original position.

W.P.(C) No.2199/1996.

2. The counsel for the petitioner has been heard. In the facts as

mentioned herein below, need is not felt to hear the counsel for the

respondents and the counter affidavit filed by the respondents and to which

there is no rejoinder has been filed, perused.

3. The petitioner joined the Indian Navy in July, 1959 and retired from

the post of Commander in the Indian Navy in the year 1983. The petitioner

as per the terms of his employment was entitled to pension.

4. The petitioner in response to an advertisement published by the

respondent no.2 M/s. Hindustan Shipyard Limited in the year 1987 applied

and was selected for the post of Regional Manager. It is the case of the

petitioner that the advertisement pursuant to which he had applied and was

selected did not indicate that there could be any deduction, on account of

pension being received by him, out of the employments payable to him by

the respondent no.2. Upon such deduction being made by the respondent

no.2 from the emoluments of the petitioner with effect from the first

payment itself, the petitioner started representing and ultimately in the year

1996 filed this writ petition for declaration that no part of the pension

earned by him as a Naval Officer is liable to be deducted from his salary as

Regional Manager with the respondent no.2 and for a direction to the

respondent no.2 to release the salary so deducted on the basis of the

pension. The relief of quashing of Clause 4 of the Central Civil Services

(CCS) (Fixation of pay of Re-employed Pensioners) Orders, 1986 and

similar clause in another Office Memorandum dated 29 th October, 1986 on

the basis whereof such deduction was made was also claimed.

5. Notice of the writ petition was issued and detailed counter affidavit

filed by the respondent no.2. The petitioner inspite of opportunity did not

file any rejoinder thereto. Rule was issued on 20 th January, 1998 since

whereafter none had been appearing for the petitioner. The counsel for the

petitioner however on enquiry states that the petitioner is still alive.

6. The respondent no.2 in its counter affidavit has pleaded that the

petitioner prior to joining the respondent no.2 and after retiring from the

Indian Navy was working in another company (the counsel for the

petitioner states that he has no knowledge of the same); that the petitioner

in his application in response to the advertisement had himself stated that

the minimum starting salary expected by him was as per the Government

of India Rules applicable from time to time; that in the offer of

appointment issued to the petitioner itself it was stated that the pay would

be fixed as per the Government of India Rules and the petitioner was asked

to submit a certificate from the Indian Navy regarding his pension for the

purpose of fixation of pay; that the petitioner had conveyed his acceptance

to the offer of appointment and joined duty on 30 th November, 1987; that

the pay of the petitioner was fixed under the law applicable in the case of

all re-employed pensioners i.e. the pension amount received by the re-

employed pensioners is to be ignored only to the extent it is provided for in

the rules; that the pay scale of the petitioner was fixed in accordance with

CCS (Fixation of pay of Re-employed Pensioners) Orders, 1986; that

subsequently on clarification by the Government of India that the

petitioner was governed by the BPE'S OM dated 29.10.1986, the pay of

the petitioner was re-fixed accordingly; that the advertisement for

employment was under the rules and provisions applicable; the application

made by the petitioner in pursuance thereto was also as per the rules

applicable; the offer of appointment made to the petitioner was also as per

the rules and accepted as per rules and thus the petitioner is not entitled to

the relief. The averments in the counter affidavit are supported by the

documents filed therewith.

7. As aforesaid there is no denial thereof inspite of opportunity.

8. The counsel for the petitioner has also not during the arguments

controverted any of the averments in the counter affidavit. The argument is

only on the basis of the advertisement aforesaid.

9. He also argues that pension is a right of the petitioner by virtue of

having already rendered service and the same could not have been taken

into account in fixing the pay of the petitioner on re-employment.

10. Once it is admitted that the pay scale received by the petitioner is as

per the terms of offer of appointment which was accepted by the petitioner,

in my opinion the petitioner has no case on the basis of the advertisement

aforesaid. Moreover the petitioner in his application for appointment

pursuant to the said advertisement also confirmed that his pay was to be as

per the rules and thus it cannot be said that the petitioner was not aware.

Similarly the existence of the rules in accordance where with the pay was

so fixed is also not controverted. In the circumstances, neither any case for

challenge has been made out nor has the petitioner been able to satisfy as

to how the said rules can be said to be illegal or on what grounds the

striking down thereof is claimed.

11. There is thus no merit in the writ petition. The same is dismissed. No

order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) MAY 02, 2011 pp