Berjinder Singh vs Lt. Governor Of Delhi & Ors.
2012 Latest Caselaw 1270 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

                     W.P.(C) No.12205 of 2009
                               with
                     W.P.(C) No.3507 of 2011

+     W.P.(C) No.12205/2009
                                           Reserved on: 12.1.2012
%                                        Pronounced on: 24.2.2012

      BERJINDER SINGH                              . . . PETITIONER

                             Through:   Mr.    Ranjan     Mukherjee,
                                        Advocate.

                              VERSUS

      LT. GOVERNOR OF DELHI & ORS.                 . . .RESPONDENT

                             Through:   Mr.     Ravinder     Agarwal,
                                        Advocate for R-4.
                                        Ms.   Pratima     K.   Gupta,
                                        Advocate with Mr. Arvind
                                        Gupta, Advocate and Mr.
                                        Rahul Mangla, Advocate for R-

                                        Mr.   N.   Waziri,   Standing
                                        Counsel (Civil) for Govt. of
                                        NCT of Delhi.

+     W.P.(C) No.3507/2011
                                           Reserved on: 17.2.2012
%                                        Pronounced on: 24.2.2012

      L. MANSINGH                                  . . . PETITIONER

                             Through:   Ms. Rajdipa Behura, Advocate
                                        with Ms. V. Santhana Lakshmi
                                        and   Mr.    Satish   Mishra,
                                        Advocates.

                              VERSUS

      UOI & ORS.                                  . . .RESPONDENT





                                   Through:     Mr. A.S. Chandhiok, ASG with
                                               Mr. Neeraj Chaudhary and Mr.
                                               Khalid Arshad, Advocates for
                                               UOI.
                                               Mr. I.S. Alag with Mr. J.S.
                                               Lamba, Advocates for R-2.
CORAM :-
    HON'BLE THE ACTING CHIEF JUSTICE
    HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

A.K. SIKRI, Acting Chief Justice

1. In the Writ Petition (C) No.12205 of 2009, arguments were

heard on 12.1.2012 and judgment reserved. Before judgment

in that case could be delivered, Writ Petition (C) No.3570 of

2011 was also heard finally on 17.2.2012. Issue involved in

this writ petition is identical as raised in the first petition. In

the first petition, the petitioner was appointed as Chairman of

the Delhi Electricity Regulatory Commission (hereinafter

referred to as „DERC‟). In the second petition, the petitioner

was appointed as Chairperson of Petroleum and Natural Gas

Regulatory Board. There is a provision of fixation of pay

contained in the Rules in both the regulatory bodies which inter

alia provides that in case the Chairman or a Member appointed

to these positions is in receipt of pension, the pay of such

person is to be reduced by the gross amount of pension drawn

by him. Both the petitioners have challenged the vires of this

part of the Rule, as according to them, the normal pay to which

Chairman of the respective bodies is entitled to should not be

reduced and should be paid without any deduction in addition

to the pension which they are drawing from their erstwhile

departments where they earlier served. It is for this reason,

we propose to decide both these writ petitions by common

orders without any fear of contradiction, we can take note of

the facts in the first petition, i.e., W.P.(C) No.12205/2009 as it

is pure legal issue which needs to be determined.

2. For deciding the controversy raised in this writ petition, it is not

necessary to take stock of the facts in detail. The petitioner

has questioned the validity of 1st proviso of Rule 4 of the Delhi

Electricity Regulatory Commission (Salary, Allowances and

Other Conditions of Service of the Chairperson and Members)

Rules, 2001 (hereinafter referred to as „the Rule 2001‟) on the

ground that the said proviso is unconstitutional and ultra vires

of Articles 14 and 16 of the Constitution of India. This Rule

along with its proviso reads as under:

"4. Pay - The chairperson and Members shall each receive a pay of Rupees twenty six thousand per month:

Provided that in case a person appointed as the Chairperson or a Member is in receipt of any pension, the pay of such person shall be reduced by the gross amount of pension drawn by him.

Provided further that the Chairperson or a Member shall be entitled to draw allowances on the original basic pay before such fixation of pay."

3. The reason because of which the petitioner is impugning the

validity of the aforesaid proviso is that the petitioner had

earlier served in Central Government Department from where

he retired as Chairman, Central Board of Direct Taxes (CBDT)

on attaining the age of superannuation with effect from

13.9.2005. The petitioner is getting pension for rendering the

said service. After his retirement, he was selected as

Chairman of DERC which post he joined on 16.2.2006. As per

Rule 4 of Rule 2001, he was to receive pay of `26,000 per

month. However, in view of proviso to this Rule, the pay of the

petitioner was reduced by the gross amount of pension drawn

him as Ex-Chairman, CBDT. The contention of the petitioner is

that the petitioner should be paid full pay of `26,000 without

any deduction and as the proviso is coming in his way,

constitutional validity thereof is challenged under these

circumstances. The submission of the petitioner is that the

duties and responsibilities of Chairman, DERC are not relatable

to the previous service rendered by him in the Income Tax

Department or in the capacity as the Chairman, CBDT and

therefore, pension earned on account of previous service

cannot be deducted for salary payable in gross pay of a fresh

appointment to a new post which is not the case of repayment.

4. Learned counsel argued that the issue is completely answered

by the High Court of Uttarakhand at Nainital in the case of Lt.

Gen. (Retd.) Dr. M.C. Bhandari Vs. State of Uttarakhand

and others [W.P. No.182 (SB) of 2008, decided on

15.4.2010]. It is argued that the aforesaid proviso to Rule 4 of

Rules 2001 is bad in law for the following two reasons:

(a) The deduction of the amount of pension from

previous employment cannot be made from

emoluments due as a result of performance of

service in a job which is a fresh engagement and

not an extension of the earlier job or post.

(b) Deduction is also otherwise bad as from a category

of pensioners, deduction is made only from one

having a monthly pension and not from ne

(similarly situated) having opted for CPF, (which is

also a pension, only paid lump sum and not

monthly).

5. Learned counsel further argued that "equal pay to equal work"

is a well established legal doctrine flowing directly from Article

14 of the Constitution. The principles inhering in Article 14 also

spill over to, affect and mold Article 16(1) and 39(d). Equality

before law, equal treatment under the law is the spirit which

infuses the principle of equal opportunity in employment under

State. Thus, Articles 14, 16(1) and 39 (d) are interlinked.

6. According to the petitioner, in the instant case, it is not denied

that classification may be made between differently placed

pensioners, but the intelligible differentia forming the

classification must also have a clear nexus with the objective

sought to be achieved by such classification. That later part is

not apparent either from the impugned rule or from the

affidavit of the contesting respondent. The impugned rule is,

therefore, quite clearly hit by article 14 of the Constitution, as

being without reason or reasonableness whatsoever.

7. He also referred to the various judgments in support of his plea

for "equal pay for equal work", which are as follows:

(1) The Supreme Court in State of Madhya Pradesh

Vs. Pramod Bhartiaya [AIR 1993 S.C. 286:

".....Equal pay for equal work, it is self- evident, is implicit in the doctrine of equality enshrined in Article 14, it flows from it. Because clause (d) of Article 39 spoke of "equal pay for equal work for both men and women" it did not cease to be a part of Article 14......"

(2) The Supreme Court in Y.K. Mehta & others Vs.

Union of India & another [AIR 1988 S.C. 1970]:

"....Even leaving out of our consideration Article 39(d), the principle of "equal pay of equal work", if not given effect to in the case of one set of government servants holding

same or similar posts, possessing same qualifications and doing the same kind of work, as another set of government servants, it would be discriminatory and violative of articles 14 and 16 of the Constitution....."

(3) The Supreme Court in K. Thimmappa Vs.

Chairman, Central Board of Director S.B.I. [AIR

2001 S.C. 467]:

"....When a law is challenged to be discriminatory essentially on the ground that it denies equal treatment or protection, the question for determination by court is not whether it has resulted in inequality but whether there is some difference which bears a just and reasonable relation to the object of legislation......."

8. It is also the contention of the learned counsel for the

petitioner that merely because the petitioner accepted the

terms of his employment would not deprive him from

challenging the validity of the aforesaid proviso as no estoppel

arises for enforcement of fundamental rights as held by the

Supreme Court in the cases of Olga Tellis Vs. Bombay

Municipal Corporation [AIR 1986 S.C. 180] and Nar Singh

Pal Vs. U.O.I. [AIR 2000 S.C. 1401]. It is also submitted that

in other organisation of the Government, no such Rule for

adjustment of pension is prescribed and in fact, in Central

Electricity Regulatory Commission, which is also set-up under

the Electricity Act, 2003, there had been such rule but

correction is made by removing this kind of embargo.

9. We would like at this stage to take note of the arguments of

Ms. Rajdeepa Behura, Advocate who appeared for the

petitioner in the other writ petition, i.e., W.P.(C)

No.3507/2011. She also pressed into service the principle of

"equal pay for equal work" and submitted that the pension

drawn by the petitioner as a result of serving in another job

which was totally unconnected with the present assignment,

could not be adjusted while fixing the pay as it would amount

to denial of pay fixed for the present post as per the Rules and

that would infringe the principle of "equal pay for equal work".

She also submitted that as per the rules for appointment to the

Regulatory Board, even private persons can be appointed as

Members and in their case, there was no question of

adjustment of any pension. It was resulting in discrimination

qua the petitioner as the Members were drawing higher pay

than the petitioner. She also submitted that by no stretch of

imagination, the appointment as Chairman to the Regulatory

Board could be treated as "reemployment". It was the case of

fresh appointment and for this reason also, the pension drawn

which the petitioner was drawing could be adjusted. She

specifically referred to Section 2(h), 3, 4, 5 and 7 of the

Regulatory Board Act in support of her submission.

10. Learned counsel for the respondent refuted the aforesaid

submissions. He emphasized that the principles of estoppel

would apply as the petitioner joined the service with full

knowledge of aforesaid Rule. He, in fact, completed his term

as Chairman, DERC drawing salary in this manner and it is not

open for him to now question the said proviso. It is also

argued that such kind of provision was clearly permissible as

held by the Apex Court in V.S. Mallimath Vs. Union of India

and Anr. [(2001) 4 SCC 31]. In the counter affidavit filed by

the Govt. of NCT of Delhi, it is pointed out that the matter was

examined in detail, but the proposal was not agreed to and

therefore, the petitioner was communicated the decision vide

letter dated 17.8.2009. It is also stated in the counter affidavit

that the information was collected from other commissions

regarding remuneration, fixing policy and position in other

State Electricity Regulatory Commissions. Information

received from as many as 12 States disclosed that gross pay

was being reduced by the amount of pension/commuted

portion.

11. Mr. A.S. Chandhiok, learned ASG appeared for the respondent

appeared for the respondent/UOI in W.P.(C) No.3507/2011 and

refuted the arguments of Ms. Rajdeepa Behura. He also

emphasized that it was a case of appointment in terms of

Rules of pay as per which the petitioner was made aware of the

fact that his pension would be adjusted from the pay fixed and

with open eyes he accepted the offer and therefore, was

estopped from laying challenge to this provision when for all

these years he has accepted the appointment as per those

terms and filed the writ petition at the fag end of his career.

Mr. Chandhiok submitted that it was not a case of re-

employment. However, his submission was that such a

provision was valid and justified when the same was

recognized in V.S. Mallimath (supra).

12. We have considered the respective submissions of the learned

counsel for both the parties. It is not in doubt that Rule 4 of

the Rules 2001 along with proviso were in existence when the

post of Chairman of the DERC was notified to which the

petitioner applied and was selected. It is also a matter of

record that the terms were conveyed to the petitioner for

acceptance vide offer of appointment letter dated 15.2.2006

which included the aforesaid condition of reducing the pay by

the amount of pension received. The petitioner had tendered

his acceptance to this offer of the appointment and therefore,

accepted the conditions with free will and consent. Thus,

normally when this position was accepted by the petitioner with

open eyes and mind, it may not be permissible for him to

challenge the action of the respondents. At the time of

acceptance, he knew that he would be given pay after the

deduction of pension which he was already drawing.

13. However, having regard to the fact that the constitutional

validity of the aforesaid proviso to Rule 4 of Rules 2001 is

challenged, it would be necessary to examine the issue.

14. The question is whether such a proviso becomes

unconstitutional merely because the service rendered by the

petitioner as Chairman, CBDT is unrelated to the organisation

in question which he took, viz., Chairman, DERC.

15. In V.S. Mallimath (supra), the petitioner after retiring as

Chief Justice of the Kerala High Court on 11.6.1991, was

appointed as Chairman of the Central Administrative Tribunal

on 05.12.1991. On retirement from Central Administrative

Tribunal, he was appointed as a Member, National Human

Rights Commission on 14.9.1994 and continued there till he

attained the age of 70 years. While fixing his pay as Member,

NHRC, the pension drawn by him as retired High Court of

Kerala High Court was reduced. He challenged this pay fixation

by filing writ petition under Article 226 of the Constitution

contenting that Chief Justice was not a service under the

Government of Union or Government of State and therefore,

the pension received by him as retired Chief Justice could not

be deducted from his salary as Member, NHRC, under the

proviso to Rule 3(b) of National Human Rights Commission

Chairperson and Members (Salaries, Allowances and Other

Conditions of Service) Rules, 1993. Thus, the question has

arisen in almost identical circumstances on the application of

similar kind of pay rule holding that the pension drawn can be

adjusted, the Supreme Court inter alia has observed as under:

"Under the provisions of the Human Rights Commission Act, 1993, the Chairperson would be one who has been a Chief Justice of the Supreme Court and a Member could be appointed who is or has been a Judge of the Supreme Court and another Member, who is or has been the Chief Justice of the High Court. In the Rules, when the Rule Making Authority provided for a salary to be paid to a member under Rule 3(b), a proviso was inserted for deduction from such salary, the amount of pension other than disability or wound pension, which such Member was in receipt of, in respect of any previous salaries. The intention of the Rule making authority is crystal clear that any pension which a Member has been in receipt of, for the services rendered earlier, has to be deducted from the salary, which under the Rules has been indicated to be equal to the salary of the Judge of the Supreme Court. The contention of the petitioner to the effect that the previous service as Chief Justice of a High Court not being one under the Government of the Union, must be held to be not covered by the proviso, cannot be accepted, reading the rules as a whole. We have, therefore, no hesitation in coming to the conclusion that the proviso to Rule 3(b) would apply to the retired Chief Justice of India or the retired Chief Justice of a High Court and the pension which they are in receipt of, apart from the disability or wound pension, has to be deducted from their salary, which they are entitled to under the Rules. The contention of Mr. Iyer, appearing for the petitioner, on this score, therefore cannot be sustained."

16. One very important aspect from the aforesaid which needs to

be highlighted at this stage is that the Court had referred to

certain constitutional provisions to come to the conclusion that

service rendered by a person as a Judge or Chief Justice of

High Court, which is a constitutional post, is not a service

under the Government of Union or Government, therefore, the

pension received by him as retired a Judge or Chief Justice

could not be deducted from his salary as a Member of National

Human Rights Commission under the proviso to Rule 3(b) of

the National Human Rights Commission Chairperson and

Members (Salaries, Allowances and Other Conditions of

Service) Rules, 1993. An important fall out of this discussion

is that when because of an inbuilt provision in Constitution in

respect of Judges or Chief Justice of High Court it is permissible

to deduct the pension received by such a Judge or Chief Justice

while drawing pay on getting similar appointment, post

retirement, it cannot be said that this kind of provision of

adjustment of pension is un-constitutional. How a provision

like this can be treated as violative of Constitution when

Constitution itself recognizes this kind of scheme while dealing

with cases of High Court Judges or Chief Justice in similar

circumstances.

17. We are also of the opinion that principle of "equal pay for equal

work" would not arise. In case, the petitioner was to serve

wherefrom he is retired, he would have rendered his duties by

getting the same pay. When such a person becomes Chairman

of a Regulatory Authority, which can again be called a post

under the dominion of Union of India, how he can be given the

salary as well as pension in two different accounts thereby

making his pay much more than the pay fixed under the Rules.

Therefore, there is a proper justification and rationale for such

a proviso relating to deduction of pension as the pension is also

drawn from the Government only. The question of

discrimination also does not arise as it is the total emoluments

and moneys drawn by the petitioner which have to be taken

into consideration, viz., pay and pension. Once these two are

added, the emoluments received are not less than that of the

Member of the Regulatory Board. The argument of

discrimination is, thus, fallacious. No doubt, in the case of Lt.

Gen. (Retd.) Dr. M.C. Bhandari (supra), a Division Bench of

Uttarakhand High Court has taken the view that such a

provision would be bad in law as violative of Article 14 and

Article 39(d) of the Constitution of India. The reason given is

that the pension drawn as a result of serving in the Indian

Army in that case was unrelatable service rendered by the

petitioner as Chairman of Uttarakhand Public Service

Commission. However, we find that the said Court did not take

notice of the Apex Court judgment in V.S. Mallimath (supra),

we are in respectful disagreement with that judgment.

18. The result of the aforesaid discussion leads to the conclusion

that these petitions are without any merits, the same are

accordingly dismissed. However, there shall be no orders as to

costs.

ACTING CHIEF JUSTICE

(RAJIV SAHAI ENDLAW) JUDGE February 24, 2012 pmc