The Secretary, India Council Of ... vs Dharam Singh And Anr
2012 Latest Caselaw 3396 Del

         THE HIGH COURT OF DELHI AT NEW DELHI
%                                       Judgment delivered on: 21.05.2012

+       W.P.(C) 2975/2012

INDIAN COUNCIL OF AGRICULTURAL
RESEARCH AND ANR                                                ... Petitioner

                                           versus

RAM BILAS MEHTO AND ORS                                         ... Respondent

                                           AND

+       W.P.(C) 3030/2012

THE SECRETARY, INDIA COUNCIL OF
AGRICULTURAL RESEARCH AND ANR                                   ... Petitioner

                                           versus

DHARAM SINGH AND ANR                                            ... Respondent
Advocates who appeared in this case:
For the Petitioner               : Mr B. S. Mor
For the Respondents              : Mr V. S. R. Krishna

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE V.K. JAIN

                                      JUDGMENT

BADAR DURREZ AHMED, J (ORAL) CAV 516/2012 in WP(C) 2975/2012 The learned counsel for the caveators/ respondents is present. The caveat stands discharged.

WP(C) 2975/2012 & CM 6422/2012 and WP(C) 3030/2012 & CM 6542/2012

1. These writ petitions are directed against the common order dated

04.11.2011 passed by the Central Administrative Tribunal, Principal Bench,

New Delhi in OA Nos. 4094/2010 & 4096/2010. As a result, we are

disposing of the said writ petitions by a common order and / or judgment.

2. The respondents in both the petitions had initially been appointed as

T-1/ Fieldman in Category - I with the petitioners. Subsequently they were

promoted to the Grades of T-2 and T-1-3, all within Category - I. They

were in the Grade of T-1-3 with effect from 01.01.1994. At that point of

time, they were governed by the Technical Service Rules which were

existing and which we shall now designate as the Old Technical Service

Rules. In the year 2000, to be precise, on 03.02.2000, New Technical

Service Rules were brought into force by the petitioners. At that point of

time, a circular No. 18-1/97.Estt/V dated 03.02.2000 was issued by the

Indian Council of Agricultural Research (ICAR). Paragraph 2 of the said

circular carried the details with regard to the changes made in the existing

(Old) Technical Service Rules. Paragraph 3 of the said circular dated

03.02.2000 made it clear that the modifications, as set out in the aforesaid

paragraph 2, would take effect from the date of issuance of the notification.

More importantly, the said paragraph provided, inter alia, as under:-

"Any existing technical employees who may like to be governed only as per the existing technical service rules may do so by specifically exercising an individual option in writing to the Director of the Institute within a period of 30 days from the date of issue of this notification. Option once exercised shall be irrevocable and final."

3. Two of the respondents in the said writ petitions, namely, Dharam

Singh and Khushi Ram exercised the option for being governed by the New

Technical Service Rules. However, the other respondents did not indicate

any option. It is apparent that, by default, they would be governed by the

New Technical Service Rules as is evident from a plain reading of the

above extracted portion of paragraph 3 of the circular dated 03.02.2000.

Thereafter, in the year 2000 itself, the said respondents were promoted to

T-3 in Category - II with effect from 03.02.000, that is, the date on which

the New Technical Service Rules came into operation. Subsequently also,

on 03.02.2005, the respondents were promoted to T-4, which was also in

Category - II. Thus, it is clear that the respondents had taken the benefit of

the New Technical Service Rules after they came into operation in the year

2000 and thereby got two promotions from T-1-3 in Category - I to T-3 in

Category - II and from T-3 in Category - II to T-4 in Category - II.

4. Thereafter, in the year 2006, on account of requests for fresh options

from all quarters, by virtue of a circular dated 19.10.2006, ICAR decided to

allow an opportunity of exercising a fresh option to the employees with

regard to their choice of being governed by the Old Technical Service

Rules or the New Technical Service Rules. A similar circular was also

issued by Indian Agricultural Research Institute (IARI) on 14.11.2006 with

reference to the ICAR circular of 19.10.2006. It is an admitted position that

IARI is one of the institutes of ICAR.

5. In the said circular of 19.10.2006 issued by ICAR, while it has been

pointed out that the New Technical Service Rules are the ones that were

introduced on 03.02.2000, it had not been made clear that those persons,

who exercised the option in the year 2006, would be dealt with

retrospectively, with effect from 03.02.2000 under the New Technical

Service Rules.

6. The respondents were under the impression that on their exercising

the fresh option which was offered to them in the year 2006, the same

would be effective prospectively from 2006 and would not affect their

earlier promotions which had taken place during 2000 to 2006 under the

New Technical Service Rules. It was also contended on behalf of the

respondents that the circular of 2006 did not give any indication that the

effective date of applying the new option would be from 03.02.2000,

retrospectively.

7. In any event, the respondents exercised their option for being

governed under the Old Technical Service Rules. The position continued

till 2010. The respondents continued to work in the higher posts of T-4 in

Category - II. However, after four years, that is, in 2010, the promotions

granted to them in 2000 and 2005 were sought to be withdrawn. Individual

orders of withdrawal were issued to the respondents. Being aggrieved by

the same, they filed the said Original Applications before the Tribunal. By

virtue of the impugned order dated 04.11.2011, the Tribunal allowed the

Original Applications and set aside the orders of withdrawal, meaning

thereby that the respondents would continue in their position at T-4 in

Category - II but they would be governed by the Old Technical Service

Rules with effect from 2006 onwards.

8. We are in agreement with the view taken by the Tribunal. It is

abundantly clear that during the period 2000 to 2006, all the respondents,

whether by a specific option or by default, were governed by the New

Technical Service Rules. It is under those rules, which were operational

during that period, that the respondents got their two promotions to T-3 and

T-4 Grades. However, for whatever reason, the petitioners issued circulars

in 2006 requiring the respondents and other employees to exercise their

option as to whether they would like to be governed by the Old Technical

Service Rules or by the New Technical Service Rules. This time round, all

the respondents opted for the Old Technical Service Rules. They were

under the impression that the option would take effect prospectively, that is,

from 2006 onwards. This impression of theirs was further fortified by the

fact that the petitioners allowed them to continue in their position at T-4 in

Category - II for four years. It is only in 2010 that the petitioners issued

the withdrawal orders whereby the promotions granted to the respondents

under the New Technical Service Rules, were withdrawn. It is, of course,

necessary to point out that the withdrawal orders were issued after show

cause notices had been issued to the respondents and their replies had been

received.

9. Be that as it may, the fact remains that by virtue of the withdrawal

orders, the respondents would be reverted back to the Grade of T-1-3 in

Category - I, which they had acquired in 1994. It would mean that the

clock would be set back to just prior to 03.02.2000, when, under the New

Technical Service Rules, they were promoted to the Grade of T-3 in

Category - II. Apart from being unfair, unjust and unreasonable, the

position adopted by the petitioners is also untenable in law. This is so

because the petitioners did not indicate to the respondents in 2006 that if

they were to exercise the option for the Old Technical Service Rules, then

their previous promotions under the New Technical Service Rules would be

washed away and they would be reverted to their original positions in the

Grade of T-1-3 in Category - I. It is, therefore, clear that since there was

no indication that the option of 2006 was to operate retrospectively, the said

option exercised by the respondent in 2006 would, in law, only take

prospective effect, that is, from 2006 onwards.

10. The learned counsel for the petitioner had also submitted that the

respondents, having once exercised the option, ought to be governed by the

same. He submitted that the options were given to all the employees and,

therefore, they were bound by the same although, as a result, some would

be gainers and some would be losers. We are, however, not concerned with

the question of who would gain or who would lose, but with the question as

to what would be the date from which the circular of 2006 is to take effect.

There is no indication in the circular that the option exercised in 2006

would operate retrospectively. The understanding of the respondents was

that the options exercised by them in 2006 would operate prospectively.

And, there is nothing unreasonable in such an understanding. As indicated

above, the conduct of the petitioners indicates that their understanding also

was that the options were to operate prospectively. There is no merit in the

argument raised by the learned counsel for the petitioner.

11. In view of the foregoing, we accept the view taken by the Tribunal.

There is no merit in the writ petitions. The same are dismissed. There shall

be no order as to costs.

BADAR DURREZ AHMED, J

V.K. JAIN, J MAY 21, 2012 SR