Delhi High Court
Sh. Baldev Saran Gumber & Ors. vs Indian Road Construction ... on 7 March, 2013
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 2113/1994
% Reserved on: 27th February, 2013
Pronounced on: 7th March, 2013
SH. BALDEV SARAN GUMBER & ORS. ...... Petitioners
Through: Ms. Maninder Acharya, Adv.
VERSUS
INDIAN ROAD CONSTRUCTION CORPORATION LTD. &ORS.
...... Respondents
Through: Mr. Sanjiv K. Jha, Adv.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J
1. The present writ petition is filed by five petitioners. These five
petitioners joined the respondent no.1-organization M/s Indian Road Construction
Corporation Ltd. as senior accountants. They were thereafter promoted as Deputy
Managers. On being promoted as Deputy Managers, they by means of an order
dated 26.11.1990 got a particular pay-scale. This particular pay-scale was the
result of giving to the petitioners seven advance increments. The respondent no.1,
however, subsequently withdrew the order dated 26.11.1990 by its office orders
dated 11.4.1991 and 23.4.1991. The office orders dated 11.4.1991 and 23.4.1991
W.P.(C) 2113/1994 Page 1 of 20
were passed by the respondent no.1 on the basis of recommendation of a
committee which was appointed to examine the issue as to whether the petitioners'
pay fixation granting seven advance increments was valid or not. The petitioners
claiming that they are entitled to the pay-scale granted in terms of the order dated
26.11.1990, have challenged the office orders dated 11.4.1991 and 23.4.1991, not
only on merits, but also on the ground that they have been passed without
complying the principles of natural justice.
2. The respondent no.1, in response, has raised the following defences:-
(i) The petitioners had claimed seven advance increments on the basis that their
junior one Sh. H.S.Nijhawan had got a particular pay-scale, whereas, the correct
facts are that the said Sh. H.S.Nijhawan was no doubt junior to the petitioners, but
so only in the respondent no.1 organization, and actually, the said Sh.
H.S.Nijhawan had 22 years of service in his earlier organization in which he was
earlier working and from where he had come on deputation to respondent no.1. At
the time of taking of Sh. H.S.Nijhawan on deputation with the respondent no.1 his
earlier pay was specifically protected. It is argued that Sh. H.S.Nijhawan fell in a
class which was different than the petitioners, and therefore, the petitioners cannot
claim equality with Sh. H.S.Nijhawan as if the said Sh. H.S.Nijhawan is junior to
the petitioners. Accordingly, the committee had rightly recommended recall of the
W.P.(C) 2113/1994 Page 2 of 20
order dated 26.11.1990, and which order had granted seven advance increments on
the wrong basis of petitioners being entitled to equality with Sh. H.S.Nijhawan.
(ii) The petitioners have during the pendency of the writ petition taken voluntary
retirements, and which voluntary retirements were taken without reserving any
rights in the petitioners to claim benefits prayed for in the writ petition, and thus
the petitioners are estopped from pursuing the petition.
(iii) Even assuming the issue of voluntary retirements is not considered, yet, the
respondent no.1 had become a sick company, it has closed operations since the
year February, 2000, and therefore, with respect to a company which had become
sick and thereafter had closed its operations, the petitioners cannot claim increase
in scale of pay even assuming they were entitled to the same.
3. Before going on the issue of merits, let me first examine two technical
pleas against the petitioners of their firstly having accepted voluntary retirements
without reserving rights and secondly if the voluntary retirements were without
reserving any rights even then the financial condition of the respondent no.1/PSU,
which has already been ordered to be wound up is such that the petitioners are not
entitled to get the increase in scale of pay which they were asking.
W.P.(C) 2113/1994 Page 3 of 20
4. The respondent no.1, in support of the arguments with respect to the
acceptance of these two technical defences relied upon the two judgments of the
Supreme Court in the cases of A.K.Bindal & Anr. Vs. Union of India & Ors
(2003) 5 SCC 163 and Officers & Supervisors of I.D.P.L Vs. Chairman & M.D.,
I.D.P.L. and Ors. (2003) 6 SCC 490. I would refer to the relevant paragraphs of
these judgments in the later part of this judgment, however, at this stage, it is
necessary to look into the aspect as to whether the petitioners took voluntary
retirements without reserving any rights claimed in the writ petition, and they are
therefore estopped from pursuing the present writ petition.
5. There are five petitioners in the present case namely Sh. Baldev Saran
Gumber, Sh. Martin Soy, Sh. Pritpal Narang, Sh. K.K.Pujyar and Sh.
T.K.Chattopadhya. So far as petitioner nos. 2 and 4 namely Sh. Martin Soy and
Sh. K.K.Pujyar are concerned, there is no controversy that these persons had not
given any letters whereby they had stated that they are seeking voluntary
retirements subject to their rights in the present writ petition. Therefore, having
taken voluntary retirement without specifying in their application that they are
claiming VRS benefits without prejudice to their rights in the present writ petition,
these two petitioners are therefore estopped from pursuing the petition on this
ground itself. Also, even assuming that there was allegedly an application stating
W.P.(C) 2113/1994 Page 4 of 20
that they are taking voluntary retirement benefits yet these two persons will be
estopped because these persons have received the amount of VRS benefits under
the covering letters of the respondent no.1 dated 25.10.2000 and 10.4.2001, which
specifically state that the amount is paid to these two persons in full and final
settlement of their dues on their taking voluntary retirements. These letters have
been duly received by these two petitioners and there is no endorsement on the
letters dated 25.10.2000 and 10.4.2001 that these two petitioners Sh. K.K.Pujyar
and Sh. Martin Soy have not taken their payments in full and final settlement or
have taken it without prejudice to the present Court case. Clearly, therefore, so far
as the petitioner nos. 2 and 4, Sh. Martin Soy and Sh. K.K.Pujyar are concerned,
they are estopped from pursuing the present petition. This is so held in the
judgments of A.K.Bindal (supra) and Officers & Supervisors of I.D.P.L(supra)
cases. The relevant paragraphs of the judgment in the case of A.K.Bindal (supra)
are paras 34 and 35 and which read as under:-
34. This shows that a considerable amount is to be paid to an
employee ex-gratia besides the terminal benefits in case he opts
for voluntary retirement under the Scheme and his option is
accepted. The amount is paid not for doing any work or rendering
any service. It is paid in lieu of the employee himself leaving the
services of the company or the industrial establishment and
foregoing all his claims or rights in the same. It is a package deal of
give and take. That is why in business world it is known as 'Golden
Handshake'. The main purpose of paying this amount is to bring
about a complete cessation of the jural relationship between the
W.P.(C) 2113/1994 Page 5 of 20
employer and the employee. After the amount is paid and the
employee ceases to be under the employment of the company
or the undertaking, he leaves with all his rights and there is no
question of his again agitating for any kind of his past rights,
with his erstwhile employer including making any claim with
regard to enhancement of pay scale for an earlier period. If the
employee is still permitted to raise a grievance regarding
enhancement of pay scale from a retrospective date, even after
he has opted for Voluntary Retirement Scheme and has
accepted the amount paid to him, the whole purpose of
introducing the Scheme would be totally frustrated.
35. The contention that the employees opted for VRS under any
kind of compulsion is not worthy of acceptance. The petitioners
are officers of the two companies and are mature enough to
weigh the pros and cons of the options which were available to
them. They could have waited and pursued their claim for revision
of pay scale without opting for VRS. However they, in their
wisdom thought that in the fact situation VRS was a better option
available and chose the same. After having applied for VRS and
taken the money it is not open to them to contend that they
exercised the option under any kind of compulsion. In view of the
fact that nearly ninety nine per cent of employees have availed of
the VRS Scheme and have left the companies (FCI & HFC), the writ
petition no longer survives and has become infructuous."
(emphasis added)
6. Therefore, the writ petition is liable to be dismissed on the principle of
estoppel so far as petitioner nos. 2 and 4 are concerned.
7. So far as petitioner no. 3 is concerned, the reasoning as given above
with respect to petitioner nos. 2 and 4 will also apply with the variation that though
there is a letter which exists on the record of the respondent no.1, said to have been
given alongwith the typed proforma seeking voluntary retirement, however, in my
W.P.(C) 2113/1994 Page 6 of 20
opinion, the argument urged on behalf of the respondent no.1 is to be accepted that
this letter has been inserted subsequently because the petitioner had no proof of
this letter having been received by any officer of the respondent no.1. Also, in the
record of the respondent no.1 there is no running page numbering found with
respect to the alleged covering letter which was given with the typed proforma
seeking voluntary retirement. Therefore, the petitioner no.3 is also estopped from
pursuing the present writ petition.
8. So far as petitioner no.1 is concerned, in the application seeking
voluntary retirement, there is no dispute that he did seek voluntary retirement
subject to his rights to pursue the present writ petition, however, in the letter by
which the VRS benefits were thereafter received by the petitioner no.1 Sh. Baldev
Saran Gumber, and which is dated 28.6.2001, there is no endorsement of the
petitioner no.1 disputing that the amount received by the petitioner no.1 is not in
full and final settlement as stated in this letter dated 28.6.2001. Therefore,
petitioner no.1 is also estopped from pursuing his writ petition on the ground of
estoppel and having received the VRS benefits in full and final settlement of his
dues especially in view of the ratio of A.K.Bindal's case (supra) given in para 34
of the judgment which is reproduced above.
W.P.(C) 2113/1994 Page 7 of 20
9. The only remaining person is petitioner no.5 who has not taken
voluntary retirement, however, the writ petition so far as he is concerned, would
not be maintainable not only on the ground of lack of financial viability of the
respondent no.1 to grant the monetary benefits but also on disentitlement on merits
to the reliefs, and which aspects are dealt with immediately hereinafter.
10. As per the facts of the present case, what the petitioners claim is an
entitlement to monetary benefits on the ground that one of their juniors Sh.
H.S.Nijhawan has been given a higher scale of pay and therefore, the petitioners
are entitled to a higher scale of pay. Let us for the sake of argument accept that the
petitioners are getting a lower scale of pay than their junior, though that is not true
as will be dealt with in the later part of this judgment. The issue is that can still the
petitioners seek a higher pay-scale from the respondent no.1 company which after
being in financial doldrums has been forced to close down its business way back in
February, 2000? The aspect of monetary liability of sick PSUs on account of
entitlement of employees to claim higher pay-scales has been dealt with by the
Supreme Court in the case of Officers & Supervisors of I.D.P.L(supra) and paras
4,7,8,11, 13, 17, 18 and 19 of this judgment are relevant and which read as under:-
" 4. With the above contentions, the petitioners filed the above
writ petition with the following prayers:
W.P.(C) 2113/1994 Page 8 of 20
(a) direct the respondents to revise scales of pay of the
petitioners w.e.f.1-1-1996 and pay the arrears immediately.
(b) direct the respondents to pay three instalments of
interim relief w.e.f. the dates the payment become due.
7. In the above background, the question which arises for
consideration is whether the employees of public sector
enterprises have any legal right to claim revision of wages that
though the industrial undertakings or the companies in which
they are working did not have the financial capacity to grant
revision in pay-scale, yet the Government should give financial
support to meet the additional expenditure incurred in that
regard.
8. We have carefully gone through the pleadings, the Annexures
filed by both sides and the orders passed by the BIFR and the
judgments cited by the counsel appearing on either side. Learned
counsel for the contesting respondent drew our attention to a
recent judgment of this Court in A.K. Bindal and Anr. v. Union of
India and Ors. in support of her contention. We have perused the
said judgment. In our opinion, since the employees of government
companies are not government servants, they have absolutely no
legal right to claim that the Government should pay their salary or
that the additional expenditure incurred on account of revision of
their pay-scales should be met by the Government. Being
employees of the companies, it is the responsibility of the
companies to pay them salary and if the company is sustaining
losses continuously over a period and does not have the financial
capacity to revise or enhance the pay-scale, the petitioners, in our
view, cannot claim any legal right to ask for a direction to the
Central Government to meet the additional expenditure which
may be incurred on account of revision of pay-scales. We are
unable to countenance the submission made by Mr. Sanghi that
economic viability of the industrial unit or the financial capacity of
the employer cannot be taken into consideration in the matter of
revision of pay-scales of the employees.
W.P.(C) 2113/1994 Page 9 of 20
............
11. In our view, the economic capability of the employer also
plays a crucial part in it; as also its capacity to expand business or
earn more profits. The contention of Mr. Sanghi, if accepted, that
granting higher remuneration and emoluments and revision of
pay to workers in other governmental undertakings and,
therefore, the petitioners are also entitled for the grant of pay
revision may, in our opinion, only lead to undesirable results.
Enough material was placed on record before us by the
respondents which clearly show that the first respondent had
been suffering heavy losses for the last many years. In such a
situation the petitioners, in our opinion, cannot legitimately claim
that their pay-scales should necessarily be revised and enhanced
even though the organization in which they are working are
making continuous losses and are deeply in the red. As could be
seen from the counter affidavit, the first respondent company
which is engaged in the manufacture of medicines became sick
industrial company for various reasons and was declared as such
by the BIFR and the revival package which was formulated and
later approved by the BIFR for implementation could not also be
given effect to and that the modifications recommended by the
Government of India to the BIFR in the existing revival package
was ordered to be examined by an operating agency and, in fact,
IDBI was appointed as an operating agency under Section 17(3) of
SICA. It is also not in dispute that the production activities had to
be stopped in the major two units of the company at Rishikesh
and Hyderabad w.e.f. October, 1996 and the losses and liabilities
are increasing every month and that the payment of three
installments of interim relief could not also be made due to the
threat of industrial unrest and the wage revision in respect of
other employees is also due w.e.f. 1992 which has also not been
sanctioned by the Government of India.
............
13. We have already reproduced the directions passed by this
Court in Jute Corporation of India Officers' Association (supra).
However, after the said judgment in which conditional directions
were issued, as is apparent, the Central Government vide its O.M.
dated 19.07.1995 decided as follows:-
"13. For SICK, PSC registered with the BIFR pay revision
and grant of other benefits will be allowed only if it is decided
to revive the unit. The revival package should include the
enhanced liability on this account. The benefit of pay revision
etc. shall be extended to IISCO and financial liability thereof
shall be met by SAIL."
.............
17. In A.K. Bindal (supra), this Court specifically held that the
economic viability or the financial capacity of the employer is an
important factor which cannot be ignored while fixing the wage
structure, otherwise the unit itself may not be able to function
and may have to close down which will inevitably have disastrous
consequences for the employees themselves. The Court also
negatived other contentions raised by the employees and
referred to and relied upon the fact that the Company was a sick
unit. Facts in the present case are similar.
18. Further, directions issued in Jute Corporation of India Officers'
Association (supra) would have no bearing in the present case as
the Scheme under the SICA has failed to revive the Company.
When the Company cannot be revived because of large losses,
there is no question of enhancing scales of pay and dearness
allowances. Direction No. (ii) issued in that case indicates that the
employees appointed on or after January 1, 1989 will be governed
by such pay scales and allowances as may be decided by the
Government in its discretion. If the company itself is dying, the
Government has discretion not to grant enhanced pay scales or
dearness allowances and for the same reason Direction No. (i)
cannot be implemented.
19. Since this Court has already decided the very issue in question
and the petitioners have opted for VRS, nothing survives in this
petition and the same is liable to be dismissed. The petitioners
having applied for VRS, it is not open to them to contend that
they are entitled to pay revision. (underlining added).
11. The emphasized portions of the aforesaid paragraphs of the judgment
in I.D.P.L (supra) case shows that economic viability and financial capacity of the
employer is an important factor which cannot be ignored while fixing the wage
structure and revision of pay-scales, and upward revision cannot be done when a
PSU has been suffering heavy losses for many years. It has further been observed
that the responsibility to pay salaries to the employees of PSUs is of the PSUs
themselves and not of the Central Government which is not bound to give moneys
to PSUs to clear the monetary liabilities of the PSUs to be created on account of
enhancement of salaries. Further the Supreme Court has categorically observed
that where units have already suspended their operations, then, employees cannot
claim entitlement for revision and enhancement of the pay-scales, more so once the
companies are making continuous losses and are deeply in red.
12. It is undisputed in the present case that the respondent No. 1 suffered
grave losses and it is in the process of being wound up. The business of the
company has been closed since over about last 12 years i.e since February, 2000.
The aforesaid ratio of the Supreme Court judgment therefore squarely applies to
the present case that there cannot be grant of monetary benefits to employees
including, by promotion, totally overlooking the financial condition of the sick
PSUs.
13. Learned counsel for the petitioner has sought to distinguish the
judgment in I.D.P.L.'s case (supra) by referring to para 5 of the judgment,
wherein the argument on behalf of sick company was referred to, that the
petitioners in that case agreed to revival package by giving written undertaking
sacrificing various facilities and agreed for the deferment of wage revision for a
period of four years, and it is argued that since in the present case no undertakings
have been given by the petitioners, therefore, the judgment in I.D.P.L's case
(supra) will have no application so far as the present petition is concerned.
In my opinion, this argument is misconceived because in the operative
portion of the judgment from paras 7 to 19 there is no conclusion given for denying
the relief to the employees on the ground of their undertakings and the denial of
reliefs is on the ground of lack of financial viability. The Supreme Court has
independently on both the grounds of the employees taking VRS and also of
financial incapacity of a sick PSU to pay dues, denied the monetary benefits of
pay-scale revision which was claimed by the employees. The Supreme Court
made it clear that the directions of the earlier judgment of the Supreme Court in the
case of Jute Corporation of India Officers' Association Vs. Jute Corporation of
India Ltd. & Anr., 1990 (3) SCC 436 would not apply to sick PSUs.
14. The Supreme Court in the case of A.K.Bindal (supra) has also
similarly held and the relevant paras of this judgment are paras 22, 34 and 35.
Paras 34 and 35 have already been quoted above. Para 22 reads as under:-
"22. In South Malabar Gramin Bank v. Coordination Committee of
South Malabar Gramin Bank Employees' Union and South Malabar
Gramin Bank Officers' Federation and Ors., (2001)ILLJ743SC ,
relied upon by the learned counsel for the petitioners, the Central
Government had referred the dispute regarding the pay structure
of the employees of the Bank to the Chairman of the National
Industrial Tribunal headed by a former Chief Justice of High Court.
The Tribunal after consideration of the material placed before it
held that the officers and employees of the Regional Rural Banks
will be entitled to claim parity with the officers and other
employees of the sponsor banks in the matter of pay scale,
allowance and other benefits. The employees of nationalised
commercial banks were getting their pay scales on the basis of 5th
bipartite settlement and by implementation of the award of the
National Industrial Tribunal, the employees of the Regional Rural
Banks were also given the benefits of the same settlement.
Subsequently, the pay structures of the employees of nationalised
commercial banks were further revised by 6th and 7th bipartite
settlements but the same was not done for the employees of the
Regional Rural Banks who then filed writ petitions. It was
contended on behalf of the Union of India and also the Banks that
financial condition of the Regional Rural Banks was not such that
they may give their employees the pay structure of the employees
of the nationalised commercial banks. It was in these
circumstances that this Court observed that the decision of the
National Industrial Tribunal in the form of an award having been
implemented by the Central Government, it would not be
permissible for the employer bank or the Union of India to take
such a plea in the proceedings before the Court. The other case
namely All India Regional Rural Bank Officers Federation and Ors.
v. Government of India and Ors. (2002)IILLJ527SC arose out of
interlocutory applications and contempt petitions which were
filed for implementation of the direction issued in the earlier case
namely South Malabar Gramin Bank (supra). Any observation in
these two cases to the effect that the financial capacity of the
employer cannot be held to be a germane consideration for
determination of the wage structure of the employees must,
therefore, be confined to the facts of the aforesaid case and
cannot be held to be of general application in all situations. In
Associate Banks Officers' Association v. State Bank of India and
Ors., (1998)1SCC428 it was observed that many ingredients go
into the shaping of the wage structure of any organisation which
may have been shaped by negotiated settlements with
employees' unions or through industrial adjudication or with the
help of expert committees. The economic capability of the
employer also plays a crucial part in it; as also its capacity to
expand business or earn more profits. It was also held that a
simplistic approach, granting higher remuneration to workers in
one organisation because another organisation had granted them,
may lead to undesirable results and the application of the
doctrine would be fraught with danger and may seriously affect
the efficiency and at times, even the functioning of the
organisation. therefore, it appears to be the consistent view of
this Court that the economic viability or the financial capacity of
the employer is an important factor which cannot be ignored
while fixing the wage structure, otherwise the unit itself may not
be able to (sic) and may have to close down which will inevitably
have disastrous consequences for the employees themselves. The
material on record clearly shows that both FCI and HFC had been
suffering heavy losses for the last many years and the
Government had been giving considerable amount for meeting
the expenses of the organisation. In such a situation, the
employees cannot legitimately claim that their pay scales should
necessarily be revised and enhanced even though the
organisations in which they are working are making continuous
losses and are deeply in red." (emphasis added).
A reference to these paras of A.K. Bindal's case (supra) shows that similar
observations have been made on the economic viability of PSUs for denial of
monetary benefits, as have been made in the case of IDPL (supra). Also, in
paragraph 34 of the judgment in A.K.Bindal (supra) quoted above, it is specifically
observed that as per "golden handshake" on taking VRS by an employee, the jural
relationship between the employer and the employee ceases, and the employee
leaves with all rights and there is no question of his again agitating for any grant of
his past rights with his erstwhile employer including making any claim with regard
to enhancement of pay-scale for an earlier period. The Supreme Court has
observed, and indeed forcefully, that an employee if is allowed to raise a grievance
regarding enhancement of pay-scale even after opting and taking voluntary
retirement benefits, then the whole purpose of introducing the VRS scheme would
stand totally frustrated.
15. Learned counsel for the petitioner once again sought to distinguish the
judgment in the case of A.K.Bindal (supra) by referring to para 33 on the ground
that the employees in that case had received voluntary retirements in addition to
terminal benefits and the employees there had received adequate compensation in
the scheme of VRS and which is a ground to distinguish application of VRS in
A.K.Bindal's case (supra). Para 33 relied upon by the counsel for the petitioner
reads as under:-
"33. The Voluntary Retirement Scheme (VRS) which is
sometimes called Voluntary Seperation Scheme (VSS) is introduced
by companies and industrial establishments in order to reduce the
surplus staff and to bring in financial efficiency. The office
memorandum dated 5-5-2000 issued by the Government of India
provided that for sick and unviable units, the VRS package of the
Department of Heavy Industry will be adopted. Under this Scheme
and employs is entitled to an ex gratia payment equivalent to 45 days'
emoluments (pay+DA) for each completed year of service or the
monthly emoluments at the time of retirement multiplied by the
balance months of service left before the normal date of retirement,
whichever is less. This is in addition to terminal benefits. The
Government was conscious about the fact that the pay scales of some
of the PSUs had not been revised with effect from 1-1-1992 and
therefore it has provided adequate compensation in this regard in the
second VRS which was announced for all Central public sector
undertakings on 6-11-2001. Clause (a) of the Scheme reads as under:-
(a) Ex gratia payment in respect of employees on pay scales
at 1-1-1987 and 1-1-1992 levels, computed on their existing pay
scales in accordance with the extant Scheme, shall be increased by
100% and 50% respectively."
16. I have really failed to understand that how para 33 in any manner can
be said to be relevant inasmuch as the ratio laid down in the said case pertaining to
estoppel after taking the VRS benefits and also with respect to disentitlement of
employees of sick PSUs to claim monetary benefits are applicable independently
of the observations in para 33 of the said judgment, and so also the ratio of golden
handshake and estoppels against an ex-employee. Therefore, I do not think that
para 33 of the judgment in the case of A.K.Bindal (supra) can have any bearing for
any application of the said case for dismissing the claim of the petitioners in the
present case. Rationale and ratio of disentitlement of employees of sick PSUs
which are stated in the judgments in A.K.Bindal (supra) and I.D.P.L (supra)
cases, are in themselves sufficient grounds to dismiss the writ petition qua
petitioner no.5 who has not applied for VRS but has left the respondent no.1-
organization and joined another company.
17. So far as the facts of the case and the first argument of disentitlement
of the petitioners to claim the relief also on merits is concerned, in my opinion, the
arguments raised on behalf of the respondent no.1 are sound and have to be
accepted. Admittedly, the only ground urged for the petitioners to seek recall of
the office orders dated 11.4.1991 and 23.4.1991 and to restore the office order
dated 26.11.1990 is that the petitioners have been discriminated against as
compared to one Sh. H.S.Nijhawan. In this regard, the respondent no.1 has stated
in its counter-affidavit that Sh. H.S.Nijhawan had been absorbed by the respondent
no.1 on deputation from the Government of India and since he had prior 22 years
of his service to his credit at the entry point to the respondent no.1-corporation, his
existing/earlier pay-scale was protected at the time of the joining of Sh.
H.S.Nijhawan with the respondent no.1. All these aspects, as has been rightly
pointed out by the respondent no.1, were duly considered by the committee which
accordingly held that the petitioners have wrongly been granted the seven
increments for Deputy Managers, and the committee therefore gave its report after
due deliberations and withdrawing of the wrong increments taken by the
petitioners.
18. In my opinion, thus there cannot be challenge to this committee report
dated 2.4.1991 which recommended as under:-
"RECOMMENDATIONS
Based on the findings, the Committee has the following recommendations:
(i) Pay fixation/grant of 7 premature advance increments to five DMs is
void ab-initio;
(ii) The pay fixation of five DMs should be re examined and done de-
novo strictly in accordance with the rules stipulated in DPE letter dated
12.6.90.
(iii) Necessary recoveries in respect of excess payment made, if any, be
affected."
19. Therefore, even on merits, the petitioners have no case for recalling of
the office order dated 11.4.1991 and 23.4.1991 and for restoring of the order dated
26.11.1990 inasmuch as the case of Sh. H.S.Nijhawan quite clearly fell in a
separate category because on account of his experience of 22 years prior to joining
the respondent no.1-corporation, his existing pay-scale was protected by the
respondent no.1.
20. The aforesaid facts thus show that the extraordinary jurisdiction of
this Court under Article 226 of Constitution of India cannot and ought not to be
exercised in favour of the petitioners.
21. In view of the above, there is no merit in the petition, which is
accordingly dismissed, leaving the parties to bear their own costs.
MARCH 07, 2013 VALMIKI J. MEHTA, J.
ib
