Delhi High Court
O.P.Maurya vs The Secretary Ministry Of Lab & ... on 28 April, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 2597/2014
% Date of Decision: 28th April, 2014
O.P.MAURYA ..... Petitioner
Through : Petitioner in person.
versus
THE SECRETARY MINISTRY OF LAB & EMP. & ORS.
..... Respondents
Through : Mr.Mukesh Kumar Tiwari,
Advocate
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MS. JUSTICE DEEPA SHARMA
DEEPA SHARMA, J.
1. We have dismissed the writ petition by a separate order
passed today. We now record the reasons for doing so.
2. The petitioner retired as Joint Director of Employment
Exchanges (JDX) on his superannuation on 31st January, 2003 in
the pay scale of Rs.10,000 - 15,200.
3. Subsequently to his retirement vide office order dated 6 th
May, 2003 the post of Joint Director of Employment Exchanges in
Employment Directorate in the Directorate General of Employment
& Training under Ministry of Labour, as a result of restructuring,
W.P.(C) No.2597/2014 Page 1 of 17
was put in the pay scale of Rs.12000 - 16,500.
4. The petitioner has claimed that the revised pay scale of
Rs.12000-16500/- from the date he had started working as Joint
Director.
5. The brief facts and the history of case which are necessary
for disposal of the present writ petition are narrated as under:
6. The petitioner joined on promotion the services as Deputy
Director of Employment Exchanges (DDX) on ad-hoc basis in the
pay scale of Rs.1100 to 1600 on 17th June, 1982. He was
regularised with effect from 8th October, 1987. He joined as Joint
Director on officiating basis in the pay scale of Rs.3000 - 5000/-
and work till 30th June, 1995. He joined JDX on promotion of ad-
hoc basis in the pay scale of Rs.10000 to 15200 with effect from 1 st
September, 1998. At that time he was working at the same pay
scale as DDX. After his retirement vide his representation dated
28th January, 2004 he made a representation to the department,
demanding fixation of his official pay for the post of Joint Director
of Employment Exchanges in terms of Clause (l) (a) (i) of FR 22
from the date of his promotion to the said post that is with effect
W.P.(C) No.2597/2014 Page 2 of 17
from 1st September, 1998 till his retirement i.e. 31st January, 2003.
He also made the representation that office order dated 6th May,
2003 by which the post of Joint Directors of Employment
Exchange in DGE&T had been restructured and placed in the pay
scale of Rs.12000 to 16500 be given retrospective effect and he be
given pay scale of Rs.12000 to 16500/- from 1st September, 1998,
the date he joined the post of Joint Director. His representation
was dismissed by the department vide office order dated 20th April,
2006. The petitioner challenged the said order of the department by
way of O.A.No.2187/2006 under Section 19 of the Central
Administrative Tribunal Act, 1985 before the Principal Bench.
Vide order dated 10th May, 2007, the Tribunal allowed the
application filed by the petitioner and directed the respondent to
examine the case of the petitioner for grant of revised pay scale of
Rs.12000 to 16500/- and pass a speaking order in the said record.
The relevant portion of the said order is reproduced as under:
"6. As applicant, while functioning for than 14 years,
the requisite eligibility period on the post of Joint
Director, had been appointed on ad hoc basis w.e.f.
01.09.1998, the aforesaid was continued from time to
time till 31.01.2003. Applicant preferred several
representations to either regularize his services in Joint
W.P.(C) No.2597/2014 Page 3 of 17
Director or to consider him for Joint Director in
accordance with law.
7. The only impediment for such a consideration is
the anomaly created by revising the pay scale, whereby
feeder category of Deputy Director and erstwhile post
of Joint Director have come into identical pay scale.
However, this anomaly was corrected and has been
given effect to. The approval was sought in April 2003
by the time applicant had retired on
superannuation.....We find that non-consideration of
the applicant for promotion on regular basis despite he
had continued uninterruptedly on approval of the
President on ad-hoc basis as Joint Director has
prejudiced his right to get pension of a substantive post
of Joint Director. This omission has taken place without
any fault of the respondent and is squarely imputed to
the inordinate delay on part of the respondents.
Applicant should not suffer for the mistake of the
Government. This may be on account of anomaly
created at their behest on equating the feeder cadre in
the same pay scale. However, when an administrative
order is approved by the Government, no decision is
taken either to operate it prospectively or
retrospectively. However, taking harmonious
construction a welfare piece of decision, we could rule
that such a proposal would extend retrospectively even
to the persons who had held the post on ad hoc basis.
However, this is within the domain of the Government
and prerogative to be considered in the interest of the
employee and also in the wake of the fact that the
rightful-claim of employee should not be deprived of on
the ipsi dixit of the authorities.
8. In the result, for the foregoing reasons, OA is
disposed of taking cue from the decision of the Apex
Court in Ram Sewak Prasad (supra) directing the
respondents to take a decision to grant the revised pay
scale to the applicant from 01.09.1998 when it was due
to him till 31.1.2003, i.e. when he retired on
W.P.(C) No.2597/2014 Page 4 of 17
superannuation...."
7. In compliance of the said directions of the Central
Administrative Tribunal, the department passed a speaking order
dated 24th August, 2007 and rejected the claim of the petitioner for
fixation of his salary in the pay scale of Rs.12000 - 16500/- with
effect from 1st September, 1998 and also to fix the initial pay of the
respondent in the post of Joint Director of Employment Exchanges
in term of clause (l) (a) (i) of FR 22. The relevant portion of the
order passed by the department reads as under:
"3. Whereas this recommendation of the Vth CPC
had created an anomalous situation and therefore
Dr.Maurya represented for considering his case for
giving him benefit of pay fixation under FR 22(1)(a)(i)
from the date of his promotion to the post of JDX on
ad-hoc basis w.e.f. 01.09.98. The Govt. did not agree to
grant him the benefit under FR 22(1)(a)(i) and advised
the Department to appropriately restructure the cadre
in terms of the Ministry of Finance instruction dated
24.11.2000.
4. Whereas this department took up the matter with
the Ministry of Finance for upgradation of the pay
scales of Joint Director of Employment Exchanges. The
Ministry of Finance did not agree to the proposal of
upgradation but agreed for restructuring the post of
Joint Director of Employment Exchanges in the scale of
Rs.12,000-16,500/- by merging the post of Additional
Director of Employment Exchanges and abolition of
one post of Deputy Director of Employment Exchanges
W.P.(C) No.2597/2014 Page 5 of 17
(being matching savings). Accordingly, the
restructuring orders were given prospective effect from
06.06.2003.
.....
6. Therefore, in compliance of the above orders of
the CAT, upon considering all the above facts &
circumstances of the case, the following decisions are
conveyed:-
I. After the recommendations of the Vth CPC the
scales of DDX and JDX has been merged. This resulted
in a situation where the promotional post and feeder
grade were in the same grade. At that time, efforts were
made to remedy this situation in consultation with the
Ministry of Finance. During this process, Dr.Maurya
was granted ad-hoc promotion from DDX to JDX due
to the reason that the proposal for up gradation of
three posts of JDX was under consideration of the
Ministry of Finance and also to save the post from
coming under the purview of general economy ban.
Dr.Maurya was not given any benefit as the pay scales
for both the posts has been placed in the same scale on
the recommendation of the Vth CPC. Since cadre
restructuring of the posts of JDX, by merging the post
of Additional Director of Employment Exchanges and
abolishing of one post of Deputy Director of
Employment Exchanges has taken prospective effect
w.e.f. 06.05.2003 hence there is no ground for grant of
revised pay scale of Rs.12,000 - 16,500/- to Dr.Maurya
retrospectively w.e.f. 01.09.1998 till 31.1.2003.
II. Since there was only a marginal difference
between the pre-revised scale of Rs.3000-4500 and
Rs.3000-5000 and therefore their merger after Vth
CPC to one common scale of Rs.10,000-15,2000/-
would connote that the duties and responsibilities of
both the posts would be on the same footing.
Accordingly, there is no ground/merit for grant of
benefit of pay fixation under FR 22(1)(a)(i)."
W.P.(C) No.2597/2014 Page 6 of 17
8. The petitioner challenged the said order of the department
and filed contempt petition before the Tribunal. His plea was that
the denial of grant of the revised pay scale of Rs.12000- 16500 by
the respondent vide its order dated 24th August, 2007, amounts to
violation of the directions of the Tribunal vide its order dated 10th
May, 2007. The Tribunal, however, dismissed the contempt
petition of the petitioner vide its order dated 13th December, 2007
holding that the only direction issued by the Tribunal vide its order
dated 10th May, 2007 to the Department ,was to consider the case
of the respondent for grant of revised pay scale and pass a speaking
order in that regard.
9. The petitioner filed another application under Section 19 of
the Administrative Tribunal Act, 1985 before the Tribunal which
was registered as O.A.No.2002/2008 challenging the order of the
Tribunal whereby the relief to the petitioner was denied. Vide
order dated 25th March, 2009, the Tribunal allowed the O.A. of the
petitioner. The relevant portion of the order reads as under:
"8. We have heard both the learned counsels and
also perused the materials on record.
9.1 Since various aspects of this issue have already
been elaborated in the earlier order of the Tribunal in
W.P.(C) No.2597/2014 Page 7 of 17
OA 2187/2006, it would not be necessary for us to go
over them again. Suffice it is to say that the fact of an
anomaly having been created by grant of the same
revised pay scale, after the 5th CPC, to the feeder post
of DDX and the promotional post of JDX is admitted by
the respondents. They have also sought to remedy the
anomalous situation by the decision of restructuring
under which, out of the three existing posts of Joint
Directors, one was abolished and the remaining ones
were merged in the Additional Director's higher pay
scale of Rs.12000-16500/-.
9.2 The claim of the applicant to be promoted
against this post is not disputed by the respondents. The
order of the Tribunal dated 10.5.2007 mentions in
para-6 about the applicant while functioning for more
than 14 years, and having the requisite eligibility
period on the post of Joint Director being appointed on
ad hoc basis against that post. Para-7 of this order also
mentions that this had been done with the approval of
the President and the applicant had continued against
this post uninterruptedly till his superannuation.
9.3 The department's proposal for regular promotion
of the applicant against this post was not concurred
with by the UPSC on the ground that after the 5 th CPC,
both the DDX and JDX posts carry the same pay scale.
It is however, surprising that despite the restructuring
was decided, they left out of consideration the
legitimate claims of the persons who had been working
against this post on a scale admittedly not justified
since 1998. We also find no apparent justification as to
why the department did not choose to take up the case
with the Ministry of Finance as also with the UPSC in
order to see that justice was done to the applicant.
....
11. To conclude, we find it to be an appropriate case
warranting judicial intervention. The OA is allowed,
the impugned order dated 24.8.2007 is quashed and set
aside. The respondents are directed to grant the
W.P.(C) No.2597/2014 Page 8 of 17
applicant the revised pay scale of Rs.12000-16500 from
the date he was promoted on ad hoc basis with all
consequential benefits including re-fixation of pay as
per Rule FR22(1)(a)(i) by adopting appropriate
methodology. We also direct for revision of the retiral
benefits of the applicant consequently...." (Emphasis
Supplied)
10. The department i.e. the respondent before this court
challenged the impugned order dated 25th March, 2009 by way of
Writ Petition (Civil) No.10935/2009. After taking into
consideration all the facts and the various orders passed in the case
of the petitioner, this court had passed an order dated 22nd
December 2010, relevant paragraph of the same is reproduced as
under:
"17. From the afore-noted conspectus of facts, it is clear
that that the two questions arise for consideration in the
present case namely, (i) whether the initial pay of the
respondent in the post of Joint Director of Employment
Exchanges was required to be fixed in terms of clause
I)(a)(i) of FR 22; and (ii) whether the department was
justified in not giving retrospective effect to the order
issued by it for restructuring of the posts."
11. This court gave its finding on question no.1 whereby the
relief to the petitioner for fixation of pay as per clause (l) (a) (i) of
FR 22 was rejected. Relevant paragraph is reproduced as under:
"23. In the instant case, the posts of Deputy Director of
W.P.(C) No.2597/2014 Page 9 of 17
Employment Exchanges and Joint Director of
Employment Exchanges were having the same scales of
pay after the implementation of the recommendation of
the Fifth Pay Commission and that the respondent was
promoted to the post of Joint Director of Employment
Exchanges after the implementation of the said
recommendations. Therefore, by virtue of clause (III) of
FR 22, clause (I)(a)(i) of FR 22 has no application in the
present case and thus the department was not required to
fix the initial pay of the respondent in the post of Joint
Director of Employment Exchanges in terms of clause
(I)(a)(i) of FR 22."
12. As regards question no.2 i.e. denying the benefit of re-
structuring restricting of the post with retrospective effect, this
court had issued the following directions:
"25. In such circumstances, we have no option but to
remand the present case to the Tribunal for deciding
the question whether the action of the department of
not giving retrospective effect to the order issued by it
for restructuring of the posts is legal or not."
13. Therefore, it is clear that this court had set aside the
impugned order dated 25th March, 2003 passed by the Tribunal
whereby the Tribunal issued directions to the department to fix the
initial pay of the respondent in the post of Joint Director of
Employment Exchanges in terms of Clause (l) (a) (i) of FR 22 and
remanded the matter to the Tribunal for deciding the question
whether the action of the department for not giving retrospective
W.P.(C) No.2597/2014 Page 10 of 17
effect to the order dated 6.5.2003 is legal or not. The petitioner had
challenged the said order of this court by way of S.L.P.CC. No.
7819/2011 before the Apex Court. The following order was passed
by the Apex Court:
"Upon hearing counsel the Court made the following
ORDER
Delay condoned.
The Special Leave Petition is dismissed."
14. From the above factual position, it is apparent that while the
issue of fixation of the pay of the petitioner in terms of Clause (l)
(a) (i) of FR 22 is concerned, the matter has attained finality. The
issue regarding grant of scale to the petitioner in the pay scale
Rs.12000 - 16500 in terms of office order dated 6th May, 2003 is
concerned, the matter was remanded to the Tribunal. The Tribunal
on receiving the matter on remand gave fresh consideration to the
entire issue on this point and gave its findings dated 26 th July, 2012
whereby the O.A. was dismissed. It is this order which is under
challenge before this court in the present writ petition.
15. As discussed above, the sole question for consideration is
whether the order dated 6th May, 2003 can be given retrospective
effect or this order is prospective. Relevant order dated 6th May,
2003 is reproduced as under:
"No.DGE&T-A-11015/1/2000-Adm.II
Bharat Sarkar/Government of India
Shram Mantralaya/Ministry of Labour
(Directorate General of Employment and Training)
New Delhi, Date: 6/5/2003
To
All Subordinate Offices under the DGE&T
Ministry of Labour.
Subject: Restructuring of the posts of Joint
Directors of Employment Exchanges in the
DGE&T-regarding.
Sir,
I am directed to convey the sanction of the
President to place the posts of Joint Directors of
Employment Exchanges in Employment Directorate in
the Directorate General of Employment & Training
under Ministry of Labour in the scale of Rs.12,000-
16,500/- from the existing scale of Rs.10,000-15200/- as
a result of the restructuring of the posts.
2. This issue with the approval of Ministry of Finance
Department of Expenditure E-III (B) Br.ID No.6(5)-E-
III(B)/03 dated 02/04/2003.
Yours faithfully,
(K.K.MITTAL)
Director
Tel.: 23714765"
16. From plain reading of this order, it is apparent that the order
has not been given retrospective effect. It has become applicable
from the date it has been passed. The sole question for
consideration is can this court exercising its jurisdiction under
Article 226 of the Constitution of India issue a direction to make
this order operative from a previous date.
17. The power of the court under writ jurisdiction has been
discussed by the apex court in 1989 Supp (2) SSC 364 titled as
Asif Hameed and Others vs. State of Jammu and Kashmir and
Others in para 17 and 19 which read as follows:-
17. Before adverting to the controversy directly involved
in these appeals we may have a fresh look on the inter se
functioning of the three organs of democracy under our
Constitution. Although the doctrine of separation of
powers has not been recognised under the Constitution
in its absolute rigidity but the Constitution makers have
meticulously defined the functions of various organs of
the State. Legislature, executive and judiciary have to
function within their own spheres demarcated under the
Constitution. No organ can usurp the functions assigned
to another. The Constitution trusts to the judgment of
these organs to function and exercise their discretion by
strictly following the procedure prescribed therein. The
functioning of democracy depends upon the strength and
independence of each of its organs. Legislature and
executive, the two facets of people's will, they have all
the powers including that of finance. Judiciary has no
power over sword or the purse nonetheless it has power
to ensure that the aforesaid two main organs of State
function within the constitutional limits. It is the sentinel
of democracy. Judicial review is a powerful weapon to
restrain unconstitutional exercise of power by the
legislature and executive. The expanding horizon of
judicial review has taken in its fold the concept of social
and economic justice. While exercise of powers by the
legislature and executive is subject to judicial restraint,
the only check on our own exercise of power is the self-
imposed discipline of judicial restraint.
xxxx xxxx xxxx xxxx
19. When a State action is challenged, the function of the
court is to examine the action in accordance with law
and to determine whether the legislature or the executive
has acted within the powers and functions assigned
under the Constitution and if not, the court must strike
down the action. While doing so the court must remain
within its self-imposed limits. The court sits in judgment
on the action of a coordinate branch of the Government.
While exercising power of judicial review of
administrative action, the court is not an Appellate
Authority. The Constitution does not permit the court to
direct or advise the executive in matters of policy or to
sermonize qua any matter which under the Constitution
lies within the sphere of legislature or executive,
provided these authorities do not transgress their
constitutional limits or statutory powers.
18. In another case of (2005) 13 SCC 495 titled as State of
Orissa vs. Gopinath Dash and Others, the Hon'ble Supreme Court
has held as under:
5. ... ....The scope of judicial enquiry is confined to
the question whether the decision taken by the
Government is against any statutory provisions or it
violates the fundamental rights of the citizens or is
opposed to the provisions of the Constitution. Thus, the
position is that even if the decision taken by the
Government does not appear to be agreeable to the
Court, it cannot interfere.
6. The correctness of the reasons which prompted the
Government in decision-making taking one course of
action instead of another is not a matter of concern in
judicial review and the Court is not the appropriate
forum for such investigation.
7. The policy decision must be left to the Government
as it alone can adopt which policy should be adopted
after considering all the points from different angles. In
the matter of policy decisions or exercise of discretion by
the Government so long as the infringement of
fundamental right is not shown the courts will have no
occasion to interfere and the Court will not and should
not substitute its own judgment for the judgment of the
executive in such matters. In assessing the propriety of a
decision of the Government the Court cannot interfere
even if a second view is possible from that of the
Government.
19. From the findings of the Apex Court, it is apparent that the
scope to interfere in the policy decisions of the Government is very
limited and the courts are required to refrain from doing so unless it
is shown that some fundamental rights of the petitioner are
infringed or that the policy is in direct contradiction to existing
statute or other rule or procedures.
20. In (2009) 1 SCC 73 titled as Chandrashekar A.K. vs. State
of Kerala and Another, the Apex Court has clearly held that the
revision of the pay scale is a policy decision. The
recommendations related to revision of pay scale require its
acceptance by the employer or the State which has to bear the
financial burden and unless it is formally implemented by the
authority concerned, it does not automatically come into force. The
revised pay scales applicable retrospectively are available only to
an employee who was in service on the date from which the revised
pay scale has been given effect retrospectively.
In the said case, the appellant retired from service on 23rd
May, 1995 and later on an O.M. dated 19th July, 1995 was issued
which provided for a higher pay scale available with effect from 1 st
January, 1992. The appellant claimed for benefit of this O.M. as he
was in service on 1st January, 1992. It was found as a fact that
higher pay scale was not automatically applicable from 1 st January,
1992 but it required specific approval of respondents who gave
effect to the O.M. from 1st April, 1997 much after the appellant left
the service.
21. In the present case also as it is clear, the appellant was not in
service on the date when order dated 6th May, 2003 had come into
effect. This order is effective from the date it was made. No
retrospective effect was given to this order. This order is also not
contradictory to any right of the petitioner who had retired before
the said order had come into effect. The petitioner has failed to
show that this had a retrospective effect. The petitioner has relied
on the findings of the Apex court in (1984) 1 SCC 199 titled as
Munshi Lal Verma vs. Union of India. The findings in this case
are not applicable on the facts of this case. In that case, the
upgradation of post was done during the tenure of the appellant and
thus the court had directed that the appellant be given the benefits
arising out of that upgradation of post. In the present case, the
benefit has been given to its employees by the respondent with
effect from 6th May, 2003. Admittedly, on this date, the appellant
was not in service of the respondent. No claim or right for grant of
pay scale of Rs.12000-16,500 has accrued to the petitioner.
22. This writ petition has no merit in it. The same is hereby
dismissed.
DEEPA SHARMA, J
GITA MITTAL, J
APRIL 28, 2014/rb
