Mohinder Pal vs Lt. Governor And Ors.
2014 Latest Caselaw 862 Del

*                       THE HIGH COURT OF DELHI AT NEW DELHI

%                                           Judgment delivered on: 17.02.2014

+                                    W.P.(C) 2385/1997

       MOHINDER PAL                                             ..... PETITIONER

                                     VERSUS


       LT. GOVERNOR AND ORS                                  ..... RESPONDENTS

ADVOCATES WHO APPEARED IN THIS CASE:

For the Petitioner: Mr. Sarvesh Bisaria and Mr. Prakash Chandra Sharma, Advocates For the Respondents: Mr. Ravinder Agarwal, Advocate for R-2 Ms. Avnish Ahlawat and Mr. Nitish Singh, Advocates for R-3

CORAM :-

HON'BLE MR JUSTICE RAJIV SHAKDHER

RAJIV SHAKDHER, J

1. On 10.02.2014, when the captioned petition was taken up for hearing, there was no representation on behalf of the petitioner. On that date, a detailed order had been passed by me. In order to avoid the repetition, the relevant part of the said order is extracted hereinbelow :-

"..1. There is no representation on behalf of the petitioner.

2. The petitioner, who claims to be a scheduled caste and therefore falling in the reserved category, was working with the National Hydro Power Corporation (NHPC), which is a Central Public Sector Undertaking (C.P.S.U).

2.1 It appears that the petitioner was recruited as an Assistant Engineer with the Delhi Electric Supply Undertaking (in short

DESU) (as it was known then) upon recommendations of the Union Public Service Commission (UPSC), vide order dated 26.05.1986. At that point in time, the petitioner's pay was fixed at Rs. 1200 in the pay scale of Rs. 1000-1800.

3. In terms of the letter of appointment, the petitioner, evidently joined duties with DESU, on 26.09.1986. The petitioner's pay was thereupon fixed at Rs. 2500/- in the revised pay scale of Rs.2200-4100, which corresponded with the figure of Rs.1200, falling in the old pay scale (pre revised pay scale of Rs.1000-1200).

4. After nearly ten years, for the first time, the petitioner made a representation to DESU on 23.10.1996, for protection of the his pay in terms of Order 25 Rule 22 of the Fundamental Rules. In effect, what was sought was that the pay, that the petitioner was receiving from NHPC, should be the pay fixed, at the stage when, he was recruited with DESU.

5. Evidently, DESU vide communication dated 12.05.1997, rejected the petitioner's plea on the ground that at the time when, he had accepted the offer of appointment, made vide office order dated 26.05.1986, no such stand was taken. In other words, since the plea was belated, DESU was not inclined to entertain the request made.

6. By the time the representation of the petitioner came up for consideration, DESU had morphed into Delhi Vidyut Board. I may only note that since then, the memo of parties stands amended, as Delhi Vidyut Board has got fragmented into three distribution companies, one generation company and a holding company.

7. To be noted, Order 25 Rule 22 of the Fundamental Rules, which grants pay protection to employees of CPSUs, who are recruited through UPSC, was made effective from 01.08.1989. Since, the petitioner, was recruited on 26.05.1986, one of the arguments of the respondents is that the said office order will not apply to those who were recruited prior to 01.08.1989. I may also note that the appointment letter issued to the petitioner, which is appended to the writ petition, is dated 8.5.1986. 7.1 In any event, the respondents submit that the petitioner having approached the court in 1997, after nearly ten years, the

captioned petition ought not to be entertained as there is no explanation for the delay and latches in taking recourse to an appropriate remedy.

8. Since the petitioner is not represented today, I propose to defer adverse order qua the petitioner. The matter shall, however, remain on the regular board and retain its position thereon. The matter shall, however, be shown as part heard, on the regular board..."

1.1 Since there was no representation on behalf of the petitioner, the matter was deferred, to be kept on the Regular Board.

1.2 The matter came up for hearing once again on 11.02.2014, when an accommodation was sought on behalf of Mr. Bisaria, the learned counsel for the petitioner.

1.3 That is how, the matter has come up for hearing today.

2. The order dated 10.02.2014, as culled out, would show that the following facts have emerged from the record, which are not disputed :-

(i). The petitioner was recommended for appointment, vide appointment letter dated 08.05.1986 with DESU in the post of Assistant Engineer (sic. Assistant Executive Engineer) in the pay scale of Rs.1000 - Rs.1800 (sic Rs.1000 - 1850), and his pay was fixed at Rs.1200/-. The petitioner joined DESU, on 26.09.1986.

(ii). The petitioner's pay was fixed at Rs.2500/- in the revised pay scale of Rs.2200 -4100/-.

(iii). For the first time, after nearly ten years, the petitioner made a representation to the DESU on 23.10.1996 to claim protection of his pay,

which was paid to him, while he was employed with NHPC. The pay protection was sought under Fundamental Rule 22 (Order 25).

(iv). DESU, however, vide order dated 12.05.1997, rejected the petitioner's representation, briefly on two grounds. First, that there was delay and latches of nearly ten years in making the representation. Second, that the petitioner had accepted the appointment without demur in May, 1986 in the pay scale of Rs.1000-Rs.1800 (sic Rs.1000-1850) with the pay fixed at Rs.1200/-.

3. Mr. Bisaria, the learned counsel for the petitioner submits that Fundamental Rule 22 has been in operation prior to 1989, and therefore, the reasons given by the respondents are untenable. He further submits that his juniors, who were recruited via direct recruitment route are getting higher pay. He says that though this aspect was referred to in his representation, it was not dealt with. Mr. Bisaria says that specific instances of at least seven such persons are set out in the representation.

3.1 Mr. Bisaria further states that even if the pay of the petitioner was fixed as per the recommendations of the 4th Pay Commission, he would have fallen in the pay scale of Rs.3000-4500/-.

3.2 Mr. Agarwal, on the other hand, says that the issue raised in the petition is no longer res integra. He says that the Division Bench of the Supreme Court in the case of Jagdish Parwani Vs. Union of India and Ors., AIR 2011 SC 2594, while dealing with a pari materia notification relating to pay fixation of candidates recruited from State Public Sector Undertakings by the Central Government, had categorically held that the pay protection could not be given effect to, retrospectively.

4. I have heard the learned counsels for the parties.

5. In my view, the petition lacks merits. As indicated in my order dated 10.02.2014, the provisions of Fundamental Rule 22 relating to pay protection qua employees recruited from CPSU's, was made applicable with effect from 01.08.1989. Admittedly, the petitioner was recruited on 08.05.1986. Willy-nilly, the said notification cannot be applied to the petitioner.

5.1 The argument of Mr. Bisaria that the pay of personnel recruited similarly, after him derive higher pay is also unsustainable as a bare perusal of the petitioner's representation would show that the personnel to whom reference is made had all been recruited between 1989 to 1996. In their case, it is apparent, that the, notification would apply.

5.2 Furthermore, as correctly argued by Mr. Agarwal, the judgment of the Supreme Court in Jagdish Parwani's case deals with the point in issue and, therefore, leaves no scope for further argument. I may only extract, in that behalf, the relevant paragraphs of the said judgment. These being: paragraph nos.16 to 19 :-

"..16. Being fully aware of the aforesaid position the appellant accepted the appointment without any demur or protest on the issue of pay being given to him under the appointment order issued to him by the Military Engineering Service, Ministry of Defence, fixing his pay scale at the minimum of the pay scale of Rs. 2200. He accepted the said pay scale without raising any grievance and continued to receive the same till 11.09.1991, when for the first time he submitted his first representation for pay protection as per notification dated 07.08.1989.

17. The position with regard to the entitlement or otherwise of the appellant for getting pay protection was made clear by issuing the notification dated 28.02.1992 clearly stipulating therein that an employee of the State Government Undertaking selected for post in Central

Government on direct recruitment basis would be entitled to pay protection upon appointment in Central Government only effective from 01.02.1992. The appellant having joined the MES, Ministry of Defence prior to the aforesaid date was not entitled to the benefit of the aforesaid notification which was issued much after his joining date and, therefore, the benefit of the aforesaid notification is not available to the appellant.

18. Counsel appearing for the appellant, however, sought to submit that to deny the benefit of the notification dated 28.02.1992 to the appellant was discriminatory in nature and in support of the said contention the counsel relied on the decision of this Court in the case of T.S. Thiruvengadam v. Secretary to Government of India, Ministry of Finance, Deptt. of Expenditure, New Delhi reported in (1993) 2 SCC

174. In our considered opinion the ratio of the aforesaid decision was rendered in respect of case of pension which is a continuing cause of action. Facts of the said case are clearly distinguishable from the facts of the present case and, therefore, the ratio of the said decision is not applicable to the case in hand. There is an inherent clear distinction between the two concepts of pay protection and pension. So far getting pay protection is concerned, the said issue arises as soon as an employee joins his new post, where he gets his new pay scale and if he is entitled to any pay protection that is the stage and date when it is granted by whatever notifications, memorandums which are available and applicable at that stage laying down such rules regarding pay protection. At that stage what was operating in the field was the notification issued on 07.08.1989 which was not applicable to the appellant. The appellant also clearly understood the position and therefore based his entire claim and right on the subsequent notification dated 28.02.1992, although appointed to the post of Central Government on 23.02.1990.

19.In the present case it cannot be said that a notification issued after two years of the appointment of the appellant which is also specifically stated to have been issued with prospective effect is applicable in his case..."

(emphasis is mine)

5.3 This brings me to the last submission of Mr. Bisaria that if the recommendation of the 4th Pay Commission is to be applied, the petitioner's pay would have fallen in a higher pay scale. A perusal of the petitioner's own representation seems to indicate that the 4 th Pay Commission's recommendations were applied in the petitioner's case; albeit to his pay, which was fixed at Rs.1200/-. This is apparent upon a bare reading of paragraphs 3 and 4 of his representation. Since Mr. Bisaria insists that, if correct provisions had been applied, the petitioner's pay would have fallen in a higher pay bracket, the petitioner may make a fresh representation to respondent no.4, who will deal with the same in accordance with the relevant provisions applicable, in this behalf.

6. With the aforesaid observations in place, the writ petition is disposed of.

RAJIV SHAKDHER, J FEBRUARY 17, 2014 yg