K.V.Chandrashekharan vs Union Of India And Others
2014 Latest Caselaw 3218 Del

$~23
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+                        L.P.A.No.462/2008
%                     Judgement Reserved on: 15th May, 2014
                      Judgement pronounced on: 21st July, 2014
K.V.CHANDRASHEKHARAN                            ..... Appellant
                Through:             Ms.Mahalakshmi Pavani
                                     and Mr.G.Balaji,
                                     Advocates

             versus

UNION OF INDIA AND OTHERS                  ..... Respondents
                  Through:           Mr.Pawan Upadhyay,
                                     Adv. for R-2 and R-3.

CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MS. JUSTICE DEEPA SHARMA

DEEPA SHARMA, J.

JUDGMENT

1. The petitioner had filed the W.P.(C) No.3881/1996 against

the present respondents whereby he had demanded the payment

of Bhutan Compensatory allowance (in short 'BCA') as per the

revised scale vide circular dated 18th March, 1993 vide this

circular the government had increased the BCA with effect from

1.12.1991.

2. The respondents had controverted the demand of the

appellant to the revised BCA and raised the preliminary objection

about the maintainability of the writ petition on the ground that

the respondent was not a State under Article 12 of the

Constitution of India.

3. The writ petition was originally dismissed vide order dated

27th May, 1988 holding that the respondent was not a State and

the writ petition against the respondent was not maintainable.

However, a Division Bench of this court in LPA No.304/1988

had set aside the said order and held that the respondents i.e.

Water and Power Consultancy Services (India) Limited (in short

'WAPCOS') was a State and therefore writ petition was

maintainable. This order was further challenged and the Supreme

Court vide its order dated 22nd June, 1999 in the abovesaid leave

petition, set aside the order passed by the Division Bench and

remanded the matter back to the learned Single Judge for giving

finding on the question whether WAPCOS is a State or not. The

learned Single Judge has held that the WAPCOS is a State vide

its order dated 30th May, 2008. The learned Single Judge,

however, had rejected the claim of the petitioner regarding

payment of revised BCA.

4. Aggrieved by the said order, the present LPA has been

filed.

5. There is no challenge to the finding of the learned Single

Judge that the respondents are State and thus the writ petition was

maintainable. The finding of the learned Single Judge on this

issue, thus, attains finality.

6. The brief facts, necessary for the determination of the

controversy between the parties, are as under:

7. The appellant was working as Assistant Engineer/Assistant

Executive Engineer in Chukha Hydel Project at Bhutan on

deputation from Central Water Commission (Ministry of Water

Resources, Government of India) from 30.10.1985 to 30.4.1991.

He was paid BCA as per the government orders issued by the

Ministry of External Affairs. On 6th April, 1991, the Water and

Power Consultancy Services (India) Limited ('WAPCOS') wrote

to the General Manager, Chukha Hydel Project, Chimakothi,

Bhutan requesting for staff. The letter is reproduced as under:

No.____/WAP/___ Chukha/91 Dated the 6th April, 1991

To The General Manager, Chukha Hydel Project, Chimakothi, Bhutan.

Subject: Requisition for Man Power for posting with WAPCOS.

Dear Sirs, This is with reference to our discussion with you on 5th April, 91. The detailed requirement of staff by WAPCOS for executing works is being worked out and will be intimated to you for circulation in your organisation in order to ascertain the availability of suitable staff. However, for our immediate requirement, it is requested that the positions may please be circulated amongst surplus staff available with you and a list of willing staff who can be spared immediately be sent to Shri D.K.Sharma, Deputy Chief Engineer, WAPCOS stationed at Phuntsholing.

S.No. Name of post Qualification & Experience Emoluments

1. Liaison Officer (Tech.) Degree/Diploma in Civil Engg. Existing (on deputation) with three years experience emoluments in the Grade of Asstt.Dir. drawn shall be or equivalent. Experience of protected.

Working in Chukha Hydel Project will be desirable.

Overall experience of 10 years in Project Investigation and Liaison work.

2. Steno-Typist Three years experience Rs.2,500/-

     (on Contract)                                                        (Consolidated)
3.   Peon
     (on Contract)                8th Class pass                          Rs.1,500/-
                                                                          (Consolidated)
4.   Driver                       Five year experience                    Rs.2,000/-
     (on Contract)                of driving all type of                  (Consolidated)
                                  Vehicles in hilly areas.

The posts indicated at S.Nos.2 to 4 are on contract basis and initially for the period of one year. This term can be extended as per requirement of the Company and performance of the concerned individuals but upto the duration of the project. In no case the individuals will be appointed on regular basis in the Company and on completion of the above project their services will be repatriated to parent department in case of deputationists and will be terminated in respect of those appointed on contract basis. The contract appointment shall be subject to signing of contract agreement containing all the terms and conditions of appointment.

Thanking you.

Yours faithfully,

(D.S.PAHWA) SENIOR MANAGER (PERSONNEL) Copy to:-

Shri D.K.Sharma, Deputy Chief Engineer, WAPCOS

8. The respondent had also sent another letter dated 7th May,

1991, specifically asking for the services of the appellant and

requesting to provide his services with WAPCOS on deputation

basis for a period of two years as the WAPCOS had been

awarded the work for survey and investigations for preparation of

detailed project report for Chukha Hydel Power Project - Stage

II. However, no appointment was made in terms of the said

letter.

9. The appellant had completed his deputation at Bhutan on

30.4.1991 and was repatriated to his parent department i.e.

Central Water Commission (in short 'CWC'). Later on CWC

circulated the requisition of WAPCOS for Liaison Officer

(Technical). The appellant had applied and was selected vide

letter (undated) for the post of Liaison Officer (Technical) in the

pay scale of Rs.700-1300 (Pre-revised). The said letter is

reproduced as under:

"IMMEDIATE

WAPCOS

Mr.Meenakshi Arora Under Secretary to the Government of India Ministry of Water Resources Shram Shakti Bhawan New Delhi 110001.

Subject: Appointment of Shri K.V.Chandrashekharan, Assistant Director on deputation basis in WAPCOS as Liaison Officer (Technical)

Dear Madam,

Please refer to your letter No.5/10/91-Est.I dated nil forwarding therewith bio-data of Shri K.V.Chandrasekharan, Assistant Director, Central Water Commission for consideration for appointment to the post of Liaison Officer (Techinical) in the pay scale of Rs.700-1300 (Pre-revised) (likely to be revised on IDA pattern) on deputation basis in WAPCOS.

We are pleased to inform you that Shri K.V. Chandrasekharan, Assistant Director has b een selected for appointment to the post of Liaison Officer (Technical) in the pay scale of Rs.700-1300

(Pre-revised) on deputation basis in WAPCOS. You are, therefore requested to kindly approve his deputation with WAPCOS for a period of two years in the first instance which may be extended as per the requirement of the company. He will be governed by the usual terms and conditions of deputation of the Central Government issued by Central Water Commission/ Ministry of Water Resources and acceptable to the Company. His Headquarters shall be at Phuntsholing (Bhutan). But the post carries the liability to serve anywhere in India or abroad as per the exigencies of the Company's work. This clause may please be incorporated in deputation terms. During his posting at Bhutan he will be governed by the terms and conditions as per annexure to this letter.

As the services of Shri K.V.

Chandrasekharan are re quired urgently, we shall be grateful if arrangement could be made to relieve him immediately but latest by 15th September, 1991 to join the post in WAPCOS. The detailed terms and condit ions covering his deputation may also be issued at an early date.

Yours faithfully

Sd.

(S.K.AHUJA) MANAGER (PA) Encl. : As above.

10. Vide office order dated 21.10.1991, the appellant

was to join his services at Bhutan. The said letter also

contains the terms and conditions of appellant's

assignment. The document is reproduced as under:

"WATER AND POWER CONSULTANCY SERVICATES (INDIA) LIMITED (A GOVERNMENT OF INDIA UNDERTAKING) 5TH FLOOR, HANSALAYA, 36 K.G.MARG, NEW DELHI-110001

No.5/342 21st October, 1991

OFFICE ORDER NO.634/91

Shri K.V. Chandrasekharan, Asstt. Dir ector, CWC, will proceed to Phuntsholing immediately, on Company's assignment relating to Investigation & Pre paration of detailed P roject Report for Tala Hydro Electric Project & Wangchu Reservoir Scheme, Bhutan as Liaison Officer (Technical for a period of o ne year.

During the period of his assignment he will be governed by the terms and conditions as annexed.

for Water & Power Consultancy Services (India) Limited Sd/-

(Y. P. DAGGA) Dy. Manager (Pers.) Shri K.V.Chandrashekharan, Liaison Officer through CE (P) WAPCOS Saket Office....."

The annexed terms and conditions are reproduced as under:

Terms and conditions governing assignment of Experts deputed to Bhutan in connection with investigation and preparation of Detailed Projects Reports (DP&S) for Tala Hydro Electric Projects and Wangchu Reservoir Scheme-- Bhutan.

The terms and conditions of appointment for the above said project for the officers and staff proceeding to

Bhutan shall be the same an admissible to the officers/staff of the similar grade deputed to Bhutan under the Attorney of External Affairs Orders issued from time to time. A copy of each enumerated circular number related to the said terms and conditions is attached.

1. Q/FD/6910/10/86 dated 15.7.87 The terms and conditions are however, subject to amendments by the Ministry of External Affairs from time to time.

MAIN FEATURES ARE AS UNDER:

1. SALARY AND ALLOWANCE

a) FOR SERVICE IN INDIA

The headquarters in India will be at New Delhi.

i) DEPUTATIONIST Pay and allowances as per DPC on the date of joining WAPCOS plus deputation allowance as per rules.

OTHERS Basic pay plus allowances as admissible in WAPCOS per month.

b) FOR SERVICES IN BHUTAN

BASIC PAY plus (BCA)ad admissible The BCA of Group A, B, C & D officers staff whose pay has been refixed in the revised pay scales under Central Civil Services (Revised Pay) Rules, 1986/Central Civil Services (Revised Pay) amendment Rules, 1987 shall be reduced as follows. Deputationist will not be entitled to any deputation allowance during service in Bhutan.

a) REVISED PAY UPTO RS. 3500/- PER MONTH By an amount equivalent to 50% of pay in the

revised scale subject to a maximum of Rs. 1450/-.

REVISED PAY EXCEEDING RS. 3500/- BUT UPTO RS. 4500/-PER MONTH.

By Rs. 1450/- plus 30% of the amount by which revised pay exceeds Rs. 3600/-.

c) REVISED PAY EXCEEDING RS. 4500/- PER MONTH.

By Rs. 1750/- plus 40% of the amount by which revised pay exceeds Rs. 4500/- subject to a maximum of Rs. 2550/-.

2. BHUTAN COMPENSATORY ALLOWANCE (SEE ANNEXURE-I) ATTACHED.

The minimum Compensatory Allowance is Rs. 1965/- and maximum BC is Rs. 6090/- at Bhutan for different categories. This BCA includes remuneration of two part time servants (domestic) which the officers can engage on the standard rates of wages subject to entitlement and certification viz:-

Rs

SLE 305 subject to certification MLE 244"

11. WAPCOS extended the assignment of the appellant with

them vide letter vide letter dated 6.1.1993 upto 31.5.1993. The

said letter is reproduced as under:

"WATER AND POWER CONSULTANCY SERVICES (INDIA) LIMITED (A GOVERNMENT OF INDIA UNDERTAKING) 5TH FLOOR, KAILASH, 26 - K.G. MARG, NEW DELHI-110001

No.5/342/92/Vol.IV 6th January, 1993

OFFICE ORDER NO.7/93

In continuation of Office Order No.634/91 dated 21.10.91, the term of assignment of Shri K.V.Chandrasekharan, Liaison Officer. (Technical), WAPCOS on deputation from Central Water commission is, hereby, extended upto 31.5.1993 at Phuntsholing, Bhutan in connection with the work relating to Investigation and Preparation of Detailed Project Report for 'Tala Hydro Electric Project & Wangchu Reservoir Scheme, Bhutan.

During the period of his assignment he will be governed by the terms and conditions of deputation abroad applicable at Bhutan which has already been issued vide office order No.634/91 dated 21st October, 1991.

                                         For Water & Power Consultancy
•                                           Services (India) Limited

                                                (Y.P.Bagga)
                                              Dy.Manager (Pers.)"

12. Vide letter dated 11.6.1993 the term of the appellant was

further extended upto 31.5.1994. The said letter is reproduced as fi

under:

"WATER AND POWER CONSULTANCY SERVICES (INDIA) LIMITED (A GOVERNMENT OF INDIA UNDERTAKING) 4TH FLOOR, KAILASH, 26 K.G. MARG, NEW DELHI -110001

No.5/342/92/Vol.IV 11th June, 1993

OFFICE ORDER NO.559/93

In continuation of Office Order Nos.634/91 dated 21-10-91, and 7/93 dated 6-1-93 the term of assignment of Shri K.V. Chandrasekharan, Liaison Officer (Technica1), WAPCOS on deputation from Central Water Commission is, hereby extended upto 31-5-1994 at Phuntsholing, Bhutan in connection with the work relating to investigation and preparation of Detailed Project Report for Tala Hydro Electric Project & Wangchu Reservoir Schemes, Bhutan.

During the period of his assignment he will be governed by the terms and conditions o f duration abroad applicable 634/91 dated 21st October, 1991.

f or Wat er & Pow er C onsul t ancy Servi ces (Indi a ) L i m i t ed Sd/-

(D.S. Pahwa) Dy. Chief (P & A)"

13. It is quite apparent from the letter of respondent dated 6 th

April, 1991 that the respondent, when demanding man power for

themselves, had needed a Liaison Officer (Tech.) and wanted to

appoint a person on this post on deputation basis, while the other

three posts i.e. of Steno-Typist, Peon and Driver were to be filled

by them on contract basis. The said letter indicates that posts at

Sl.No. 2 to 4 are on contract basis while post at Sl.No. 1 of

Liaison Officer (Tech.) was to be filled on deputation basis. The

letter further clarified that on completion of the above project, the

individuals who were on deputation would be repatriated to their

parent department and the services of those who were appointed

on contract basis would be terminated. In the present case, there

is no dispute to the fact that on completion of the term, the

appellant was repatriated to his parent department. The letter of

the respondent dated 7.5.1991, further, clearly states that the

respondents needed the services of liaison officer on deputation

basis.

14. The letter of WAPCOS by which the appellant was

selected, which is undated, clearly indicates that the appellant had

been selected for appointment to the post of Liaison Officer

(Technical) in the pay scale of Rs.700-1300/- (pre-revised) on

deputation basis. Vide this letter WAPCOS had requested the

parent department of the appellant to approve his deputation with

WAPCOS for a period of two years in the first instance. The

letter further indicates that the appellant shall be governed by the

usual terms and conditions of deputation of the Central

Government issued by the Central Water Commission/Ministry

of Water Resources and acceptable to the company.

15. Pursuant to this letter the appellant was spared by his

parent department to work with the respondents vide letter dated

21.10.1991. The terms and conditions governing his employment

with the respondents were annexed with this letter. This

annexure, which has already been reproduced earlier, contains the

terms and conditions of appointment with respondents. This

annexure shows that all the officers who have given the

assignment to work with WAPCOS, would be subject to the same

terms and conditions as are applicable to similarly placed officers

deputed to Bhutan under the order of Ministry of External

Affairs. The copy of circular relating to terms and conditions was

shown as numbered Q/FD/6910/10/86 dated 15.7.87. It is further

clarified in this letter that these terms and conditions which are

part of the appointment letter dated 21.10.1991 that the terms

were not static but subject to amendments by the Ministry of

External Affairs from time to time.

16. The respondents had accepted the services of the appellant

with said terms and conditions. Meaning that it was accepted by

the respondents that the appellant would be entitled to the similar

grade admissible to the officers/staff deputed to Bhutan under

Ministry of External Affairs under circular of Ministry No.1

Q/FD/6910/10/86 dated 15.7.87 subject to amendment in these

terms and conditions by Ministry of External Affairs from time to

time. The fact that these terms and conditions were acceptable to

the respondents is also clear from the letters dated 6.1.1993 and

11.6.1993 whereby the term of assignment of the appellant was

extended upto 31.5.1993 and further to 31.5.1994 respectively.

These letters clearly states that during the assignment with

respondent the appellant would be governed by the terms and

conditions of deputation abroad applicable at Bhutan, which had

already been issued vide letter no.634/1991 on 21.10.1991. This

implies that these terms and conditions which are enumerated in

letter dated 21.10.1991 were acceptable to the respondents.

These terms and conditions clearly state that the appointment of

the appellant with the respondent would be governed by the terms

and conditions of Ministry of External Affairs vide its circular

Q/FD/6910/10/86 dated 15.7.1987 subject to its amendment by

Ministry of External Affairs from time to time. No dispute that

the basic pay and the other remuneration of the appellant were

fixed in terms of the Ministry of External Affairs' order

No.Q/FD/6910/10/86 dated 15.7.87.

17. The letter dated 21.10.1991 containing terms and

conditions discloses the minimum BCA as Rs.1965/- and

maximum BCA as Rs.6090/- at Bhutan for different categories.

The contention of the appellant is that he was paid the same BCA

which he was receiving while working with the Chukha Hydel

Project at Bhutan. At the Chukha Hydel Project at Bhutan, the

appellant was drawing Rs.5410/- as he was an Engineer and his

pay was not exceeding Rs.3000/-. This payment falls within the

minimum and maximum BCA at Bhutan prescribed in these

terms and conditions for different categories. This BCA had also

been fixed in terms of the Ministry of External Affairs' circular

no. Q/FD/6910/10/86 dated 15.7.87.

18. Vide the circular No.EIV/235/3/93 dated 18.3.1993 of the

Ministry of External Affairs, the BCA for officers of the Central

and State Government of India during service on deputation with

Royal Government of Bhutan was revised with effect from

1.12.1991. This revised scale was applicable to the Central and

State Government employees whose pay scale have been revised

with effect from 1.1.1986 or thereafter. The order No.

Q/FD/6910/10/86 dated 15.7.87 of the Ministry of External

Affairs was therefore modified and new rates of BCA became

applicable with effect from 1.12.1991. By that time the pay of

the appellant was exceeding Rs.3000/- per month and he was

entitled for Rs.15284/- per month towards BCA. The appellant

had raised the demand of revision of his BCA in terms of this

order of the Ministry of External Affairs. He wrote letters on

6.6.1994, 22.2.1995, 22.6.1995, 8.8.1995 and 29.11.1995, but his

request had fallen on deaf ears and finally his claim was rejected.

19. The contention of the appellant that he was all along

worked as a deputationist with the respondent also gets support

from the fact that when he proceeded on leave, he was denied

BCA by the respondents. He had written a letter dated

12.10.1993 asking the respondents to spell out the reason for not

paying BCA for the month of September, 1993 when he was on

leave. In response to his letter, he was informed that Clause

No.13 of the terms and conditions of his employment stipulates

that experts posted overseas will be entitled to Home Office pay

during leave irrespective of the fact that he avails leave in India

or abroad and on this ground BCA was denied to appellant during

his leave period. This fact, however gives weight to the

contention of the appellant that he was on deputation with the

respondents and terms and conditions annexed with his letter of

assignment dated 21.10.1991 were governing him and were also

accepted by the respondent as they had relied on it and had also

acted on it. The very fact that the respondents had denied him the

BCA during his leave period in view of Clause 13 of the terms

and conditions annexed with letter of assignment dated

21.10.1991 shows that these terms and conditions were accepted

by the respondents' company. At this stage, it is not open to the

respondent to take the plea that amount of BCA prescribed by the

Government of India or the Ministry of External Affairs was not

applicable to WAPCOS while dealing with the service conditions

of the appellant. The contention of the WAPCOS that they had

revised BCA for its employee at the rate of 33% on 1.4.1992 and

20% with effect from 1.1.1994 after reviewing the working

assignment and were thus paying the similar allowance to other

employees of WAPCOS working in Bhutan has no force in view

of the categorical terms and conditions governing the service of

the appellant with the respondents. He was not a contractual

employee of the respondents but his assignment was on

deputation and his pay and allowances were subject to the

circulars of the Ministry of External Affairs revised from time to

time.

20. The petitioner had been raising objections to the fixation of

his BCA by the respondent and had been writing letters to the

respondents but the respondents paid no heed to his letters and

never even bothered to reply it. It had never clarified to the

appellant that he was not entitled to the BCA as per the terms and

conditions of his assignment vide letter dated 21.10.1991 but that

his BCA was subject to the calculation of reviewing the working

assignments. Even in the annexure attached to the letter dated

21.10.1991, there is no mention that the BCA would be

calculated by the respondents after reviewing the working

assignment. It has given the upper and lower limit of BCA for

different categories and this maximum and minimum limit is also

as per the circular No.1 Q/FD/6910/10/86 dated 15.7.87 of the

Ministry of External Affairs. It is also clear that the appellant had

written the letter dated 1.5.1993 objecting to payment of

additional 33% of BCA above the amount of BCA fixed in 1987

which was actually far less than the revised BCA. It, thus, cannot

be said that the petitioner had accepted the amount of BCA paid

to him without any objection. He had been receiving the BCA

amount paid to him by the respondents under objection and all

along been demanding the BCA as per his entitlement. The terms

and conditions of his appointment attached with his letter of

assignment dated 21.10.1991 are very clear and there is no

ambiguity in any part of these terms and conditions. All these

terms and conditions are subject to the amendments by Ministry

of External Affairs from time to time.

21. The respondents have raised the issue that vide their letter

dated 21.10.1992 written by Deputy Financial Advisor,

WAPCOS to the appellant, he was informed that the BCA would

be regulated as per the provisions made in the working cost

estimate of the project and that the allowances payable to the

employees of the Government of India posted at Bhutan does not

apply to WAPCOS. The appellant had disputed the said letter

stating that the same was never served upon him. There is no

mention of the aforesaid letter even in the office order dated

6.1.1993 and 11.6.1993 by which period of employment of the

appellant was extended. Rather, as discussed above, his

employment period was extended in terms of letter dated

21.10.1992 clearly showing that instead of relying on its letter

dated 21.10.1992, while extending the assignment of the

appellant with them, WAPCOS had accepted the terms and

conditions of the assignment of the appellant detailed in letter

dated 21.10.1991. There is nothing on record to show that it was

duly served upon the appellant. The respondent could have,

while extending period of employment of appellant vide letter

dated 6.1. 1993 and 11.6.1993, made the mention of its letter

dated 21.10.1992 and could have informed the appellant about

the change in condition of services of appellant with them qua his

entitlement of BCA.

22. During the course of arguments it has also been brought to

our notice that the reply dated 20.1.2009 under RTI Act also

clearly indicates that the BCA for the year from 1991-1995 had

been paid to the officers on transfer/posting to Bhutan

Investigation Division as per amendment order of Ministry of

External Affairs, New Delhi. It is submitted that while all the

other persons, posted on transfer or otherwise with the

respondents had been paid as per Ministry of External Affairs'

orders, the same benefit has been denied to the appellant.

23. From the above discussion, it follows that the appellant

was working on deputation with the respondents. His terms and

conditions were governed by the circular of the Ministry of

External Affairs No.1 Q/FD/6910/10/86 dated 15.7.87 subject to

its amendments from time to time. At no point of time the

services of the appellant were considered on contract basis with

the respondents and at no point of time he had been paid as a

contractual employee. It is also evident that on completion of

term of deputation with the respondents, the services of the

appellant were repatriated. It is also apparent from the reply of

the RTI that all the other employees of the respondents working

on transfer or otherwise from the Ministry of External Affairs had

been given all the benefits under the orders of the Ministry of

External Affairs which was revised from time to time between the

period of 1991-1995.

In view of the above discussion, we hold that the appellant

is entitled to the revised BCA in terms of the Ministry of External

Affairs' order dated 18.3.1993 w.e.f. from 1.12.1991.

24. The Respondents no.2 and 3 shall compute the entitlement

of the petitioner in accordance with the directions of the Ministry

of External Affairs with a period of four weeks and communicate

the same to the petitioner forthwith. The payment in term of the

computation shall be forwarded to the petitioner within a period

of four weeks thereafter.

25. This writ petition is allowed in the above terms.

26. The petitioner shall be entitled to costs which are assessed

at Rs.15000/- payable within a period of four weeks from today.

(DEEPA SHARMA) JUDGE

(GITA MITTAL) JUDGE

JULY 21, 2014 rb