Manohar Singh vs National Thermal Power ...
2015 Latest Caselaw 3032 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No. 1897/2004

%                                                   16th April, 2015

MANOHAR SINGH                                             ..... Petitioner
                          Through:       None.

                          Versus

NATIONAL THERMAL POWER CORPORATION LTD. ..... Respondent

Through: Mr. S.K. Taneja, Senior Advocate with Mr. Rajesh Gupta, Advocate and Ms. Divyangana Singh, Advocate.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This case is on the Regular Board of this Court since 15.1.2015.

No one appears for the petitioner on two calls. One call was made in the

pre-lunch session and another call was made post lunch. It is 2.45 P.M.

2. By this writ petition filed under Article 226 of the Constitution

of India, petitioner an employee of the respondent/National Thermal Power

Corporation Ltd (NTPC), seeks the relief that his pay be re-fixed at a higher

level in an appropriate grade with consequential benefits from the date on

which petitioner joined the respondent in terms of the office order of the

respondent dated 7.12.1981.

3. The facts of the case are that petitioner was originally appointed

by the Intelligence Bureau (IB) as a Junior Intelligence Officer-I (Tech.)

and the petitioner thereafter sought employment with the respondent as

Supervisor Grade-II in terms of the recruitments which were made by the

respondent for the said post. Petitioner was recruited by the respondent

pursuant to the letter of the respondent dated 7/8.12.1981 and in which the

pay scale of the petitioner was fixed at Rs.550-20-900/-. Petitioner claims

that petitioner had sought protection of his lien in the post with IB at the

time of being appointed with the respondent and this lien recognition was

confirmed to the petitioner by the respondent in terms of the respondent's

letter dated 24.2.1982. Petitioner relies upon para 2 of this letter to claim

that petitioner's pay with the respondent has to be fixed in accordance with

the pay of his parent department viz IB. Petitioner further pleads that terms

of the appointment of the petitioner were with respect to pay scale

specifically amended by the respondent vide its order dated 28/29.5.1984

thereby fixing the pay scale from Rs.550-20-900/- to Rs.550-900/- with

basic pay of Rs.590/-. The effect of this order dated 28/29.5.1984, it is

pleaded was to fix the pay of the petitioner as per the last pay certificate

issued by the IB. Petitioner further contends that the respondent had earlier

issued its letter dated 11/12.4.1983 whereby in para 4 the respondent has

specifically stated that the pay of the petitioner will be protected in case the

court case filed by the petitioner against IB results in higher pay fixation by

the parent organization on the case being decided in favour of the petitioner,

and the respondent is so informed by the IB in this regard. Petitioner finally

pleads that he was successful in the court case in terms of the judgment

dated 5.11.1999 in LPA No.216/1980 whereby the petitioner was directed to

be considered by the IB for promotion to the post of ACIO-II (Tech.) from

24.12.1974 and IB therefore re-fixed his pay treating the petitioner as ACIO-

II (Tech.) against the earlier rank of JIO-I (Tech.). Petitioner accordingly

claims that his pay which was fixed by the respondent at the time of his

appointment should hence be at a higher pay scale.

4. Respondent has contested the case of the petitioner and stated

that the petitioner was given appointment on specific terms as per the

recruitment done. A particular pay scale was given in the appointment letter

of appointment of the petitioner to the post of Supervisor Grade-II being the

pay scale of Rs.550-20-900/-. Respondent has denied that there was

assurance as claimed by the petitioner that he would be soon considered for

appointment to the post of Supervisor Grade-I. Respondent also argues

before this Court that it was the respondent which was to decide what would

be its financial commitment/pay to be paid to the petitioner and there is no

law or any other service rule requirement that petitioner's pay had

necessarily to be fixed by the respondent as per his last pay drawn with his

earlier employer/IB. Respondent contends that pay protection of the

petitioner in terms of the letter of the respondent dated 24.2.1982 was only

for the period during retention of lien and such expression of words are

specifically found in para 2 of this letter dated 24.2.1982 filed as Annexure

P-4 to the writ petition. Respondent also argues that the petitioner is

wrongly interpreting the last line of para 4 of the respondent's

communication dated 11/12.4.1983 inasmuch as when re-fixing of pay of the

petitioner is talked of in the last line of para 4 of the letter dated

11/12.4.1983 the same is qua the fixation only for the period of lien and not

for the period thereafter when the petitioner would in fact be an employee of

the respondent. Hence, the respondent pleads that it was and is entitled to fix

what should be the financial commitment of the respondent to the petitioner

in terms of its service rules. Respondent also argues that merely because the

initial employer of the organization namely IB has given a particular higher

pay scale by granting promotion to the petitioner, that cannot mean that the

same is binding on the respondent because there is no law nor any service

rule of the respondent that respondent is bound to fix a particular pay scale

for its employee merely because that employee was working earlier with the

government. It is reiterated by the respondent that protection of pay of the

petitioner and grant of any higher pay can only be during the period when

the petitioner had lien with his original employer and not on his becoming a

permanent employee with the respondent.

5. I agree with the arguments and contentions urged by the learned

senior counsel for the respondent inasmuch as a deputationist organization

has a right to fix the pay of an employee once the period of deputation

comes to an end and the employee is absorbed as the employee of the

respondent. In this case, it is rightly argued by the counsel for the

respondent that there was no period of deputation and petitioner was given a

specific direct appointment in terms of the offer letter of the respondent

dated 7/8.12.1981 which specified the pay scale of the petitioner. The pay

scale originally fixed would stand revised in terms of the letter of the

respondent dated 28/29.5.1984 as Rs.550-900/- with basic pay of Rs.590/-.

It is argued that merely because the original employer of the petitioner has

treated the petitioner on foreign service with the respondent, cannot mean

that petitioner would be on deputation with the respondent because at no

point of time respondent ever treated the petitioner as being on deputation

with the respondent and no communication has been issued by the

respondent to the petitioner wherein it is stated that petitioner is taken on

deputation from IB to the respondent.

6. That the stand of the respondent urged before this Court is

correct becomes clear from the letter of the respondent dated 11/12.4.1983

addressed to the petitioner wherein in para 1 respondent has categorically

stated that retention of lien of the petitioner with the previous employer is

for the interest of the petitioner and the same does not extend any liability

upon the NTPC/respondent and that therefore the question of mentioning of

the lien terms and conditions in the appointment letter to the petitioner does

not arise.

7. In the opinion of this Court in one way this writ petition can

also be said to be barred on the principle of limitation and the doctrine of

delay and laches inasmuch as once the request of the petitioner was

specifically rejected by the respondent vide its letter dated 11/12.4.1983, the

petitioner thereafter cannot approach this Court much later in the year 2004

inasmuch as though strictly the Limitation Act, 1963 does not apply to writ

petitions but the principle of limitation will definitely apply and this is so

held by the Supreme Court in the case of State of Orissa and Anr. Vs.

Mamata Mohanty (2011) 3 SCC 436. Paras 52 to 54 of this judgment are

relevant and the same read as under:-

"52. In the very first appeal, the respondent filed Writ Petition on 11-11-2005 claiming relief under the Notification dated 6-10-1989 w.e.f. 1-1-1986 without furnishing any explanation for such inordinate delay and on laches on her part. Section 3 of the Limitation Act, 1963, makes it obligatory on the part of the court to dismiss the Suit or appeal if made after the prescribed period even though the limitation is not set up as a defence and there is no plea to raise the issue of limitation even at appellate stage because in some of the cases it may go to the root of the matter. (See Lachhmi Sewak Sahu v. Ram Rup Sahu: AIR 1994 PC 24 and Kamlesh Babu v. Lajpat Rai Sharma: (2008) 12 SCC 577.)

53. Needless to say that Limitation Act, 1963 does not apply in writ jurisdiction. However, the doctrine of limitation being based on public policy, the principles enshrined therein are applicable and writ petitions are dismissed at initial stage on the ground of delay and laches. In a case like at hand, getting a particular pay scale may give rise to a recurring cause of action. In such an eventuality, the petition may be dismissed on the ground of delay and laches and the court may refuse to grant relief for the initial period in case of an unexplained and inordinate delay. In the instant case, the Respondent claimed the relief from 1-1-1986 by filing a petition on 11-11-2005 but the High Court for some unexplained reason granted the relief w.e.f. 1-6-1984, though even the Notification dated 6-10-1989 makes it applicable w.e.f. 1-1-1986.

54. This Court has consistently rejected the contention that a petition should be considered ignoring the delay and laches in case the petitioner approaches the Court after coming to know of the relief granted by the Court in a similar case as the same cannot furnish a proper explanation for delay and laches. A litigant cannot wake up from deep slumber and claim impetus from the judgment in cases where some diligent person had approached the Court within a reasonable time. (See Rup Diamonds v. Union of India: (1989) 2

SCC 356, State of Karnataka v. S.M. Kotrayya: (1996) 6 SCC 267 and Jagdish Lal v. State of Haryana: (1997) 6 SCC 538.)"

(underlining added)

8. In view of the above, merely because petitioner got a higher pay

scale in his original employer on account of his being granted promotion

pursuant to his being successful in a court case against his original employer

cannot mean that respondent is in any manner legally bound by the pay scale

which is fixed of the petitioner in the original employer/organization/IB. The

respondent is rightly entitled to contend that the relationship of the petitioner

with the respondent has to be governed directly and only within the scope of

the letter of the appointment dated 7/8.12.1981 and as amended partially in

terms of the office order of the respondent dated 28/29.5.1984 fixing pay

scale of Rs.550-900/- with basic pay of Rs.590/-.

9. Petitioner has not been able to establish to the satisfaction of

this Court that the petitioner can be said to have been on deputation for a

period of two years with the respondent as is claimed by the petitioner from

the original date of appointment with the petitioner inasmuch as appointment

of the petitioner with the respondent is not shown to be on deputation by

filing any letter of the respondent to this effect. Also, the petitioner's

request having been rejected by the respondent of being granted a higher pay

scale in the year 1983 itself, the writ petition filed in the year 2004 is also

barred by the doctrine of delay and laches as stated above.

10. In view of the above, there is no merit in the petition, and the

same is therefore dismissed. No costs.

APRIL 16, 2015                                    VALMIKI J. MEHTA, J
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