P.S. Pathrudu vs Union Of India & Ors
2015 Latest Caselaw 2633 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                  Judgment delivered on: March 27, 2015.
+     W.P.(C) 6127/2014
      P.S. PATHRUDU                                        ..... Petitioner
                             Through:   Mr.Yashpal Rangi, Advocate.
                    versus

      UNION OF INDIA & ORS                           ..... Respondents
                    Through:            Mr.Anurag Ahluwalia, CGSC for
                                        R-1 to R-3

      CORAM:
      HON'BLE MR. JUSTICE KAILASH GAMBHIR
      HON'BLE MR. JUSTICE I.S.MEHTA

                                JUDGMENT

%

KAILASH GAMBHIR, J.

1. By this petition filed under Articles 226 & 227 of the constitution

of India, the petitioner seeks to challenge the order dated 27.05.2014

passed by the learned Tribunal in O.A.No.415/2012.

2. Assailing the legality and correctness of the impugned order,

Mr.Yashpal Rangi, counsel representing the petitioner submits that the

learned Tribunal has not properly appreciated the law laid down by the

Apex Court in the case of K.Gopinathan vs. Union of India and Ors.

reported in (1992) 4 SCC 701, which clearly states that the basic pay of

an employee which was drawn earlier cannot be reduced on absorption

under any circumstance. Contention raised by counsel for the petitioner is

that the basic pay of the petitioner while he was on deputation was

Rs.5,640/- which was reduced to Rs.4,750/- on his absorption. Counsel

further argued that the learned Tribunal has also not appreciated the fact

that O.M. dated 18.06.2001 is very much applicable to the facts of the

present petition and even the earlier O.M. dated 19.07.1983 of 1983

protects the interest of the petitioner in so far as fixation of his pay was

concerned. Counsel also argued that the learned Tribunal failed to

appreciate that the undertaking given by the petitioner at the time of his

absorption cannot defeat the legitimate right of the petitioner to seek

enforcement of his right for the protection of his basic pay in terms of

both the said Office Memorandums, i.e. of 1983 and 2001 and if any

undertaking taken by the respondents was against the letter and spirit of

the said two OMs, the same cannot be held as binding on the petitioner.

3. Opposing the present petition and the arguments of the counsel for

the petitioner, Mr. Anurag Ahluwalia, Standing Counsel appearing for the

respondents submits that the undertaking given by the petitioner was in

consonance with the OMs of 1983 and 2001 and the OM of 1983 only

deals with the subject matter which is of pay fixation. Counsel also

argued that the OM of 2001 does not deal with the subject matter of pay

fixation and, therefore, the same is not applicable to the controversy in

hand as already held by the learned Tribunal. Counsel further submits that

insofar as the judgment of the Apex Court in the case of K.Gopinathan's

case (Supra) is concerned, the learned Tribunal has rightly held that this

judgment is not applicable in the present case as in the present case there

is a delegated legislation in the shape of OM of 1983 which holds the

field whereas there was no such delegated legislation issued in that case.

Counsel thus submits that the Tribunal has rightly distinguished the

judgment of the Apex Court insofar as the facts of the present case are

concerned. Counsel also argued that in terms of OM of 1983, the

respondents have given the comparative chart which has been reproduced

in the impugned order and which would clearly show that the petitioner

was granted the personal pay i.e. Rs.1092/-, which was the difference of

total pay, which the petitioner was earlier drawing with the basic pay of

Rs.8385 and in terms of OM of 1983 the said difference of pay was to be

protected by granting him personal pay to be absorbed in future increase

of pay. Counsel thus submits that the petitioner was quite conscious of

the said benefits which were available to him on his absorption and due to

this reason he had given his undertaking.

4. We have heard learned counsel for the parties at considerable

length and give our thoughtful consideration to the arguments advanced

by them. We have also gone through the impugned order passed by

learned Tribunal and the material placed on record.

5. In the present writ petition the contentions raised by the petitioner

are mere reiteration of the pleas raised by him before the learned Tribunal

and on perusal of the order passed by the learned Tribunal, we find that

every contention raised by the petitioner has been convincingly dealt with

by the learned Tribunal on complete analysis of the factual and legal

position and there appears to be no room left for interference by this

Court. Counsel representing the petitioner has neither brought any new

ground to lay challenge to the order of the learned Tribunal nor could

succeed in pointing out as to how and in what manner the reasoning given

by the learned Tribunal is illegal, irrational or perverse. Based on the

pleadings of the parties, the learned Tribunal had formulated following

questions for its final adjudication, the same are reproduced hereunder:-

i. What is the structural difference between deputation and absorption? Do they differ in their scope and orientation?

ii. What is the difference in the scope of Circular of 1983 and RTI information in reference to the case under deputation?

iii. Whether there is any statutory provision that pay being drawn by the deputationist at the time of absorption and the gains of his previous service shall be protected at the time of his absorption?

iv. Whether the applicant needed to have assailed the Circular of 1983 in order to get relief that he has desired in the instant OA?

v. Whether the undertaking given by the applicant at the time of his absorption accepting the pay has been reduced to a nullity by the pronouncement in the case of Rajasthan Public Service Commission, Ajmer versus Dr. (Mrs.) Damyanti Dadich and Others decided by the Division Bench of Jaipur Bench of the Hon ble High Court of Rajasthan on 03.08.1992.

vi. What relief, if any, can be granted to the applicant in consideration of the answers to the questions, framed above?

6. On the close scrutiny of the Impugned Order, we find that the

finding of the Tribunal on all the aforesaid points does not call for any

interference. The Tribunal is correct in observing that there is a

perceptible difference between the terms of 'deputation' and 'absorption'

and both are not interchangeable expression. Taking help of the judgment

of the case of State of Mysore versus M.H. Bellary, [AIR 1965 SC 868],

wherein the Apex Court has distinguished between the terms 'deputation'

and 'absorption', the Tribunal took a view that the deputation is an

extension of service in the parent department with another host

organization and the employee on deputation continues to get the service

benefits including upgradation and promotion as and when they are

provided to an employee, immediate junior to him, in operation of the

next below rule. When he reverts to his cadre he would be placed above

the employee junior to him and would be entitled to the benefits which

the latter have availed from the said date. Whereas in the case of

'absorption' the service rendered by the employee in his parent

department comes to a stage of termination. It further held that on

absorption, the pay scales, service conditions, other benefits may not

necessarily be the same at par with the benefits drawn by such employee

in his parent department and the same can be different. It also held that

absorption cannot be forced but in terms of FR 110(a) no Government

servant may be transferred to foreign services against his will, however

this does not preclude his transfer to service or body which is wholly or

substantially controlled by the Government and hence it is a deliberate

choice provided to the Government servant. Another distinction which

was pointed out was that in deputation the Government employee

continues to hold permanent lien of his service in the parent department,

while in the case of absorption his permanent lien is terminated and it is

no longer at the option of absorbed employee to revert to his parent

department. After spelling out the distinctive features of both the said

terms, the learned Tribunal held that it can be inferred that the deputation

is a continuous service in the parent department, whereas absorption is a

rebirth in new service.

7. On Issue No.2, learned Tribunal has rightly held that the subject of

pay fixation of State Police Officer on deputation to the Intelligence

Bureau and on their permanent absorption in Intelligence Bureau is

governed by the OM dated 19.7.1983 issued by the Government of India.

This OM, inter alia, provides as under:-

"In supersession of this Ministry's letter No.2/Est(C)74(1)-III/FP.V dated 22.06.1979 on the subject, I am directed to convey the sanction of the President to the adoption of the Formula of pay

fixation as contained in the Ministry of Finance O.M. No. F.1(11)-III(B)/69 dated 20.1.70 as amended from time to time for fixation of pay of the deputationist State Police Officers on their permanent absorption in the Intelligence Bureau in the rank of JIO-II, JIO-I, ACIO-II, ACIO-I and DCIO subject to the notification given below:-

(i) In case the pay in the central scale so determined plus special pay (if any) is more than the pay plus deputation allowance plus special pay admissible as deputationist in the grade in which he is permanently absorbed, his pay in that grade will be fixed at such a stage that the pay plus special pay admissible, if any, does not exceed the total of pay plus deputation allowance plus special pay admissible to him as deputationist in the grade in which he is permanently absorbed.

(ii) If, on the date of permanent absorption, the total of the pay plus deputation allowance plus special pay plus dearness allowance plus interim relief if any drawn at the State rates by deputationist exceeds the total of pay plus special pay, if any, plus dearness allowances at central rates, the difference shall be allowed as personal pay to be absorbed in future increment.

(iii) If the deputationist is officiating in a grade higher than the one in which he is permanently absorbed in the IB, his pay in the officiating grade will be fixed in the Central Scale under the normal rules on the date of the permanent absorption. If, however, the total of the pay plus deputation allowance plus special pay drawn as deputationist on the date of permanent absorption in the officiating grade is

more than the total of the pay plus special pay, if any, admissible in the central pay scale attached to the post in which the officer is officiating the difference will be protected by granting him personal pay to be absorbed in future increase of pay.

2. The revised formula will come into effect from 22.6.1979. This will be applicable to persons who are permanently absorbed w.e.f. the date or after the date of coming into force of the formula.

3. I am also to say that with effect from 1.1.73, the formula of pay fixation on permanent absorption as contained in this Ministry's letter No.7/43/62-P.III dated 24.7.62 as amended from time to time will be modified to the extent that personal pay should be granted only to the extent the pay plus dearness allowance (including interim relief, dearness pay and additional dearness allowance) at state rates plus special pay plus 50% deputation allowance is more than the total pay plus special pay, if any, plus dearness allowance (including additional dearness allowance) at the central scale.

4. Past causes, decided in terms of this Ministry's letter No.7/43/62-P.III dated 24.7.62 as amended from time to time and modified w.e.f. 1.1.73 vide para 3 above, will normally not be re-opened. However, individual cases of hardship where an officer is likely to suffer in pensionary benefits as a result of the fall in basic pay on permanent absorption, will be taken up with the pay unit of the Department of Personnel/Ministry of Finance for consideration on merits so as to avoid any loss to the individual in the grant of pensionary benefits.

8. It has not been disputed by the learned counsel for the petitioner

that the pay of the petitioner on his absorption was fixed in terms of the

aforesaid OM. The grievance raised by the petitioner is that OM dated

18.6.2001 issued by the Government of India will come to the rescue of

the petitioner for the protection of pay which he was drawing in his

parent department. It is also the plea of the petitioner that basic pay of the

employee cannot be reduced in any circumstances and in the case of the

petitioner, the same has been reduced from Rs.5640 to Rs.4750 on his

absorption which is impermissible in law. It is also the stand of the

petitioner that clause 4 of the OM dated 19.7.1983 also protect the basic

pay of the petitioner which he was drawing in his parent department

before his absorption. The comparative position of pay scale of the

petitioner before and after absorption as has been referred in the

impugned order is reproduced as under:-

(Pay + allowance as on 13.10.1994 (Pay + allowance as on 13.10.1994) arrived at after taking into account Drawn by him in the pay scale of presumptive pay in the scale of SA Parent Deptt. i.e. Andhra Pradesh of IB (equivalent to the rank of Police in the rank of Constable Constable) as per para 1(i) of MHA letter dated 19.07.1983 (Annexreu-

Pay in SPP-1 Scale Rs.3750-100- I) Pay scale of SA/G in IB Rs.3050- 3950-120-4550-150-5300-170- 75-3950-80-4590. 6150-200-7150-250-7650 He joined IB on 13.10.1999

Basic pay as on 01.10.83 was fixed Basic Pay as on 13.10.1999 = Rs.

by parent department in TSP of pay 4590/-

(Maximum scale of pay of SA/G) of Rs.5450-135-5605-145-6040-

1st stagnation after 2 years on 155-6505-170-7015-185-7570-200- 01.10.2001 = Rs.4670/-

8170-215- 8815-235-9520-255- 2nd stagnation after next 2 years on

10285-280-11125-315-12385 on 01.10.2003 = Rs.4750/-

revision    of     pay   by     Parent

Department at = Rs.8170/-

Basic pay as on 01.10.2004 = Basic Pay as on 01.10.2004 = Rs.8385/- Rs.4750/-

(after granting one increment of

Rs.215/- with Rs.8170/-)

Basic pay as on 13.10.1994 = Basic pay as on 13.10.1994 = Rs.8385/- Rs.4750/-

DA                               = Rs. DA                       = Rs. 998/-
395/-                                  (14%)
(4.710%)
                                      DP                        =
Dep. All                   = Rs.420/- Rs.2375/-
(Restricted to 50%)

Special Pay                   = Rs.15/-

Total Pay        = Rs. 9215/-             Total Pay             =
                                          Rs.8123/-

9. The eventuality which could fall out of the absorption of such an

employee with regard to his basic pay, deputation allowance, etc. were

taken care of in the said OM dated 19.7.1983. It envisaged that where the

pay fixed on absorption is less than the pay + deputation allowance plus

special pay + dearness allowance + interim relief drawn at the central

rates, the difference shall be made up by granting personal pay to the

absorbed employee. The Tribunal is correct in holding that this is on

account of the fact that the new service has got its own pay and seniority

structure etc. It further held that while being on deputation, the separate

identity of the employee on deputation is retained and even though

rendering service to the host organization, a deputationist does not

compete with the permanent employees of the host organization for any

of the benefits. This is absolutely necessary because if the deputationists

were to carry their past service into the new organization at par, it would

totally upset the pay structure, recruitment pattern etc. of the host

organization and they would end up higher vis-`-vis the direct recruits.

Therefore, it has been deemed necessary to make this provision so that

balance is maintained in respect of the persons joining the organization

on a permanent basis and merging their identities with a new entity. The

Tribunal also held that in terms of para 4 of the OM, the provision was

made so that the cases of extreme hardship could be taken up and

ameliorated. Much emphasis was laid by learned counsel for the

petitioner on this para of the OM which as per the counsel protects the

basic pay of the petitioner on his permanent absorption also. Para 4

clearly refers to the past cases decided in terms of Ministry's letter No.

7/43/62-P.III dated 24.7.62 as amended from time to time and modified

with effect from 1.1.1973, will not normally be re-opened and it has

further been clarified by saying that individual cases of hardship where an

officer is likely to suffer in pensionary benefits as a result of the fall in

basic pay on permanent absorption, will be taken up with the pay unit of

the Department of Personnel/Ministry of Finance for consideration on

merits so as to avoid any loss to the individual in the grant of pensionary

benefits. We fail to comprehend as to how the case of the petitioner fall

under para 4 of the said OM as the said para caters to past cases decided

in terms of Ministry's letter dated 7/43/62-P.III dated 24.7.62 as amended

from time to time and modified w.e.f. 1.1.1973.

10. In so far as the contention raised by learned counsel for the

petitioner that the OM Dated 18.6.2001 will govern the case of the

petitioner, here again we find ourselves in complete agreement with the

reasoning given by the learned Tribunal that this OM is more concerned

with implementation of the 5th Central Pay Commission and the fixation

of pay of a deputationist on his absorption is governed by the OM of

19.7.1983. The petitioner herein has also given an undertaking at the time

of his absorption and the said undertaking is in consonance with the said

OM dated 19.7.1983 and since the undertaking is not in contravention of

any of the policy guidelines of the said OM dated 19.7.1983, we cannot

appreciate the argument of learned counsel for the petitioner that the said

undertaking given by the petitioner is against the law of the land.

11. On the applicability of the decision of the Apex Court in the case

of K. Gopinathan vs. Union of India, (Supra), the Tribunal is correct in

observing that in the facts of the said case, there was no such subordinate

legislation in the shape of OM dated 19.07.1983 and the issue therein was

decided in the facts of its own case, while in the facts of the present case,

the case of the petitioner is governed by the subordinate legislation which

prescribes the way the fixation is to be done.

12. In the light of the aforesaid discussion, we find no merit in the

present petition and no ground to interfere with the reasoning arrived at

by the learned Tribunal. Accordingly, the writ petition filed by the

petitioner is dismissed and the order passed by learned Central

Administrative Tribunal is upheld.

13. No costs.

KAILASH GAMBHIR, J

I.S.MEHTA, J MARCH 27, 2015 pkb