Delhi High Court
Harbansh Dayal Mathur vs Uoi & Ors. on 24 January, 2019
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 24th January, 2019.
+ W.P.(C) 2307/2003
HARBANSH DAYAL MATHUR ..... Petitioner
Through: Ms. Meenu Mainee, Adv.
versus
UOI & ORS. ..... Respondents
Through: Mr. Ashok Singh, Adv. for UOI
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE PRATEEK JALAN
PRATEEK JALAN, J. (ORAL)
%
1. The petitioner is aggrieved by an order of the Central Administrative
Tribunal [hereinafter, "the Tribunal"] dated 04.09.2002 by which his
application [O.A. 250/2002] has been dismissed, as also by the Tribunal's
order dated 15.11.2002 by which his application for review [R.A.
273/2002] has been rejected.
2. The petitioner joined the services of the railways as a Clerk on
27.07.1963 in the Mechanical Cadre. He was promoted as an Assistant
Superintendent with effect from 01.01.1984 by an order dated 08.02.1985.
He claims to have been "transferred" to a field organization of the
Railways, namely the Central Organization for Modernization of
Workshops ["COFMOW"] as Assistant Superintendent with effect from
21.08.1985 and to have been promoted as a Superintendent in COFMOW
on an ad-hoc basis on 18.10.1985. Although he was promoted substantively
to the post of Superintendent in his parent cadre with effect from
17.02.1992, he continued in COFMOW until 27.12.2002 and thereafter
joined the office of the Divisional Regional Manager ["DRM"], Northern
Railway. He returned to his parent cadre on 25.01.2002 and was thereafter
promoted as Chief Office Superintendent. His grievance is that, by an order
dated 17.07.2002, his pay in the promoted post was reduced from ₹9700 to
₹ 9025, treating his service in COFMOW and the office of the DRM as ex-
cadre deputation.
3. Ms. Meenu Mainee, learned counsel for the petitioner submits that
the petitioner's service in COFMOW was wrongly disregarded by the
railways and he was entitled to the benefit of protection of the pay which he
had drawn. Although he has since retired from service on 30.06.2003, she
contends that his pension has also been fixed on the basis of the reduced
pay. Mr. Ashok Singh, learned counsel for the respondent, on the other
hand, submits that the petitioner's entire service from 1985 to 2002 was in
ex-cadre posts and he is not entitled to protection of pay in such
circumstances.
4. We have considered the submissions of the parties in the light of the
admitted documents placed before us, including the orders by which the
petitioner's services were deployed in COFMOW, the copy of the
petitioner's service book and charts placed on record by both parties
regarding the pay drawn by the petitioner at various times.
5. It emerges from these documents that the petitioner's services were
placed in COFMOW by the Railways on 12.08.1985. It was stated therein
that he was "transferred in the same capacity to COFMOW", and that his
lien was retained in his parent cadre. He was thereafter promoted in
COFMOW to the post of Superintendent by an order dated 18.10.1985.
This was purely on an ad-hoc basis and the order expressly stated that it
would not confer any right for promotion in the parent cadre. The Railways
have placed on record [Annexure RA 3 to an affidavit dated 11.08.2017] a
chart showing the complete details of the petitioner's salary in various
posts. It appears therefrom that the petitioner's substantive promotion in his
parent cadre with effect from 17.01.1992 was on an application of the "next
below rule" i.e. in view of the fact that his immediate junior in the parent
cadre had been promoted. However, he is stated to have been in an "ex-
cadre" post until 21.05.2002 when he joined the parent cadre, and was
promoted to the post of Chief Office Superintendent. It is at this stage that
his pay was reduced from ₹ 9900 to ₹ 9025.
6. Although the respondents contended in their counter affidavit before
the Tribunal as well as in this Court that the petitioner's services in
COFMOW and thereafter with DRM were on deputation, we find that this
position is not borne out by the documents on record. The petitioner has
relied upon a circular dated 18.07.1984, issued by COFMOW, which
clearly states inter alia as follows:-
"The transfer of staff from other Zonal Railways/Production
Units to COFMOW is not on deputation. COFMOW is one of
the field organizations of Indian Railways. The question of
deputation therefore, does not arise. No deputation
allowance/special pay is entitled to staff transferred to
COFMOW. Moreover, unlike on deputation (where the period
of deputation or tenure is specified), no time limit is prescribed
for staff transferred to COFMOW. Accordingly transfer of
staff to COFMOW cannot be viewed as transfer of Central
Govt. employees on deputation to other Govt. Deptt., Company
or Corporation which are regulated in terms of Railway
Board‟s letter No.F(E) II-70/FS/T dated 17.1.76."
It is also on record that the staff drawn from Zonal Railways in COFMOW
enjoy privileges available to Railway employees like retention of railway
quarters, railway passes etc. during their period of service in COFMOW. In
response to an application under the Right to Information Act, 2005, made
by the petitioner during the course of these proceedings, COFMOW has by
its communication dated 05.05.2009 expressly stated that the petitioner's
posting with it on 12.08.1985 was "not on deputation". It is also the
admitted position that the petitioner did not draw any deputation allowance
or other benefits which would support the respondents' contentions.
Reliance of the respondents upon the judgment of the Supreme Court in
State of Punjab vs. Inder Singh & Ors. (1997) 8 SCC 372 and Union of
India vs. Bhanwar Lal Mundan (2013) 12 SCC 433 are therefore of little
assistance as those cases concerned the fixation of pay of a deputationist on
repatriation to the parent cadre. The orders of the respondent themselves
described the case of the present petitioner as one of "transfer" and indeed
it has been so considered in the impugned judgment of the Tribunal, against
which the respondents are not in appeal.
7. The Tribunal has specifically found that the petitioner was promoted
as Superintendent in his parent cadre substantively on 17.02.1992 as per his
seniority position in his cadre. There is nothing to suggest that his service in
COFMOW or the DRM's office thereafter was either at his request or of his
own volition. Even if the petitioner continued to serve in ex-cadre posts
thereafter, that fact cannot be held against him in these circumstances.
8. For the above reasons, the Court is of the opinion that the writ
petition partly succeeds. Accordingly, the respondents are hereby directed
to treat the petitioner as having been in regular service w.e.f. 01.07.1992
[the date on which he was granted substantive promotion on the basis of the
"next below rule"]. All the consequential benefits including pay revision,
fitment in the regular pay scale at the relevant stages from time to time, re-
fixation of pay scale with effect from 2002, on the basis of continuous
service in the higher substantive grade from 1992 and consequently,
pension fixation and revision, subsequent to Pay Commission's
recommendations shall be granted to him. The pay and pension fixation
orders and the arrears of pay/pension, shall also be disbursed to him within
three months, failing which the respondents shall pay interest thereon
@12% per annum.
9. The writ petition is allowed in the above terms.
Dasti.
PRATEEK JALAN,J.
S. RAVINDRA BHAT,J.
JANUARY 24, 2019
„hkaur/pv‟
