Himachal Pradesh High Court
Narender Kumar Thakur vs National Hydro Electric Power ... on 28 October, 2021
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 28th DAY OF OCTOBER, 2021
BEFORE
.
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
CIVIL WRIT PETITION No.464 of 2012
Between:-
1. NARENDER KUMAR THAKUR,
S/O SH DAULAT RAM THAKUR,
R/O VILL. SOJHA. P.O. PALACH,
TEHSIL BANZAR, DISTRICT KULLU, H.P.
2. BANAM RAM,
S/O SHRI NARAIN SINGH,
R/O VILLAGE NELA,
P.O. DUDAR, TEHSIL SADAR,
DISTRICT MANDI, H.P.
.....PETITIONERS
(BY SH. SUNIL MOHAN GOEL, ADVOCATE)
AND
1. UNION OF INDIA
THROUGH SECRETARY,
GOVERNMENT OF INDIA,
MINISTRY OF POWER, SHRAM
SHAKTI BHAWAN, NEW DELHI.
2. NHPC LIMITED,
THROUGH ITS
CHAIRMAN-CUM-MANAGING DIRECTOR,
NHPC OFFICE COMPLEX,
SECTOR-33, FARIDABAD (UP).
3. H.P. STATE ELECTRICITY
BOARD LIMITED, THROUGH ITS
CHIEF EXECUTIVE DIRECTOR,
VIDYUT BHAWAN, SHIMLA 171004.
4. STATE OF HIMACHAL PRADESH,
THROUGH PRINCIPAL SECRETARY
(MPP & POWER) TO THE GOVERNMENT
OF HIMACHAL PRADESH. SHIMLA-171002.
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2
5. GOVERNMENT OF INDIA
THROUGH SECRETARY,
MINISTRY OF HEAVY INDUSTRIES
& PUBLIC ENTERPRISES, DEPARTMENT OF
.
PUBLIC ENTERPRISES, PUBLIC
ENTERPRISES BHAWAN BLOCK NO.14,
CGO COMPLEX LODI ROAD,
NEW DELHI-110003.
.....RESPONDENTS
(SH. RAJINDER THAKUR, CENTRAL GOVERNMENT
COUNSEL FOR RESPONDENTS NO. 1 AND 5.
SH. K.D.SHREEDHAR, SENIOR ADVOCATE WITH SH.
SAURABH AHLUWALIA, ADVOCATE, FOR RESPONDENT
NO.2.
SH. KUNAL THKAUR, DEPUTY ADVOCATE GENERAL
WITH SH. SHRIYEK SHARDA, SENIOR ASSISTANT
ADVOCATE GENERAL AND SH. SUNNY DHATWALIA,
ASSISTANT ADVOCATE GENEAL, FOR RESPONDENT
NO. 4.
________________________________________________________________
This petition coming on for hearing this day, the
Court passed the following:
JUDGMENT
Petitioners claimed following reliefs in this writ
petition.:-
"a) This Hon'ble Court may be pleased to issue writ of
certiorari quashing Annexure P 9 circular dated 1.10.2009
issued by Respondent No.2 Corporation by holding that
DPE guidelines issued by Respondent no.5 dated
26.11.2008 are not applicable to the petitioners. This
Hon'ble Court may also be pleased to quash
communication dated 232.07.2011 Annexure P 12 to the
extent that extension being granted to deputationists like
petitioners is being granted as per DPE guidelines dated
26.11.2008.
(b) Tat this Hon'ble Court may kindly be pleased to issue writ
of mandamus directing respondent No.2 Corporation to
.
grant extension in deputation to petitioner No.1 with
respondent No.2 on same terms and conditions on which
he was initially taken on deputation by Respondent No.2
Corporation.
(c ) That this Hon'ble Court may be pleased to issue a writ of
mandamus directing Respondent No.2 Corporation to pay
to the petitioner allowances as were being paid to them till
February 2010 from March 2010 onwards and also to
refund back to the petitioner No.1 the recovery of
allowances so made by respondent No.2 Corporation."
During hearing of the case, learned counsel for the
petitioners stated that due to subsequent events i.e. repatriation
of the petitioners from deputation with respondent No.1 to their
parent department and their retirement, prayers number (a) and
(b) have become infrucutous. The arguments were advanced by
the learned counsel for the parties only with respect to prayer No.
(c).
2. In respect to relief No. (c), contention of learned
counsel for the petitioners is that the matter in that regard is
covered by the judgment passed by a Co-ordinate Bench of this
Court on 26.02.2013 in CWP No. 3368 of 2010, Raj Kumar and
others Versus National Hydro Electric Power Corporation
Limited and others as well as by another judgment rendered by
this Court on 22.10.2019 in CWP No.3658 of 2014, titled as
Harish Kapoor Versus NHPC & ors. .
3. It is not in dispute that both the petitioners were
.
serving on deputation with respondent No.1. The deputation
period of petitioner No.1 ended on 10.05.2008 and that of
petitioner No.2 on 11.05.2008. However, even after expiry of the
deputation period, both the petitioners were allowed by
respondent No.1 to serve in respondent-Corporation. The
30.04.2010 and
r21.12.2010,
petitioners were finally repatriated to their parent department on
respectively.
allowances being paid to them by respondent No.1 during the
The perks and
period of their deputation service in the respondent-Corporation,
were not paid to the petitioners, with effect from, 26.11.2008 till
their repatriation on the basis of an office memorandum dated
26.11.2008. Some of the perks and allowances paid to the
petitioners during this period were recovered from them in view of
office memorandum dated 26.11.2008.
4. Office memorandum dated 26.11.2008 has been
considered by a Co-ordinate Bench of this Court in Raj Kumar's
case (supra), paras 2 and 3 of the judgment being relevant, are
extracted as under:-
"2. On the plain reading of the above Clause 2(a) of Circular
dated 1.10.2009, Annexure P.6, it is abundantly clear
that the Government Officers such as the petitioners,
who were already on deputation with COSE's as on
26.11.20008, (the date of issue of Office Memorandum
dated 26th November, 2008, Annexure R.2) were to
continue to avail of the option already available and
exercised by them till the end of their deputation tenure
.
subject to the condition that the extension, if any, given
after 26.11.2008, would not qualify for this dispensation.
Indisputably, petitioner No.1, Sh. Raj Kumar and
petitioner No.2 Sh. Mehar Chand, were already on
disputation as on 26.11.2008 and were relieved only on
31.12.2011 and 6.3.2012, respectively, and that too in
terms of order dated 17.10.2011, passed by this Court in
this matter, which is extracted below for ready
reference:-
"Petitioners are at liberty to make
rrepresentation to N.H.P.C., if they want to go
back and do not remain in the present
department on deputation in view of the
circular issued in regard to their allowances.
They may make such representations within a
period of six weeks and the respondents shall
take steps to relieve them in case they are not
ready to remain in the parent department and
such representation shall be decided by the
N.H.P.C. at the earliest. The representation, if
made within a period of six weeks, the same
shall be decided by the respondents within a
period of two months thereafter and put up the
petition for hearing after winter vacations."
3. Thus, in terms of Clause 2(a) of Circular dated
1.10.2009, Annexure P.6, the petitioners No.1 and 2
were entitled for allowances and perks being received by
them from time to time uptill 26.11.2008 and thereafter
till their repatriation on 31.12.2011 and 6.3.2012,
respectively."
On the basis of above interpretation, Raj Kumar's
case (Supra) was allowed on 26.02.2013. The recoveries effected
from the petitioners therein were quashed with a direction to the
.
respondent to refund the said sums to the petitioners. The
petitioners therein were also held entitled for payment on
difference of allowances and perks for the period, for which the
same were reduced to their determent till their to the parent
department.
5.
The same issue was again considered in CWP
No.3658 of 2014, Harish Kapoor Vs NHPC and others. On
consideration of the matter including the judgment passed in Raj
Kumar's case (supra), it was noticed that "It is not in dispute that
the judgment extracted above has attained finality. As per the
stand taken by NHPC, the judgment has been implemented by
NHPC not only in case of the petitioners therein, but also in the
case of the present petitioner. The judgment was to the effect that
notwithstanding office memorandum dated 26.11.2008,
Government employees on deputation with NHPC were to get the
benefits of scale and allowances in terms of the options already
availed by them at the time of their deputation in accordance with
Annexure P-2 till the end of their deputation."
In respect to the claims of the Productivity Linked
Group Insurance (PLGI) and ex-gratia/Bonus, following was
observed in the judgment:-
"3(i) Productivity Linked Group Insurance (PLGI) & Ex
gratia/Bonus:
Petitioner claims this allowance w.e.f. 26.11.2008 to
8.3.2010 by relying upon Clause (iii) of Annexure-IV
.
attached to the office memorandum dated 26.11.2008.
As already observed earlier, this clause is not applicable
to the case of the petitioner. Petitioner's case is governed
by Clause (iv) of Annexure-IV, which pertains to pay etc.
of Government Officers on deputation with NHPC. As per
Clause (iv), Government Officers on deputation with
NHPC were to draw the salary as per their entitlement in
the parent department and only those who came in
NHPC on permanent absorption basis were to get the
NHPC scales/perks/benefits. As observed earlier, this
clause was further clarified in Circular dated 1.10.2009
(Annexure P-7). This, read with judgment passed in CWP
No.3368/2010, allowed the benefit of scales etc. as per
options availed by the deputed employees/Government
employees at the time of deputation. It is not the case of
respondent No.1 that PLGI and Ex gratia/Bonus was not
admissible to the petitioner in terms of his option,
exercised as per Annexure P-2. Office memorandum
dated 26.11.2008 was to the detriment of the employees
of State Government, who were sent on deputation to
NHPC, inasmuch as it sought to change the terms and
conditions opted by the deputed employees in matters of
scales/perks/benefits. Clause (iv) of Annexure-IV
attached to office memorandum dated 26.11.2008,
restricted the grant of NHPC scales only to those, who
came in NHPC on permanent absorption basis. Those,
who came in NHPC on deputation (not on permanent
absorption basis) were to draw the salary as per their
parent department. This was clear departure from the
terms and condition contained in Annexure P-2,
whereunder the deputed employees were allowed to
exercise the options to get salary/scales/allowances as
per NHPC scales and allowances. This was further
clarified by circular dated 1.10.2009 that the employees
on deputation with NHPC as on 26.11.2008 would
.
continue to avail the options exercised by them till the
end of their deputation tenure. This was held to be so in
CWP No.3368/2010. Therefore, in my considered view
PLGI and ex gratia/bonus has to be allowed to the
petitioner till his date of repatriation i.e. 8.3.2010. Mr.
K.D. Shridhar, learned Senior Advocate, for respondent
No.1, contended that the deputation tenure of the
petitioner had expired on 14.10.2007. Therefore, he was
not entitled even to the benefit of Clause-2(a) of Circular
dated 1.10.2009 read with judgment in CWP
No.3368/2010. Learned senior counsel further submitted
that no formal extension was granted to the petitioner
after completion of his deputation tenure. Be that as it
may, it is an admitted fact that the petitioner even after
expiry of his deputation tenure on 14.10.2007 continued
to serve NHPC till his repatriation to parent department
on 8.3.2010. It is not the case of NHPC, that petitioner
served despite their unwillingness or that NHPC
repatriated the petitioner prior to 8.3.2010. As per reply
filed by NHPC, PLGI & Ex gratia was paid to the
petitioner till 31.3.2009. Once this allowance has been
paid to the petitioner till 31.3.2009, there is absolutely no
justification for not paying it till his repatriation on
8.3.2010. Petitioner is accordingly held entitled to PLGI &
Ex gratia w.e.f. 1.4.2009 to 8.3.2010."
It is admitted position of the parties that the
aforementioned judgments have attained finality and have been
implemented by the respondent-Corporation. The case of the
present petitioners in respect to their entitlement to the perks and
allowances, with effect from 26.11.2008 till the date of their
repatriation to their parent department is squarely covered in
terms of the aforementioned two judgments. Accordingly, the
.
petitioners are also held entitled to the perks and allowances in
terms of the above two judgments, including Productivity Linked
Group Insurance (PLGI) and ex-gratia/Bonus, with effect from,
26.11.2008 till the date of their repatriation to their parent
department. The same be released in favour of the petitioners
within a period of six weeks from today.
allowed and disposed of in the above terms.
r The writ petition is
Jyotsna Rewal Dua
Judge
October 28, 2021
R.Atal
