Narain Dubey & Ors Vs. Union of India
& Ors  INSC 419 (14 August 1998)
V. Manohar, S. Rajendra Babu Rajendra Babu, J.
APPEAL NOS. 4570-4571/96 & 4572/1996
three sets of appeals arise out of the orders made by the Central
Administrative Tribunal (Principal Bench). The appellants herein are/were
employed in the pension paying offices attached to the respective Ministries in
the Embassy of India at Nepal. Writ petitions had been preferred
before this Court under Article 32 of the Constitution and on the establishment
of the Central Administrative Tribunal, this Court transferred these petitions
for its consideration by an order made on 3rd November, 1992 in W.P. No. 591 of 1987, 903 of
1988, 620 of 1991 and 181 of 1987.
Civil Appeal No. 4569 of 1996, there are three appellants and they were
recruited by the Ministry of Defence, Government of India in Nepal and posted in the Pension Pay
Office at Pokhran. While the first appellant was appointed as a lower division
clerk on 24.7.1972, appellant No. 2 was appointed on 21.10.1964 and appellant
No. 3 on 2.9.1985. Thus at the time of filing of these appeals, appellant No. 1
had put in 20 years service, appellant No.2, 29 years and appellant No. 3, 8
years of service in their respective offices. They claim for confirmation in
their posts and for parity in emoluments, paid to their conterparts designated
as India Based Employees inasmuch as both of them were performing identical
works and employed in the same establishment.
Civil Appeal No. 4570 of 1996, there are 28 appellants and they are Nepali
nationals recruited in Nepal on different dates. They also seek
for identical reliefs as in Civil as in Civil Appeal Nos. 4569 of 1996,
Civil Appeal No. 4571 of 1996, there are 29 appellants, while appellants 24, 26
and 27 are Indian citizens rest of them are nepali nationals. Appellant No. 28
though a Nepali national is recruited in India and posted in Nepal. A claim is made on behalf of 32
others whose details are mentioned in Annexure I but they were not impleaded as
parties. On transfer of the proceedings to the Tribunal, the Tribunal did not
choose to treat them as party to the proceedings before it. These 32 persons
have not challenged the said orders made by the Tribunal although such an order
had been made adverse to them. Hence we do not propose to consider their cases.
The rest of the appellants apart from claiming the benefit as has been done by
the appellants in C.A. No. 4569 and 4570 of 1996, also claim that their
termination is illegal and that they deserve to be reinstated in service.
C.A. No. 4569 and 4571/1996
------------------------------ We shall first take up for consideration the
claim made by the appellants in this appeal for parity of pay and other
benefits. A contention had been raised before the Tribunal that the appellants
cannot claim equality as provided under Article 14 of the Constitution inasmuch
as the appellants are all posted outside the country and there cannot be enforcement
of the Constitution inasmuch as the appellants are all posted outside the
country and there cannot be enforcement of the Constitution outside India. The tribunal took the view that
the Pension paying office at Nepal cannot
be treated to be an extension of the territory of India for the purpose of Article 14 of
the Constitution and, therefore, the appellants cannot invoke the same.
However, we do not propose to examen the correctness of this view in these
proceedings as we propose to examine the merits of the matter and decide the
Tribunal based its decision on the enunciation of law made by this Court in Air
India vs. Nergesh Meerza AIR 1981 SC 1829, which is as follows: - "
nature, the mode and the manner of recruitment of a particular category from
the very start.
classifications of the particular category.
terms and conditions of service of the members of the category.
nature and character of the posts and promotional avenues.
special attributes that the particular category possess which are not to be
found in other classes, and the like.
the basis of these tests, the Tribunal examined the cases of appellants and
held that the appellants who are locally recruited in Nepal cannot claim as a
matter of right parity of pay-scale with their counter-parts in India.
between locally recruited employees in Nepal and India Based employees in Pension paying Offices is a valid
classification. However, the Tribunal allowed the claim to the extent of
declaring that those of the appellants who had been confirmed in various posts
pursuant to order dated 20th March, 1972, shall be demand to be confirmed
employees and shall be entitled to benefits flowing from there as are
admissible to locally recruited employees who are confirmed.
Appeal No. 4572 of 1996 ------------------------------ In this appeal, apart
from the claims regarding paying of pay-scales and other monetary benefits, the
appellants claim for quashing the respective orders made in respect of the
appellants terminating their services while the Tribunal reiterated its view on
the claim regarding the parity of pay and other emoluments. It held that
termination of services of appellants Nos.1 , 2 and 4 was justified while
termination of services of 3rd, 5th and 29th appellants was set aside with the
direction a that in Liew of their reinstatement, should be given to the tune of
six months pay to each one of them on the basis of pay they were getting on the
date of termination and their services in nepali currency. At the time of
consideration of the matter, the appellants did not press their claim regarding
the relief for similar pay and other benefits and gave up their claim and the
Tribunal reserved that part of the case to be agitated in appropriate forum.
The Tribunal found that the appellants had all been appointed to temporary
posts and their services could be terminated at any time. While in the case of
respondents Nos. 1,2 and 4, it was noticed that the orders of termination
merely stated that their services had been terminated with effect from
31.12.1986 or 1.1.1987. In case of others wherein it was indicated that their
services had been terminated on disciplinary grounds, but without holding an
enquiry, it was held that the same was not permissible as such orders would
cast a stigma on the career of the appellants. Therefore, their services could
not have been terminated in that manner and thus, set aside the directions with
a compensation as stated above.
Tribunal has examined the conditions of services applicable to the appellants
right from the inception and has found that the locally recruited candidates in
Nepal and those that were recruited in India and sent on deputation stood in
two different classes. The Tribunal also found on facts that there were good
reasons to treat them differently considering the exigencies of service and the
circumstances in which the appellants in these cases had been recruited.
appointments were purely temporary to serve a temporary purpose to off set the
extra load of work in their respective offices and in their very nature could
not claim to become permanent. Apart from this fact, it was also noticed that
the said posts are not transferable while those recruited in India and deputed
in different Ministries in Nepal were liable to be transferred anywhere in the
conditions in similar employment prevalent in India were not the conditions in Nepal, and therefore, the terms upon which they ere appointed
were found to be reasonable. In these circumstances, if the Tribunal found that
the tests laid down in Nergesh Meerza's case to which we have adverted to
earlier are satisfied in these cases, we do not think there is any merit in
these appeals so far as the claim for parity in pay and pension is concerned.
regards the order made by the Tribunal in respect of termination of services of
the appellants is concerned, again we may state that the Tribunal had noticed
that the appellants had not ben recruited on a permanent basis, but are purely
employees whose services could be terminated at any time, but in doing so bore
in mind the circumstances available to each one of the appellants under which
their services were terminated. While in the case of some, where the order was
termination simplicitor, the Tribunal held the same as valid and in case of
others, grounds such as disciplinary or others reasons were set out the same
was held to attach stigma to such persons and therefore, set aside the
termination, but in lieu thereof granted compensation. The Tribunal has adopted
a rational basis in dealing with the matter. We do not think there is any
reason to interfere with the order made by the Tribunal.
result, these appeals stand dismissed. There shall be no order as to costs.