Jagdish Parwani Vs. Union
of India & Ors
JUDGMENT
Dr. MUKUNDAKAM
SHARMA, J.
1.
Leave
granted.
2.
The
appeal is directed against the judgment and order dated 11.09.2009 passed by the
High Court of Madhya Pradesh Bench at Gwalior in Review Petition No. 185 of
2009. The said review petition was filed by the appellant herein against the order
dated 16.04.2009 passed by the High Court of Madhya Pradesh, Gwalior Bench, in
Writ Petition (s) No. 882 of 2003. Appellant has also preferred a separate
appeal [arising out of SLP(C) No. 8404 of 2009] against the said decision of
the High Court of Madhya Pradesh in the Writ Petition No. 882 of 2003. By this
order we propose to dispose of both the appeals filed by the appellant.
3.
The
facts leading to filing of the aforesaid appeals are that the appellant being a
graduate engineer appeared for Indian Engineering Services examination which
was held pursuant to an advertisement issued by the Union Public Service Commission
in the year 1987 for filling up the post of Assistant Executive Engineer
[Buildings and Roads] in Military Engineering Service, Ministry of Defence. The
appellant was working as an Assistant Engineer in Uttar Pradesh State Electricity
Board [for short "UPSEB"], w.e.f., 1st January, 1988. He having qualified
in the aforesaid competitive examination, the appellant was offered an appointment
as Assistant Executive Engineer [Buildings and Roads] in the Military
Engineering Services by an appointment letter issued by the Ministry of Defence
dated 06.09.1989. Consequently, he resigned from the UPSEB and as per his last
pay certificate from UPSEB, he was drawing a basic pay of Rs. 2750/-. His resignation
was accepted and he was released from the service of UPSEB on 19.02.1990.
4.
Pursuant
to the aforesaid letter of appointment issued by the Ministry of Defence the appellant
joined the Military Engineering Service Department on 23.02.1990 in the pay scale
of Rs. 2200-4000. In the appointment letter issued on 06.09.1989 the appellant was
also informed that his pay would be fixed at the minimum of the pay scale,
viz., Rs. 2200. The aforesaid appointment of the appellant was against a temporary
post but the same was likely to continue indefinitely. The appellant was also
placed on probation for a period of two years from the date of his appointment with
a clear stipulation that his appointment could be terminated at any time on one
month's notice given on either side without assigning any reason. The appellant
continued to receive the aforesaid pay as fixed by the respondents till the month
of September, 1991, i.e., for a period of more than one and a half years and thereafter
he submitted three representations on 11.09.1991, 12.02.1992 and 14.12.1992
respectively claiming pay protection on the basis of a notification issued by the
Ministry of Personnel, Public Grievances and Pensions [Department of Personnel &
Training] dated 07.08.1989. In the said representations the appellant claimed that
he was entitled to receive a salary of Rs. 3000/- per month, w.e.f., 23.2.1990
and not Rs. 2200/-.
5.
While
the aforesaid representations of the appellant were being considered by the respondents,
another notification came to be issued on 28.02.1992 by the Department of Personnel
& Training extending grant of pay protection to the employees of State Government
Undertakings joining service in Central Government on and after 01.02.1990.
6.
By
a Communication dated 14.02.1995 the appellant was informed by the respondents that
he is not entitled to such pay protection as claimed by him in the representations
submitted by him.
7.
Being
aggrieved by the aforesaid communication dated 14.02.1995 communicating the rejection
of the representations of the appellant for pay protection, the appellant filed
an Original Application before the Central Administrative Tribunal [Jabalpur
Bench], Jabalpur [for short "Tribunal"] claiming and seeking an order
for giving him the pay protection which was last paid to him by the UPSEB. The Tribunal
issued an order on 01.10.2002 directing the respondents to fix pay of the appellant
by giving him pay protection within six months and also to pay him the arrears of
pay and allowances.
8.
Aggrieved
by the said order of the Tribunal the respondents- Union of India filed a Writ Petition
which was registered as WP(S) No. 882 of 2003 before the Madhya Pradesh High
Court, Gwalior Bench. The High Court after considering the facts of the case
passed judgment and order dated 16.04.2009 holding that the appellant is not entitled
to pay protection and, therefore, his claim was rejected. It was further held by
the High Court that the Tribunal committed grave error in granting pay protection
to the appellant. The appellant aggrieved by the aforesaid order of the High
Court, preferred a Review Petition before the Madhya Pradesh High Court which was
dismissed by order dated 11.09.2009 holding that there is no mistake apparent on
the face of the records in the order impugned in the review petition. The aforesaid
orders are challenged in the present appeals on which we heard the learned
counsel appearing for the parties and also perused the records.
9.
The
facts, which are stated hereinbefore, leading to filing of the present appeals
are not disputed. The appellant joined the UP State Electricity Board on 01.01.1988
and while working with the Board he resigned from the service and at that time he
was drawing the basic pay of Rs. 2750/- per month. Thereafter his resignation was
accepted and he was released from the service of the UPSEB on 19.02.1990. The appellant
was given the appointment to the post of Assistant Executive Engineer [Buildings
and Roads] in Military Engineering Service [for short "MES"], Ministry
of Defence and he joined the said post on 23.02.1990 and at the time of appointment
his terms and conditions of appointment were clearly set out in the order of
appointment whereby his pay was fixed in the pay sale of Rs. 2200-4000 with a
stipulation that he would be paid basic salary of Rs. 2200 plus dearness
allowance.
10.
Reliance
was placed by the appellant on the contents of the Memorandum dated 06.09.1989 which
was in the nature of guidelines issued by the Ministry of Defence fixing the
pay. A copy of the said memorandum is annexed to the memorandum of appeal as
Annexure-P1.
11.
Paragraph
1 of the said guidelines provided that as per the extant rules/orders, on fixation
of pay, pay protection is granted to candidates who were appointed by the method
of recruitment by selection through the Union Public Service Commission if such
candidates are in Government service. It was also stipulated in the said paragraph
1 of the memorandum that no such pay protection would be granted to candidates working
in public sector undertakings, universities, semi-Government institutions or autonomous
bodies, when they are so appointed in Government.
12.
Paragraph
2 thereof on which reliance was placed by the counsel appearing for the
appellant provided that the question as to how pay protection can be given in the
case of candidates recruited from the public sector undertakings, etc., has been
engaging the attention of the Government for sometime and that after careful
consideration of the same the President was pleased to decide that in respect
of candidates working in public sector undertakings, universities, semi- Government
institutions, autonomous bodies, who were appointed as direct recruits on selection
through a properly constituted agency including departmental authorities making
recruitment directly their initial pay could be fixed at a stage in the scale
of pay attached to the post so that the pay and DA already being drawn by them in
their parent organisation. It was also stipulated therein that in the event of such
a stage not being available in the post to which they have been recruited,
their pay may be fixed at a stage just below in the scale of the post to which they
have been recruited, so as to ensure a minimum loss to the candidates.
13.
It
is evident from the aforesaid stipulation in the relevant clause that such pay
scale received is protected in the case of only Central Government Public Sector
Undertakings, etc., inasmuch as the decision to grant such benefit was
restricted specifically to Central Government employees and also employees of central
government public sector undertakings. This position got fortified and clearly explained
by the issuance of the subsequent notification dated 28.2.1992, to which
reference is made immediately hereafter.
14.
Reliance
was placed by the counsel appearing for the appellant on the subsequent OM
issued by the Department of Personnel and Training issued on 28.02.1992. The
contents of the said notification/memorandum is extracted here in below for
easy reference and for better understanding: -"DoPT OM NO.12/1/88-Estt
(Pay-I) dated 28.2.1992.
"PAY PROTECTION
ALSO TO CANDIDATES FROM STATE PSUs RECRUITED BY PROPER SELECTION TO CENTRAL
GOVERNMENT"
The Undersigned is directed
to say that question of inclusion of employees of State Government undertakings
within the purview of this Department's OM No. 12/1/88-Estt (Pay-I), dated 7.8.1989
has been engaging the attention of the Government for some time. The matter has
been carefully considered and the president is pleased to decide that
provisions of this Department's OM of even number dated 7.8.1989, may be
extended to the employees of State Government Undertakings selected for posts
in Central Government on direct recruitment basis as in case of Central Public
Undertakings.
These orders take effect
from the first of the month in which this OM is issued."A bare perusal of
the Memorandum would make it crystal clear that the employees of the State Government
Undertakings selected for posts in Central Government on direct recruitment basis
on and after 01.02.1992 were also extended the benefit of pay protection, as
was provided in the case of the employees of Central Government Public Undertakings
as per notification dated 07.08.1989.
15.
In
the aforesaid notification, it was clearly stipulated that the said benefit of
pay protection is effective only from the first of the month in which the OM is
issued, i.e., from 01.02.1992, which means that the said OM was given prospective
effect only. Therefore, the said OM could even be said to be a clarification on
the issue which is sought to be raised in the present case. It was clearly
pointed out in the said notification that employees like the appellant would be
entitled to get such pay protection, as employees of the State Government Undertakings
on their appointment in Central Government service only from the effective date
of 01.02.1992. If the appellant would have been appointed for a post in Central
Government on direct recruitment basis after 01.02.1992 such benefit of pay
protection could have been made available to him. But since the appellant was
selected and appointed to a post in Central Government on 23.02.1990 after
working as an employee of the State Government Undertaking, viz., UPSEB, the
notification dated 07.08.1989 was not applicable to him and, therefore, he could
not have legally claimed for any pay protection.
16.
Being
fully aware of the aforesaid position the appellant accepted the appointment without
any demur or protest on the issue of pay being given to him under the appointment
order issued to him by the Military Engineering Service, Ministry of Defence,
fixing his pay scale at the minimum of the pay scale of Rs. 2200. He accepted
the said pay scale without raising any grievance and continued to receive the same
till 11.09.1991, when for the first time he submitted his first representation for
pay protection as per notification dated 07.08.1989.
17.
The
position with regard to the entitlement or otherwise of the appellant for
getting pay protection was made clear by issuing the notification dated 28.02.1992
clearly stipulating therein that an employee of the State Government Undertaking
selected for post in Central Government on direct recruitment basis would be
entitled to pay protection upon appointment in Central Government only effective
from 01.02.1992. The appellant having joined the MES, Ministry of Defence prior
to the aforesaid date was not entitled to the benefit of the aforesaid
notification which was issued much after his joining date and, therefore, the
benefit of the aforesaid notification is not available to the appellant.
18.
Counsel
appearing for the appellant however sought to submit that to deny the benefit
of the notification dated 28.02.1992 to the appellant was discriminatory in
nature and in support of the said contention the counsel relied on the decision
of this Court in the case of T.S. Thiruvengadam v. Secretary to Government of India,
Ministry of Finance, Deptt. of Expenditure, New Delhi reported in (1993) 2 SCC 174.
In our considered opinion the ratio of the aforesaid decision was rendered in respect
of case of pension which is a continuing cause of action. Facts of the said case
are clearly distinguishable from the facts of the present case and, therefore,
the ratio of the said decision is not applicable to the case in hand. There is an
inherent clear distinction between the two concepts of pay protection and
pension. So far getting pay protection is concerned, the said issue arises as
soon as an employee joins his new post, where he gets his new pay scale and if he
is entitled to any pay protection that is the stage and date when it is granted
by whatever notifications, memorandums which are available and applicable at that
stage laying down such rules regarding pay protection. At that stage what was operating
in the field was the notification issued on 07.08.1989 which was not applicable
to the appellant. The appellant also clearly understood the position and therefore
based his entire claim and right on the subsequent notification dated
28.02.1992, although appointed to the post of Central Government on 23.02.1990.
19.
In
the present case it cannot be said that a notification issued after two years of
the appointment of the appellant which is also specifically stated to have been
issued with prospective effect is applicable in his case.
20.
Consequently,
we hold that the High Court was justified in setting aside the order of the Tribunal
as the Tribunal has misread and misinterpreted the facts as also the legal principles
in law.
21.
We,
therefore, find no merit in these appeals, which are dismissed, but, leaving
the parties to bear their own costs.
............................................J.
[Dr. Mukundakam Sharma]
............................................J.
[Anil R. Dave]
New
Delhi,
July
15, 2011.
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