Jagdish Parwani vs Union Of India & Ors

Jagdish Parwani .... Appellant

Versus

Union of India & Ors. .... Respondents

WITH

CIVIL APPEAL NO. 5482 OF 2011

[Arising out of SLP (C) No. 8404 of 2009]

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

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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,

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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

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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

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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

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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

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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

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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.

Page 8 of 14 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 hereinbelow

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

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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

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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

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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

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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.

Page 13 of 14 ............................................J

[Dr. Mukundakam Sharma]

............................................J

[Anil R. Dave]

New Delhi,

July 15, 2011.

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