Rameshwar Dayal vs Indian Railway Const.Co. Ltd. & Ors

as the `IRCON') a Government of India Undertaking was

awarded two railway projects in Algeria. In June, 1982 the

respondent inducted Ranjit Sinha appellant (since deceased)

in Civil Appeal No.968 of 2007, a temporary employee of the

Council of Scientific Industrial Research as French Translator

in the pay scale of Rs.700-1200. On 18th February, 1984

IRCON advertised four posts of French Translator out of which

two were for General Category and one each reserved for the

members of the Scheduled Castes and Scheduled Tribes.

Rameshwar Dayal (appellant in Civil Appeal No.967 of 2007)

offered his candidature as Scheduled Caste candidate. Rameshwar Dayal was selected for appointment and he joined

the Corporate Office of IRCON as a French Translator in the

pay scale of Rs.550-750 on 10th June, 1985, in terms of

appointment letter dated 4th June, 1985. On submission of

testimonials Rameshwar Dayal was allowed the scale of pay of

Rs.700-1200 with effect from 25th July, 1985. Other posts of

French Translators which were advertised on 18th February,

1984 were filled up by regularizing the services of Ms.

Jayshree Krishnaswamy, Rakesh Ratti Kapoor (appellant in

Civil Appeal No.969 of 2007) and one Ashit Saha. On 4th

October, 1985 appellant Rameshwar Dayal and said Ms.

Jayashree Krishnaswamy were nominated to be sent to

Algeria. Appellant Rameshwar Dayal signed the contract for

assignment to Algeria for one year and also signed the Bond to

serve the IRCON on his return from Algeria for double the

period of his assignment in Algeria, subject to maximum five

years. Appellant Rameshwar Dayal joined the project office in

Algeria on 17th November, 1985. In the balance-sheet of the

profit and loss account and annual report for the year 1986-87

submitted to the Registrar of Companies appellant Rameshwar Dayal was shown as a permanent employee and the

emoluments of the employees in Indian Rupees by converting

at the rate of exchange prevalent at the end of the financial

year. Appellant Rameshwar Dayal realised that he is being

paid less emoluments than what he was entitled as per Board

Resolution of 1982 and accordingly filed representation but

the same did not yield any result.

3. The post of French Translator was re-designated as

Assistant Manager (Language) by order dated 12th January,

1988 and posts of Deputy Manager (Language) were created in

the pay scale of Rs.1100-1600. According to the appellant

Rameshwar Dayal one of the said two posts of Deputy

Manager(Language) ought to have been filled up by a member

of the reserved category but without considering his case and

de-reserving the posts IRCON promoted two persons, namely,

Dr. Ranjit Sinha(appellant in Civil Appeal No.968 of 2007)

and Ms. Poonam Bhowmick. Appellant Rameshwar Dayal's

pay was revised by order dated 14th November, 1990 in the pay

scale of Rs.2000-3500. It is his grievance that his scale of pay ought to have been revised in the pay scale of Rs.2200-4000.

After the return from Algeria the appellants in all these

appeals made a joint representation laying the following

claims:

"(a) Fixation of their pay in the pay scale of Rs.2200-4000 instead of Rs.2000-3500, as being given by its sister concern RITES as per Para 8.79 of H.P.P.C. report implemented as per the directions of this Hon'ble Court in Jute Corporation Case;

(b) Appellant's promotion to the reserved post as per reservation policy;

(c) Release of foreign emoluments at the rate of US $ 1450/- p.m. instead of US $ 880 to comply with Board of Director's resolution dated 03.03.1982;

(d) Compensation for denying air passage to the appellant as was given to Sh. M.K. Seth;

(e) Further promotion as per rules."

4. By a separate memo dated 7th June, 1995, IRCON

informed the appellants that they were recruited as French

Translators when the Company was executing projects in

French speaking companies abroad and those projects have

come to an end and in view of that it shall not be possible for

the IRCON to utilise their services in the area of their

specialisation for which they were recruited. Accordingly they were advised to look out for the job outside IRCON where their

expertise can be utilised in a better way.

5. Appellant Rameshwar Dayal, Dr. Ranjit Sinha and

Rakesh Ratti Kapoor filed separate writ petitions. Relief

sought for by the appellant Ranjit Sinha and Rakesh Ratti

Kapoor pertained to quashing of the aforesaid memo dated 7th

June, 1995 as also for release of the salary in foreign

emoluments at the rate of US $ 1450 instead of US $ 880 per

month with interest at the rate of 2% per month and to place

them in the pay scale of Rs.2200-4000 instead of Rs.2000-

3500. They also prayed for a direction to compensate them for

not allowing them free air passages from Algeria to India and

back for the period 1989 to 1992. In addition thereto

appellant Rameshwar Dayal prayed for direction to consider

his case for promotion.

6. During the pendency of the writ petitions Dr. Ranjit

Sinha died and appellant Rakesh Ratti Kapoor resigned on

23rd March, 1996 and in that view of the matter the High Court considered their claim along with the claim of appellant

Rameshwar Dayal of higher emoluments only and found that

the claim made by them is not tenable. The learned Single

Judge in this connection observed as follows:

"Therefore, I am unable to accept the submissions of Mr. O.P. Khadaria, the learned counsel for the petitioners, that the respondent/Corporation had committed any illegality or irrationality in fixing the emoluments of the petitioners while they are sent on assignments to Algeria as French Translators."

So far as the grievance of appellant Rameshwar Dayal in

regard to the dispensing with his services is concerned the

learned Single Judge held that IRCON is bound to regularise

his services.

7. It seems that the claim for compensation for denying the

air passage and promotion being stale, it was not pressed

during the course of hearing and the learned Single Judge has

not adjudicated issues.

8. Appellants aggrieved by the order by which their claim for

higher emoluments has been rejected preferred LPA Nos.189

and 289-290 of 2000 and the IRCON aggrieved by the direction to regularise the services of appellant Rameshwar

Dayal preferred LPA No.294 of 2000. The Division Bench of the

High Court by a common order dated 14th February, 2006

dismissed the appeals preferred by the appellants against

rejection of their claim of higher emoluments but the appeal

filed by the IRCON against the direction to regularize the

services of appellant Rameshwar Dayal has been allowed and

the said direction has been set aside. The Division Bench has

not adverted to the other reliefs sought by the writ petitioners.

9. The appellants are before us against the said order.

10. We have heard Mr. O.P. Khadaria, learned counsel for the

appellants and Mr. Chetan Sharma, learned Senior Council

appearing on behalf of the respondents. Mr. Khadaria has also

filed written submissions.

11. Mr. Khadaria points that the Board of Directors of IRCON

in its meeting held on 3rd March, 1982 and that of the meeting

held on 10th January, 1983 decided to pay remuneration to the employees in Algeria on the basis of the scale of pay they are

getting in the IRCON and hence, granting lesser emoluments

to the appellant is illegal. We do not find any substance in the

submission of Mr. Khadaria and the reliance placed by him on

the decisions of the Board of Directors of the IRCON dated 3rd

March, 1982 and 10th January, 1983 are misconceived and

have no bearing so far as the claim of emoluments is

concerned. Undisputedly, emoluments of these appellants

were fixed after the aforesaid Resolution of the Board of

Directors. Their emoluments therefore shall be governed by

the terms and conditions agreed upon. It is relevant here to

state that the appellants claim parity with two persons who

were sent to Algeria as Chartered Accountant and Engineer

(Technical Officers). Appellants were working as French

Translators and, therefore, they cannot claim parity on the

basis of similarity in the scale of pay when they belong to a

different category. As rightly observed by the Division Bench

of the High Court that once the appellants have entered into

an agreement they cannot go back and claim for higher

emoluments. Relevant portion of the judgment of the Division Bench in this regard reads as follows:

"So far as the plea for higher emoluments is concerned, the petitioner had accepted his assignment in Algeria and he cannot go back on his agreement now. It is entirely for the authority concerned to decide what pay scale should be given to a particular employee and court cannot interfere with the pay scale vide Delhi Tapedic Unmulan Samiti vs. Babita Rani & Ors.(supra). At any event, as held by the learned Single Judge, the appellant can file a suit for this purpose."

12. As regards the claim of Rameshwar Dayal for

regularisation in service, Mr. Khadaria submits that his

performance being satisfactory he cannot be thrown out from

service and as such the Division Bench erred in setting aside

the direction given by the learned Single Judge for regularising

his services. The observation of the learned Single Judge in

this connection reads as follows:

"Now, I come to the question of the respondent's authority to dispense with the services of the petitioner in CW.2298/95. There is considerable force in the submission of Mr. O.P. Khadaria that the petitioner, Rameshwar Dayal, who belongs to a Scheduled Caste category, whose post has been re-designated, cannot be sent out by the respondent. It is not the case of the petitioner in CW.2298/95, Rameshwar Dayal, is not capable of working on ministerial assignment having regard to his long experience in the organisation. The respondent/Corporation being a public authority, is bound to act in accordance with fairplay and justice, and cannot dispense with the services of the petitioner in CW.2298/95 by simply issuing a show cause noticed asking him to fend for himself. It may also be noticed that it is not the case of the respondent/Corporation that the performance of the petitioner, Rameshwar Dayal, has not been satisfactory."

13. However, the Division Bench while setting aside the

aforesaid direction observed as follows:

"As regards question of regularization we have already held in Delhi Tapedic Unmulan Samiti vs. Babita Rani & Ors. LPA No.2554/2005, decided on 16th January, 2006, that the Court cannot issue directions for regularization as it is an executive function, and it depends on the relevant rules and can only be directed by the Authorities concerned and not the Court. The entire case law on the point has been considered in Delhi Tapedic Unmulan Samiti vs. Babita Rani & Ors. (supra) and hence we are not repeating the same again."

14. Mr. Sharma, however, contends that in the absence of

any policy or scheme framed by the employer no claim of

regularisation can be made. He points out that the IRCON

needed the services of the French Translators when it was

executing projects in French speaking countries and now that

no such project is with it, services of the appellant cannot be

regularised.

15. Having appreciated the rival submission, we do not find

any substance in the submission of Mr. Khadaria. This

appellant was appointed temporarily and excepting the report

submitted to the Registrar of Companies, there is nothing on

record to show that he was ever made permanent. The service of this appellant as French Translator has been dispensed

with as no project in French speaking country is with the

IRCON. In the face of it, the action of the IRCON in dispensing

with the services of this appellant cannot be said to be illegal

or arbitrary.

16. As the High Court has not gone into the claim of the

appellants for payment of compensation for denying air

passage and claim of promotion of appellant Rameshwar

Dayal, we are not inclined to look into these grievances in

present appeals.

17. To put the record straight, Mr. Khadaria has referred to a

large number of authorities which have no relevance at all to

the issues involved in these appeals and accordingly we do not

consider it expedient to incorporate the same.

18. In the result, we do not find any merit in these appeals

and they are dismissed accordingly, but without any order as

to costs.

...............................................J. ( G.S. SINGHVI ) ................................................J. (CHANDRAMAULI KR. PRASAD) NEW DELHI, AUGUST 17, 2010.