Central Administrative Tribunal - Delhi
Prakshay Kumar Singh vs M/O Home Affairs on 24 March, 2022
1
Item No.39 OA No. 1281/2020
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No. 1281/2020
New Delhi, this the 24th day of March, 2022
Hon'ble Ms. Manjula Das, Chairman
Hon'ble Mr. Mohd. Jamshed, Member (A)
Prakshay Kumar Singh
S/o Mr. V.K. Singh,
R/o A-10 Type - IV, Police Colony,
Near Max Hospital, Shalimar Bagh,
Delhi. ...Applicant
(By Advocate: Ms. Ashim Shridhar)
Versus
1. Union of India through
Secretary,
Ministry of Home Affairs,
North Block, New Delh- 110 001.
2. Department of Personnel & Training through
Secretary,
Ministry of Personnel, Public Grievances & Pension,
North Block,
New Delhi - 110 001.
3. Govt. of NCT of Delhi through,
Principal Secretary,
Department of Home, 5th Floor,
C-Wing, Delhi Secretariat,
Delhi.
....Respondents
(By Advocate: Mr. S.N. Verma)
ORDER (ORAL)
Hon'ble Ms. Manjula Das, Chairman The applicant has filed the instant O.A. under Section 19 of the Administrative Tribunals Act, 1985 challenging the order dated 27.02.2020 (Annexure A- 2 Item No.39 OA No. 1281/2020
1) denying him the benefit of pay protection/fixation taking into account his past service in the Oil & Natural Gas Commission (ONGC) upon his selection and recruitment into DANIPS. He has prayed for the following reliefs:-
"a. Call for the records connected with the case;
b. Quash the impugned order dated 27.02.2020 issued by the Respondent No.1 rejecting the request/representation of the Applicant for according benefit of the protection of the last pay drawn by the Applicant in PSU to DANIPS;
c. Issue necessary time bound Directions to the Respondent No.1 directing the benefit of protection of the last pay drawn by the applicant from the CPSU in DANIPS by reckoning the last pay drawn by the Applicant from ONGC as per 2nd PRC committee report for CPSEs which was concomitant with 6th Pay Commission for Central Government Employees;
d. Direct the Respondents to Pay to the Applicant all arrears of basic pay, DA, HRA, Transport Allowance, NPS Contribution, LTC and any other benefits accruing to the Applicant from the date of his joining along with interest @ 18% p.a. from the date on which such payment was due;
e. Direct the Respondents No.1 to count the Applicant's past service rendered in ONGC for the purpose of all service benefits including pension in the Central Government Service;
f. Pas any other order this Honorable Court may deem just and proper in the facts and circumstances of the case."
2. Brief facts of the case are that the applicant, on being declared successful in the Civil Services 3 Item No.39 OA No. 1281/2020 Examination, 2014 conducted by UPSC, resigned on 01.07.2016 from his earlier office, i.e., ONGC, after having worked there for 7 years. He joined DANIPS on the same date. On the date of resignation from ONGC, his last basic pay was Rs.31,580/- (DA 35,496/-) in the pay scale of Rs.29,100-54,500 (as per 2nd PRC committee report for CPSEs which was concomitant with 6th Central Pay Commission), whereas in DANIPS, his pay was fixed at entry grade in PB-2, Rs.9300-34800+GP Rs.4800. Aggrieved, the applicant submitted a representation dated 28.09.2016 followed by reminders dated 18.10.2019 and 08.02.2020 seeking the benefit of pay protection in terms of DOP&T OM dated 07.08.1989 which provided that 'the candidates who have been working in PSUs, Universities, Semi Government Institutions or autonomous bodies, who are appointed as direct recruits on selection through a properly constituted agency, will have the benefit of their initial pay and DA fixed, protecting the pay plus DA already been drawn by them in their parent organization'. However, the representation of the applicant was rejected by the respondents, vide order dated 27.02.2020 on the 4 Item No.39 OA No. 1281/2020 ground that the benefit of pay protection is available only if the selection is through interview and not through an open competitive examination in terms of DOP&T OM dated 10.07.1998, which is stated to be a clarificatory OM to OM dated 07.08.1989. It is stated by the applicant that action of the respondents in not granting him the benefit of pay protection is erroneous and contrary to the established position of law and is based upon a wholly illegal interpretation of DOPT OM dated 10.07.1998. In support of his claim, the applicant has relied upon the decision of the Hon'ble High Court of Delhi in an identical case of Sanjog Kapoor vs. Union of India & Ors. [Civil Writ Petition No.5518/2004 decided on 20.04.2007], and that of the Ernakulam Bench of this Tribunal in case of Mukesh Rajora vs. Union of India & Ors. [OA No.180/00507/2017 decided on 24.11.2017).
3. The respondents have filed their reply opposing the claim of the applicant. They have stated that the representation of the applicant seeking pay protection was considered and rejected in terms of DOP&T OM dated 10.07.1998 on the ground that the pay protection as per OM dated 07.08.1989 was restricted 5 Item No.39 OA No. 1281/2020 to only those candidates who had been selected through interviews and not through open competitive examinations. They have further stated that in the meanwhile, the DOP&T issued further instructions in the aforesaid matter in light of various court judgments and references received from various quarters. The relevant paragraph of OM dated 13.08.2020, is extracted hereunder:-
"4. The President is peased to decide that notwithstanding the mode of selection henceforth, the benefit of pay protection will be available to Direct Recruits appointed in Central Government to those posts for which the relevant Recruitment Rules prescribe a requirement of minimum number of years in a specified area from the field sources (autonomous bodies, PSUs etc.) for appointment under the method of direct recruitment. The benefit will be allowed irrespective of whether the posts is filled by the recruiting agency on the basis of interview or open competitive exam or combination of both.
5. The OM will be effective from the date of its issuance."
It is further stated that since there is no specific requirement of such experience mentioned in the Recruitment Rules of DANIPS, the case of the applicant for pay protection fails and has rightly been rejected.
4. The applicant has filed rejoinder denying the averments made in the counter reply and reiterated the averments made in the OA.
6Item No.39 OA No. 1281/2020
5. Heard Sh. Ashim Shridhar, learned counsel for the applicant and Sh. S.N. Verma, learned counsel for the respondents.
6. The sole issue before us to be adjudicated is whether the applicant is entitled to the pay protection in terms of OM dated 07.08.1989.
7. We notice that a similar matter pertaining to pay protection in terms of OM dated 07.08.1989 has been decided by the Hon'ble High Court of Delhi in Sanjog Kapoor (supra), which has attained finalty as the SLP filed against the said decision has been dismissed by the Hon'ble Supreme Court of India. In the aforesaid decision, the Hon'ble High Court observed as under:-
"12. We fail to understand as to why candidates selected via open competitive examination would not be in line with the object of drawing the best talent from non government bodies. Petitioner in the review petition had given details of several instances where candidates belonging to P.S.Us and selected through open competition by way of civil services examination and others had been given the benefit of pay protection. Petitioner had cited the cases of Shri P.V.Gupta, Section Officer in the Ministry of Rural Development; Kumari C.T.M.Suguna who was selected to Indian Administrative Service and was earlier working in Indian Overseas Bank; Shri Dalip Kumar who was appointed as ICAS in 1993 and was earlier working in the State Bank of India and Shri Rajesh Kumar, Sector Officer in the Ministry of Human Resource Development. The Tribunal, as we notice had proceeded as if there was no challenge to the vires of the Memorandum dated 10th July, 1998. As noticed earlier, petitioner had taken grounds in the OA which contains such a challenge even if a specific prayer for it being 7 Item No.39 OA No. 1281/2020 declared as ultra vires or illegal had not been made. We have already noticed that it is within the purview of the Tribunal or the Court to mould the relief in such circumstances. Be that as it may, in the writ petition, there is a specific challenge to the vires and validity of the said Memorandum of 1998. The objective of the Memorandum of 1998 and that of 1989 is admittedly to draw best talent from the P.S.Us and other Government Undertakings to enable them to join the Government and render services. It requires no elaborate explanation that in the present global and economic scenario in the world, attractive terms in the corporate and other sectors are offered to draw the best talent. In fact to prevent brain drain, entrepreneurs and industries keep on evolving various methods. It is in this background that attempt by the Government to attract best talent to Government Service from P.S.Us has to be considered. The Memorandum provides for pay protection to the persons who opt from the P.S.Us to join Government Service. Having noticed the basic objectives, let us analyze if the respondents have disclosed or brought forth in their response any reason for granting pay protection only to cases of selection through interview and excluding selection through competitive examination.
13. On perusal of the affidavit, the response of the respondents may be noted:
It can be safely assumed that the DOPT has ensured that all the objectives which were prescribed by the OM dated 10-7- 1998 have not been transgressed by its decision to reject applicant's representation. Applicant's contention that the interview is also a part of Civil Service Selection process and therefore the applicant's case also stand for covered by the OM dated 10-7- 1998, is rather superficial. The DOPT's intention would not have been to restrict the benefit of pay protection to one method of selection for recruitment alone. But there must have been other considerations as well, which are not apparent on plain reading of the Oms dated 7.8.1989 and 10.7.1998, based on which was decided to limit the benefit of pay protection to interview based selection only.
14. The above response does not help us in understanding the rationale, if any, for the action 8 Item No.39 OA No. 1281/2020 of the respondents. It is idle to contend that there must be other considerations which are not apparent. Reasons can only be those which are contained in and reflected from the record. The selection through open competitive examination in civil services held by the UPSC is admittedly a stringent testing process to ensure the highest standards for bureaucracy. The objectives and standards which are sought to be achieved by testing through interview as the method also stand attained when a person clears civil services examination. We also found that Memorandum has not laid down any experience or number of years of service as a criteria for availing of this benefit except the probation period.
The Hon'ble High Court, after making aforesaid observation, allowed the writ petition holding petitioner therein eligible for pay protection. The operative portion of the judgment, reads as under:-
"15. In these circumstances, we hold that the distinction sought to be drawn between candidates selected from non government bodies through interview and those selected through open competitive examination is sans rationale justification. Protecting the pay of one and not protecting the pay of the other set of candidates is completely arbitrary and illogical. The purpose behind grant of pay protection was to draw talent from organisations like PSUs. The best talent is drawn through the Civil Services Examination. Encouraging employees of PSUs to sit for such examination which is highly competitive is in line with the purpose behind the OM of 1989 of attracting the best talent. Even assuming that for the purposes of pay protection, the distinction between selection through interview and selection through open competitive examination does hold a rational nexus, the Civil Services Examination, through which the petitioner has been selected also comprises a comprehensive interview. Therefore denial of pay protection benefit to the petitioner is unjustified and illegal.
xxx xxx xxx
17. Therefore in view of the foregoing discussions, we set aside orders dated 28.11.2003, 12.8.2003 9 Item No.39 OA No. 1281/2020 as well as letters dated 9.7.2002 and 7.8.2002 and allow the writ petition holding petitioner eligible for pay protection.
The writ petition stands allowed in the above terms."
8. It is noticed that Guwahati Bench of this Tribunal decided OA No.93/2013 titled as Dr. Parakash Borgohain vs. Union of India & Ors. (in which one of us i.e. Hon'ble Mrs. Manjula Das, Chairman (then Judicial Member) was one of the Members, who authored the judgment), following the law laid down in Sanjog Kapoor (supra), and allowed the aforesaid OA directing the respondents to examine the case of the applicant in the light of Sanjog Kapoor (supra). The said order of the Guwahati Bench was also implemented by the respondents.
9. It is further noticed that the Ernakulam Bench of this Tribunal, following the decision of Hon'ble High Court of Delhi in Sanjog Kapoor (supra) and decision of Guwahat Bench of this Tribunal in Dr. Parakash Borgohain (supra) also decided one identical matter in Mukesh Rajora (supra) wherein the applicant was also seeking protection of his last pay drawn in ONGC 10 Item No.39 OA No. 1281/2020 before joining the DANICS, relevant paras thereof, read as under:-
"17. Applicant has put forward a cast-iron case. The orders of the Hon'ble High Court of Delhi are clear and umambiguous. They laid down that the categories to which the applicant belongs is fully entitled to get the previous service put in PSU counted for fixation of pay and for consequential benefits. By not filing the reply statement and in the proceedings before the Tribunal, there is no effective defence mounted by the respondents in reply to the claims put forward by the applicnat.
18. On consideration of all factors, we conclude that this case falls squarely under the question already considered in Sanjog Kapoor's case and Dr. Prakash Borgohain's case as well as Nagendra Kumar Jha's case. It is ordered accordingly upholding the claims made by the applicant and granting him all benefits prayed for in the Original Application. Respondent no.1 shall issue appropriate orders as directed above within two months of receipt of copy of this order."
10. At this stage, learned counsel for the respondents stated that the decision of Ernakulam Bench of this Tribunal has been challenged before the Hon'ble High Court of Kerala by way of OP(CAT) No.78 of 2020. However, learned counsel for the applicant has produced a copy of the order dated 24.03.2021 whereby the aforesaid OP(CAT)No.78 of 2020 has been dismissed by the Hon'ble High Court of Kerala.
11. In view of the above discussion, and in the light of the ratio laid down in Sanjog Kapoor's case (supra), we are of the considered opinion that the 11 Item No.39 OA No. 1281/2020 present case is squarly covered by the decision in Sanjog Kapoor's (supra) and the applicant is entitled to protection of his last pay drawn in ONGC before joining the DANIPS.
12. In these circumstances, the instant OA is allowed. Consequently, impugned order dated 27.02.2020 is quashed and set aside. The respondents are directed to issue necessary orders re- fixing the pay of the applicant by taking into account his last pay drawn in ONGC, right from his joining in DANIPS, and pursuant to re-fixation of pay, arrears thereof be also paid to the applicant. It is made clear that the applicant shall also be entitled to all the consequential reliefs flowing therefrom.
13. The respondents are directed to complete the exercise, as ordained above, within a period of two months from the date of receipt of a copy of this order.
14. There shall be no order as to costs.
(Mohd. Jamshed) (Manjula Das)
Member (A) Chairman
/ahuja/