Central Administrative Tribunal - Delhi
Shailendra Kumar Sharma vs Rdso on 27 March, 2025
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Item No. 17(C-4)
O.A. No. 2138/2020
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 2138/2024
This the 27th day of March, 2025
Hon'ble Mrs. Harvinder Kaur Oberoi, Member (J)
Hon'ble Dr. Sumeet Jerath, Member (A)
Shailendra Kumar Sharma
Group A
Sharma Niwas, Bharatpuri
Ramnagar
Uttarakhand - 244715
..Applicant
(By Advocate: Mr. Ashim Shridhar with Ms. Radhika Gupta)
Versus
1. Ministry of Railways
Union of India
Through Secretary
Rail Bhavan, Raisina Road
New Delhi -110001
2. Research Designs and Standard Organisation
Through Director General
Manak Nagar, Lucknow
Uttar Pradesh - 226011
3. Department of Personnel & Training
Through Secretary
Ministry of Personnel & Training, PG and Pensions
Union of India
North Block, New Delhi -110001
...Respondents
(By Advocate: Mr. Rajeev Kumar)
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Item No. 17(C-4)
O.A. No. 2138/2020
O R D E R (ORAL)
Hon'ble Mrs. Harvinder Kaur Oberoi, Member (J) In the present Original Application, filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has prayed for the following relief(s):
a. Call for the records connected with the case.
b. Quash the impugned order dated 14.03.2024 issued by the Respondent No.1-2 rejecting the request/representation of the Applicant for according benefit of the protection of the last pay drawn by the Applicant in PSU to IRSME.
c. Issue necessary time bound Directions to' the Respondent No.1-2 directing the benefit of protection of the last pay drawn by the applicant from the PSU to IRSME by reckoning the last pay drawn by the Applicant from NTPC Limited.
d. Direct the Respondents to Pay to the Applicant all arrears of basic pay, salary, and any other benefit accruing to the Applicant from the date of his joining IRSME along with interest @ 18% p.a. from the date on which such payment was due.
e. Direct the Respondents to count the Applicant's past service rendered in NTPC Limited for the purpose of all service benefits including pension in the Central Government Service.
f. Pass any other order this Honorable Court may deem just and proper in the facts and circumstances of the case.
2. Highlighting the facts of the case, learned counsel for the applicant submits that in the present matter the applicant is challenging the letter dated 14.03.2024 (Annexure A1) issued by the respondents vide which the 3 Item No. 17(C-4) O.A. No. 2138/2020 representation of the applicant has been rejected and the Pay Protection to the applicant as per Pay Protection Guidelines issued by the Department of Personnel and Training has been denied. The letter dated 14.03.2024 reads as under:
Government of India-Ministry of Railways Research, Design & Standard Organisation Manak Nagar, lucknow File No. AEP-5833 Dt.l4 .03.2024 Sub : Application requesting grant of pay protection- a case of Shri Shailendra Kumar Sharma, Director/Wagon/RDSO Ref: Your application dt. 23.11.2023 & 29.02.2024 You have represented vide your application dated 23.11.2023 & 29.02.2024 regarding pay protection in lieu of your service that you have rendered with NTPC Ltd.
In this context it is informed that your case cannot be considered in the light of RBE 16/200 I which states that "It is reiterated that the benefit of pay protection is admissible only when the appointment is made through an interview. No protection of pay is admissible in case of appointment is made through an open competitive examination as stipulated in DOPT's OM No. 12/1/96-Estt(Pay)(l) dt. 10.07.1998. Wherever such protection is to be given, UPSC will indicate in its recommendation letter that pay of such candidate should be fixed as per guidelines laid in the above quoted letter."Copy of Rly Board letter is enclosed for your ready reference.
DA : As above (Yamini Ranjan Tiwari) Dir./Admin-III
3. The rejection of the case of the applicant is on the premises of an Office Memorandum dated 10.07.1998 4 Item No. 17(C-4) O.A. No. 2138/2020 as prevalent at the time of induction of the applicant in the services. The said OM dated 10.07.1998 came for consideration before the Hon'ble High Court in the matter of Sanjog Kapoor vs. Union of India (UOI) and Others 2007 (6) SLR 76 dated 20.04.2007. The relevant para reads as under:
"5. It is the petitioner's submission that the Tribunal did not go into the challenge to the OM dated 10.7.1998 despite a review application being filed. It refused to interfere with an interpretation that the OM of 1998 was meant to clarify the OM of 1989. According to OM of 1998, the Government grants benefit of pay protection only if selection from PSUs etc is made through interview and not through an open competitive examination. Petitioner contended that by no stretch of imagination can the OM of 1998 be deemed as a Clarificatory OM as it did not make any distinction between 'selection' through interview and 'selection' through open competitive examination of which 'interview' is an essential component. Had it been of Clarificatory nature, the benefit of O.M. 1989 granted to large number of direct recruits similarly placed as the petitioner should have been withdrawn.
6. It may be noted that between 1989 and 1998 large number of officers of various services including members of IRS were appointed as direct recruits through selection by UPSC by way of all India competitive examination and were granted the benefit of pay protection. The order of pay protection dated 27.3.2001 with respect to one Sh. P.V. Gupta, Section Officer, was produced on record along with few other orders. Petitioner submitted that even after the issuance of the OM of 1998, no action was taken for withdrawal of benefit given to large number of officers.
7. A candidate has to fulfil the following requirements to get the benefit of OM of 1989 and even of OM of 1998:
(i) candidate must be working in Public Sector Undertakings, Universities, Semi-Government or Autonomous Institutions or Autonomous bodies.5
Item No. 17(C-4) O.A. No. 2138/2020
(ii) Appointment should be as a direct recruit.
(iii) Selection should be through a properly constituted agency including departmental authorities making recruitment directly. OM of 1998 purported to exclude selection through an open competitive examination and restrict the benefit to selection through interview only vide OM of 1998.
(iv) Candidates should have completed the period of probation successfully in his parent organization though such a condition was not a part of original OM of 1989. It is the petitioner's case that he meets the above parameters. He was employee of a PSU and was directly recruited by UPSC, into the IRS. His selection procedure had interview as an important component and he had completed his probation period and was issued a certificate of deemed confirmation by VSNL.
8. In the alternative, it was contended by Mr. Rao for the petitioner that OM of 1998 is not applicable to the petitioner as process of selection had commenced in January, 1998 and preliminary examination was conducted in June, 1998 whereas OM of 1998 was issued in July, 1998
9. As to the Rules which apply to the petitioner and the means of selection, whereas it is the petitioner's case that the OM of 1998 will not apply to him as his selection process was initiated prior to the OM coming into being, the respondents urged that the said OM would apply as petitioner was taken into government service on a day subsequent to the OM of 1998 coming into existence. In our view the OM of 1998 will apply to the petitioner as he was taken in Government employment subsequently.
10. Nonetheless the challenge to the said OM on the ground of it being arbitrary, discriminatory and against the underlying object of drawing talent from PSUs and other organizations survives. The OM makes no distinction between selection through 'interview' alone and selection through 'open competitive examination' of which interview is a necessary component. The same is required to be examined. The rationale behind the OM of 1989 was explicitly mentioned to be that of drawing upon talent from non-government organizations by direct recruitment through a properly constituted agency or departmental authorities making recruitment directly. With such intention pay protection was granted to candidates working in Public Sector Undertakings, Universities Semi Government Institutions or 6 Item No. 17(C-4) O.A. No. 2138/2020 Autonomous bodies who were appointed as direct recruits. Subsequently the DoPT received certain cases seeking clarification as to the exact scope of OM dated 7.8.1989 and the conditions under which benefit under that OM is admissible. Accordingly vide OM dated 10.7.1998 the position was clarified in terms as quoted in para 2(iv) above. What requires to be tested now is whether it is permissible for the DOPTto issue a Clarificatory OM reducing the scope of a prior OM without giving any reasons therefore. Also whether the distinction between selection through 'interview' and selection through 'open competitive examination' brought out by OM of 1998 is based on any reasonable basis or is it arbitrary and discriminatory, as alleged"
4. The decision rendered in Sanjog Kapoor (supra) was consistently followed by the Hon'ble High Court and in W.P.(C) No.8660/2005 dated 06.01.2016 in the matter of Nagendra Kumar Jha vs. Union of India and Anr. He further relies upon the judgment of this Tribunal in O.A. No.2927/2015 dated 12.07.2016 in the matter of Mukesh Rajora vs. Union of India and Others, which has already been implemented by the respondents.
5. He further relies upon the decision rendered by this Tribunal in O.A. No.3632/2012 dated 10.02.2017 in the matter of Rakesh Semalty vs. Govt. of NCT of Delhi and Anr. and also in the decision rendered by the Hon'ble High Court in W.P.(C) No.3338/2022 dated 23.02.2022 in the matter of Union of India &Anr. vs. Abhay Kumar, which reads as under:7
Item No. 17(C-4) O.A. No. 2138/2020 "3. The Tribunal, via the impugned order, agreed with the contentions of the respondent that pay protection should have been accorded to him.
3.1. While reaching this conclusion, the Tribunal rejected the petitioners' contention that the DoPT's OM dated 10.07.1998, which drew a distinction between those who were appointed via the interview route, as against the candidates who secured their appointment through open competitive examination, was applicable, and held that the distinction was not tenable in law.
3.2. In arriving at this conclusion, the Tribunal noticed the judgment of the Division Bench of this court dated 20.04.2007, passed in W.P.(C)No.5518/2004, titled Sanjog Kapoor v.
Union of India and Ors..
3.3. We may note that the aforementioned judgment delivered by the Division Bench of this court in Sanjog Kapoor case, was followed by another Division Bench judgment of this court in Nagendra Kumar Jha v. Union of India &Anr. This judgment is dated 06.01.2016 and the matter was registered as W.P.(C.) No.8660/2005.
3.4. Mr Singh, however, relies upon a later circular dated 12.02.2001 to press his submission that the respondent cannot be accorded pay protection as he was selected through an open competitive examination. Mr Singh contends that only, if the respondent had been recruited through an interview-would pay protection be accorded to him having moved from one public sector undertaking to another instrumentality of the state. 3.5. A careful perusal of the circular dated 12.02.2001, issued by the Government of India, Ministry of Railways (Railway Board), would show that it is founded on the aforementioned O.M. i.e.. O.M. dated 10.07.1998.
3.6. As noticed above, two Division Benches of this court have rendered a view concerning the DoPT's O.M. dated 10.07.1998. Therefore, the submission advanced by Mr Singh that the pay protection could have been accorded to the respondent only if he had been selected [i.e., had been recruited through an interview] cannot be accepted.
3.7. We may also note that it is Mr Singh's submission that the circular dated 10.07.1998 does not apply to the Central Government.
8Item No. 17(C-4) O.A. No. 2138/2020 3.7(a) We are unable to appreciate this submission for the reason that what the petitioners needed to follow was the ratio of the Division Bench judgments adverted to hereinabove. The judgments, unreservedly, hold that the distinction drawn for according pay protection to employees based on the manner of recruitment was both arbitrary and unfair. Therefore, this submission does not impress us.
4. Before we conclude, we may express our concern that the departments continue to file petitions and drag employees to court, even when there are rulings rendered by Court with regard to the issue at hand.
4.1. In this case, as noticed hereinabove, there were two judgments of two Division Benches concerning the DoPT's O.M. dated 10.07.1998. Therefore, the circular dated 12.02.2001 could not have furthered the cause of the petitioners and yet a petition was filed.
4.2. This is an aspect which the legal advisors of the petitioners should have taken into account before seeking to drag the respondent into the litigation arena.
4.3. We would have imposed heavy costs on the petitioners had the respondent joined the proceedings.
5. Mr Singh would do well to place the judgment passed by us today before the officer who was concerned with sanctioning the institution of the present writ petition.
6. The writ petition is, accordingly, dismissed.
7. Consequently, the pending application shall stand closed."
6. Learned counsel for the applicant also relies upon the decision rendered by this Tribunal in O.A. No.769/2020 dated 27.01.2021 in the matter of Manjesh Porwal and Ors. vs. Union of India and Ors. He submits that the respondents challenged the same before the 9 Item No. 17(C-4) O.A. No. 2138/2020 Hon'ble High Court which came to be decided in W.P.(C) No.12475/2023 dated 22.09.2023, which reads as under:
"5. Additionally, it is submitted by Mr. Chaudhary, that in the year 2022. the DoP&T had issued an Office Memorandum dated September 14. 2022. removing the distinction between an appointment made through interview or open competitive examination or combination of both for the purpose of pay protection.
6. If that be so. in view of the settled position of law which has also been accepted by petitioner herein by issuing the OM dated September 14. 2022. we find no reason to interfere with the order of the Tribunal. It is a fit case where cost should be imposed. However, we refrain from doing so.
7. We expect that the petitioner shall circulate a copy of this order to all the Ministries for their information."
7. He further submits that the respondents challenged the order dated 22.09.2023 passed by the Hon'ble High Court in W.P.(C) No.12475/2023 before the Hon'ble Supreme Court in Special Leave Petition (Civil) Diary No(s). 4426/2025 which came to be dismissed vide order dated 21.02.2025.
8. Counsel for the respondents justifies the stand taken by the respondents in the impugned order rejecting the claim of the applicant. He has vehemently opposed the contention raised by the learned counsel for the applicant and relies upon para (5.1) to (5.14) of the counter affidavit which reads as under :
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Item No. 17(C-4) O.A. No. 2138/2020 Para (5.1) to (5.14):-That the contents of the Para of he (5.1) to (5.14) are wrong and denied. It is submitted that benefit of pay protection is available to the Government servants on their recruitment by selection through UPSC, subject to fulfilment of certain conditions. The benefit under the DoP&T OM No. 12/1/88 Ess.(Pay-I) dated 07.08.1989 was extended to the candidates working In Central PSUs/State PSU s/Universities/Semi Government Institutions/Autonomous bodies etc. with a view to drawing talent which is available in these organizations. The question whether the objective underlying the above orders could be achieved through open competitive examination in which the employees from Public Sector Undertakings etc. also appear, has been considered by DoP&T. Vide DoP&T OM No.l2/1/96-Estt (Pay-I) dated 10.07.1998, it was clarified that the benefit of pay protection under the above orders is available only if the selection is through interview and not through an open competitive examination. Further, it was also stated that wherever the protection under the above orders is to be given, the Commission will indicate in its recommendation letter to the Ministry concerned that pay of such candidate(s) should be fixed as per the guidelines laid down in the above orders. Since, no such recommendation was given by UPSC in case of the applicant, as such; he is not eligible for seeking pay protection on joining railways as per extant rule.
That the UOI filed SLP(C) N0.4546/2008 challenging the order dated 20.04.2007 passed by Hon'ble Delhi High Court in WP NO.5518/2004 and Hon'ble Supreme Court dismissed the SLP filed by UOI on the ground of delay leaving the question of law open. Further, in the light of various court judgments and references received from various quarters, the policy of pay fixation of the candidates coming from field sources (PSUs, Universities etc) has been reviewed by DoP&T and they have issued instructions vide OM No. 51212012-Estt (Pay-I)(Vo LII) dated 13.08.2020 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 of experience 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 post is filled by the recruiting agency on the basis of interview or open competitive exam or combination of both.
11Item No. 17(C-4) O.A. No. 2138/2020 However, even under this OM, which is with prospective effect and hence not applicable at the relevant point of time, his case is not covered as the Recruitment Rules of the IRSME does not prescribe a requirement of minimum number of years of experience in a specified area from the field source (autonomous bodies, PSUs etc.) for appointment under the method of direct recruitment, for the benefit of pay protection.
9. He further relies upon paras 4, 5 & 6 of the Office Memorandum dated 13.08.2020 regarding protection of pay in respect of candidates from PSUs, Universities, Autonomous Bodies, etc. on their appointment to Central Government posts on Direct Recruitment basis, which reads as under:
"4. The President is pleased 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 of experience 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 post is filled by the recruiting agency on the basis of interview or open competitive exam or combination of both.
5.This OM will be effective from the date of its issuance.
6. In their application to the employees of Indian Audit and Accounts Department, these orders are issued after consultation with the Comptroller & Auditor General of India, as mandated under Article 148(5) of the Constitution."
10. Having heard counsel for the parties and perused the pleadings available on record. 12 Item No. 17(C-4) O.A. No. 2138/2020
11. We observe that the present issue is no more res integra in light of the judicial pronouncements as cited by the counsel for the applicants herein. More particularly, we draw a reference to the decision rendered by the Hon'ble High Court in W.P.(C) No.3338/2022 dated 23.02.2022 in the matter of Union of India &Anr. vs. Abhay Kumar, where the contention urged by the respondents was rejected, which can be highlighted in para 3.6 of the order. For the sake of better appreciation, the same is reproduced herein below:
"3.6. As noticed above, two Division Benches of this court have rendered a view concerning the DoPT's O.M. dated 10.07.1998. Therefore, the submission advanced by Mr Singh that the pay protection could have been accorded to the respondent only if he had been selected [i.e., had been recruited through an interview] cannot be accepted."
12. It has been further highlighted in the identical situations, though, in Manjesh Porwal (supra), also, where the Hon'ble High Court expressed displeasure, which has already been quoted herein above. Against the order of the Hon'ble High Court of Delhi in the case of Manjesh Porwal (supra), an SLP has also been dismissed. We also take note of the fact that the reliance placed by the respondents' counsel on OM dated 13.08.2020 in the factual matrix of the present case does not hold much water in light of the 13 Item No. 17(C-4) O.A. No. 2138/2020 decision rendered by the Hon'ble High Court in W.P. (C) No.12475/2023 in the matter of Union of India vs. Manjesh Porwal and Ors.
13. In view of the same, the impugned order dated 14.03.2024 issued by the respondent to the applicant is quashed and set aside. The respondents are directed to re- fix the basic pay, allowing the benefit of pay protection of the pay drawn by the applicants and to grant all consequential benefits within a period of three months, including arrears, from the date of receipt of a certified copy of this order.
14. The O.A. is disposed of accordingly. All pending Applications, if any, shall also stand disposed of. No costs.
(Dr. Sumeet Jerath) (Harvinder Kaur Oberoi)
Member (A) Member (J)
/Nk/