Central Administrative Tribunal - Delhi
S A Krshna vs M/O Home Affairs on 4 March, 2016
(Reserved )
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH, ALLAHABAD
(Circuit Sitting at Nainital)
Allahabad this the 04th Day of March, 2016
Hon'ble Ms. Jasmine Ahmed, Member J
Hon'ble Mr. O.P.S Malik, Member A.
Original Application No. 331/00033/2015
Senthil Avoodai Krishna Raj S, S/o A. Shanmunga Sundaram, serving as
Senior Superintendent of Police, Nainital, District - Nainital.
...............Applicant
VERSUS
1. Union of India through Secretary, Ministry of Home Affairs,
Government of India, New Delhi.
2. Secretary, Ministry of Personnel, Public Grievances and Pension
(Department of Personnel and Training), Government of India,
New Delhi.
3. Secretary, Ministry of Finance, Government of India, New Delhi.
4. State of Uttarakhand through Principal Secretary (Home
Department), Government of Uttarakhand, Dehradun.
.................Respondents
Advocate for the applicant:- Shri Alok Mahra
Advocate for the Respondents:- Shri L.P. Tiwari
ORDER
DELIVERED BY:-
HON'BLE MR. O.P.S Malik, MEMBER-A By way of the instant original application filed under section 19 of the Administrative Tribunals Act 1985, the applicant has prayed for following main reliefs: -
"i) to declare the O.M dated 10.07.1998 issued by respondent no. 2 as arbitrary and illegal in so far as it subjects persons 2 O.A 33/2015 appointed to Central / All India Services through open competitive examination, to hostile discrimination.
ii) to issue a suitable order quashing the O.M dated 10.07.1998 in so far as it restricts the benefit of pay protection to persons selected through interview alone.
iii) to issue a suitable order quashing the communication dated 10.12.2014 issued by respondent no. 1.
iv) to issue a suitable order quashing the decision taken by respondent no. 4 on applicant's representation including the order dated 18.03.2015 passed by Secretary, Home Department, Government of Uttarakhand, Dehradun.
v) to issue a suitable order commanding the respondents to grant the benefit of pay protection to the applicant pursuant to the Office Memorandum dated 07.08.1989 and re-fix applicant's pay by taking into account the services rendered by him in Bharat Heavy Electricals Limited (BHEL).
vi) to issue a suitable order commanding the respondents to grant all consequential benefits including arrears of salary including interest.".
2. Briefly, the factual matrix of the case is that the applicant is an Indian Police Service (in short "I.P.S") officer of Uttarakhand Cadre. Prior to his joining this service on 18.08.2007, he was working in Bharat Heavy Electricals Limited (in short "B.H.E.L"), a Central Public Sector 3 O.A 33/2015 Undertaking, from 12.01.1998 to 14.08.2007. In B.H.E.L, he was granted due promotion and his services were confirmed w.e.f. 12.01.2000 after completion of probation. His pay was fixed accordingly. Thereafter, he appeared in civil services examination 2006. Upon selection the applicant joined the I.P.S and he was placed in pay scale of Rs. 15600-39100 (G.P. Rs. 5400/-). His revised pay scale at the time of relieving from previous assignment was fixed at Rs. 36950/-.
3. The contention of the applicant is that in terms of DOPT O.M dated 07.08.1989, he was entitled to benefit of pay protection and his basic pay ought to have been fixed at the same level that he was getting in previous organization. Withholding of benefit of pay protection resulted in recurring financial loss to the applicant. The applicant states that it was provided by this O.M that the employees of public sector undertaking / autonomous bodies, if appointed by the Central Government through direct recruitment, shall be entitled to pay protection. It is alleged that the Respondent no. 2 issued clarification vide O.M No. 12/1/96-Estt.(Pay-I) dated 10.07.1998 (Annexure A-3) making an artificial classification based on mode of selection stating that the benefit of pay protection would be available "only if the selection is through interview and not through an open competitive examination". The applicant has submitted that a Division Bench of Hon'ble High Court, Delhi had considered the validity of O.M dated 10.07.1998 in a Writ Petition (C) No. 5518/2004 filed by 4 O.A 33/2015 Shri Sanjog Kapoor, who had appeared in civil service examination. The writ petition was allowed in favour of the petitioner vide judgment dated 20.04.2007. This judgment was challenged by the Central Government before Hon'ble Supreme Court. The S.L.P No. 4546/2008 was dismissed on 31.03.2008 (Annexure A-14). It is the contention of the applicant that the judgment of Hon'ble High Court, Delhi has attained finality and is binding upon respondents. In the said writ petition, the issue of grant of pay protection was adjudicated after considering both the O.Ms dated 07.08.1989 and 10.07.1998. It has been held by the Hon'ble High Court, Delhi that the distinction sought to be drawn between the candidates selected through interview and those through open competitive examination does not have rationale justification. The issue of grant of this benefit between 1989 to 1998 was also considered but no action was taken for withdrawal of benefit already given to such officers. After dismissal of S.L.P, Shri Sanjog Kapoor was given pay protection in compliance of the judgment of Hon'ble High Court, Delhi vide order dated 02.02.2009. Based on this case, the applicant submitted a representation dated 15.04.2014 to the concerned authority through proper channel on which Respondent no. 4 sought guidance from Respondent no. 1, who replied vide order dated 10.012.2014 stating that the Hon'ble Supreme Court while dismissing the S.L.P has left question of law open and the view taken by the Hon'ble High Court has not been approved by the Hon'ble Supreme Court. Thereafter, the Respondent no. 4 on 18.03.2015 rejected 5 O.A 33/2015 the applicant's claim overlooking the judgment rendered by the Hon'ble High Court, Delhi. It is asserted by the applicant that the judgment rendered by the Hon'ble Delhi High Court has attained finality after dismissal of S.L.P and there is no judgment contrary to the judgment of Hon'ble High Court, Delhi. It is claimed by the applicant that his grievance is identical to the grievance of Shri Sanjog Kapoor and hence denial of pay protection to him based on O.M dated 10.07.1998 is unjust and illegal. Lastly, it is averred by the applicant that artificial classification between persons appointed by the Central Government through open competitive examination vis-a-vis those appointed through interview alone, is arbitrary. Such classification has no nexus with the objective sought to be achieved.
4. In the short C.A filed by the respondent nos. 1, 2 and 3, it has been stated that the judgment of the Hon'ble High Court, Delhi dated 20.04.2007 in the case of Shri Sanjog Kapoor was challenged before Hon'ble Supreme Court. The S.L.P (C) No. 4546/2008 was dismissed on 31.03.2008 on the ground of delay leaving the question of law open. Since the Ministry of Law advised against the filing of Review Petition, the Department of Revenue implemented the judgment in the case of Shri Sanjog Kapoor only and allowed him pay protection. The matter of pay protection has been clarified by the Government vide O.M No. 12/3/2009-Pay-I dated 30.03.2010, which states that in case of 6 O.A 33/2015 candidates working in Public Sector Undertaking, Universities, Semi Government Institutions or Autonomous Bodies, who are appointed as direct recruits on or after 01.01.2006 on selection through interview by a properly constituted agency including Departmental Authorities making recruitment directly, their initial pay may be fixed by granting them the Grade Pay attached to the post. Further, their pay in the Pay Band may be fixed at a stage so that the pay in the Pay Band+ Grade Pay and DA, as admissible in the Government, protects the pay + DA already being drawn by them in their parent organization. In the O.M, it is further stipulated that the pay in Pay Band fixed under this formulation will not be fixed at stage lower than Entry Pay in the revised pay structure (corresponding to the Grade Pay applicable to the post) for direct recruits on or after 1.1.2006. The pay in the Pay Band fixed under this formulation will not exceed Rs. 67,000/-, the maximum of the Pay Band PB-4.
5. It has been further stated that the Government of Uttarakhand was accordingly requested to take necessary action in the matter in terms of the above mentioned O.M dated 30.03.2010 vide letter dated 25.08.2014. The Government of Uttarakhand vide letter dated 09.09.2014 had requested for following clarification : -
i. Whether benefit of pay protection can be allowed to those IPS officers, who had served in Public Sector Undertaking 7 O.A 33/2015 before their selection in IPS through open competitive exam ?
and ii. Whether pay protection to Shri Senthil Avoodai Krishna Raj S may be allowed, as allowed to Shri Sanjog Kapoor (IRS 1999) on the direction of Hon'ble Supreme Court in SLP (C) 4546/2008 dated 31.03.2008 ?
6. The Government of India further considered the matter whether it can be taken as a precedent when the question of law is open and; whether the pay protection to Shri Senthil Avoodai Krishna Raj S may be allowed, as given to Shri Sanjog Kapoor. The legal position stated by the Hon'ble High Court therein has not been approved by the Hon'ble Supreme Court. The same has been left open to be adjudicated at some other occasion of similar nature. Accordingly, Government of Uttarakhand was requested to take necessary action in the matter in terms of DOP&T O.M dated 30.03.2010 vide letter dated 10.12.2014. On this basis, the Government of Uttarakhand has denied pay protection to the applicant. It has been further submitted that the order in Writ Petition (C) 5518/04 in Sanjog Kapoor's case is qua the petitioner in that case and as such it is not a judgment in rem but a judgment in personem. Thus, the provisions contained in O.M dated 10.07.1998 are still relevant and as per these provisions, the applicant is not entitled to the benefit of pay protection. 8 O.A 33/2015
7. Heard learned counsel for both sides at length and perused the records.
8. Learned counsel for the applicant argued that the Hon'ble High Court, Delhi has declared the distinction made between persons selected / appointed through interview qua those selected / appointed through open competitive examination, as made vide O.M dated 10.07.1998, as arbitrary and illegal. Since the controversy regarding applicability of O.M dated 07.08.1989 and 10.07.1998 stands settled by the judgment of Hon'ble High Court, Delhi in W.P (C) 5518/2004 and the same has attained finality upon dismissal of S.L.P, the respondents cannot take a different view in respect of the applicant as his grievance is identical to the grievance of Shri Sanjog Kapoor.
9. Learned counsel for respondents vehemently opposes the contention of the applicant and states that the pay protection cannot be granted to the applicant in view of the policy as stated in O.M dated 10.07.1998 followed by O.M dated 30.03.2010.
10. From the rival contentions it emerges that the applicant before joining the present service worked in BHEL. He was confirmed in BHEL after successfully completing his probation. His representation for pay protection was processed by the Government of Uttarakhand and Ministry 9 O.A 33/2015 of Home Affairs, Government of India, who are cadre controlling authority of the IPS. Finally, The Government of Uttarakhand rejected the representation of the applicant vide order dated 18.03.2015 in compliance with the letter of Ministry of Home Affairs , Govt. Of India dated 10.12.2014 stating that according to the O.M dated 10.07.1998, the benefit of pay protection would be available only when the selection has been done through interview and not through open competitive examination. The Ministry of Home Affairs, Govt. Of India vide its communication dated 10.12.2014 has conveyed to the Government of Uttarakhand that a clarification regarding pay protection has been issued by the D.O.P &T O.M dated 10.07.1998 and the necessary action should be taken according to this O.M.
11. Thus the issues that need determination in the case are :
i) Whether the distinction between two modes of recruitment introduced by O.M dated 10.07.1998 is justified ?
ii) Whether the judgment of Hon'ble High Court, Delhi has attained finality in the facts of the case?
iii) Whether the case of the applicant is similarly situated to the case of Shri Sanjog Kapoor ?
We now proceed to analyze the above three issues.
12. Vide O.M dated 07.08.1989 issued by the D.O.P.&T, the policy regarding pay protection was laid down as under: -
10 O.A 33/2015
"........The matter has been carefully considered and the President is pleased to decide that in respect of candidates working in Public Sector undertaking, Universities, Semi Government Institutions or Autonomous Bodies, who are appointed as direct recruits on selection through a properly constituted agency including departmental authorities making recruitment directly, their initial pay may be fixed at a stage in the scale of pay attached to the post so that the pay and D.A, as admissible in the Government, will protect the pay + D.A, already being drawn by them in their parent organizations......"
13. Vide O.M dated 10.07.1998, certain amendments were made in the O.M dated 07.08.1989 by the D.O.P&T regarding pay protection. The amended policy issued by the D.O.P&T vide O.M dated 10.07.1998 is as under : -
".......It is 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. Whether the protection under the above orders is to be given, the Commission will indicate in its recommendations letter to the Ministry concerned that pay of such candidate (s) should be fixed as per the guidelines laid down in the above orders. Further, the benefit would be available to an officer coming from PSU etc only if the officer has completed the period of probation successfully for being regularized / confirmed in the post in the parent organization."
14. The matter regarding pay protection was considered in detail in the light of above two O.Ms by the Hon'ble High Court, Delhi in W.P (C) 11 O.A 33/2015 No. 5518/2004. The relevant extracts of the judgment are reproduced below: -
"14. 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 O.M dated 10.07.1998 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 O.M 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 07.08.1989 and 10.07.1998, based on which was decided to limit the benefit of pay protection to interview based selection only.
15. The above response does not help us in understanding the rationale, if any, for the action 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 of bureaucracy. The objectives and standards which 12 O.A 33/2015 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.
16. 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 not 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.
17. We are informed that the petitioner's pay scale as on 09.06.1999 in VSNL would be in the scale of 13,350 -
18,250, by virtue of revision in pay scale given effect to by VSNL vide office order dated 06.10.2000 w.e.f. 1.1.1997. 13 O.A 33/2015
18. Therefore, in view of the foregoing discussions, we set aside orders dated 28.11.2003, 12.08.2003 as well as letters dated 09.07.2002 and 07.08.2002 and allow the writ petition holding petitioner eligible for pay protection."
15. It has been contended by the respondents that the Hon'ble Supreme Court dismissed the S.L.P (C) on the ground of delay leaving the question of law open and the Department of Revenue implemented the judgment in the case of petitioner only (Shri Sanjog Kapoor). As the question of law has been left open by the Hon'ble Apex Court in the matter, the legal position stated by the Hon'ble High Court has not been approved by the Hon'ble Supreme Court. Therefore, the order of Hon'ble High Court, Delhi is not final. Further, this order is qua the petitioner in that case and as such it is not a judgment in rem but judgment in personem. On the contrary, it is the contention of the applicant that the judgment of Hon'ble High Court, after the dismissal of S.L.P, has attained finality and there is no judgment contrary to the judgment of Hon'ble Delhi High Court , hence this judgment has attained finality. We are of the view that after the detailed order passed by the Hon'ble High Court, Delhi on the issue, it would not be open to this Tribunal to take any different view. This judgment is final for the purpose of determining the issue before us. 14 O.A 33/2015
16. It is established that the applicant was selected through Civil Services Examination 2006 by the U.P.S.C. Shri Sanjog Kapoor was also selected through Civil Services Examination by U.P.S.C in the year 1998. The applicant was working in Public Sector Undertaking. Shri Sanjog Kapoor was also working in V.S.N.L, a Public Sector Undertaking. The applicant was confirmed in his previous assignment after successfully completing his period of probation. Thus, we are satisfied that the claim of the applicant in the present O.A is on all fours with the case of Shri Sanjog Kapoor. The applicant is also similarly situated as the beneficiary of the aforesaid case and his case is squarely covered by the ratio decided by the Hon'ble High Court, Delhi.
17. From the analysis above mentioned, it has been demonstrated that it is a covered matter and it deserves to be decided on the principle laid down in Sanjog Kapoor's case. Applicant is similarly placed as Shri Sanjog Kapoor to whom the benefit of pay protection had been granted by the Government of India after the judgment of Hon'ble High Court, Delhi. Since the judgment of Hon'ble High Court, Delhi is final on date, it stands to reason that the applicant should also receive the benefit of pay protection.
18. In view of the facts and circumstances of the case and legal position, we are of the considered opinion that the applicant has been able to 15 O.A 33/2015 establish his case for pay protection. It would be in the interest of justice that he is granted pay protection as per policy laid down in O.M dated 17.08.1989. For the forgoing reasons, the impugned orders in the present O.A are not legally sustainable and the benefit of judgment passed by the Hon'ble High Court, Delhi is wholly applicable to the present applicant. The O.A deserves to be allowed.
19. Accordingly, the O.A is allowed. The impugned orders dated 18.03.2015 (Annexure A-1) and 10.12.2014 (Annexure A-2) are set aside. The respondents are directed to grant the benefit of pay protection to the applicant in accordance with O.M dated 07.08.1989 and re-fix his pay accordingly with consequential benefits within a period of three months from the date of receipt of certified copy of this order. No costs.
(O.P.S. Malik) (Ms. Jasmine Ahmed)
Member-A Member-J
Anand...