Central Administrative Tribunal - Delhi
Aruna Chopra vs M/O Tourism on 24 November, 2021
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OA No.4620 of 2015
Central Administrative Tribunal
Principal Bench: New Delhi
OA No.4620/2015
Reserved on: 09.11.2021
Pronounced on: 24.11.2021
(Through Video Conferencing)
Hon'ble Mr. A.K. Bishnoi, Member (A)
Hon'ble Mr. R.N. Singh, Member (J)
Aruna Chopra, Age 31 years
D/o Sh. S.K. Ohri,
R/o 137, Himgiri Apartment,
J-Block, Outer Ring Road,
Vikas Puri, Delhi - 110 018. ...Applicant
(By Advocate: Mr. Sachin Chauhan)
VERSUS
1. India Tourism Development Corporation Ltd.,
Through its Chairman-cum-Managing Director,
India Tourism Development Corporation
Ltd.(ITDC Ltd.), Scope Complex,
Core 8, 6th Floor, 7 Lodi Road,
New Delhi - 110 003.
2. The Director (HR),
India Tourism Development Corporation
Ltd.(ITDC Ltd.), Scope Complex,
Core 8, 6th Floor, 7 Lodi Road,
New Delhi - 110 003.
3. The Director (Finance)
India Tourism Development Corporation
Ltd.(ITDC Ltd.), Scope Complex,
Core 8, 6th Floor, 7 Lodi Road,
New Delhi - 110 003.
4. Department of Public Enterprises
Through its Secretary,
Public Enterprises Bhavan,
305, Block 14, CGO Complex,
Lodi Road, New Delhi - 3.
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OA No.4620 of 2015
5. Union of India through its Secretary,
Ministry of Tourism,
Transport Bhawan, Sansad Marg,
New Delhi -110 001. ...Respondents
(By Advocate: Mr. U. K. Jha)
ORDER
By Hon'ble Mr. R.N. Singh, Member (J):
In the present OA, filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has challenged the order dated 16.07.2012 (Annexure A-2) and order dated 23.06.2015 (Annexure A-1) issued by the respondent-ITDC, whereby the claim of the applicant for pay protection on appointment as Assistant Manager (MM&D) from PSU to PSU was rejected on two grounds - (i) that at the time of interview, she accepted the same and did not negotiate too; and (ii) that gross emoluments being drawn by her in ITDC are more than what she was drawing in her previous organization.
2. The applicant has prayed for the following reliefs:-
(i) To quash and set aside the order dated 16.07.2012 and 23.06.2015 and to further direct the respondent that the applicant be granted the pay protection i.e. 30,855/-
(13900/Basic Pay + 4800/Grade Pay + 12155/DA) in pay band (9300-34800 + Grade Pay - 4800) w.e.f. the date of appointment i.e. 14.05.2012 is to be protected with the present employer (ITDC) in the pay scale of 16400-40500 with all consequential benefits including arrears. 3 OA No.4620 of 2015
OR
(ii) Pass any other order(s), which this Hon'ble Tribunal may deem just & equitable in the facts & circumstances of the case."
3. As per the applicant, the facts leading to the present OA are that the applicant, while working as Officer (Material) (E-1) with Security Printing and Minting Corporation Ltd.[hereinafter referred to as 'SPMCIL'], applied through proper channel for the post of Assistant Manager (MM&D) in India Tourism Development Corporation Ltd. [hereinafter referred to as 'ITDC'] in response to their advertisement (Annexure A-3). It is submitted that at the time of applying for the above post, she was drawing the basic pay of Rs.30,855/- (BP-13900+4800-GradePay + 12155 DA) (CDA Scale). On the basis of her performance in the interview, the applicant was selected and was issued an offer of appointment to the post of Assistant Manager (MM&D) by the respondents, vide letter dated 10.01.2012 (Annexure A-4) in the pay scale of Rs.16400-40500 on IDA pattern. The applicant's last basic pay drawn in SPMCIL was Rs.18,700/- (BP 13,900/- + GP Rs.4,800/-) whereas on appointment in ITDC, her basic pay was fixed at Rs.16,400/- on IDA Scale 4 OA No.4620 of 2015 pattern, i.e., much lesser than what she was drawing in her erstwhile organization. Being aggrieved, the applicant made a representation to the respondent- ITDC on 18.01.2012 (Annexure A-5) requesting for pay protection and fixation of her pay at the same level she was drawing in SPMCIL, which was followed by another representation dated 22.06.2012 (Annexure A-6). The respondent-ITDC, vide order dated 16.07.2012 (Annexure A-2), rejected the claim of the applicant firstly on the ground that at the time of interview, she accepted the same and did not negotiate too; and secondly that gross emoluments being drawn by her in ITDC are more than what she was drawing in her previous organization. Aggrieved by the inaction of the respondents, the applicant made various representations to the respondents, the last being dated 22.04.2015 [Annexure A-9 (Colly.)], which were considered in consultation with the Director (Finance) and rejected by the respondent- ITDC by passing a non-speaking order dated 23.06.2015 (Annexure A-1), which is mechanical in nature and does not deal with the specific and crisp submissions of the applicant contained in her representation(s). Therefore, the applicant is entitled 5 OA No.4620 of 2015 to get her pay fixed by granting pay protection, as claimed in this OA.
4. Since neither any relief has been claimed against respondent no.4 nor any of its order has been challenged in this OA, respondent no.4 has chosen not to file any reply. However, the respondent nos.1 to 3 & 5 have filed their counter reply. While giving the factual details in their counter reply, the respondents have submitted that the terms & conditions of joining, inter alia, provide that during her employment, the applicant shall be governed by the rules and regulations of service of the Corporation. They have further submitted that the appointment letter also mentions that the applicant will be appointed in the pay scale of Rs.16,400- Rs.40,500 (IDA) on starting basic pay of Rs.16,400/- on IDA pay pattern and these terms were accepted by the applicant on her own volition and joined the ITDC without discussing about pay protection. It is further submitted by the respondents that the applicant was working with SPMCIL on CDA pattern in the Grade Pay of Rs.4800/- of which parallel IDA post is non-Executive in ITDC but the applicant was shortlisted in the Executive Cadre in ITDC and, 6 OA No.4620 of 2015 therefore, her pay had to be fixed with reference to the pay scale available in IDA pattern, and not with reference to the pay drawn by her in CDA pattern since she was considered to be a direct recruit. Consequently, she was required to get fresh medical certificate, verification of conduct and antecedents and she was also required to undergo probation period afresh. It is again submitted that having accepted the terms and conditions before joining the offered post, now she cannot claim the benefit of previous service with regard to pay protection. Moreover, as the gross emoluments being drawn by her in ITDC are more than the gross emoluments being drawn by her in SPMCIL, therefore, question of pay protection does not arise.
5. We have heard Sh. Sachin Chauhan, learned counsel for the applicant and Sh. U.K. Jha, learned counsel for respondent nos. 1 to 3 & 5 and have carefully perused the material available on record.
6. At the very outset, learned counsel for the applicant has argued that it is admitted by the respondents in para no.4 of their additional affidavit filed on 22.09.2021 that the applicant was drawing 7 OA No.4620 of 2015 basic pay of Rs.13,900 + Rs.4800 Grade Pay i.e. Rs.18,700/- in SPMCIL whereas her basic pay has been fixed at Rs.16,400/- in ITDC, i.e., much lesser that what she lastly drawn in her previous organization. Learned counsel for the applicant further argued that the rules of the ITDC relating to the recruitment for the post under reference, are silent, therefore, the Government rules in the matter shall be applicable. To strengthen his arguments, learned counsel drew our attention to the India Tourism Development Corporation Ltd. Recruitment, Promotion and Seniority Rules. Rule 6 (viii) of the Rules ibid under heading 'General Conditions Relating to Appointments' of the Rules provides as under:-
"(viii) In case, rules of the Corporation relating to recruitment, promotion and seniority to the various posts are silent, Government rules in the matter shall be applicable."
7. As has been noted above, the respondents have given two reasons for rejecting the claim of the applicant regarding pay protection. With regard to the first ground that the applicant, while accepting the terms and conditions of the appointment, had not negotiated with the respondents qua her pay 8 OA No.4620 of 2015 protection at the time of selection, the applicant has annexed various OMs and instructions relating to guidelines for fixing pay of candidates working in Public Sector Undertakings etc., recommended for appointment by the Commission by the method of recruitment by selection. None of the OMs and/or instructions talks of negotiation for pay protection at the time of selection. However, in one of the OMs dated 07.08.1989 (Annexure A-12), the question as to how pay protection can be given has been dealt with and the relevant portion whereof reads as under:-
"2. The question as to how pay protection can be given in the case if candidates recruited from Public Sector undertakings etc. has been engaging the attention of the Government for sometime. 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 Govt. 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 DA as admissible in the Government will protect the pay+DA already being drawn by them in their parent organizations..."
8. Learned counsel for the applicant has also drawn our attention to the OM dated 14.12.2012 (Annexure A-13) on the subject 'Finalization of terms & condition including pay fixation in respect of Board 9 OA No.4620 of 2015 level executives of CPSEs, revised procedure thereof, paragraph 9 whereof specifically deals with applicability of pay fixation principles, which read as under:-
"9. The pay fixation principles, which apply in respect of Board level executives of CPSEs would also be applicable mutatis mutandis in respect of below Board level executives and non-unionized supervisors of CPSEs..."
If one has regard to the above, it is amply clear that the pay fixation principles are made applicable mutatis mutandis to Board level executives and below Board level executives and non-unionized supervisors of CPSEs which covers the case of the applicant as well.
9. With regard to the second ground taken by the respondents in rejecting the claim of the applicant qua pay protection that the applicant, after fixation of her pay in ITDC, is drawing more emoluments than that were being drawn by her in previous organization, has no legs to stand as in the matter of pay fixation total emoluments are not taken into consideration, rather it is the basic pay which is considered for fixation of pay and/or for pay protection.
10OA No.4620 of 2015
10. On 13.08.2021, when the learned counsel for the respondents had not been able to show any rule and/or policy decision either of the ITDC and/or of the Govt. of India to substantiate the reasons given in the impugned orders for not acceding to the claim of the applicant for pay protection, he was granted time to file relevant instructions/extracts or the rules to substantiate the reasoning given in the impugned orders. Accordingly, learned counsel for the respondents had filed an additional affidavit on 22.09.2021 annexing therewith Chapter-II Personal Policies, vide DOP&T OM dated 31.01.1986 dealing with the 'appointment of Central Government servants in the Central public enterprises on immediate absorption basis-terms and conditions of'. Perusal of the above policy reveals that the same is applicable to the appointment on absorption basis only and not to the appointment on direct recruitment basis. Since the applicant herein was admittedly appointed as direct recruit and it does not talk about pay protection, the aforesaid policy is of no help to the respondents.
11OA No.4620 of 2015
11. In the facts and circumstances of the case and view of the above discussion, we dispose of the instant OA with the following orders:-
1. The impugned orders dated 16.07.2012 (Annexure A-2) and 23.06.2015 (Annexure A-1) are set aside;
2. The matter is remitted to the respondents with a direction to re-consider the claim of the applicant regarding her pay protection in view of the observations made hereinabove;
3. The respondents are further directed to complete the exercise, as ordained above, within a period of eight weeks from the date of receipt of this order by passing a speaking and reasoned order, under intimation to the applicant;
4. In the event on such reconsideration, the applicant is entitled for the pay protection, her pay shall be re-fixed and she will be entitled for the arrears of pay after re-
fixation and/or difference of arrears of pay 12 OA No.4620 of 2015 and allowances, which will be paid to her within a period of six weeks thereafter.
12. However, in view of the facts and circumstances of the case, there shall be no order as to costs.
13. Pending MAs, if any, shall stand disposed of accordingly.
(R.N.Singh) (A.K. Bishnoi) Member (J) Member (A) /n.ahuja/