Central Administrative Tribunal - Delhi
Vinod Kumar Jain vs M/O Environment And Forests on 16 October, 2023
1 OA No.652/2019
Central Administrative Tribunal
Principal Bench: New Delhi
Circuit Sitting at Nainital
OA No.652/2019
This the 16th day of October 2023
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
Vinod Kumar Jain
S/o Late Shri Kailash Chandra Jain
R/o 234/348, Moti Bazar
Dehradun-248001
Uttarakhand.
....Applicant
(By Advocate: Mr. Pooran Singh Rawat)
Versus
1. Union of India
Through the Secretary to Government of India
Ministry of Environment, Forests & Climate Change,
6th Floor, Indira Paryavaran Bhavan,
Jor Bagh Road,
New Delhi-110003.
2. Indian Council of Forestry Research & Education
Through the Director General,
ICFRE P.O. New Forest Dehradun-248006
(Uttarakhand)
3. The Secretary,
Indian Council of Forestry Research & Education
P.O. New Forest Dehradun-248006
(Uttarakhand)
... Respondents
(By Advocate: Mr. T.C.Aggarwal and
Mr. Vikas Pandey)
2 OA No.652/2019
ORDER (ORAL)
By Hon'ble Mr. Manish Garg, Member (J) Applicant has filed the present OA, under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs:
"I- To pay arrears of additional remuneration along with applicable Dearness Allowances and House Rent Allowances with retrospective effect from 1-1-1996 up to 30-9-2005 calculated in terms of orders dated 3-2-1999, 12-8-1999, 20-1-2014.
II- To re-fix and pay difference in arrears of pension and pensionary benefits at the time of retirement on 30-9-2005 in terms of order dated 3-2-1999, 12-8-1999, 20-1-2014 and Government of India, Ministry of Finance, Department of Expenditure Gazette Notification No. F.2(5)-EV(A)/77 dated 30.06.1977 of CCS (Pension) Rules, 1972.
III- To pay difference of arrears in pension from 1-10-2005 to 31-12-2005.
IV- To -refix revised pension from 1-1-2006 in terms of orders dated 3-2-1999, 12-8-1999, 20-1-2014, 20-10-2008 and as per order of Hon'ble Apex Court in the case of D.S.Nakara & Ors. Vs. Union of India & Ors. Reported in (1983) 1 SCC 305 and pay difference of arrears of revised pension from 1-1-2006 to 31-12-2015.
V- To re-fix revised pension from 1-1-2016 in terms of orders dated 3-2-1999, 12-8-1999, 20-1-2014, 9-8-2017 and OM dated 12-5-2017 and pay the difference of arrears from 1-1-2016 onwards.
VI- Interest from 1-1-1996 till the date of payment @ 12% per annum.
VII- Cost of the Petition.
VIII- Any other relief which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case."
2. Applicant was appointed as Scientist-SD on 01.01.1989 in Indian Council of Forestry Research & Education (ICFRE) under Central Government Rules as prevalent at that point of 3 OA No.652/2019 time. Vide Notification dated 30.05.1991 ICFRE was declared as an Autonomous Body w.e.f. 01.06.1991 and placed all officers and staff in position on compulsory deputation on the same terms and conditions of service as applicable prior to conversion of ICFRE into an Autonomous Organization till they are permanently absorbed in the regular service of Autonomous Body. On 31.7.1992 Central Government invited options for permanent absorption in ICFRE Society with a view to ensure that employees do not suffer any undue loss. It was left open to the employees to accept the terms and conditions of employment under Autonomous Organization. It is submitted that Group 'A' Officers will be governed by the corresponding rules applicable to Central Government Employees of their status till such time the Society frame their own rules. Government of India, Department of Space granted additional benefits in emoluments w.e.f. 01.01.1996 after their normal pay fixation. These benefits were similarly granted in DAE and DRDO. Council of Scientific and Industrial Research (CSIR), an Autonomous Body, also implemented additional benefits in emoluments as granted in DOS, DAE and DRDO but from 01.01.2001.
3. Applicant superannuated on 30.09.2005 from the post of Scientist-F in the pay scale of Rs.16,400-20,000/- (5th CPC 4 OA No.652/2019 scale) plus other applicable benefits as per rules of the autonomous ICFRE. The grievance of the applicant is that the additional remuneration in pay and allowances are not paid to him since 01.01.1996 and in consequence thereof his pension is also not correctly fixed. It is further submitted that similar benefits are extended to the CSIR, which is an Autonomous Body vide order dated 07.12.2001 and 25.11.2008. In this regard, he also sent various representations to the respondents but the same were rejected vide order dated 14.01.2019. Hence this OA.
4. Applicant has filed his written submissions wherein he has relied upon the decision rendered by Hon'ble Supreme Court of India in Bhim Singh vs. State of Haryana, 1981 (2) SCC 673 attracting the provisions of "Promissory Estoppel" of Section 115 of Indian Evidence Act, 1872. He also relied upon the decision of Principal Bench of this Tribunal in A.K. Singh and others vs. Union of India & DRDO, OA No.4229/2013 decided on 24.02.2015. He further contended that there was a statutory sanction vide Policy Decision by the Union Cabinet in para 9 (11) and ((12) of Secret Cabinet Document No.CD-804 dated 05.09.1986. The relevant Personnel Policy as mentioned in the Cabinet Document No. CD-804 of 1986 is reproduced hereunder:
5 OA No.652/2019
"para 5.1.1 - A cadre of Research Scientists is to be created in the Forest Research Institute. Their emoluments and other service conditions need to be at par with the best in other comparable scientific institutions to attract the best talent to this new service. Full flexible complementing must be provided up to the highest level.
Para 9 (11) - Forestry being an applied science, the research cadre will consist both of scientists and professional foresters specializing in different disciplines. A cadre of Forest Research Scientists will be created with service conditions at par with similar cadres in other scientific organizations. Foresters willing to opt for research and training cadres will have to get absorbed in the institutions where they are working after a stipulated period.
Para 9 (12) - Full flexible complementing up to the highest level will be provided to the personnel engaged in research."
5. Learned counsel impugns the Office Communication dated 14.07.2017 (Annexure A-16 of OA), which is reproduced herein below:
"Sub: Implementation of recommendations of 5th CPC regarding additional emoluments meant for Scientists - regarding.
Sir, Please refer to your representation dated 28.06.2017 on the above cited subject. In this regard, please find enclosed a copy of this office letter of even number dated 18.02.2016 and Ministry's reply baring no.2-50/2014-FE dated 28.03.2016 clarifying that the special dispensation has been given to the scientists of the D/o Space & Atomic Energy and DRDO for granting variable increments to really deserving scientists at the time of promotion and thus the notification dated 29.08.2008 issued by the Department of Expenditure is not general in nature which will be applicable to other departments."
6. Having regard to the above, we observe that there are two Office Orders dated 18.02.2016 and 28.03.2016 and the same are not impugned in the present OA. Unless and until the said orders are impugned, the challenge to order dated 6 OA No.652/2019 14.07.2017 is inconsequential. Applicant has relied upon the Union Cabinet note and also the decision rendered by Hon'ble Supreme Court, which cannot be made applicable to the applicant in the present facts and circumstances. We also find that respondents have taken the preliminary objection qua the primary contention that the present OA itself is barred by principle of res judicata inasmuch as the issue has already been dealt with in earlier round of litigation.
7. Learned counsel for respondents would contend that applicant was initially appointed as Research Assistant Grade- I w.e.f. 22.01.1996 in the erstwhile Forest Research Institute & Colleges, Dehradun now Forest Research Institute (an Institute under ICFRE, Dehradun). He was promoted to the post of Research Officer on 28.01.1981, Scientist SD on 1.1.1989, Scientist SE on 1.1.1999 and Scientist F (pay scale 16,400-450-20,000) on 1.1.2005 under the Flexible Complementing Scheme of ICFRE. The applicant on attaining the age of superannuation retired from the service of ICFRE on 30.9.2005. The ICFRE has been converted to an Autonomous Organization vide Ministry of Environment & Forests Order dated 30.05.1991. The Ministry vide letter dated 29.06.1992 defined the terms and conditions of absorption on the basis of option exercised by the Scientists and notified the list of Scientists so absorbed. The Flexible 7 OA No.652/2019 Complementing Scheme (FCS) has been adopted by the ICFRE since 1991 as ICFRE Group 'A' (Scientific Posts) Rules. These rules have undergone changes in the years 2001, 2011 and 2018 as per the guidelines of DoPT and directions of MoEF&CC with the approval of Board of Governors and the Government of India through MoEF&CC from time to time. It has been further mentioned that he has been promoted from Scientist 'D' to Scientist 'E' and Scientist 'F' under FCS only. He has been accordingly drawing pension since his superannuation from October 2005 onwards and his pension was accordingly revised on the implementation of 6th CPC and again as per 7th CPC from 01.01.2016 in light of DoPT OM dated 12.05.2017. The Ministry vide letter No. 12-2/92-FE, dated 29th June, 1992 defined the terms & conditions of absorption on the basis of option exercised by the Scientists and notified the list of Scientists so absorbed. Every Scientist/employee so absorbed has been granted two additional increments with effect from 1.4.1993, i.e., at the time of absorption in the service of ICFRE. The applicant has also been granted two additional increments and at the time of his retirement on 30.9.2005 his pension etc. has been sanctioned by treating these two increments as his pay.
8. The revision of his pension has also been made incorporating these two increments on the implementation of 8 OA No.652/2019 6th CPC. Whereas the applicant was claiming that these two increments shall again be added to his pension after the implementation of 6th Central Pay Commission and accordingly his pension may be revised and arrears may be paid to him. The applicant filed an OA No.1552/2010 in the Principal Bench of this Tribunal, however, the OA was dismissed on 09.11.2011 being devoid of any merit. The applicant challenged the order dated 09.11.2011 by filing W.P. (C) No.1122/2012 before the Hon'ble High Court of Delhi.
9. We have carefully gone through the order dated 09.11.2011 passed by Hon'ble High Court of Delhi in WP (C) No.1122/2012 in the earlier round of litigation wherein we find that the petitioner sought similar relief which as a natural flow or consequence is akin to relief sought in the present OA. We also observe that the Hon'ble High Court after a detailed examination of the relevant provision held as under:
"6. After going through all the relevant provisions, the Tribunal came to the conclusion that the two additional increments, to which the petitioner was entitled to, as per his service conditions, had already been taken into account at the time of fixation of his pension originally. As a consequence thereof, he was getting a pension which was higher than those who had not received the benefit of two additional increments, but were in the same pay scale. The Tribunal noted that when the OM dated 01.09.2008 was implemented, every pre-2006 pensioner got equal pension, that is, 50% of the minimum pay band plus grade pay at the post from which he retired. It is on account of this that the petitioner had felt that he had lost something inasmuch as 9 OA No.652/2019 those, who were receiving lesser pension than him, were now equated with him. However, insofar as the petitioner's grievance is concerned, the Tribunal held that because the petitioner had already been given the benefit of the two additional increments, he had not been wronged. It is only because of the subsequent events that the others, who had been receiving a lower pension, have been equated with him, as a result of which he felt aggrieved. However, we feel that the Tribunal has rightly concluded that the additional increments to which the petitioner was entitled, had been duly taken into account at the time of fixation of his pension originally and also at the time of consolidated revision of pension.
7. Therefore, we find no reason to interfere with the impugned order. The writ petition is dismissed."
10. Learned counsel for respondents has also submitted that SLP filed against the aforesaid Writ Petition was also dismissed.
11. We have heard the learned counsel for the parties and gone through the pleadings on record and also the written submissions filed by learned counsel for the applicant.
12. We have no doubt in our mind that the present matter is hit by principle of res judicata, which is also applicable to service jurisprudence as held by catena of judgments by Hon'ble Apex Court from time to time. We gave thoughtful consideration to examine and pass appropriate direction whether the matter can be remanded for re-looking and re- examining the issue pursuant to the judgment cited by the learned counsel for the applicant. However, we find that those decisions cannot be applied to the facts and circumstances of the present case inasmuch as the present 10 OA No.652/2019 applicant had earlier approached this Tribunal which proceedings came to an end by dismissal of SLP itself.
13. We do not find that there is any change in circumstances or there is any other justification to deviate from any ratio which goes against the applicant.
14. The principle of res judicata is species of the principle of estoppel. When a proceeding based on a particular cause of action has attained finality, the principle of res judicata shall fully apply. Reference in this regard may be made to Wade and Forsyth on Administrative Law, 9th Ed., pg. 243, wherein it is stated:
"One special variety of estoppel is res judicata. This results from the rule which prevents the parties to a judicial determination from litigating the same question over again even though the determination is demonstrably wrong. Except in proceedings by way of appeal, the parties bound by the judgment are estopped from questioning it. As between one another they may neither pursue the same cause of action again, nor may they again litigate any issue which was an essential element in the decision. These two aspects are sometimes distinguished as `cause of action estoppel' and `issue estoppel.' In Hope Plantations Ltd. v. Taluk Land Board, Peermade and Anr., [1999] 5 SCC 590, this Court observed :
"Law on res judicata and estoppel is well understood in India and there are ample authoritative pronouncements by various courts on these subjects. As noted above, the plea of res judicata, though technical, is based on public policy in order to put an end to litigation. It is, however, different if an issue which had been decided in an earlier litigation again arises for determination between the same parties in a suit based on a fresh cause of action or where there is continuous cause of action. The parties then may not be bound by the determination made earlier if in the meanwhile, law has changed or has been interpreted differently by a higher forum..."
In `The Doctrine of Res Judicata' 2nd Edition by George Spencer Bower and Turner, it is stated :
11 OA No.652/2019
"A judicial decision is deemed final, when it leaves nothing to be judicially determined or ascertained thereafter, in order to render it effective and capable of execution, and is absolute, complete, and certain, and when it is not lawfully subject to subsequent rescission, review, or modification by the tribunal which pronounced it...."
14.1 Reference, in this connection, may also be made to Ram Chandra Singh v. Savitri Devi and Ors., JT (2005) 11 SC 439. 14.2 Yet recently in Swamy Atmananda and Ors. v. Sri Ramakrishna Tapovanam and Ors., JT (2005) 4 SC 472 in which one of us was a party, this Court observed:
"The object and purport of principle of res judicata as contained in Section 11 of the Code of Civil Procedure is to uphold the rule of conclusiveness of judgment, as to the points decided earlier of fact, or of law, or of fact and law, in every subsequent suit between the same parties. Once the matter which was the subject-matter of lis stood determined by a competent court, no party thereafter can be permitted to reopen it in a subsequent litigation. Such a rule was brought into the statute book with a view to bring the litigation to an end so that the other side may not be put to harassment.
The principle of res judicata envisages that a judgment of a court of concurrent jurisdiction directly upon a point would create a bar as regards a plea, between the same parties in some other matter in another court, where the said plea seeks to raise afresh the very point that was determined in the earlier judgment."
It was further noticed:
"In Ishwardas v. the State of Madhya Pradesh and Ors., AIR (1979) SC 551, this Court held:
"...In order to sustain the plea of res judicata it is not necessary that all the parties to the two litigations must be common. All that is necessary is that the issue should be between the same parties or between parties under whom they or any of them claim..."
Yet again in Arnold v. National Westminster Bank Plc., [1991] 3 ALL ER 41, the House of Lords noticed the distinction between cause of action estoppel and issue estoppel. Cause of action estoppel arises where the cause of action in the later proceedings is identical to that in the earlier proceedings, the latter having been between 12 OA No.652/2019 the same parties or their privies and having involved the same subject-matter. In such a case, the bar is absolute in relation to all points decided unless fraud or collusion is alleged, such as to justify setting aside the earlier judgment. The discovery of new factual matter which could not have been found out by reasonable diligence for use in the earlier proceedings does not, according to the law of England, permit the latter to be reopened. Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant, one of the parties seeks to reopen that issue. Here also bar is complete to relitigation but its operation can be thwarted under certain circumstances. The House then finally observed: but there is room for the view that the underlying principles upon which estoppel is based, public policy and justice have greater force in cause of action estoppel, the subject-matter of the two proceedings being identical, than they do in issue estoppel, where the subject-matter is different. Once it is accepted that different considerations apply to issue estoppel, it is hard to perceive any logical distinction between a point which was previously raised and decided and one which might have been but was not. Given that the further material which would have put an entirely different complexion on the point was at the earlier stage unknown to the party and could not by reasonable diligence have been discovered by him, it is hard to see why there should be a different result according to whether he decided not to take the point, thinking it hopeless, or argue it faintly without any real hope of success."
14.3 In Gulabchand Chhotalal Parikh v. State of Gujarat, AIR (1965) SC 1153 the Constitution Bench held that the principle of res judicata is also applicable to subsequent suits where the same issues between the same parties had been decided in an earlier proceeding under Article 226 of the Constitution.
14.4 It is trite that the principle of res judicata is also applicable to the writ proceedings. [See Himachal Pradesh 13 OA No.652/2019 Road Transport Corporation v. Balwant Singh, [1993] Supp 1 SCC 552].
14.5 In Bhanu Kumar Jain v. Archana Kumar and Anr., [2005] 1 SCC 787, it was held:
"It is now well-settled that principles of res judicata applies in different stages of the same proceedings. [See Satyadhyan Ghosal and Ors. v. Smt. Deorajin Debi and Anr., AIR (1960) SC 941 and Prahlad Singh v. Col. Sukhdev Singh, [1987] 1 SCC 727].
In Y.B. Patil (supra) it was held:
"4... It is well settled that principles of res judicata can be invoked not only in separate subsequent proceedings, they also get attracted in subsequent stage of the same proceedings. Once an order made in the course of a proceeding becomes final, it would be binding at the subsequent state of that proceeding..."
It was further observed:
"In a case of this nature, however, the doctrine of `issue estoppel' as also `cause of action estoppel' may arise. In Thoday (supra) Lord Diplock held:
"...cause of action estoppel" is that which prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the non- existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties. If the cause of action was determined to exist, i.e., judgment was given on it, it is said to be merged in the judgment....If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatam."
The said dicta was followed in Barber v. Staffordshire Country Council, [1996] 2 All ER 748. A cause of action estoppel arises where in two different proceedings identical issues are raised, in which event, the latter proceedings between the same parties shall be dealt with similarly as was done in the previous proceedings. In such an event the bar is absolute in relation to all points decided save and except allegation of fraud and collusion. [See C. (a minor) v. Hackney London Borough Council, [1996] 1 All ER 973]."
[See `The Doctrine of Res judicata', 2nd Edn. by Spencer Bower and Turner p. 149] 14 OA No.652/2019
15. In view of the above, we find no merit in the OA and the same is accordingly dismissed. No order as to costs.
(Anand S. Khati) (Manish Garg) Member (A) Member (J) 'SD'