Delhi High Court
S.S.Raghav & Ors. vs Uoi & Ors. on 19 April, 2011
Author: Sanjiv Khanna
Bench: Sanjiv Khanna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Writ Petition (Civil) No. 2148/1995
S.S.RAGHAV & ORS. ....Petitioners
Through Mr. C M Oberoi with Mr. Pratap
Venugopal and Ms. Surekha Raman,
Advocates
VERSUS
UOI & ORS. ....Respondents
Through None
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
% ORDER
19.04.2011
1. The petitioners herein are class III and class IV employees
of Delhi Regional Office-II of New India Assurance Company
Ltd., (Respondent for short).
2. To streamline and revise the pay scale of employees of the
respondent, the Department of Economic Affairs, Ministry of
Finance framed 'General Insurance' (Rationalization and
Revision of basic pay scales and other conditions by services of
Supervisory, Clerical and Subordinate staff) Scheme, 1985.
WPC 2148/1995 Page 1 of 10
3. The said scheme was published in the Official Gazette on
15th October, 1985 and became applicable with effect from the
said date.
4. Paragraph 6A of the scheme relates to fixation of basic
salary in the revised scale of pay. Clause 1 of paragraph 6A
dealt with employees who were in service as on 31st March,
1983 and clause 2 thereof dealt with employees who were
appointed on or after 1st April, 1983 but before publication of the
scheme in the Official Gazette.
5. Clause 3(a) however, gave an option to employees in
clauses 1 and 2 to choose and opt for the basic salary in the
revised scale of pay w.e.f. date of publication of the scheme in
the Official Gazette. The said option had to be exercised within
30 days of the publication of the scheme. For the sake of
convenience paragraph 6A-(1), (2) and 3(a) are reproduced
below :
"(1) The basic salary of every employee in service as
on the 31st day of March, 1983, shall be fixed at a
corresponding stage in the relevant revised scale of
pay with effect from the 1st day of April, 1983.
Provided that where an annual increment is due to
such an employee on the 1st day of April, 1983, he
WPC 2148/1995 Page 2 of 10
shall be granted such an increment in the revised scale
of pay immediately after such fixation of basic salary.
Provided, further that where the basic salary of such
an employee is fixed at the maximum of the relevant
revised scale of pay no such increment shall be
granted.
(2) the basic salary of every employee appointed on
or after the 1st day April 1983 but before the publication
of the Amendment Scheme in the Official Gazette,
shall be fixed at the corresponding stage in the
relevant revised scale of pay with effect from the date
of his appointment;
Provided that the benefit on the fixation of basic salary
(namely, the increase in the total of basic salary and
dearness allowance under the „revised terms‟ over the
total of the basic salary, personal pay, if any, dearness
allowance and personal allowance under the „existing
terms‟) shall not be less than the amount specified in
Column(2) of the table annexed hereto in relation to
the categories of employees specified in the
corresponding entry in column(1) of the said table.
Category of Employees Minimum Benefit
per month
Rs.
Subordinate Staff 35.00
Record Clerk 40.00
All employees in the scale of
Pay of Assistant 50.00
Senior Assistant/Stenographer/
Superintendent 60.00
Provided further that if the fixation of basic salary in the
relevant revised scale of pay does not result in the
minimum benefit as specified in the aforesaid Table,
the basic salary of the employee will be fixed at one or
more higher stages in there relevant revised scaled of
pay so as to ensure that the (sic) gets the minimum
benefit specified in the aforesaid Table.
WPC 2148/1995 Page 3 of 10
Provided also that where the fixation of basic salary at
the maximum of the relevant revised scale of pay,
does not enable the employee to get the minimum
benefit specified in the aforesaid Table, he will be
granted adjustment allowance to the extent of the
shortfall which allowance shall be adjusted against
any future increase in basic salary or dearness
allowance due on or after the publication of the
Amendment Scheme in the Official Gazette.
3(a) Notwithstanding anything contained in sub-
paragraphs (1) and (2), the employee may choose that
his basic salary may be fixed in the revised scales of
pay with effect from the date of publication of the
Amendment Scheme in the Official Gazette; in which
case he shall intimate this fact in writing to the
Corporation or Company within 30 days of such
publication of the Amendment Scheme or such further
period as may be allowed by the managing Director or
Chairman-cum-Managing Director of the Company."
6. It is clear from the aforesaid clauses that employees who
wanted to opt under clause 3(a) had to exercise their option
within 30 days from the date of publication of the scheme in the
Official Gazette i.e. on 15th October, 1985. Petitioners do not
claim that they had exercised the option under paragraph 3(a) of
the scheme.
7. On 23rd December, 1986, amendments were made in the
administrative instructions of the scheme which were called
Supplemental-II. This was necessitated in view of the fact that
the price index figures for the quarter ending 30th June, 1985
WPC 2148/1995 Page 4 of 10
were increased w.e.f. 1.10.1985. Thus the employees were not
given an effective choice. By the supplemental-II amendment
dated 23rd December, 1986, a right of exercising the option
under clause 3(a) was extended up to 31st January, 1987. The
petitioners did not opt and exercise their option till 31st January,
1987. This is an admitted position. It appears that this time was
extended again. It is not the case of the petitioners that they
exercised the option within the extended period.
8. The petitioners contend that they were not made aware of
the supplemental-II and therefore they did not exercise the
option. The said allegation of the petitioners has been
controverted and denied by the respondent in the counter
affidavit. It has been stated that the circular in respect of the
implementation of supplemental-II was displayed in all offices
and many employees including the colleagues of the petitioners
had taken benefit of supplemental-II by exercising their option. It
is further averred in the counter affidavit that some of the
petitioners had in fact forwarded the representations of the
subordinate exercising their option. Pay fixation and the right to
exercise option and extension of time obviously was not
WPC 2148/1995 Page 5 of 10
inconsequential or an innocuous matter which could have gone
unnoticed. It is difficult to accept that the petitioners were not
aware or had no knowledge about their right to exercise option.
9. The petitioners in the writ petition have made a case of
discrimination alleging that some of employees had exercised
their option in 1989 or thereafter and their options were accepted
by the respondent. Looking into the allegation of discrimination
and the ambiguous stand of the respondent in the counter
affidavit, the following order was passed on 19th May, 2008.
"1. As per the Scheme, Class III and IV employees
of LIC were required to exercise their options by 31st
of July, 1987. It is an admitted case of the parties that
the petitioners did not exercise their option by the
said date.
2. The petitioners have made out a case of
discrimination. It is stated that the petitioners are
entitled to parity with all others who had exercised
their option in 1989 or thereafter but their options
were accepted.
3. To determine and decide the question of
discrimination, certain facts are required to be
ascertained. In para 8 of the counter affidavit, it is
stated that seven employees posted at Agra were
allowed to exercise their options in January, 1989.
Learned counsel for the respondent, on instructions,
states that there are no other cases where
employees were permitted and allowed to exercise
their option after 31st July, 1987, except in isolated
and individual cases which were decided on merits.
However, in para 10 of the counter affidavit, LIC has
WPC 2148/1995 Page 6 of 10
taken a different stand and has accepted that the
benefit was extended to other employees.
4. The respondent-LIC will file an additional
affidavit clearly indicating :-
(i) Whether any application for exercising option
was entertained after January, 1989?
(ii) How many applications were received?
(iii) The dates on which the applications were
received?
(iv) Whether the applications were accepted and in
how many cases?
(v) The date of orders passed by the respondent-
Management, where applications were accepted.
5. The respondent-Management will also indicate
the date on which the petitioners had exercised their
option and whether any application made after the
said date has been accepted in other cases.
6. Liberty is granted to the petitioners to furnish
and give the exact dates on which they made
applications for exercising their options.
The petitioners will furnish date of their application
within two weeks from today. The respondent-LIC
will file an additional affidavit within four weeks
thereafter.
List again on 27th August, 2008."
10. The petitioners did not file any affidavit giving the exact
dates on which they made applications exercising their options.
The respondent, however, filed an affidavit on 1st September,
2008. In this affidavit it is stated that no application had been
received from any of the petitioners after January, 1989 or even
up to 5th May, 1989, the date on which last permission for
WPC 2148/1995 Page 7 of 10
exercising of option was granted by the Head Office to seven
employees of the respondent at Agra. It is further stated that
after 5th May, 1989 applications of others for option were sent to
Bombay (now Mumbai) but were rejected on the ground that the
option was exercised belatedly.
11. The petitioners thereafter filed an affidavit on 5th March,
2009 giving names and particulars of six employees and it was
further alleged that 27 employees had applied on different dates
in 1989-90 and their requests were considered and accepted.
12. The respondent filed a rejoinder affidavit on 1st December,
2009, controverting and denying the allegations made by the
petitioners. They specifically dealt with the allegations made by
the petitioners with reference to the case of Mr. S C Pathak and
Mrs. Krishna Dey. It is stated that the order passed by Mr. S C
Pathak does not show date on which he had made the
application. Similarly, in the case of Mrs. Krishna Dey it is
pointed out that it was the case of re-fixing of salary and not a
case of option. It is noticed that in the case of Mr. S C Pathak,
the option was exercised on 3rd July, 1989.
WPC 2148/1995 Page 8 of 10
13. In the present case the petitioners if at all had exercised
their option only on 18th December, 1990 by writing a letter. This
is 1 ½ years after the option was exercised by Mr. S C Pathak in
July, 1989. The petitioners cannot therefore play parity with the
case of Mr. S C Pathak. The respondent in their counter affidavit
have clarified that towards end of 1989 they had started
receiving large number of applications for exercise of option
under supplemental-II clause 3(a). These facts were brought to
the notice of the respondent's Head Officer and the Board and it
was decided by the respondent's Head Office vide letter dated
23rd August, 1990 that no further sanction for option of an
employee would be entertained or granted. It was further
clarified that earlier orders allowing some of the employees to
opt fixation of salary was on the basis of hardships. As noticed
above, the applications of petitioners for option was made on 4th
December, 1990, which is after the letter dated 23rd August,
1990 was written by the Board categorically stating that no
sanction for option shall be henceforth granted. The petitioners
have not placed on record any letter of option prior to 23rd
August, 1990. It may also be noted that the representation of the
WPC 2148/1995 Page 9 of 10
petitioners for option was rejected by the respondents by letter
dated 4th January, 1991 and the present writ petition was filed on
or about 24th May, 1995, after delay of more than 4 years. Thus,
the petitioners have approached the Court after a great delay.
14
. In view of the aforesaid I do not find any merit in the
present writ petition. Writ petition is hence dismissed.
There would be no order as to costs.
SANJIV KHANNA, J.
April 19, 2011 vld WPC 2148/1995 Page 10 of 10