Central Administrative Tribunal - Delhi
P.S. Pathrudu (Jio-1/G) vs Union Of India Through on 30 August, 2013
Central Administrative Tribunal
Principal Bench
OA No.415/2012
Reserved on: 09/04/3013
Pronounced on:30/08/2013
Honble Mr. Justice Syed Rafat Alam, Chairman
Honble Dr. Birendra Kumar Sinha, Member (A)
P.S. Pathrudu (JIO-1/G)
PIS No. 109311
S/o Late Sh. P. Ramana Pathrudu,
R/o H.No. 72/2, Sector No.1,
Pushap Vihar, New Delhi. Applicant
(By Advocate: Sh. Yashpal Rangi)
-VERSUS-
1. Union of India through
Secretary
Ministry of Home Affairs,
Central Secretariat, North Block,
New Delhi.
2. Director General,
Intelligence Bureau (MHA),
IB Headquarter,
35, S.P. Marg, New Delhi
3. Director/Assistant Director,
Intelligence Bureau (MHA)
IB Headquarters,
35, S.P. marg, New Delhi. Respondents.
(By Advocate: Sh. Satish Kumar)
O R D E R
By Dr. Birendra Kumar Sinha, Member (A):
In the instant Original Application filed under Section 19 of the Administrative Tribunal Act, 1985, the applicant has sought a direction to the respondents to protect his pay drawn by him just before absorption and fix the basic pay of at Rs.5640/- w.e.f. 13.10.2004 with all attendant benefits like increments, revision of pay, arrears of pay etc.
2. The facts of this case, in brief, are that initially the applicant joined the Andhra Police as Constable on 03.01.1981. Subsequently, in February, 1989, the applicant went on deputation to Special Protection Group (SPG) and remained there till he was repatriated to his parent department i.e. Andhra Police in April, 1999. It is the case of the applicant that while he was on deputation with SPG, Andhra Police, vide the order dated 16.08.1992 granted him Special Grade Time Scale (SGTS for short) of Head Constable on completion of ten years regular satisfactory service w.e.f. 04.01.1991. Consequently, the SPG fixed his pay at Rs.985/- in the SGTS vide order dated 05.09.1992 (Annexure A-4). Having repatriated to his parent department in April, 1999, the applicant was granted SPP-I scale on completion of 16 years incremental service in that service and his pay was fixed at Rs. 4700/- in the pay scale of Rs.3750-7650/- w.e.f. 01.10.1999. On 13.10.1999, the applicant joined respondents organization on deputation basis on the post of SA/G, an analogous post to that of Constable in Andhra Police. At the time of joining IB, the applicant opted for pay as was being received by him in his parent department plus the deputation allowance. Resultantly, his pay was fixed at Rs.4700/- in the pay scale of Rs.3130-6150/- and was allowed the deputation allowance. The applicant was ultimately absorbed in the respondents organization vide order dated 11.06.2008 with retrospective effect i.e. 13.10.2004 as SA/Exe. in an officiating capacity. The grievance of the applicant is that on 13.10.2004, he was drawing the basic pay of Rs.5640/- but on his absorption, his pay has wrongly been fixed at Rs.4700/- and, hence, drastically reduced the pay from Rs.5640/- to Rs.4700/- which, according to the applicant, could not have been done as it could only be possible where the concerned employee is visited with a punishment. The applicant, on the other hand, has never been issued with any chargesheet during his entire service career.
3. The learned counsel for the applicant has contended that since the fixation of the State Government employees on their appointment in the Central Government is governed by DOP&T OM dated 18.06.2001 as the State Government have revised the pay scale of their employees on the pattern of Vth Central Pay Commission w.e.f. 01.01.1996, the claim of pay fixation of the applicant falls under clause (a) of the aforesaid OM, which the respondents have not taken into consideration while fixing the pay of the applicant on absorption. Clause (a) of the OM Dated 18.06.2011 reads as under:-
(a) Where the State Government have revised the pay scale of their employees on the pattern of V Central Pay Commission at the CPI 1510 w.e.f. 1.1.1996 the pay of these State Government employees on their appointment under the Central Government would be fixed directly under normal rules i.e. F.R. 22(1)(a)(2) or FR 22.1(a)(1) as the case may be. The applicant, being aggrieved, represented the respondents organization requesting them to correctly fix his pay by protecting the pay drawn by him at the time of absorption. In response thereof, he was directed vide letter dated 10.11.2008 to seek clarification from C-4 Branch, which failed to clarify the position. However, consequent on revision of pay of the applicant by his parent department, respondents vide their order dated 30.04.2009 revised his pay to Rs.4830/- w.e.f. 13.10.2004 whereas they ought to have fixed the pay at Rs. 5640/- and not at Rs.4830/-. Learned counsel for the applicant further submitted that though the applicants pay was fixed and revised from time to time on being promoted to the post of JIO-II/G w.e.f. 7.4.2005 and JIO-I/G from June, 2011 but illegality in pay fixation crept in only from the date of his absorption. As has already been mentioned above, though the respondents tried to modify the fixation of pay of the applicant by fixing at Rs.4830/- even the same was not correct as they ought to have fixed at Rs.5640/-. This has compelled the applicant to file the present Original Application seeking the relief which we have already mentioned within.
4. The respondents have entered appearance and filed their counter reply. Before controverting the plea adopted by the applicant, the respondents have taken a preliminary objection that the OA is hopelessly barred by limitation for the simple reason that cause of action has arisen to the applicant on 11.07.2008 whereas the instant OA has been filed only in October, 2011.
5. Perusal of the record reveals that this objection of the respondents has been overruled by the Tribunal while allowing the MA No.2833/2012 moved by the applicant seeking condonation of delay in filing the instant Original Application.
6. We have carefully considered the pleadings of the rival parties and the documents submitted by them, the citation of cases proffered and the arguments advanced by the respect learned counsels of the parties. On the basis of the above, we feel that the following questions need necessarily be asked so that the case is finally adjudicated:-
What is the structural difference between deputation and absorption? Do they differ in their scope and orientation?
What is the difference in the scope of Circular of 1983 and RTI information in reference to the case under deputation?
Whether there is any statutory provision that pay being drawn by the deputationist at the time of absorption and the gains of his previous service shall be protected at the time of his absorption?
Whether the applicant needed to have assailed the Circular of 1983 in order to get relief that he has desired in the instant OA?
Whether the undertaking given by the applicant at the time of his absorption accepting the pay has been reduced to a nullity by the pronouncement in the case of Rajasthan Public Service Commission, Ajmer versus Dr. (Mrs.) Damyanti Dadich and Others decided by the Division Bench of Jaipur Bench of the Honble High Court of Rajasthan on 03.08.1992.
What relief, if any, can be granted to the applicant in consideration of the answers to the questions, framed above?
7. Insofar as the first issue is concerned, it is an admitted fact that the applicant joined the Andhra Police as Constable on 03.01.1981 and proceeded on deputation to Special Protection Group (SPG) and remained there till 1999 when he was repatriated to his parent department i.e. Andhra Police; on 16.08.1992, the applicant was granted Special Grade Time Scale (SGTS for short) of Head Constable on completion of ten years regular service; in April, 1999, the applicant was granted SPP-I scale on completion of 16 years incremental service; on 13.10.1999, the applicant came on deputation on the equivalent post of SA/G in the Intelligence Bureau, MHA and opted for the pay of his parent department + deputation allowances and his pay was accordingly fixed at Rs.4700/- in the pay scale of Rs.3130-6150/-; on 11.06.2008, the applicant was absorbed on transfer service basis in the Intelligence Bureau w.e.f. 13.10.2004 as SA/Exe.; admittedly, the applicant was drawing the pay of Rs.5640/- while his pay was fixed at Rs.4700/- on 11.07.2008; on 02.09.2008, the applicant was promoted to the post of JIO-II/G w.e.f. 07.04.2005 and further promoted to the post of JIO-I/G in June, 2011; the applicant had admittedly submitted a representation on 10.11.2008; consequent to the revision of his pay by his parent department, his pay was also revised to Rs.4830/- w.e.f. 13.10.2004 while the applicants claim is that he ought to have been fixed at Rs.5640/-; on 29.12.2009, the pay scale of the applicant was further reduced from Rs.4830/- to Rs. 4750/- w.e.f. 13.10.2004.
8. It is also necessary to take a look at the comparative position of the pay scales before absorption and after absorption of the applicant, which is reproduced as under:-
(Pay + allowance as on 13.10.1994 Drawn by him in the pay scale of Parent Deptt. i.e. Andhra Pradesh Police in the rank of Constable Pay in SPP-1 Scale Rs.3750-100-3950-120-4550-150-5300-170-6150-200-7150-250-7650 Basic pay as on 01.10.83 was fixed by parent department in TSP of pay of Rs.5450-135-5605-145-6040-155-6505-170-7015-185-7570-200-8170-215- 8815-235-9520-255-10285-280-11125-315-12385 on revision of pay by Parent Department at = Rs.8170/- (Pay + allowance as on 13.10.1994) arrived at after taking into account presumptive pay in the scale of SA of IB (equivalent to the rank of Constable) as per para 1(i) of MHA letter dated 19.07.1983 (Annexreu-I) Pay scale of SA/G in IB Rs.3050-75-3950-80-4590.
He joined IB on 13.10.1999 Basic Pay as on 13.10.1999 = Rs. 4590/-
(Maximum scale of pay of SA/G) 1st stagnation after 2 years on 01.10.2001 = Rs.4670/-
2nd stagnation after next 2 years on 01.10.2003 = Rs.4750/-
Basic pay as on 01.10.2004 = Rs.8385/-
(after granting one increment of Rs.215/- with Rs.8170/-) Basic Pay as on 01.10.2004 = Rs.4750/-
Basic pay as on 13.10.1994 = Rs.8385/-
DA = Rs. 395/- (4.710%) Dep. All = Rs.420/- (Restricted to 50%) Special Pay = Rs.15/- Basic pay as on 13.10.1994 = Rs.4750/- DA = Rs. 998/- (14%) DP = Rs.2375/- Total Pay = Rs. 9215/- Total Pay = Rs.8123/- Difference of total pay = Rs.9215 Rs. 8123 = Rs.1092/-
Further, admittedly as per the CCS (Revised Pay) Rules, 2008, two stagnation increments were granted to the applicant and his pay was fixed as under:-
Basic Pay = Rs.4750/- after granting two stagnation increments in 2001 and 2003 as per Rule vide G.I., (Dept. of Expenditure), OM No. 1(9)/E.III-A/97 dated 22.07.1998 plus Personal Pay (PP) = Rs. 1092/- (Rs. 9215-Rs.8123) to be absorbed in future increases in pay.
9. Before we proceed to examine this issue, we have to distinguish between the terms deputation and absorption. Deputation and absorption are two different terms altogether. This definition has been enumerated by the Honble Supreme Court in the case of State of Mysore versus M.H. Bellary, [AIR 1965 SC 868], which reads as under:-
The service of an officer on deputation in another department is treated by the rule as equivalent to service in the parent department and it is this equation between the services in the two departments that forms the basis of Rule 50(b). So long therefore as the service of the employee in the new department is satisfactory and he is obtaining the increments and promotions in that department, it stands to reason, that that satisfactory service, and the manner of its discharge in the post he actually fills should be deemed to be rendered in the parent department also so as to entitle him to promotions which are open on seniority-cum-merit basis. What is indicated here is precisely what is termed in official language the "next below rule" under which an officer on deputation is given a paper promotion and shown as holding a higher post in the parent department if the officer next below him is being promoted. In other words, it clearly emerges that deputation is an extension of service in the parent department with another host organization. The employee on deputation continues to get the service benefits including upgradations and promotions as and when they are provided to an employee immediate junior to him in operation of the next below rule. When he reverts to his cadre, he would be placed above the employee junior to him and would be entitled to the benefits which the latter have availed from the same date. On the other hand, absorption is altogether a different term. In such a case, the services rendered by the applicant in his parent department come to a stage of termination. Hence, it implies that the pay scales, the service conditions and other benefits will also be different. It is also to be noted that absorption cannot be forced but in terms of FR 110 (a) no government servant may be transferred to foreign service against his will, however, this does not preclude his transfer to a service or body which is wholly or substantially controlled by the Government. Hence, it is a deliberate choice provided to the Government servant.
10. In the second instance while on deputation, the government employee continues to hold permanent lien on his service in the parent department while in the case of absorption this permanent lien is terminated and it is no longer at the option of the absorbed employee to revert to his parent department. Hence, they are two different entities altogether. When a person gets absorbed into another department, he is no longer subject to the rules and regulations governing his parent department and becomes amenable to the pay structure, service conditions, rules and regulations governing the new entity. He also gets a fitment according to pre-decided formula in the new service cadre. On the basis of the above, it can be inferred that deputation is a continuous service in the parent department whereas absorption is a re-birth in new service.
11. Insofar as issue no.2 is concerned, the subject of fixation of pay of State Police Officers on deputation to the Intelligence Bureau and on their permanent absorption in the Intelligence Bureau is governed by the Government of India OM dated 19.07.1983. This OM, inter alia, provides as under:-
In supersession of this Ministrys letter No.2/Est(C)74(1)-III/FP.V dated 22.06.1979 on the subject, I am directed to convey the sanction of the President to the adoption of the Formula of pay fixation as contained in the Ministry of Finance O.M. No. F.1(11)-III(B)/69 dated 20.1.70 as amended from time to time for fixation of pay of the deputationist State Police Officers on their permanent absorption in the Intelligence Bureau in the rank of JIO-II, JIO-I, ACIO-II, ACIO-I and DCIO subject to the notification given below:-
In case the pay in the central scale so determined plus special pay (if any) is more than the pay plus deputation allowance plus special pay admissible as deputationist in the grade in which he is permanently absorbed, his pay in that grade will be fixed at such a stage that the pay plus special pay admissible, if any, does not exceed the total of pay plus deputation allowance plus special pay admissible to him as deputationist in the grade in which he is permanently absorbed.
If, on the date of permanent absorption, the total of the pay plus deputation allowance plus special pay plus dearness allowance plus interim relief if any drawn at the State rates by deputationist exceeds the total of pay plus special pay, if any, plus dearness allowances at central rates, the difference shall be allowed as personal pay to be absorbed in future increment.
If the deputationist is officiating in a grade higher than the one in which he is permanently absorbed in the IB, his pay in the officiating grade will be fixed in the Central Scle under the normal rules on the date of the permanent absorption. If, however, the total of the pay plus deputation allowance plus special pay drawn as deputationist on the date of permanent absorption in the officiating grade is more than the total of the pay plus special pay, if any, admissible in the central pay scale attached to the post in which the officer is officiating the difference will be protected by granting him personal pay to be absorbed in future increase of pay.
2. The revised formula will come into effect from 22.6.1979. This will be applicable to persons who are permanently absorbed w.e.f. the date or after the date of coming into force of the formula.
3. I am also to say that with effect from 1.1.73, the formula of pay fixation on permanent absorption as contained in this Ministrys letter No.7/43/62-P.III dated 24.7.62 as amended from time to time will be modified to the extent that personal pay should be granted only to the extent the pay plus dearness allowance (including interim relief, dearness pay and additional dearness allowance) at state rates plus special pay plus 50% deputation allowance is more than the total pay plus special pay, if any, plus dearness allowance (including additional dearness allowance) at the central scale.
4. Past causes, decided in terms of this Ministrys letter No.7/43/62-P.III dated 24.7.62 as amended from time to time and modified w.e.f. 1.1.73 vide para 3 above, will normally not be re-opened. However, individual cases of hardship where an officer is likely to suffer in pensionary benefits as a result of the fall in basic pay on permanent absorption, will be taken up with the pay unit of the Department of Personnel/Ministry of Finance for consideration on merits so as to avoid any loss to the individual in the grant of pensionary benefits.
12. It is discernable from the above that the instant OM dated 19.07.1983 provided for two conditions (i) where the pay of the government employee fixed on absorption exceeds the pay plus deputation allowance plus special pay admissible as deputationist in the grade in which he is permanently absorbed, in such eventuality the provision has been made that he should be fixed at a stage that the pay plus special pay admissible, if any, does not exceed the total of pay plus deputation allowance plus special pay admissible to him as deputationst in the grade in which he is permanent absorbed. In the second instance, where the pay fixed on absorption is less than the pay + deputation allowance plus special pay + dearness allowance + interim relief drawn at the central rates, in such eventuality, the difference has been made up by granting pay personnel to the absorbed employee. This is on account of the fact that the new service has got its own pay and seniority structure etc. While being on deputation, the separate identity of the employee on deputation is retained and even though rendering service to the host organization a deputationist does not compete with the permanent employees of the host organization for any of the benefits. This is absolutely necessary because if the deputationsts were to carry their past service into the new organization at par, it would totally upset the pay structure, recruitment pattern etc. of the host organization and they would end up higher vis-`-vis the direct recruits. Therefore, it has been deemed necessary to make this provision so that balance is maintained in respect of the persons joining the organization on a permanent basis and merging their identities with a new entity. It is further admitted that this may give rise to anomalies and that is why the paragraph 4 has been enumerated in the OM dated 19.07.1983 so that cases of extreme hardship could be taken up and ameliorated. This question is accordingly answered.
13. Insofar as issue no. 3 is concerned, there is no statutory rule providing that the pay of the government servant on deputation shall be protected at the time of his permanent absorption into the host organization. Of course, this protection is provided in a different manner that whatever be the shortfall at the time of fixation of pay on permanent absorption, the same is made up by grant of personal pay. It has already been discussed while dealing with issue no.2 that had this not been done then there would have been a disparity created by the deputationist getting absorbed at the cost of the direct recruits and all of them would have gone up getting substantial seniority. Hence, while the total emoluments are protected, there is no protection under the statute to the pay of the absorbed employee drawn as a deputationist. To the contrary, OM dated 19.07.1983 is equivalent to statute and it governs the pay structure of such employees who got absorbed in the Intelligence Bureau while being on deputation. It is also to be remarked here that in the absence of any other statute, this OM acquires the force of subordinate legislation and is binding as any rule framed under Article 309 of the Constitution would be otherwise.
14. Here it is to be noted that the applicant has relied upon a decision of the Jaipur Bench of this Tribunal in the matter of Bhanu Kumar Bhardwaj versus Union of India [2000 (1) ATJ 559]. In this case the applicant was appointed to the post of LDC in June 1983 in the pay scale of Rs.950-1500 and was later appointed on transfer on deputation basis in the pay scale of Rs.1400-2300 on 06.11.1990. He continued to work there on deputation till he was regularized vide order dated 09.01.1995 when he was drawing basic pay of Rs.1560/- per month. The Tribunal has noted that his services were regularized following due process of selection. The Jaipur Bench of this Tribunal had simply noted as under:-
15. In the facts and circumstances of the instant case, we are of the considered opinion that pay of the applicant cannot be fixed of treating him a fresh appointee on the post, therefore, pay of the applicant cannot be reduced on his absorption on the same post on which he was working before absorption. It is worthwhile to mention here that we have directed the learned counsel for the respondent to furnish relevant rules of fixation of pay of the applicant in the instant case but only a written note was submitted by the learned counsel for the respondents in which it has been made specific that the applicant was treated as a fresh appointee and his pay was fixed accordingly, resulted the reduction of his pay. But this connotation is not at all acceptable as no Fundamental Rule in its support has been furnished by the learned counsel for the respondents. The applicant after due selection was recommended for the appointment on the post of Jr. Hindi Translator on transfer on deputation basis, there he worked for four years and earned increments, thereafter he was absorbed on the same post without any repatriation. Therefore, we are of the considered view that pay of the applicant cannot be reduced in such circumstances.
16. We, therefore, allow this O.A. and direct the respondents to fix the pay of the applicant at Rs.1560/- on the date of his absorption and not to recover any amount from his salary as over payment and to pay arrears if any to the applicant within 3 months from the date of receipt of a copy of this order. However, the Tribunal has not explained that on what basis it has come to the inference that the pay of the applicant cannot be fixed by treating him as a fresh appointee to the post. It is to be remarked here in this context that as per the OM dated 19.07.1983, it is not a complete parity which is being sought with the direct recruits. The deputation emoluments are being protected. A similar ratio had been followed by the Honble Supreme Court in the case of K. Gopinathan versus Union of India [(1992) 4 SCC 701] where the Tribunal had disallowed the Original Application on the ground that total emoluments of deputation exceeded his pay as deputationist. The Honble Supreme Court had noted in paragraph 8 as under:-
8. We are afraid we cannot subscribe to this reasoning. While upholding the view of the Central Administrative, Principal Bench, New Delhi in Original Application No. 1680 of 1989 in SLP(C) No. 2196 of 1992, we have pointed out how the basic pay cannot be reduced. The same principle will be applicable to this case as well. Accordingly, the appeal is allowed. However, there shall be no order as to costs.
15. However, it is to be noted that there is major a difference between the case in hand and that of K. Gopinathan versus Union of India (supra). We notice that in the instant case there is specific direction from the Government in the form of OM dated 19.07.1983 which prescribes the mode of fixation of pay upon such absorption in the Intelligence Bureau. This takes place of subordinate legislation in absence of there being any other rule or law on the subject. In the case of K. Gopinathan versus Union of India (supra), there were no such subordinate legislation and the issues were being decided according to administrative instructions. Hence, the case of K. Gopinathan versus Union of India (supra) is not applicable to the facts of the instant case. Here, we have a subordinate legislation in place which prescribes the way the fixation is to be done. We have already seen that this structure has been put in place getting the consideration of the direct recruits versus deputationists & promoted persons and the requirement of the organization, which is also to ensure that its members do not loose motivation.
16. We have already taken a note of the anomalous situation where such a concession may generate. Organizations like the Intelligence Bureau are sensitive organizations which work in the vital interest of the country and we cannot afford to play with that.
17. In respect of Issue No. 4, the applicant has asserted that in view of the decided cases of the Honble Supreme Court and the Honble High Courts, there is no need for assailing the OM dated 19.07.1983 in order to get the relief. The applicant has asserted that he would be governed rather by OM dated 18.06.2001, which deals with the question of fixation of pay of such employees consequent upon the revision of pay scales on the recommendations of the Vth Central Pay Commission. Considering the importance of the subject, it is apt to reproduce this OM at verbatim hereunder:-
The undersigned is directed to say that the method of fixation of pay of State Government employees on their appointment under the Central Government has been spelt out in his Departments O.M. No.12/1/94-Estt.(Pay-I) dated 24th March, 1994 and 3rd January, 1996. The question of fixation of pay in their cases consequent upon revision of pay scales on acceptance of the recommendations of the V Central Pay Commission has been considered by the Government and the President is pleased to declare that in cases of appointment of State Government employees under the Central Government on or after 1.1.1996, pay will be fixed in the following manner:-
Where the State Government have revised the pay scale of their employees on the pattern of V Central Pay Commission at the CPI 1510 w.e.f. 1.1.1996 the pay of these State Government employees on their appointment under the Central Government would be fixed directly under normal rules i.e. FR 22(1)(a)(2) or FR 22(1)(a)(1) as the case may be.
Where the State Government has revised the pay scales of their employees after 1.1.1996 beyond CPI 1510, basic pay of the employees is to be determined first in the Central Scale by reducing the element of DA, ADA, IR, etc. granted by the State Government after 1.1.1996 (beyond CPI 1510) and thereafter the pay would be fixed under normal rules i.e. 22(1)(a)(1) or FR 22(1)(a)(2) as the case may be.
Where the State Government have either not revised or revised the pay scale of their employees on or after 1.1.1996 below CPI 1510, basic pay of these employees shall be determined first in the Central scale, by adding the element of DA, ADA upto CPI 1510granted by the State Government and thereafter their pay would be fixed under the normal rules.
2. These orders are applicable to the State Government employees including Emergency Divisional Accountants/ Divisional Accountants appointed under the Central Government on or after 1.1.1996.
3. In so far as the employees serving in the Indian Audit and Accounts Department are concerned, these orders issue after consultation with the Comptroller and Auditor General of India.
18. Here, it is to be noted that this OM is more concerned with the implementation of the recommendations of the Vth Central Pay Commission, whereas the case of the applicant does not relate to that. The applicant initially appointed in 1981 and in 1989 he had come on deputation to the Intelligence Bureau on the post of SA/G. It is for this reason that we do not find applicability of this OM to the facts of the instant case. What is here under question is not the application of Vth Central Pay Commission report but rather protection of pay being drawn by the applicant as a deputationist into the period of absorption as also the issue of carrying forward the two ACPs enjoyed by the applicant while being in the service of State Government on deputation.
19. In view of the above findings, it clearly emerges that the OM dated 19.07.1983 is the instrumentality, vide which the integration of persons from one service is sought to be achieved in the Central Government organization. Hene, we conclusively reject the plea of the applicant that his case would be guided by the OM dated 18.06.2011 and hold definitely that rather it shall be guided by the OM dated 19.07.1983. This issue is accordingly answered in negative i.e. against the applicant.
20. Here, under Issue no.5, we are considering the fact that the applicant has already given an undertaking that he would accept the pay structure of the post in the Intelligence Bureau consequent to his absorption. It is common in all Services to take undertakings from the employees. The learned counsel for the applicant has repeatedly emphasized that though the applicant had given this undertaking and commitment, the same is not enforceable as there is no estoppel which will lie against the expressed provisions of law. For this matter, the applicant has relied upon the decision of Jaipur Bench of the Honble High Court of Rajasthan in the matter of Public Service Commission, Ajmer versus Dr. (Mrs.) Damyanti Dadich and Others (supra). In this case, the applicant had obtained Ph.D in Hindi and other applicants were also similarly well qualified. They had applied for the post of Lecturers but there was an advertisement, vide which it was decided to take a series of tests including written test. The same was challenged by the applicant including Dr. Damyanti Dadich on the ground 27. We have therefore no hesitation in deciding that by holding the written tests in various subjects for which lecturers are to be recruited with a view to restricting the number of candidates who are to be called for interview, and giving one and the same test to both categories of candidates, the Commission has committed no illegality or impropriety. We are satisfied that the procedure adopted by the Commission in that behalf is not only legal but also fair and just to all concerned. If found suitable, candidates with doctoral degress will have to be preferred by the interviewing board to candidates possessing Masters degree alone. If on the other hand, the Commission finds in the interview that a particular candidate with a doctorate degree is not suitable for appointment as lecturer for one reasons or the other, it would be free to recommend a suitable candidate possessing a Masters degree for such appointment, notwithstanding the fact that the candidate possessing the doctorate degree had passed the Qualifying test with prescribed number of marks.
28. Learned counsel for the writ petitioners then argued that the Commission discriminated against the petitioners by holding written tests in their respective subjects, while not holding similar tests for such appointment. In certain other subjects. This argument is also without any force. The law is well settled that the principle of equality enacted in Article 14 does not absolutely prevent the State from making differentiation between persons and things. The State has power of classification on the basis of rational distinctions relevant to the particular matter dealt with. If the Commission did not feel the necessity of holding a written test in a particular subject for restricting the number of candidates to be called for interview, the petitioners cannot be heard complaining about it because so far as they are concerned the written tests in their respective subjects were held without making any discrimination for or against any of their potential competition.
21. The learned counsel appearing for the applicant has sought to emphasize that there could be no estoppel against the law of the land. This position is not controverted, not even for a second. However, in order to satisfy this, one has to look that under what law of the land the facts of cases are covered. Here, we are dealing with the absorption of the employees, who have gone on deputation to the Intelligence Bureau and finally got absorbed in that. Before doing so, they were required to give an undertaking and the same has indded been given by the applicant in the present OA, which reads as follows:-
This is in reference to memo No.31/ESTT(G)/2004(16)-2190, dated June 5, 2008 conveying IBs consideration for my absorption.
I hereby submit my willingness to get absorbed in the Intelligence Bureau (MHA), Government of India, New Delhi on the terms and conditions mentioned in the above stated Memo.
22. The argument that has been advanced before us that to get protection of pay being last drawn into the service in which the employee has been absorbed is the law of the land and any undertaking given or taken beyond it is not sustainable and shall not hold good. However, it is to be pointed out that there is no such law of the land giving a blanket protection to the pay being last drawn in the new organization. On the contrary, OM dated 19.07.1983 is the law of the land in capacity of being subordinate legislation. Hence, the question of there being any undertaking against the law of the land does not arise.
23. Here, we would also like to take up the argument which has been put forth by the learned counsel for the respondents that if this were to be done, the entire process of undertakings and bonds in the Government of India will loose its sanctity. The applicant has admittedly given the bond. The argument advanced by the learned counsel for the applicant in this regard is that the applicant had to do so in order to ensure his absorption. The applicant before he got absorbed into the Intelligence Bureau was faced with two choices either he could have refused to give undertaking of accepting a lower pay and suffer the consequences of not being absorbed or give the undertaking only to challenge it at a later stage. This is what the applicant has done. We are constrained to remark that the entire Government system rests on undertakings. If such undertakings were to be made so lightly, we are afraind that the entire Government system would collapse, and there would be no sanctity of such undertakings. We do not see any other alternative that could be evolved in this respect. Therefore, we do not find any applicability of the case of Rajasthan Public Service Commission, Ajmer versus Dr. (Mrs.) Damyanti Dadich and Others (supra) to the facts of the instant case. This question is also answered in negative i.e. against the applicant.
24. Now, we come to the final question as to what relief should be granted to the applicant, if any. We find that the issues framed above have been thoroughly discussed individually and all of them are consistently held against the applicant. We have found that there is difference between deputation and absorption; there is also a categorical difference between the scope of the OM dated 19.07.1983 and the RTI information; there is no statutory provisions for protection of the last pay drawn by the applicant as deputationist before he is permanently absorbed; OM dated 18.06.2001 relied upon by the applicant also does not support his claim as it does not deal with the subject matter but for implementation of the recommendations of the Vth Central Pay Commission; the applicant has not challenged the veracity of OM dated 19.07.1983 in absence of which the relief claimed for would be difficult for him; and the ratio deci dendi in the case of Rajasthan Public Service Commission, Ajmer versus Dr. (Mrs.) Damyanti Dadich and Others (supra) does not apply to the facts of the instant case.
25. In view of the issues being answered consistently in negative i.e. against the applicant, we are of the firm opinion that the instant OA does not have any merit and deserves to be dismissed. We order accordingly. However, there shall be no order as to cost.
(Dr. Birendra Kumar Sinha) (Syed Rafat Alm) Member (A) Chairman /naresh/