File a writ petition for grant of basic pay protection and seeks a writ of mandamus for protection of your basic pay and a direction for payment of the differential amounts.

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Delhi High Court

Sanjog Kapoor vs Union Of India (Uoi) And Ors. on 20 April, 2007

Author: M Sarin

Bench: M Sarin, V Sanghi

JUDGMENT Manmohan Sarin, J.

Page 1360

1. Petitioner by the present petition assails the judgment and order dated 12.8.2003 in OA No. 3020/2002 and order dated 28.11.2003 in R.A. No. 316/2003, passed by the Central Administrative Tribunal, Principal Bench, New Delhi, dismissing his OA and Revision Application. Tribunal proceeded on the ground that OM dated 10.7.1998, on which reliance was placed by the respondents to defend its action of refusing to grant pay protection, has not been challenged by the petitioner. Furthermore, in the absence of such a challenge, the Tribunal refused to question the rationale of the said OM.

2. Facts leading to the filing of the present petition may be noted:

(i) Petitioner is a B.E. (Electronics and Tele Communication) and holds a Master's degree in International Business. Petitioner appeared for the All India Civil Services Examination. He cleared the preliminary examination in May, 1998 and was declared successful in the main examination on 9.6.1999. He was working as Senior Officer (Marketing) in Videsh Sanchar Nigam Limited (VSNL) from 17.8.1998 on probation for a period of one year. Petitioner, in order to join the civil services, resigned from VSNL on 20.9.1999 by giving one month notice applicable to a probationer. His basic pay in the Indian Revenue Services was fixed at Rs.8,000/- in the pay scale of Rs.[deleted]/-.

(ii) On 10.11.2000, the pay scale in VSNL was revised vide office order dated 6.10.2000 and petitioner's pay was fixed at Rs.13,350/- as on 1.8.1998. Petitioner vide his letter dated 24.7.2001, requested VSNL for issuance of a certificate to the effect that he had successfully completed his probation period with a declaration that the same would be used for the limited purpose of seeking pay protection from Indian Revenue Service. As a special case, VSNL issued a certificate to the petitioner on 14.8.2001 certifying his 'deemed confirmation'. Despite the fact that the petitioner's service in VSNL was not confirmed in writing at the time of his resignation, yet on the basis of probationary reports received, it was certified that petitioner had successfully completed the probation period and would have been confirmed in the Company's services, had he continued in the Company.

(iii) Petitioner submitted a representation to the Head of his Department on 7.2.2002, seeking protection and re-fixation of his pay as per the guidelines issued by the Government of India dated 7.8.1989. Relevant extracts from the OM dated 7.8.1989 are quoted herein below for ready reference:

1. The undersigned is directed to say that as per extent rules/orders on the subject, pay protection is granted to candidates who are Page 1361 appointed by the method of recruitment by selection through the UPSC, if such candidates are in government service. No such pay protection is granted to candidates working in Public Sector Undertakings, Universities, Semi Government Institutions or Autonomous bodies when they are so appointed in Government. As a result of this, it has not been possible for Government to draw upon the talent that is available in non-government Organizations.

2. The question as to how pay protection can be given in the cases of candidates recruited from Public Sector Undertakings etc. has been engaging the attention of the Government for some time. The matter has been carefully considered and the President is pleased to decide that in respect of candidates working in Public Sector Undertakings, 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 DA as admissible in the Government will protect the pay and DA already being drawn by them in their parent organizations. In the event of such a stage not being available in the post to which they have been recruited, their pay may be fixed at a stage just below in the scale of the post to which, they have been recruited, so as to the minimum loss to the candidates. The pay fixed under this formulation will not exceed the maximum of the scale of the post to which they have been recruited. The pay fixation is to be made by the employing Ministries/Departments after verification of all the relevant documents to be produced by the candidates who were employed in such organizations.

(iv) Rejection of petitioner's prayer for pay protection and re-fixation of pay was conveyed on 7.8.2002 by respondent Chief Commissioner of Income Tax informing that respondent Ministry of Finance, vide its letter dated 9.7.2002, had rejected the petitioner's prayer. The Ministry proceeded on the basis that the pay fixation of the candidates working in PSUs, is to be done under OM No. 12/1/96-Estt.(pay-I) dated 10.7.1998, in the context of posts filled by the mode of direct recruitment by selection and not for the post filled by open competitive examination. At this stage relevant extracts from OM dated 10.7.1998 may also be noted:

3. The benefit of pay protection is available to the Government servants on their recruitment by selection through UPSC, subject to fulfilllment of certain conditions. The benefit under the OM dated 7.8.1989 was extended to the candidates working in Central PSUs/State PSUs/ Universities/ Semi Government Institutions/ Autonomous bodies etc with a view to drawing talent which is available in these organizations. The question whether the objective underlying the above orders could be achieved through open competitive examination in which the employees from Public Sector Undertakings etc also appear, has been considered. It is clarified Page 1362 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. Wherever the protection under the above orders is to be given, the Commission will indicate in its recommendation 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.

(v) Petitioner filed OA No. 3020 of 2002 before the Tribunal praying inter alia for quashing letter dated 9.7.2002 and 7.8.2002 along with directions to the respondent for fixation of his pay in terms of OM dated 7.8.1989. As noted above, the Tribunal dismissed the OA vide order dated 12.8.2003 holding that OM dated 10.7.1998, on which the respondents have relied for non grant of benefit of pay protection, has not been challenged by the petitioner and accordingly the rationale behind it cannot be looked at. Petitioner filed Review Application No. 316/2003 which was also dismissed on 28.11.2003. Along with the present petition, the petitioner moved CM No. 4117 of 2004 seeking to formally add the prayer for quashing OM dated 10.7.1998 to the extent that the pay protection would be only given if the selection is through interview and not through open competitive examination.

3. We have heard the parties and perused the documents available on record, along with the written submission filed. Firstly challenge to the Tribunal's order is on the ground that though the OA did not contain a specific prayer seeking quashing of OM dated 10.7.1998, but nonetheless the OA, in ground (f) contained the challenge to the said OM as arbitrary, discriminatory and against the underlying object of drawing talent from PSUs and other organizations as no distinction can be made between selection through interview alone and selection through open competitive examination of which interview is a necessary component. Mr. V.K. Rao on behalf of the petitioner submitted that it is well settled that if necessary grounds are taken in the petition which form the basis of the petitioner's case, mere absence of a specific prayer does not dis-entitle him to relief based on the said grounds. It was further submitted that the power of Courts and Tribunal to mould the relief appropriately is well recognized. Reliance was placed upon the decisions in B.N. Nagarajan v. State of Karnataka reported at and State of Kerala V. P.T. Roshana reported at 1979 (2) SCR 947.

4. We may observe here that though it is true that though no specific prayer was made by the petitioner to quash OM of 1998 but nonetheless the same is inherent in the case set up by the petitioner and is also one of the grounds specifically taken. Therefore the Tribunal was not correct in dismissing Page 1363 the OA on the technical ground of absence of a specif prayer challenging OM of 1998.

5. It is the petitioner's submission that the Tribunal did not go into the challenge to the OM dated 10.7.1998 despite a review application being filed. It refused to interfere with an interpretation that the OM of 1998 was meant to clarify the OM of 1989. According to OM of 1998, the Government grants benefit of pay protection only if selection from PSUs etc is made through interview and not through an open competitive examination. Petitioner contended that by no stretch of imagination can the OM of 1998 be deemed as a clarificatory OM as it did not make any distinction between 'selection' through interview and 'selection' through open competitive examination of which 'interview' is an essential component. Had it been of clarificatory nature, the benefit of O.M. 1989 granted to large number of direct recruits similarly placed as the petitioner should have been withdrawn.

6. It may be noted that between 1989 and 1998 large number of officers of various services including members of IRS were appointed as direct recruits through selection by UPSC by way of all India competitive examination and were granted the benefit of pay protection. The order of pay protection dated 27.3.2001 with respect to one Sh.P.V.Gupta, Section Officer, was produced on record along with few other orders. Petitioner submitted that even after the issuance of the OM of 1998, no action was taken for withdrawal of benefit given to large number of officers.

7. A candidate has to fulfilll the following requirements to get the benefit of OM of 1989 and even of OM of 1998:

(i) candidate must be working in Public Sector Undertakings, Universities, Semi-Government or Autonomous Institutions or Autonomous bodies.

(ii) Appointment should be as a direct recruit.

(iii) Selection should be through a properly constituted agency including departmental authorities making recruitment directly. OM of 1998 purported to exclude selection through an open competitive examination and restrict the benefit to selection through interview only vide OM of 1998.

(iv) Candidates should have completed the period of probation successfully in his parent organization though such a condition was not a part of original OM of 1989.

It is the petitioner's case that he meets the above parameters. He was employee of a PSU and was directly recruited by UPSC, into the IRS. His selection procedure had interview as an important component and he had completed his probation period and was issued a certificate of deemed confirmation by VSNL.

8. In the alternative, it was contended by Mr. Rao for the petitioner that OM of 1998 is not applicable to the petitioner as process of selection had commenced in January, 1998 and preliminary examination was conducted in June, 1998 whereas OM of 1998 was issued in July, 1998

9. As to the Rules which apply to the petitioner and the means of selection, whereas it is the petitioner's case that the OM of 1998 will not apply to him as his selection process was initiated prior to the OM coming into being, the Page 1364 respondents urged that the said OM would apply as petitioner was taken into government service on a day subsequent to the OM of 1998 coming into existence. In our view the OM of 1998 will apply to the petitioner as he was taken in Government employment subsequently.

10. Nonetheless the challenge to the said OM on the ground of it being arbitrary, discriminatory and against the underlying object of drawing talent from PSUs and other organizations survives. The OM makes no distinction between selection through 'interview' alone and selection through 'open competitive examination' of which interview is a necessary component. The same is required to be examined. The rationale behind the OM of 1989 was explicitly mentioned to be that of drawing upon talent from non government organizations by direct recruitment through a properly constituted agency or departmental authorities making recruitment directly. With such intention pay protection was granted to candidates working in Public Sector Undertakings, Universities Semi Government Institutions or Autonomous bodies who were appointed as direct recruits. Subsequently the DoPT received certain cases seeking clarification as to the exact scope of OM dated 7.8.1989 and the conditions under which benefit under that OM is admissible. Accordingly vide OM dated 10.7.1998 the position was clarified in terms as quoted in para 2(iv) above. What requires to be tested now is whether it is permissible for the DoPT to issue a clarificatory OM reducing the scope of a prior OM without giving any reasons therefore. Also whether the distinction between selection through 'interview' and selection through 'open competitive examination' brought out by OM of 1998 is based on any reasonable basis or is it arbitrary and discriminatory, as alleged.

11. Considering that the reasons leading to the formulation of the OM in 1989 was to attract talent from PSUs etc by protecting their pay, we do not see as to how selection through interview alone would draw such talent and not selection through other open competitive examinations of which interview is an important element. Mr Kait appearing for the Union of India had sought to urge that the objective of attracting talent to government services is not achievable by extending the benefit of pay protection to those PSU employees who come through open competitive examination. Accordingly the UPSC in consultation with DoPT decided that the benefit should be confined to cases of selection by interview. He submitted that they had found the department indulging in anomalies where persons, who had participated and made it through open competitive examinations were given pay protection. This he said does not serve the purpose of attracting best talent and it would also be beyond the purview of the OA to go into the question of rationale for the policy. He further urged that order granting pay protection produced on record were of period prior to 10.7.1998.

12. We fail to understand as to why candidates selected via open competitive examination would not be in line with the object of drawing the best talent from non government bodies.

Petitioner in the review petition had given details of several instances where candidates belonging to P.S.Us and selected through open competition by way of civil services examination and others had been given the benefit of pay protection. Petitioner had cited the cases of Page 1365 Shri P.V.Gupta, Section Officer in the Ministry of Rural Development; Kumari C.T.M.Suguna who was selected to Indian Administrative Service and was earlier working in Indian Overseas Bank; Shri Dalip Kumar who was appointed as ICAS in 1993 and was earlier working in the State Bank of India and Shri Rajesh Kumar, Sector Officer in the Ministry of Human Resource Development. The Tribunal, as we notice had proceeded as if there was no challenge to the vires of the Memorandum dated 10th July, 1998. As noticed earlier, petitioner had taken grounds in the OA which contains such a challenge even if a specific prayer for it being declared as ultra vires or illegal had not been made. We have already noticed that it is within the purview of the Tribunal or the Court to mould the relief in such circumstances. Be that as it may, in the writ petition, there is a specific challenge to the vires and validity of the said Memorandum of 1998. The objective of the Memorandum of 1998 and that of 1989 is admittedly to draw best talent from the P.S.Us and other Government Undertakings to enable them to join the Government and render services. It requires no elaborate explanation that in the present global and economic scenario in the world, attractive terms in the corporate and other sectors are offered to draw the best talent. In fact to prevent brain drain, entrepreneurs and industries keep on evolving various methods. It is in this background that attempt by the Government to attract best talent to Government Service from P.S.Us has to be considered. The Memorandum provides for pay protection to the persons who opt from the P.S.Us to join Government Service. Having noticed the basic objectives, let us analyze if the respondents have disclosed or brought forth in their response any reason for granting pay protection only to cases of selection through interview and excluding selection through competitive examination.

13. 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 OM dated 10-7-1998 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 OM 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 7.8.1989 and 10.7.1998, based on which was decided to limit the benefit of pay protection to interview based selection only.

14. 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 an d 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 for bureaucracy. The objectives and standards which 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 Page 1366 down any experience or number of years of service as a criteria for availing of this benefit except the probation period.

15. 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 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.

16. We are informed that the petitioner's pay scale as on 9.6.1999 in VSNL would be in the scale of Rs. 13,350 " 18250, by virtue of revision in pay scale given effect to by VSNL vide office order dated 6.10.2000 w.e.f. 1.1.1997.

17. Therefore in view of the foregoing discussions , we set aside orders dated 28.11.2003, 12.8.2003 as well as letters dated 9.7.2002 and 7.8.2002 and allow the writ petition holding petitioner eligible for pay protection.

The writ petition stands allowed in the above terms.

1. A writ petition is required to be filed by you in this scenario. You can show them any number of decisions of HC/SC but they will not agree to it, but they will fall in line if you are able to obtain a court order in your favour.

2. If you do not want to fight them legally then resign to your fate.

So please guide me further action and please furnish any court decision relavant to this kind of case, which can help me to fight better. I am badly seeking solution of this as I am affected very badly in terms of psychologically and financially.

You have stated to have been fighting for the last 5 years against this grievance, but where, whether before the labor tribunal or CAT or with the management level itself or have you filed any writ before high court in this regard.

You have to verify and confirm the details of appointment and the rules regarding pay protection.

If it was a technical resignation then you can get the pay protected.

After Sixth Pay Commission, only the pay in the pay band is protected and the employee gets the grade pay of the post to which he is appointed after his resignation.

sir, please provide any judgement copy favouring this, as it is going to be harrasing for me to fight with management in court, as here there are chances of harrasment to me, If a favouring judgement copy of similar case available, I can approach higher management with it, inspite of filing writ pitition. As IOCL is having pannel of lawyer..It is difficult to fight them in High court and in Supreme court.

As per the Ministry of Finance OM No. 3379-E.III (B)/65 dated the 17th June, 1965, the resignation is treated as a technical formality where a Government servant has applied through proper channel for a post in the same or some other Department, and is on selection, required to resign the previous post for administrative reasons. The resignation will be treated as technical resignation if these conditions are met, even if the Government servant has not mentioned the word “Technical” while submitting his resignation. The benefit of past service, if otherwise admissible under rules, may be given in such cases. Resignation in other cases including where competent authority has not allowed the Government servant to forward the application through proper channel will not be treated as a technical resignation and benefit of past service will not be admissible.

Guidelines regarding Technical Resignation have been issued by DOPT time to time. It is now Decided by DOPT to further consolidate these instructions and clarify the related issues.