Delhi High Court
Captain S.S. Bisht vs Indira Gandhi National Open ... on 19 March, 2010
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) No.6473 /1999
% Date of decision: 19th March, 2010
CAPTAIN S.S. BISHT ..... Petitioner
Through: Mr. S.S. Bisht, petitioner in person.
Versus
INDIRA GANDHI NATIONAL
OPEN UNIVERSITY & ANR. ..... Respondents
Through: None.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? Yes
2. To be referred to the reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The petitioner seeks quashing of the office orders of the respondent No.1 University (IGNOU) rejecting the representation of the petitioner for grant of basic pay protection and seeks a writ of mandamus for protection of his basic pay and a direction for payment of the differential amounts.
2. The facts, as emerge from the undisputed documents are not in dispute. The respondent No.1 IGNOU constituted a Selection Committee for selection of a candidate for the post of Security Officer in the pay scale of Rs.2200-4000. The said Selection Committee held a meeting on 26th April, 1990. As per the minutes of the said meeting, out of the panel of seven officers received for the post of Security Officer from the Directorate General Resettlement, Ministry of Defence, four officers who had retired from service and whose bio-data was available were called for interview and out of which only two attended. The Committee interviewed the candidates and recommended the petitioner for appointment to the post of Security Officer. In the said Minutes of the Meeting, under the column "Basic Pay Recommended" it is mentioned "Pay protection as per rules." The said minutes were approved on 30th April, 1990 by the Vice Chancellor of the respondent IGNOU.
3. The file noting dated 22nd May, 1990 of the Administrative Section of the respondent No.1 IGNOU shows that at that time there was no post of Security Officer in the respondent IGNOU but feeling the need for providing effective security at the campus of the respondent University, it was agreed that the pay of the said Security Officer would be met against one of the vacant posts of Assistant Registrars till the post of Security Officer was created on a regular basis by the Finance Committee and a proposal wherefor was pending. The office noting of 1st June, 1990 is as under:-
"The Selection Committee recommendations are "Pay protection as per rules." On production of the last pay drawn by Captain Bisht in the Defence Services, the pay will be protected please".
There is nothing to indicate that the aforesaid did not have the sanction of the decision makers in the respondent No.1 IGNOU.
4. Pursuant to the above, a letter dated 6-7th June, 1990 offering the post of Security Officer "in the revised pay scale of Rs.[deleted] with basic pay at Rs., pay protection as per rules plus allowances as admissible under the University Rules from time to time" and subject to the other terms and conditions contained therein was issued to the petitioner. Upon acceptance of the offer aforesaid by the petitioner, office order dated 22-26th June, 1990 was issued of appointment of the petitioner as Security Officer "in the scale of pay of Rs.[deleted] with basic pay (Pay protection as per rules) plus allowances as admissible under the University Rules from time to time w.e.f. 20th June, 1990." The petitioner was issued a last pay certificate dated 5th June, 1990 by the Army Authorities showing his basic pay as Rs.2800/- and Rank Pay as Rs.200/-. The said last pay certificate was submitted by the petitioner to the respondent No.1 IGNOU which vide its office order dated 23rd August, 1990 fixed the pay of the petitioner at Rs.2575/- per month in the aforesaid scale of pay and w.e.f. 20th June, 1990.
5. According to the petitioner the fixation of his pay at Rs.2575/- per month was contrary to the minutes preceding his appointment, the offer of appointment and the order of appointment. The petitioner thus immediately in August, 1990 itself protested against the same. It was the case of the petitioner that the basic pay of the petitioner having been protected his pay should have been fixed at Rs.3000/-, being his basic pay (inclusive of rank pay) as per the last pay certificate issued by the Army Authorities.
6. The respondent No.1 IGNOU however vide its letter dated 25th October, 1990 informed the petitioner that his representation could not be acceded to in view of Clause 8 of the Central Civil Services (Fixation of Pay of Reemployed Pensioners) Orders 1986. It was further stated that the said order did not contemplate protection of last pay drawn by the petitioner.
7. The petitioner however continued to represent. He was vide letter dated 10-17th June, 1992 confirmed as Security Officer w.e.f. 20th June, 1991. On repeated representations of the petitioner, he was on 7 th November, 1996 again informed that his request could not be acceded to.
However, office noting of the year 1997 show that the Finance and Administrative Department of the respondent No.1 IGNOU, on the basis of the report of the reconstituted Increment Committee to the effect that when a person is already employed and is drawing a pay higher than the minimum of the scale, and when the Selection Committee has not recommended a higher initial pay, the letter of appointment should indicate that the University will protect his pay, had found the petitioner entitled to protection of his basic pay of Rs.3000/- at the point of joining on 20th June, 1990. However, inspite of the same, the respondent No.1 IGNOU decided to seek clarification from the Department of Personnel. Some correspondence was exchanged with the Department of Personnel but it appears that no response was received and accordingly the representations of the petitioner remained unanswered. Ultimately, petitioner filed the present petition and in which Rule was issued on 2nd August, 2000.
8. The respondent No.1 IGNOU has filed a counter affidavit in which it rests its case on Clause 8 of the Central Civil Services (Fixation of Pay of Reemployed Pensioners) Orders 1986 and which Clause 8 is as under:-
"8. Emergency Commissioned Officer and Short Service Commissioned Officers:
Emergency Commissioned Officers and short Service Commissioned officers who joined pre-commissioned training or were commissioned after 10.1.1968 may, on their appointment in Government service to unreserved vacancies, may be granted advance increments equal to the completed years of service rendered by them in Armed Forces on basic pay (inclusive of deferred pay but excluding other emoluments) equal to or higher than the minimum of the scale attached to the civil post in which they are employed. The pay so arrived at should not, however, exceed the basic pay (including the deferred pay but excluding other emoluments) last drawn by them in the Armed Forces."
However, the counsel for the respondent No.1 IGNOU failed to appear on 24th February, 2010 and today inspite of passover and the respondent No.1 IGNOU is thus proceeded against ex parte. The petitioner has appeared in person and reiterated his case as set out in the petition. On enquiry, he informed that he continues to be in the employment of the respondent No.1 IGNOU.
9. What is evident from the Minutes of the Meeting of the Selection Committee which selected the petitioner and is also clear from the letter offering appointment and the order of appointment is that the basic pay of the petitioner was to be protected. Considering that the selection was pursuant to the panel of names received from the Directorate General Resettlement, Ministry of Defence and the selection was to be of retired defence officers, the same could be nothing but protection of last basic pay drawn in the Defence Forces. It has been so understood by the respondent No.1 IGNOU also as apparent from the office noting of 1st June, 1990 (supra). However, the protection of basic pay was to be as per rules. The only rule relied upon by the respondent No.1 IGNOU is Clause 8 aforesaid of the 1986 Rules. However, the 1986 Rules are not of "protection of basic pay" but are of "fixation of pay". "Pay fixation" is different from "pay protection". The „Shorter Oxford Dictionary?, 6th Edition, defines fixation inter alia as "an action or process of fixing" and protection inter alia as "the action of protecting something." The courts also have distinguished between pay fixation and pay protection. The Supreme Court in State Bank of India Vs. K.P. Subbaiah AIR 2003 SC 3016 opined that pay protection does not include within its ambit protection of a scale of pay and the only intention of pay protection is to ensure that the ex-serviceman at the time of employment does not get an amount as pay, lesser than he was drawing while in the defence forces and while fixing the pay the employer has to ensure compliance with the requirement that it is not less than the last pay drawn. Similarly in M. Raja Vs. CEERI Educational Society, Pilani MANU/SC/8582/2006 it was held that pay protection did not include in its ambit the applicability of the recommendations of the 5th Pay Commission which would come in force in the future.
10. Thus the rules of 1986 aforesaid relating to "fixation of pay" cannot be pressed to scuttle the contract at the time of appointment of "pay protection". Clause 8 of the aforesaid rules relied upon is also regarding fixation of pay of Short Service Commissioned Officers and is not a rule qua protection of their pay.
11. The respondent IGNOU has not cited any rule as per which inspite of the contract of "pay protection", the protection could be limited to grant of advance increments equal to completed years of service rendered in the Armed Forces and not to the basic pay as per the last pay certificate issued by the Army Authorities.
12. Be that as it may, Rule 8 aforesaid being the only rule cited, even if to be seen, in my view does not stand in the way of pay protection. As per the said rule, the Short Service Commissioned Officer on appointment became entitled to advance increments equal to completed years of service rendered in the armed forces. Though there are no pleadings of the years spent by the petitioner in the armed forces but from the action of the respondent No.1 IGNOU of fixing the initial pay of the petitioner at Rs.2575/- per month in the pay scale of Rs.[deleted], it appears that five advance increments of Rs.75/- were given to the petitioner indicating that the petitioner had spent five years in the armed forces. However, Rule 8 does not prohibit the respondent No.1 IGNOU from, in pursuance to the contract of pay protection, fixing the pay of the petitioner at Rs.3000/-
instead of Rs.2575/-. The only prohibition in the said Rule is that the pay to be fixed by giving such advance increments should not exceed the basic pay last drawn in the armed forces.
13. Thus looked at from any view, the defence of the respondent No.1 IGNOU to the claim of the petitioner is not justified. The petition is thus entitled to succeed and the orders of the respondent University rejecting the representations of the petitioner are liable to be quashed. The petitioner is also found entitled to a direction against the respondent IGNOU of payment of differential amounts.
14. At this stage, another plea of the respondent No.1 IGNOU may be noticed. It is inter alia the plea in the counter affidavit that the petitioner having worked for more than nine years had accepted the pay scale and acquiesced in the same and is estopped from pressing this petition. However, as noticed above, the petitioner since immediately after the fixation of his basic pay as Rs.2575/- has been representing and his case was favourably recommended by the Finance and Administrative Department of the Respondent No.1 IGNOU but for some inexplicable reason the opinion of the Department of Personnel, Government of India was decided to be sought. An employee is not expected to immediately approach the Court against his employers. The petitioner has been working on the sensitive post of a Security Officer and could not afford to be seen as an acrimonious and litigious individual. Nothing wrong can be found in the petitioner exhausting the departmental channel before approaching this Court. Moreover, the respondent IGNOU having been found to have deprived the petitioner of the contracted amount is not entitled to set up the plea of estoppel against the petitioner. A Single Judge of this Court has rather gone to the extent of holding that the claim to protection of pay is a fundamental right coming within the ambit of Article 16 of the Constitution of India and therefore there is no question of any waiver of any fundamental right (see: Dr. M.C. Gupta Vs. Union of India MANU/DE/0352/1999). The petitioner cannot be deprived of the relief to which he has been found entitled on the said plea of the respondent No.1 IGNOU.
15. However, it is found that a direction to the respondent No.1 IGNOU to pay differential emoluments to the petitioner and of which the petitioner has been deprived for the last over ten years would still not mete out justice to the petitioner. The above facts also show a complete dereliction of responsibility at the hands of the decision makers of the respondent No.1 IGNOU. Inspite of favourable recommendations / decision within the department, the buck was sought to be passed to the Department of Personnel and where also the matter does not appear to have been pursued. In the circumstances, to prevent such delays and laxities in future, it is deemed expedient to burden the respondent No.1 IGNOU with interest on the arrears due. Considering the change in rates of interest in the last decade, a flat simple rate of interest of 7% is found appropriate. The same would be payable from the date when the differential amount for each month of employment was due and payable to the petitioner and till the date of payment.
16. The petition is therefore allowed. Office orders of the respondent No.1 IGNOU rejecting the representations of the petitioner for fixation of basic pay at Rs.3000/- w.e.f. 20th June, 1990 are quashed. The respondent No.1 IGNOU is directed to pay the arrears of differential amount with interest as aforesaid to the petitioner within six weeks hereof and further directed to pay the emoluments for the month of April, 2010 onwards to the petitioner in terms of the orders aforesaid. The petitioner is also awarded costs of Rs.10,000/- of this proceeding against the respondent No.1 IGNOU.
RAJIV SAHAI ENDLAW (JUDGE) 19th March, 2010 gsr