Govindan S. Tampi, Member (A)
1. Shri Amit Jain, applicant in this OA seeks directions to the respondents for re-fixation of his pay, granting him the benefit of protection of emoluments (basic + DA) drawn by him with his previous employers, with United India Insurance Company Ltd. with due increments in terms in OA No. 12/1/88-Estt (Pay-I) dated 7.8.1989 w.e.f. 1.8.1989 with notional benefits from the date of his joining the Central Government services along with arrears and the interest.
2. Heard Shri G.K. Masand and Shri R.R. Mishra, Learned Counsel for the applicant and Shri V.D. Vadhavkar, Proxy Counsel for Shri M.I. Sethna, for the respondents.
3. To narrate the facts in brief, the applicant who worked as Asstt. Administrative Officer (Accounts) with the United India Insurance Company Ltd., a subsidiary of General Insurance Corporation of India from 7.10.1980 to 7.12.1984, joined on 10.12.1984 as a Direct Recruit Appraiser Mumbai Customs House, Deptt. of Revenue Ministry of Finance. In the United India Insurance Company Ltd., at the time of his resignation, he was drawing a gross salary of Rs. 3154.60/- which was brought down to Rs. 1785.35/- enjoining the Customs thereby entailing a substantial loss in emoluments. On coming to know sometime in 1995 that a few other officers similarly placed who had joined the Govt. service like him in Customs Department after serving Govt. undertakings and autonomous bodies were given the benefit of higher salary on account of an OM dated 1.8.1989, he made a representation for re-fixation of his pay and allowances on 23.8.1995 followed by a number of reminders which were finally replied on 23.9.1996 by the Department indicating that the relevant OM of the DOPT was effective from 1.8.1989 and that indefinite retrospective effect cannot be given to the said OM. This order is impugned in this OA.
4. Shri Masand, learned Counsel for the applicant contends that the applicant is correctly entitled to the benefits of pay protection on the basis of O.M. No. 12/1/88-Estt. (Pay-I) dated 7.8.1989, which directs that the candidates working in Public Sector Undertakings, Universities, Semi-Govt. Institutions or Autonomus bodies, who are appointed as direct recruits through a properly constituted agency including the 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 will protect the pay + DA already being drawn by them in their parent organisations. It is further directed that pay fixed under the above formulation will not exceed the maximum of the scale of the post to which they have been recruited. This OM was to take effect from 1.8.1989. According to the applicant this meant that those like him who joined the Govt. through UPSC as a direct recruit after having served the Govt. of India undertaking was entitled to have refixation of pay, keeping in mind the basic + DA they were drawing. Even assuming that the OM was effective from 1.8.1989 and thus prospective it only meant that benefit could be given from 1.8.1989 and not that this can be extended only to those who were recruited after 1.8.1989. Shri Masand, learned Counsel argues that any interpretation to the contrary could be self-defeating and discriminatory, as it was creating class within a class and unequality among the equals. It was, according to him, incumbent on the respondents themselves to take action suo-moto and give the benefit of pay and allowances to all those who were covered by the Scheme, which they have not done. The adoption of the scheme for only those who joined the Department after 1.8.1989 was improper and to creation of unequals amongst the equals. The Hon'ble Supreme Court's decision in the case of T.S. Thiruvengadam v. Secretary to Govt. of India and Ors., 1993 SCC (L&S) 495=1993(3) SLJ41 (SC) and D.S. Nakaraand Ors. v. Union of India. 1983 SCC (L&S) 145=1983(1)SLJ 131 (SC), squarely covered the situation and there was no reason why this benefit could be denied. He also prayed that by denial of the same benefit, persons junior to him who were also similarly placed have received the higher emoluments denied to him, which was incorrect and, therefore, he has been discriminated,
5. In the reply filed on behalf of the respondents duly reiterated during the oral submissions by Shri Vadhavkar, learned Counsel, for the respondents, it is pointed out that the application was mis-conceived and the applicant's case was not at all covered by the relevant OM as he had joined much before the issuance of this OM and that the OM was totally prospective in nature. According to the Counsel, the applicant was seeking to arrogate to himself certain benefits which did not exist at the time of his joining the Department, through this OA. This cannot succeed. More so his case was hit by limitation, as he was seeking to re-open in 1995, an issue on the basis of an OM which had come into force in August, 1989. Shri Vadhavkar fairly concedes that one or two persons junior to him have been given the benefits arising from the OM, as they were correctly entitled to get it having joined the Department after issuance of the OM. Pay protection was correctly available to them. Learned Counsel further points out that the Tribunal cannot consider the case of the applicant as it was hit by limitation and without there being an application for condonation of delay and it was thus hit by the decision of the apex Court in Ramesh Chand Sharma etc. v. Udham Singh Kamal and Ors., 1999(2)SCSLJ 294 stating that the Tribunal was not right while deciding the OA on merits, overlooking the statutory provisions contained instructions in Section 21(3) of the Administrative Tribunals Act, 1985. Shri Vadhavkar has argued mat the fixation of specific cut off date for any purpose was not discriminatory as held by the Hon'ble Supreme Court in the case of Krishena Kumar v. Union of India and Ors., AIR 1990 SC 1782. He has also stated that in the policy matters regarding pay fixation admittedly no direction could be given. He has further stated that grant of this request would create inconvenience and the request made by the applicant for grant of benefit from the date of his joining in 1984 would create insurmountable problems in implementation. The application, therefore, has to fail, is what the learned Counsel prays.
6. We have carefully considered the matter and deliberated upon the rival contentions.
7. Undisputed facts in this case are that the applicant was infact receiving the higher emoluments in his previous job i.e. with the New India Insurance Co. Ltd./United India Insurance Co. Ltd., which he left to join the Customs organisation as Appraiser by selection through the UPSC and that the contents of the O.M. No. 12/1/88-Est.(Pay-I) dated 7.8.1989 effective from 1.8.1989 had covered the case of persons similarly placed. The plea by the respondents is that the OAs was only prospective in nature and the applicant cannot, therefore, claim any benefits.
8. In this context, perusal of the Memorandum No. 12/1/88-Estt. (Pay-I) dated 7.8.1989 is relevant. The same is reproduced below in full:--
"The undersigned is directed to say that as per extent rules, orders on the subject, pay protection is granted to candidates who are 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-Govt. 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 organisations.
The question as to how pay protection can be given in the case of candidates recruited from Public Sector Undertakings, etc. has been engaging the attention of the Government for sometime. 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-Govt. 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 + DA already being drawn by them in their parent organisations. 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 ensure a 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 organisations.
3. In so far as persons serving in the Indian Audit and Accounts Department are concerned, these orders are issued with the concurrence of the Comptroller and Auditor General of India.
4. These orders take effect from the first of the month in which this OM is issued."
9. It is evident from the above that the respondents had recognised the need for attracting talent available elsewhere to the Civil Services and recognising them by protecting their pay which they have been drawing in their parent organisations. The applicant having been employed with a Govt. Undertaking was clearly covered by the Scheme. The OM, of course, states that it takes effect from first of the month i.e. 1.8.1989, but that would mean that the effect of the Scheme would be only from that date and not that only those persons who joined the service thereafter would be entitled for the benefits. Hon'ble Apex Court's decision in the cases of T.S. Thiruvengadam and D.S.Nakara (supra) are correctly applicable to this case and the points decided by the Apex Court with regard to the pension squarely covers the refixation in this O.A. There is no reason why the same would not be granted to the applicant. The respondents' argument arguments that accepting the plea by the applicant meant that the Tribunal would be transgressing on the powers of policy formulation of the Union of Govt. is not correct. The Tribunal is not laying down or upsetting any policy but is only analysing the manner of its implementation. The OM per se does not state that it should apply only to individuals who joined service thereafter, but that effect of the OM would be only from that particular date. As such the decision of the Hon'ble Apex Court relied upon by respondents is clearly distinguishable. The preliminary objection raised by the applicant that the case is hit by limitation is not correct, as this is a case for fixation of pay, which is a continuous cause of action and squarely covered by the decision of the Hon'ble Supreme Court in M.R. Gupta and Ors. v. Union of India, 1995(2) SC SLJ 337. Shri Masand, learned Counsel for the applicant had himself indicated at the bar that he was not pressing the point regarding stepping up of the pay raised in the OA and was asking only for notional fixation from the date of issue of the OM and for arrears for the period for which he is legally entitled.
10. In the above circumstances, we are convinced that the applicant has a case and he should get the benefits of re-fixation as prayed for.
11. The application, therefore, succeeds and is accordingly allowed. The respondents are directed to grant the applicant the benefit of re-fixation in terms of OM No. 12/1/88-Estt. (Pay-I) dated 7.8.1989 effective from 1.8.1989 working it out from the pay he was drawing in the earlier organisation when he left it to join Customs Department on 10,12.1984. This should be fixed as his pay on notional basis and increments granted thereafter. He would be entitled for arrears of pay and allowance on refixation only from 1.11.1995, one year prior to the date this OA has been filed by him. This exercise should be completed within a period of four months from the receipt of a copy of this order or by 31.10.2001 latest. We also order the respondents that they shall pay to the applicant costs quantified at Rs. 2500/- (Rs. Two thousand and five hundred only).