REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5481 OF 2011
[Arising out of SLP (C) No. 8403 of 2009]
Jagdish Parwani .... Appellant
Versus
Union of India & Ors. .... Respondents
WITH
CIVIL APPEAL NO. 5482 OF 2011
[Arising out of SLP (C) No. 8404 of 2009]
JUDGMENT
Dr. MUKUNDAKAM SHARMA, J.
1. Leave granted.
2. The appeal is directed against the judgment and order dated
11.09.2009 passed by the High Court of Madhya Pradesh
Bench at Gwalior in Review Petition No. 185 of 2009. The said
review petition was filed by the appellant herein against the
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order dated 16.04.2009 passed by the High Court of Madhya
Pradesh, Gwalior Bench, in Writ Petition (s) No. 882 of 2003.
Appellant has also preferred a separate appeal [arising out of
SLP(C) No. 8404 of 2009] against the said decision of the High
Court of Madhya Pradesh in the Writ Petition No. 882 of 2003.
By this order we propose to dispose of both the appeals filed
by the appellant.
3. The facts leading to filing of the aforesaid appeals are that the
appellant being a graduate engineer appeared for Indian
Engineering Services examination which was held pursuant to
an advertisement issued by the Union Public Service
Commission in the year 1987 for filling up the post of
Assistant Executive Engineer [Buildings and Roads] in Military
Engineering Service, Ministry of Defence. The appellant was
working as an Assistant Engineer in Uttar Pradesh State
Electricity Board [for short "UPSEB"], w.e.f., 1st January,
1988. He having qualified in the aforesaid competitive
examination, the appellant was offered an appointment as
Assistant Executive Engineer [Buildings and Roads] in the
Military Engineering Services by an appointment letter issued
by the Ministry of Defence dated 06.09.1989. Consequently,
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he resigned from the UPSEB and as per his last pay certificate
from UPSEB, he was drawing a basic pay of Rs. 2750/-. His
resignation was accepted and he was released from the service
of UPSEB on 19.02.1990.
4. Pursuant to the aforesaid letter of appointment issued by the
Ministry of Defence the appellant joined the Military
Engineering Service Department on 23.02.1990 in the pay
scale of Rs. 2200-4000. In the appointment letter issued on
06.09.1989 the appellant was also informed that his pay
would be fixed at the minimum of the pay scale, viz., Rs. 2200.
The aforesaid appointment of the appellant was against a
temporary post but the same was likely to continue
indefinitely. The appellant was also placed on probation for a
period of two years from the date of his appointment with a
clear stipulation that his appointment could be terminated at
any time on one month's notice given on either side without
assigning any reason. The appellant continued to receive the
aforesaid pay as fixed by the respondents till the month of
September, 1991, i.e., for a period of more than one and a half
years and thereafter he submitted three representations on
11.09.1991, 12.02.1992 and 14.12.1992 respectively claiming
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pay protection on the basis of a notification issued by the
Ministry of Personnel, Public Grievances and Pensions
[Department of Personnel & Training] dated 07.08.1989. In
the said representations the appellant claimed that he was
entitled to receive a salary of Rs. 3000/- per month, w.e.f.,
23.2.1990 and not Rs. 2200/-.
5. While the aforesaid representations of the appellant were
being considered by the respondents, another notification
came to be issued on 28.02.1992 by the Department of
Personnel & Training extending grant of pay protection to the
employees of State Government Undertakings joining service
in Central Government on and after 01.02.1990.
6. By a Communication dated 14.02.1995 the appellant was
informed by the respondents that he is not entitled to such
pay protection as claimed by him in the representations
submitted by him.
7. Being aggrieved by the aforesaid communication dated
14.02.1995 communicating the rejection of the
representations of the appellant for pay protection, the
appellant filed an Original Application before the Central
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Administrative Tribunal [Jabalpur Bench], Jabalpur [for short
"Tribunal"] claiming and seeking an order for giving him the
pay protection which was last paid to him by the UPSEB. The
Tribunal issued an order on 01.10.2002 directing the
respondents to fix pay of the appellant by giving him pay
protection within six months and also to pay him the arrears
of pay and allowances.
8. Aggrieved by the said order of the Tribunal the respondents-
Union of India filed a Writ Petition which was registered as
WP(S) No. 882 of 2003 before the Madhya Pradesh High Court,
Gwalior Bench. The High Court after considering the facts of
the case passed judgment and order dated 16.04.2009 holding
that the appellant is not entitled to pay protection and,
therefore, his claim was rejected. It was further held by the
High Court that the Tribunal committed grave error in
granting pay protection to the appellant. The appellant
aggrieved by the aforesaid order of the High Court, preferred a
Review Petition before the Madhya Pradesh High Court which
was dismissed by order dated 11.09.2009 holding that there is
no mistake apparent on the face of the records in the order
impugned in the review petition. The aforesaid orders are
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challenged in the present appeals on which we heard the
learned counsel appearing for the parties and also perused the
records.
9. The facts, which are stated hereinbefore, leading to filing of
the present appeals are not disputed. The appellant joined the
UP State Electricity Board on 01.01.1988 and while working
with the Board he resigned from the service and at that time
he was drawing the basic pay of Rs. 2750/- per month.
Thereafter his resignation was accepted and he was released
from the service of the UPSEB on 19.02.1990. The appellant
was given the appointment to the post of Assistant Executive
Engineer [Buildings and Roads] in Military Engineering
Service [for short "MES"], Ministry of Defence and he joined
the said post on 23.02.1990 and at the time of appointment
his terms and conditions of appointment were clearly set out
in the order of appointment whereby his pay was fixed in the
pay sale of Rs. 2200-4000 with a stipulation that he would be
paid basic salary of Rs. 2200 plus dearness allowance.
10.Reliance was placed by the appellant on the contents of the
Memorandum dated 06.09.1989 which was in the nature of
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guidelines issued by the Ministry of Defence fixing the pay. A
copy of the said memorandum is annexed to the
memorandum of appeal as Annexure-P1.
11.Paragraph 1 of the said guidelines provided that as per the
extant rules/orders, on fixation of pay, pay protection is
granted to candidates who were appointed by the method of
recruitment by selection through the Union Public Service
Commission if such candidates are in Government service. It
was also stipulated in the said paragraph 1 of the
memorandum that no such pay protection would be granted
to candidates working in public sector undertakings,
universities, semi-Government institutions or autonomous
bodies, when they are so appointed in Government.
12.Paragraph 2 thereof on which reliance was placed by the
counsel appearing for the appellant provided that the question
as to how pay protection can be given in the case of
candidates recruited from the public sector undertakings, etc.,
has been engaging the attention of the Government for
sometime and that after careful consideration of the same the
President was pleased to decide that in respect of candidates
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working in public sector undertakings, universities, semi-
Government institutions, autonomous bodies, who were
appointed as direct recruits on selection through a properly
constituted agency including departmental authorities making
recruitment directly their initial pay could be fixed at a stage
in the scale of pay attached to the post so that the pay and DA
already being drawn by them in their parent organisation. It
was also stipulated therein that 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.
13.It is evident from the aforesaid stipulation in the relevant
clause that such pay scale received is protected in the case of
only Central Government Public Sector Undertakings, etc.,
inasmuch as the decision to grant such benefit was restricted
specifically to Central Government employees and also
employees of central government public sector undertakings.
This position got fortified and clearly explained by the
issuance of the subsequent notification dated 28.2.1992, to
which reference is made immediately hereafter.
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14.Reliance was placed by the counsel appearing for the
appellant on the subsequent OM issued by the Department of
Personnel and Training issued on 28.02.1992. The contents of
the said notification/memorandum is extracted hereinbelow
for easy reference and for better understanding: -
"DoPT OM NO.12/1/88-Estt (Pay-I) dated 28.2.1992.
"PAY PROTECTION ALSO TO CANDIDATES FROM
STATE PSUs RECRUITED BY PROPER SELECTION TO
CENTRAL GOVERNMENT"
The Undersigned is directed to say that question of
inclusion of employees of State Government
undertakings within the purview of this Department's
OM No. 12/1/88-Estt (Pay-I), dated 7.8.1989 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 provisions
of this Department's OM of even number dated
7.8.1989, may be extended to the employees of State
Government Undertakings selected for posts in Central
Government on direct recruitment basis as in case of
Central Public Undertakings.
These orders take effect from the first of the month in
which this OM is issued."
A bare perusal of the Memorandum would make it crystal clear
that the employees of the State Government Undertakings
selected for posts in Central Government on direct recruitment
basis on and after 01.02.1992 were also extended the benefit of
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pay protection, as was provided in the case of the employees of
Central Government Public Undertakings as per notification
dated 07.08.1989.
15.In the aforesaid notification, it was clearly stipulated that the
said benefit of pay protection is effective only from the first of
the month in which the OM is issued, i.e., from 01.02.1992,
which means that the said OM was given prospective effect
only. Therefore, the said OM could even be said to be a
clarification on the issue which is sought to be raised in the
present case. It was clearly pointed out in the said notification
that employees like the appellant would be entitled to get such
pay protection, as employees of the State Government
Undertakings on their appointment in Central Government
service only from the effective date of 01.02.1992. If the
appellant would have been appointed for a post in Central
Government on direct recruitment basis after 01.02.1992
such benefit of pay protection could have been made available
to him. But since the appellant was selected and appointed to
a post in Central Government on 23.02.1990 after working as
an employee of the State Government Undertaking, viz.,
UPSEB, the notification dated 07.08.1989 was not applicable
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to him and, therefore, he could not have legally claimed for
any pay protection.
16.Being fully aware of the aforesaid position the appellant
accepted the appointment without any demur or protest on
the issue of pay being given to him under the appointment
order issued to him by the Military Engineering Service,
Ministry of Defence, fixing his pay scale at the minimum of the
pay scale of Rs. 2200. He accepted the said pay scale without
raising any grievance and continued to receive the same till
11.09.1991, when for the first time he submitted his first
representation for pay protection as per notification dated
07.08.1989.
17.The position with regard to the entitlement or otherwise of the
appellant for getting pay protection was made clear by issuing
the notification dated 28.02.1992 clearly stipulating therein
that an employee of the State Government Undertaking
selected for post in Central Government on direct recruitment
basis would be entitled to pay protection upon appointment in
Central Government only effective from 01.02.1992. The
appellant having joined the MES, Ministry of Defence prior to
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the aforesaid date was not entitled to the benefit of the
aforesaid notification which was issued much after his joining
date and, therefore, the benefit of the aforesaid notification is
not available to the appellant.
18. Counsel appearing for the appellant however sought to submit
that to deny the benefit of the notification dated 28.02.1992 to
the appellant was discriminatory in nature and in support of
the said contention the counsel relied on the decision of this
Court in the case of T.S. Thiruvengadam v. Secretary to
Government of India, Ministry of Finance, Deptt. of
Expenditure, New Delhi reported in (1993) 2 SCC 174. In
our considered opinion the ratio of the aforesaid decision was
rendered in respect of case of pension which is a continuing
cause of action. Facts of the said case are clearly
distinguishable from the facts of the present case and,
therefore, the ratio of the said decision is not applicable to the
case in hand. There is an inherent clear distinction between
the two concepts of pay protection and pension. So far getting
pay protection is concerned, the said issue arises as soon as
an employee joins his new post, where he gets his new pay
scale and if he is entitled to any pay protection that is the
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stage and date when it is granted by whatever notifications,
memorandums which are available and applicable at that
stage laying down such rules regarding pay protection. At that
stage what was operating in the field was the notification
issued on 07.08.1989 which was not applicable to the
appellant. The appellant also clearly understood the position
and therefore based his entire claim and right on the
subsequent notification dated 28.02.1992, although appointed
to the post of Central Government on 23.02.1990.
19.In the present case it cannot be said that a notification issued
after two years of the appointment of the appellant which is
also specifically stated to have been issued with prospective
effect is applicable in his case.
20.Consequently, we hold that the High Court was justified in
setting aside the order of the Tribunal as the Tribunal has
misread and misinterpreted the facts as also the legal
principles in law.
21.We, therefore, find no merit in these appeals, which are
dismissed, but, leaving the parties to bear their own costs.
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............................................J
[Dr. Mukundakam Sharma]
............................................J
[Anil R. Dave]
New Delhi,
July 15, 2011.
P
