PAY PROTECTION CLAIMING UNDER INAPPLICABLE GOS = 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 Page 12 of 14 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.

                                                                  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





                                    Page 1 of 14


      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,




                                  Page 2 of 14


  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




                                 Page 3 of 14


  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





                                 Page 4 of 14


   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




                                  Page 5 of 14


   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





                                  Page 6 of 14


   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





                                  Page 7 of 14


   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.




                                   Page 8 of 14


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





                                  Page 9 of 14


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




                                 Page 10 of 14


   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





                                 Page 11 of 14


  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




                                  Page 12 of 14


   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.





                                 Page 13 of 14


                                               ............................................J

                                                      [Dr. Mukundakam Sharma]





                                              ............................................J

                                                 [Anil R. Dave]

New Delhi,

July 15, 2011.





                                 Page 14 of 14