Lastly, we find that the representations of the appellants after filing of the writ petition were considered and thereafter referred LPA NO.690/2001 Page No.8 to the Government of India. Government of India in their opinion dated 6th December, 1993 has opined that resignations given by the appellants herein to the CPWD before taking up employment with the respondent-DDA were a technical formality. Therefore during the probation period, the pay of the appellants will be fixed under Rule 22-B and thereafter under the normal Rules. The normal Rules refers to Rule 22, in view of Rule 22-B(1)(b). The respondent has therefore misunderstood the opinion of the Union of India. The first question is accordingly decided. 12. In view of the above findings, the Appeal is allowed. It is held that the appellants’ salary during the probation period will be fixed in accordance with Rule 22-B and upon confirmation under Rule 22. No costs. (SANJIV KHANNA)

LPA NO.690/2001 Page No.1 REPORTABLE * IN THE HIGH COURT OF DELHI AT NEW DELHI + LPA NO. 690 OF 2001 % Date of Decision : March 3, 2009. SHRI G.R.CHAWLA & OTHERS .... Appellants. Through Mr. K. Venkat Raman, Advocate. VERSUS DELHI DEVELOPMENT AUTHORITY & ANOTHER .... Respondents. Through Ms. Anusuya Salwan, Advocate. CORAM: HON’BLE MR. JUSTICE AJIT PRAKASH SHAH, CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not ? 3. Whether the judgment should be reported in the Digest ? SANJIV KHANNA, J: 1. The present intra Court Appeal under Clause X of the Letters Patent has been filed by four employees (hereinafter referred to as the appellants, for short) of the Delhi Development Authority (hereinafter referred to as respondent, for short) against the judgment dated 5th October, 2001 passed by the learned Single Judge in Writ Petition (Civil) No.1768/88. By the impugned LPA NO.690/2001 Page No.2 judgment, the learned Single Judge has held that the initial pay fixation of the appellants shall be under Fundamental Rule 22-B and thereafter their pay would be fixed under the normal Rules. 2. The appellants were earlier working as Junior Engineers in Central Public Works Department (hereinafter referred to as CPWD, for short). They applied through proper channel for appointment as Junior Engineers in the respondent-DDA. After selection the appellants were appointed as Junior Engineers with the respondent but were asked to give an undertaking that they shall not claim benefit of past service in CPWD. The undertaking was given by the appellants. 3. After some time, the appellants made a representation for fixation of their pay under Fundamental Rule 22 by giving them benefit of their past service. The representation was rejected and aggrieved, the appellants along with some others had filed Writ Petition (Civil) No. 1768/1988 titled G.R. Chawla and others versus Delhi Development Authority and another. In the impugned judgment, the learned single Judge has observed that the principal issue that arose for consideration was whether Fundamental Rule 22 or 22-B was applicable to the facts of the present case. Relying upon the undertakings given by the appellants and the fact that the appellants were initially appointed on probation, it was held by the learned Single Judge that Fundamental Rule 22 would not be LPA NO.690/2001 Page No.3 applicable and provisions of Fundamental Rule 22-B would be applicable. 4. Two aspects which require adjudication in the present Appeal are : (1) the effect of the undertakings given by the appellants (2) Whether Fundamental Rule 22 or 22-B is applicable. 5. During the course of hearing, learned counsel for the parties had drawn our attention to Rule 22(I)(a)(2) and 22-B and submitted that the second question involves interpretation of the said Rules. Relevant portions of Rule 22(I)(a)(2) and Rule 22-B read as under: “F.R.22(I) The initial pay of a Government servant who is appointed to a post on a time-scale of pay is regulated as follows:- (a) (1) x x x x (2) When the appointment to the new post does not involve such assumption of duties and responsibilities of greater importance, he shall draw as initial pay, the stage of the time-scale which is equal to his pay in respect of the old post held by him on regular basis, or, if there is no such stage, the stage next above his pay in respect of the old post held by him on regular basis: Provided that where the minimum pay of the time-scale of the new post is higher than his pay in respect of the post held by him regularly, he shall draw the minimum as the initial pay: Provided further that in a case where pay is fixed at the same stage, he shall continue to draw that pay until such time as he would have received an increment in the time-scale of the old post, in cases where pay is fixed at the higher stage, he shall get his next increment on completion of the period when an increment is earned in the time-scale of the new post. LPA NO.690/2001 Page No.4 On appointment on regular basis to such a new post, other than to an ex cadre post on deputation, the Government servant shall have the option, to be exercised within one month from the date of such appointment, for fixation of his pay in the new post with effect from the date of appointment to the new post or with effect from the date of increment in the old post.” “22-B. (1) Notwithstanding anything contained in these Rules, the following provisions shall govern the pay of a Government servant who is appointed as a probationer in another service or cadre, and subsequently confirmed in that service or cadre- (a) During the period of probation, he shall draw pay at the minimum of the time-scale or at the probationary stages of the time scale of the service or post, as the case may be: Provided that if the presumptive pay of the permanent post on which he holds a lien or would hold a lien had his lien not been suspended should at any time be greater than the pay fixed under this clause, he shall draw the presumptive pay of the permanent post; (b) On confirmation in the service or post after the expiry of the period of probation, the pay of the Government servant shall be fixed in the time-scale of the service or post in accordance with the provisions of Rule 22 or Rule 22-C, as the case may be: Provided that the pay of Government servant shall not be so fixed under Rule 22 or Rule 22-C with reference to the pay that he would have drawn in the previous post which he was holding in a temporary capacity, but he shall continue to draw the pay in the time-scale of the service or post.” LPA NO.690/2001 Page No.5 6. Rule 22-B(1) begins with a non-obstante clause and applies to all cases where a Government servant is appointed in another service or cadre as a probationer. Under Rule 22-B(1)(a) during the period of probation such officer is entitled to pay at the minimum of the time scale or the probationary stage of the time scale of the said post to which he is appointed. Proviso to Rule 22-B(1)(a) gives pay protection during the probationary period, if the probationer is holding a permanent post in the first service on which he holds a lien or would have held the lien but for suspension relatable to the second appointment. In such cases, the probationer on appointment in the second service will be entitled to presumptive pay equal to amount being paid to him in his first service. 7. Rule 22-B(1)(b) applies after a probationer is confirmed. Upon confirmation, the Government servant is entitled to same pay as would be payable in accordance with Rule 22 or Rule 22-C whichever is applicable. The question whether after confirmation Rule 22-B or Rule 22 would apply, is answered by the language of Rule 22-B(1)(b) itself as the said clause stipulates that the pay scale of the appellants after confirmation will be fixed in terms of Rule 22 or Rule 22 C. It has not been argued before us that Rule 22-C is applicable. Thus upon confirmation Rule 22 is applicable to the appellants. LPA NO.690/2001 Page No.6 8. Fundamental Rule 22(I)(a)(2) quoted above is the relevant sub-Clause which applies as duties and responsibilities of the appellants in the respondent-DDA and CPWD are same. The said sub-Clause stipulates that the Government servant after confirmation will be entitled to draw initial pay at the stage of the time scale which the Government servant was enjoying in the first post held by him on regular basis and if there is no such stage, the stage next above the pay in the first post held by him on regular basis. The first proviso stipulates that the employee is entitled to minimum pay scale in the new post, if it is higher than the pay in the first post which was held by him. The first proviso is not applicable in the present case. In view of the above, the appellants on confirmation will be entitled to fixation of pay under Fundamental Rule 22(I)(a)(2) read with other Fundamental Rules, if applicable. The second question is accordingly answered in favour of the appellants and it is held that on completion of the probation period and on confirmation, the appellants will be entitled to fixation of their pay in terms of Fundamental Rule 22(I)(a)(2). 9. We do not think that the respondents can rely upon the undertakings given by the appellants to deny them benefit of the statutory rules. To rely upon the undertakings and not apply Fundamental Rule 22 will be contrary to the statutory rules and LPA NO.690/2001 Page No.7 therefore bad in law. Undertakings to the extent they are contrary to the statutory Rules cannot be applied. It does appear that the appellants in this case were compelled and forced to give the said undertakings at the time of appointment by the respondents. It cannot be said that the said undertakings were given out of free-will and without force or coercion. Even if the appellants have given the said undertakings, the respondent-DDA being a statutory authority is bound by Fundamental Rules and cannot act contrary to the Fundamental Rules or ignore the same. This will be contrary to law. 10. The respondent themselves have ignored the undertakings and followed the Fundamental Rules in other cases and given other employees benefit of past service. We do not accept the contention of the respondent that other cases were of old/earlier appointed employees and the administrative branch had treated them differently. The facts of other cases and the case of the appellants are identical. The undertakings and the relevant Fundamental Rules applicable are the same. The question relates to applicability of the Rules and in that context we find that no distinction can be made between the case of the appellants and other cases, wherein benefit of past service has been given. 11. Lastly, we find that the representations of the appellants after filing of the writ petition were considered and thereafter referred LPA NO.690/2001 Page No.8 to the Government of India. Government of India in their opinion dated 6th December, 1993 has opined that resignations given by the appellants herein to the CPWD before taking up employment with the respondent-DDA were a technical formality. Therefore during the probation period, the pay of the appellants will be fixed under Rule 22-B and thereafter under the normal Rules. The normal Rules refers to Rule 22, in view of Rule 22-B(1)(b). The respondent has therefore misunderstood the opinion of the Union of India. The first question is accordingly decided. 12. In view of the above findings, the Appeal is allowed. It is held that the appellants’ salary during the probation period will be fixed in accordance with Rule 22-B and upon confirmation under Rule 22. No costs. (SANJIV KHANNA) JUDGE (AJIT PRAKASH SHAH) CHIEF JUSTICE MARCH 3, 2009. P

whether the applicant, while still on probation at AIR, Shimla and left to join on the post of JSA-II in Terminal Ballastic Research Laboratory, Chandigarh, on her own will, without completing her probation is entitled to claim pay protection. 13. The arguments raised by the learned counsel of the applicant, which are largely based on the judgment in the case of Birender Singh Vs. U.O.I (Supra), does not apply in this case since it was passed in the case of a particular applicant only with a specific stipulation that it is not applicable to other cases. Hence, this case does not advance the case of the present applicant. The applicant

Central Administrative Tribunal, Principal Bench O.A. No. 1480/2006 New Delhi this the 12th day of February, 2007 Hon ble Mr. Shanker Raju, Member (J) Hon ble Mrs. Neena Ranjan, Member (A) Smt. Babita Aggarwal W/o Shri Arun Aggarwal R/o H.No.775, Sector 29-A, Chandigarh. .Applicant Aged about 37 years Group B Service, New Delhi. By Advocate: Shri S.K. Gupta. Versus 1. Union of India Through Secretary, Ministry of Defence, South Block, New Delhi. 2. Director General, Defence Research & Development Organisation, DRDO Bhawan, Raja Ji Marg, New Delhi-110 011. 3. Accounts Officer (R&D) Defence Research and Development Organisation, Ministry of Defence, Sector-37-A, Chandigarh. 4. Director, Terminal Ballastic Research Laboratory, Ministry of Defence, R&D Organisation, Sector-30, Chandigarh. .Respondents By Advocate: Shri R.N. Singh. ORDER By Hon ble Mrs. Neena Ranjan, Member (A) The present application is filed by the applicant challenging the order dated 18.4.2003 (Annexure A-1) vide which her request for pay protection has been denied by the office of respondent No.2. The same has been conveyed to applicant vide letter dated 16.5.2002 (Annexure A-1/A). On the basis of the judgment of this Hon ble Tribunal in case of Birender Singh Vs. U.O.I. passed on 10.12.1996 (OA 1101/1996), the applicant made a request for pay protection. This case was sent to office of respondent No.3 vide communication dated 4.1.2006 (Annexure A-2) stating that the benefits of the judgment in the case of Birender Singh is a specific one and not applicable to other similar cases. This decision was communicated to the applicant vide letter dated 30.1.2006. Immediately thereupon, the applicant made a request for referring the case in the office of respondent No.2 through letter dated 9.2.2006 and the case was sent vide letter dated 1.3.2006 by the office of respondent No.4 in the office of respondent No.2, but it was rejected vide communication dated 19.5.2006 (Annexure A-3). This was conveyed to applicant vide letter dated 2.6.2006 (Annexure A-3/A). 2. The facts, in brief, are that the applicant, who is an Engineering Graduate, joined the All India Radio, Ministry of Information and Broadcasting as Engineering Assistant in the scale of Rs.1400-2600 w.e.f. 20.6.1989 and was kept on probation for a period of two years. A copy of the said order dated 29.6.1989 is at Annexure A-5. The applicant also earned increment of Rs.40/- in the said scale. 3. Thereafter, applicant applied for the post of Junior Scientific Assistant Grade-II in the Terminal Ballastic Research Laboratory, Ministry of Defence, Chandigarh. This application was sent through proper channel. As such, applicant was called for interview, which was held on 3.7.1990. Applicant s earlier employer, All India Radio, Shimla also issued a No Objection Certificate dated 30.6.1990. On receipt of the appointment letter dated 31.1.1991 from the office of the respondents, applicant was offered the temporary post of JSA Grade-II in the scale of Rs.1320-2040 she was kept on a probation for a period of 2 years. Thereupon, applicant submitted a representation to All India Radio, Shimla on 13.2.1991 requesting to relieve her and on the same day in the afternoon. The applicant was relieved from the office of All India Radio, Shimla, after accepting her resignation, a technical formality and on 14.2.1991, applicant joined the office of respondent No.4 as JSA Grade-II. It may also be mentioned that the basic pay of the applicant in All India Radio was Rs.1440/- and on joining the office of respondent No.4 as JSA Grade-II, the applicant vide letter dated 15.2.1991 (Annexure A-12), requested for pay fixation and continuity in service for the purpose of gratuity and pensionary benefits. Vide letter dated 15.5.1995 received from the Ministry of Information and Broadcasting, the pay scale of Engineering Assistant in AIR was revised to Rs.2000-3200 w.e.f. 1.1.1986 and consequently the pay fixation in respect of the applicant was done in the office of AIR, Shimla vide order dated 23.1.1996 and pay of the applicant as on 1.6.1990 was fixed at Rs.2060/-. Applicant then requested the office of respondents for protecting her pay and further allowing the benefit of her previous service for the purposes of Gratuity, pensionary benefits etc. The case of the applicant was referred to the office of respondent No.2 by the respondent No.4 vide letter dated 9.4.1996 for the purpose of approval of the competent authority in relation to continuity of service and other benefits. By a letter dated 1.11.1996 (Annexure A-25), the office of All India Radio was requested to supply copy of resignation and its acceptance letter and other details in relation to the pay scale attached to the post which was done through letter dated 3.2.1997. On receipt of all requisite information, the following order was passed by the respondent No.3:- Service Book prior to 31.2.19910 in r/o Smt. Babita Aggawal, TA (B) is returned herewith with the following remarks:- As per CCS (Pension) Rules 1971, previous service up to 13.2.1991 rendered with AIR, Shimla by the subject index is countable for the purpose of pension and leave only without any effect on pay and allowances. The individual will draw pay and all in her existing grade in the post she has been appointed by your Lab . 4. The aforesaid decision was conveyed to the applicant by the Administrative Officer of the Office of respondent No.4 through the communication dated 28.4.1997. 5. As the request of the applicant was not acceded to, he made another representation on 13.5.1997. The office of respondent No.4 sent a communication dated 28.1.1998 to the office of CDA (R&D), L-Block, New Delhi and sought necessary approvals. Meanwhile, the office of All India Radio, Shimla, supplied information stating that applicant had applied through proper channel with a view to take up new assignment and is entitled for the benefits under Rule 26 (2) of CCS (Pension) Rules. 6. It is also submitted that by Daily Order Part-II, as published from the office of respondent No.4, the previous service of the applicant was taken into consideration for the purposes of pension only. Thereafter, applicant made representation dated 9.4.2001 which was forwarded to the office of respondent No.2 by the office of respondent No.4, for necessary orders in relation to the pay protection. 7. By virtue of the impugned order dated 18.4.2002, it was intimated by the office of respondent No.2 that the case of the applicant is not covered in terms of FR 22 (a)(3) and (28) and this was conveyed to the applicant through the letter dated 16.5.2002. 8. The applicant has laid strong emphasis on the judgment of the Tribunal in the case of Birender Singh Vs. Union of India (OA No. 1101/1996) decided on 10.12.1996 wherein direction was passed to give pay protection to the applicant, with all consequential benefits. In that case the respondents did not even file an appeal. She has also relied on the case of Ashwani Kumar Vs. State of Bihar, JT 1997 (1) SC 243 wherein it has been held by the Hon ble Supreme Court that those who are waiting in the wings cannot be denied a similar treatment. 9. In view of the above, the applicant has prayed for the following reliefs:- (i) to quash and set aside the impugned orders dated 18.4.2002 (Annexure A-1) letter dated 16.5.2002 (Annexure A-1/A), letter dated 4.1.2006 (Annexure A-2), letter dated 30.1.2006 (Annexure A-2/A), letter dated 19.5.2006 (Annexure A-3) and letter dated 2.6.2006 (Annexure A-3/A). (ii) to direct the respondents to fix the pay of the applicant at the same stage, which she was drawing in All India Radio, Shimla, on having been appointed in the office of respondents as JSA, Grade-II, with all consequential benefits etc. (iii) to award the interest at the rate of 10% p.a. on the arrears of pay from the date when the amount became due up to the date of its actual realization. 10. The respondents in their counter reply have stated as under:- (i) that the applicant joined as Engineering Assistant on 20.6.1989 in All India Radio, Shimla in the pay scale of Rs.1400-2600 which was revised to Rs.2000-3200 and was placed on probation for a period of two years; (ii) that in response to an advertisement and of her own will and volition, the applicant applied for post of JSA-II in Terminal Ballistic Research Lab, Chandigarh (respondent No.4) in the pay scale of Rs.1320-2040 (a lower pay scale). After selection, applicant tendered her resignation in AIR, Shimla and joined TBRL, Chandigarh on 14th February 1991. Her basic pay was fixed at Rs.1320/- , i.e., at the minimum of the pay scale; (iii) that after joining TBRL, applicant made a representation and requested for pay protection and counting of her service. Her case for pay protection was examined and it was observed that there was no provision in the rules for protection of pay in cases such as hers. It is further submitted that the PCDA(R&D) New Delhi has also viewed that pay drawn in previous grade cannot be protected on appointment to a new grade as direct recruitment under Rule 22 of FRSR Part-I; (iv) that it is pertinent to submit that the matter was referred to Department of Personnel and Training (the nodal department of the Government for issuing Government orders/clarifications in such matters) for advice whether benefit of pay protection is available if a person joins on his/her will and volition, a post carrying a lower pay scale. It has been categorically clarified by DOP&T that this is a case of appointment from a higher scale to a lower scale through open competition. There is no provision in the rules for protection of pay in such cases; (v) that it is also mentioned that the present application is not maintainable at Principal Bench, as cause of action had arisen at Chandigarh Bench so this case should have been filed before the CAT, Chandigarh Bench. Moreover, no PT has been filed seeking permission to file the present OA before the Principal Bench. As such the OA deserves to be dismissed on this ground alone; (vi) that the present OA is barred by limitation under Section 21 of the AT Act 1985, as the applicant has approached this Tribunal against the order dated 18.4.2002 (Annexure A-1) and has filed the present OA only in the year 2006 and it has been very clearly held by the Courts that repeated representation will not extend the period of limitation; (vii) that it was made clear to applicant by AIR, Shimla, where the applicant was working, by Memo dated 30.6.1990 that in case she is selected, she has to resign from present post and no lien will be kept. When applicant resigned, she was working in AIR, Shimla and was still on probation on the date when she applied for the post JSA Grade-II in TBRL, Chandigarh. In a nutshell, the applicant was a temporary employee of AIR, Shimla and as such relief of pay protection cannot be granted to her; (viii) that with regard to the plea of the applicant that in her case recommendation was made by the Selection Board but when ascertained from the Selection Board, they blatantly denied having made any recommendation. As such, this ground has also no force and the same is rejected; and (ix) that the former service of the applicant was counted for the purpose of pension and leave under the provisions of CCS (Pension) Rules, 1972 and the service rendered by the applicant w.e.f. 20.6.1989 to 12.2.1991 will be counted as per rules, only for the purpose of pension. 11. We have heard the learned counsel for the parties and have also perused the record. 12. In our view the main issue to be decided upon is whether the applicant, while still on probation at AIR, Shimla and left to join on the post of JSA-II in Terminal Ballastic Research Laboratory, Chandigarh, on her own will, without completing her probation is entitled to claim pay protection. 13. The arguments raised by the learned counsel of the applicant, which are largely based on the judgment in the case of Birender Singh Vs. U.O.I (Supra), does not apply in this case since it was passed in the case of a particular applicant only with a specific stipulation that it is not applicable to other cases. Hence, this case does not advance the case of the present applicant. The applicant s counsel has also been unable to bring any documentary evidence from the office of AIR, Shimla or any order of DOP&T to prove that applicant is entitled to pay protection under FR 22. 14. On the other hand, the arguments advanced by learned counsel for the respondents are cogent and clearly prove that the applicant has woken up at a late stage, i.e., after 4 years to agitate for pay protection. Without going into other questions regarding limitation etc., we are of the view that on the basis of the fact that the applicant, while still on probation and of her volition, without completion of probation period, joined elsewhere, is sufficient ground to hold that there is no case for pay protection. Pay protection can be given only if a Government officer has a lien on a particular post. Since she was temporary, there was no question of her holding any lien on any post and this was given to her in a written communication by AIR, Shimla, before she resigned to join her new post. 15. The above is amply borne out by the following rule:- FR 22-B (1) Officiating pay not protected - Since a temporary Government servant does not have a lien on any post, at the time of completion of probation, it is hereby clarified that, on completion of probation, when such a Government servant is confirmed in the service or post, his pay will not be refixed under FR 22 or FR 22-C with reference to the pay that he would have drawn in the previous post which he was holding in a temporary capacity, but he will continue to draw pay in the scale of pay of the service or post. Similarly, in the case of a permanent Government servant holding a higher officiating post the case of a permanent Government servant holding a higher officiating post at the time of appointment as probationer, the pay will not be refixed with reference to the pay that he would have drawn in the higher officiating post (GI, MF, OM No.F.1(37)-E.III [A]/64 dated the 6th November, 1965) 16. In view of the above, applicant s pay cannot be protected and her claim is without substance. 17. In the result, for the foregoing reasons, OA being bereft of merit and the same is accordingly dismissed. No costs. (Mrs. Neena Ranjan) (Shanker Raju) Member (A) Member (J) Rakesh

The Applicant is aggrieved by the order dated 29.05.2008, by which the University Grants Commission (UGC) scales of pay given to the Applicant has been reduced to the scale of pay applicable to the employees under the Government of NCT of Delhi. =the amendment of Section 7 of Delhi Tibbia College (Takeover) Act, 1997 has to be read as a whole. Section 7 (2) clearly provides that the pay of the employees as on the appointed day shall be protected. These would be subject to Fundamental Rules, Supplementary Rules and other rules applicable to other employees of the Government. It would only mean that for the purposes of increment et cetera the rules mentioned in Section 7 (3) would apply. It would not mean that the pay of the employees of the College shall be brought to the level of the employees of the Government of NCT of Delhi. The Respondents cannot renege on the assurance given to the employees about pay protection in the Delhi Tibbia College (Takeover) Act, 1997 and the amendment of 2006. The interpretation put by the Respondents on Section 7 of the Delhi Tibbia College (Takeover) (Amendment) Act, 2006 is erroneous. 9. In the light of the above discussion the OA is allowed and the impugned order dated 29.05.2008 is quashed and set aside to the extent and in regard to the scales of pay mentioned in column number 4 of the Annexure-I. The Applicant would be eligible for the UGC scale of pay given to him before the takeover since 1988. The Respondents are directed to issue an amendment to the aforesaid order to the above extent within one month of the receipt of the certified copy of this order. If any recovery has been made from the Applicant, the same would be refunded to him within 15 days of passing of the above order amending the order dated 29.05.2008. There will be no orders as to costs.

CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 932/2010 MA 706/2010 With OA 1078/2010 MA 818/2010 and OA 1080/2010 New Delhi this the 10th day of March, 2011 Hon ble Mr. Justice V.K.Bali, Chairman Hon ble Mr. L.K.Joshi, Vice Chairman (A) OA 932/2010 Dr. Rais-UR-Rehman, 49 years, Reader A & U Tibbia College, Karol Bagh, R/o 131, Ist Floor, Pocket 40, C.R.Park, New Delhi-110019. Applicant (By Advocate Shri K.K.Sharma) VERSUS 1. The Chief Secretary, Government of NCT of Delhi, Delhi Secretariat, I.P.Estate, New Delhi-110003. 2. The Principal Secretary, H & F.W. Deptt., Govt. of NCTD, Delhi Secretariat, I.P.Estate, New Delhi-110003. 3. The Director (ISM & H)/Administrator, A & U Tibbia College, Govt. of NCTD, Karol Bagh, New Delhi-110005 4. The Principal (HOD), A & U Tibbia College, Govt. of NCTD, Karol Bagh, New Delhi-110005. Respondents (By Advocate Shri R.N. Singh ) OA 1078/2010 Dr. Yousuf Jamal, S/o Mr. Mustafa Kamal, Reader, A & U Tibbia College, Karol Bagh, New Delhi-110001. Applicant (By Advocate Shri K.K.Sharma) VERSUS 1. The Chief Secretary, Government of NCT of Delhi, Delhi Secretariat, I.P.Estate, New Delhi-110003. 2. The Principal Secretary, H & F.W. Deptt., Govt. of NCTD, Delhi Secretariat, I.P.Estate, New Delhi-110003. 3. The Director (ISM & H)/Administrator, A & U Tibbia College, Govt. of NCTD, Karol Bagh, New Delhi-110005 4. The Principal (HOD), A & U Tibbia College, Govt. of NCTD, Karol Bagh, New Delhi-110005. Respondents (By Advocate Shri R.N. Singh ) OA 1080/2010 Dr.Rajni Sushma, W/o Dr. Y.K.Saini, Reader A & U Tibbia College, Karol Bagh, New Delhi-110005 Applicant (By Advocate Shri K.K.Sharma) VERSUS 1. The Chief Secretary, Government of NCT of Delhi, Delhi Secretariat, I.P.Estate, New Delhi-110003. 2. The Principal Secretary, H & F.W. Deptt., Govt. of NCTD, Delhi Secretariat, I.P.Estate, New Delhi-110003. 3. The Director (ISM & H)/Administrator, A & U Tibbia College, Govt. of NCTD, Karol Bagh, New Delhi-110005 4. The Principal (HOD), A & U Tibbia College, Govt. of NCTD, Karol Bagh, New Delhi-110005. Respondents (By Advocate Shri R.N. Singh ) O R D E R Mr. L.K.Joshi, Vice Chairman (A): We are dealing with the three OAs in this common judgement and order as identical facts and questions of law are involved in these. The facts have been extracted from OA number 932/2010. 2. The Applicant is aggrieved by the order dated 29.05.2008, by which the University Grants Commission (UGC) scales of pay given to the Applicant has been reduced to the scale of pay applicable to the employees under the Government of NCT of Delhi. 3. The relevant facts of the case have been narrated hereafter. The Applicant has been working as Reader in the Ayurvedic and Unani Tibbia College (hereafter the College) from 24.05.1988. It is not in dispute that he was appointed Reader in the UGC scale of pay of Rs.12,000-420-18,300 on his appointment in that capacity. The College was taken over by the Government of NCT of Delhi with effect from 01.05.1998 by the Delhi Tibbia College (Takeover) Act, 1997. 4. The case of the Applicant is that it had been decided at the time of the takeover of the College that the existing terms and conditions of the employees of the College would not be changed to their disadvantage and that this had been taken care of in Section 7 of the Delhi Tibbia College (Takeover) Act, 1997. This had been mentioned in the note for the Cabinet dated 18.12.1997, which was produced by the learned counsel for the Applicant during his submissions and which we directed to be taken on record. By the Delhi Tibbia College (Takeover) (Amendment) Act, 2006, Section 7 of the earlier Act was amended thus: 7. Appointment of Employees of the College as employees of the Government as a part of the initial constitution. (1) The Government may, having regard to the requirements of the College, appoint an employee who has been immediately before the appointed day employed in the College, as an employee of the Government as a part of the initial constitution. (2) The pay of an employee of the College appointed as an employee of the Government, as on the appointed day, shall be protected by granting the difference in pay under the Government and that drawn by the individual while in service of the College, as personal to in individual to be absorbed against future increments. (3) The pay and the terms and conditions of an employee appointed as an employee of the Government under sub-section (1) shall be dealt in accordance with the provisions of the Fundamental Rules, the Supplementary Rules and other rules as applicable to other employees of the Government. (4) The pension of an employee appointed as an employee of the Government shall be on the same terms as are given to other equivalent employees of the Government . Provided that the benefit of previous service under the erstwhile Board shall be given only after the employee concerned has surrendered the employer s share of the contributory fund to the Government. 5. Some of the Readers of the College approached this Tribunal in OA number 2688/2003 seeking the following relief: (A) That the respondents be directed to declare that the petitioners have been appointed in the Government. (B) The respondents be directed to release all the arrears of the petitioners based on the revision of pay scales of petitioners in line of Vth Central Pay Commission recommendations from 01.01.1996 onwards alongwith interest at the rate of 10 percent per annum. (C) The respondents be directed to count the past service of the petitioners in A&U Tibbia College as service in the Government for pensionary benefits. (D) The respondents be directed that no approval of the UPSC is required in the case of petitioners who were appointed under the regulations framed under law. (E) To treat the promotion of the petitioners made under Merit Promotion Scheme notified in 1996 in Situ and Personal to the individual teachers promoted and without linkage to the vacancies or to create posts retrospectively from 01.12.1996 i.e. the date on which they were promoted necessary to accommodate the petitioners. (F) To direct that the petitioners are entitled to pension as per UGC norms i.e. the college under UGC are entitled to pensionary benefits as per CCS Pension Rules and that the same rules shall apply to the petitioners. (G) All the teachers may be allowed to be paid monthly pay and allowances in the existing scales pending their formal appointment in the Government. (H) From the date of the take-over of the college, the staff of A&U Tibbia College may be given pay & allowances and all other benefits as per Rules & Regulations applicable to Government employees. The Tribunal observed in its judgement dated 01.06.2005 as follows: 14. It is a settled law that whenever the educational institutions are taken over by the State Government through an agreement/notification or any other document, the terms and conditions prescribed therein would be applicable to the staff and the teaching faculty in the present case, we do not observe that any such document/agreement/notification at the time of taking over of the Tibbia College, contains the conditions to the effect that the new rules after taking over would be applicable as framed by the Government of Delhi from time to time, through the notification (supra), to the employees of the Tibbia College. In the case of State of Punjab and others Vs. Tara Singh Shahi, (1996) 8 SCC 448, the Apex Court held that the private college taken over by the State Government pursuant to a gift deed executed between the management of the private college and the State Government, the condition of service would be subjected to the terms and conditions contained in such gift deed and would be binding on the staff and the teachers of the college. In the present case, such terms and conditions are not available or at least the respondents did not bring to the notice of the Tribunal with the counter reply or during the course of hearing of this case. 15. In the above case (Tara Singh Shahi (supra), the gift deed, inter alia, provided that unless those staff members who possessed the requisite qualification would be absorbed and that the principal of College would be taken over only as a senior-most Lecturer of the College Shri Tara Singh Shahi, respondent in the above cited case, was accordingly absorbed as senior most Lecturer. Thus, rules made after the taking over of the private college were made applicable as per the terms and conditions given in the gift deed. In the present case, under our consideration, no such condition appears to have been made at the time of taking over of the Tibbia College of the Government of Delhi. 16. In the light of the above discussion, we direct the respondents as under: (a) In the absence of any terms and conditions in the document prepared at the time of taking over of the Tibbia College by the Delhi Government, old rules prior to such taking over would be made applicable in the case of the applicant in respect of their promotions as Reader; (b) the representations, already submitted by the applicants from time to time before the competent authority, i.e., before the Government of Delhi, would be considered by them in the light of (a) above within a period of four months from the date of receipt of the copy of this order; and (c) liberty is granted to the applicants to approach appropriate forum, if they still feel aggrieved after their representations are decided by the competent authority. The above judgement was challenged before the Delhi High Court. However, the Writ Petition was withdrawn by the Government of NCT of Delhi in the light of the amendment of 2006. The order dated 26.03.2007 of the Delhi High Court reads thus: Ms.Avnish Ahlwat learned counsel for the petitioner states that this writ petition has become infructuous owing to the Corrigendum dated 25.7.2006 issued by the Government of NCT of Delhi. The learned counsel for the Respondents has submitted that the issue stands settled by the Notification dated 4th December, 2006. The learned counsel for the Petitioner on the basis of the corrigendum dated 25th July,2006 seeks permission of the Court to withdraw the present writ petition. The writ petition is accordingly dismissed as withdrawn. 6. The learned counsel for the Applicant urged in his submissions that the Applicant had been promoted to the post of Reader much before the takeover of the College by the Government of NCT of Delhi and, therefore, in terms of the Delhi Tibbia College (Takeover) Act, 1997 and the amendment of 2006, adverted to above, the conditions of service of the Applicant, including the scales of pay, had to be protected. 7. The learned counsel for the Respondents would only contend that the Delhi Tibbia College (Takeover) (Amendment) Act, 2006 also provided that the pay and terms and conditions of service of an employee would be dealt with in accordance with the provisions of the Fundamental Rules, Supplementary Rules and other rules as applicable to the employees of the Government. It is for this reason that the scales of pay of the employees have been brought on par with the employees of the Government of NCT of Delhi. 8. The argument of the Respondents cannot be accepted because (a) the rights of the parties have already been decided by the Tribunal in its judgement dated 01.06.2005 in OA number 2688/2003 and the Respondents cannot now go beyond that; and (b) the amendment of Section 7 of Delhi Tibbia College (Takeover) Act, 1997 has to be read as a whole. Section 7 (2) clearly provides that the pay of the employees as on the appointed day shall be protected. These would be subject to Fundamental Rules, Supplementary Rules and other rules applicable to other employees of the Government. It would only mean that for the purposes of increment et cetera the rules mentioned in Section 7 (3) would apply. It would not mean that the pay of the employees of the College shall be brought to the level of the employees of the Government of NCT of Delhi. The Respondents cannot renege on the assurance given to the employees about pay protection in the Delhi Tibbia College (Takeover) Act, 1997 and the amendment of 2006. The interpretation put by the Respondents on Section 7 of the Delhi Tibbia College (Takeover) (Amendment) Act, 2006 is erroneous. 9. In the light of the above discussion the OA is allowed and the impugned order dated 29.05.2008 is quashed and set aside to the extent and in regard to the scales of pay mentioned in column number 4 of the Annexure-I. The Applicant would be eligible for the UGC scale of pay given to him before the takeover since 1988. The Respondents are directed to issue an amendment to the aforesaid order to the above extent within one month of the receipt of the certified copy of this order. If any recovery has been made from the Applicant, the same would be refunded to him within 15 days of passing of the above order amending the order dated 29.05.2008. There will be no orders as to costs. 10. A copy of this order may be placed in each of the OAs. ( L.K.Joshi ) ( V.K.Bali ) Vice Chairman (A) Chairman sk

he continued to work for a long period between 1985 to 1999 on the promoted post of rigger carrying a higher scale of pay, which was also a Group ‘C’ post. The said employee was however, regularized and absorbed in lower Group ‘D’ Post in 1999 although he had completed more than 20 years of service on higher Group ‘C’ post of rigger. On his repatriation, he claimed absorption and regularization on the higher Group ‘C’ post where he had worked on ad hoc basis for 20 years which claim was rejected and rejection of claim was up held by the Supreme Court. The Apex Court, however, protected the pay which he had last drawn before his repatriation from Group ‘C’ post to Group ‘D’ Post relying on the ratio of judgment in Inder Pal Yadav (supra). In case of respondent also, he worked as a mate in the Construction division for a long time before he was repatriated on 23rd June, 2001 to his substantive post in the parent division, petitioner No. 3. Applying the ratio of Inder Pal Yadav (supra) and Bhadei (supra), the respondent shall be entitled for protection of his pay which he had been drawing in Construction Division in the grade of Rs. 3050-4590 though on repatriation, he was given the scale of Rs. 2550-3600. In the circumstances, the plea of the learned counsel for the petitioner that though the respondent is working in Group ‘D’ post and he will not be entitled for the pay scale of Group ‘C’ post on which he had worked for a long time, cannot be accepted and the decision of the Tribunal on this WP(C) 3226 of 2007 Page 7 of 7 ground cannot be faulted on the ground as has been raised by the learned counsel for the petitioners. In the circumstances, learned counsel has failed to make out any such illegality, irregularity or such perversity in the order of the Central Administrative Tribunal, Principal Bench which has been impugned before us which shall necessitate any interference by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India. The writ petition, in the facts and circumstances is, therefore, without any merit and it is dismissed.

WP(C) 3226 of 2007 Page 1 of 7 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P. (C.) No.3226/2007 % Date of Decision: 28.04.2010 Union of India & Ors. …. Petitioner Through Mr. Satpal Singh, Advocate Versus Navrang Lal …. Respondent Through Nemo CORAM: HON’BLE MR. JUSTICE ANIL KUMAR HON’BLE MR. JUSTICE MOOL CHAND GARG 1. Whether reporters of Local papers may be allowed to see the judgment? YES 2. To be referred to the reporter or not? NO 3. Whether the judgment should be reported in the Digest? NO ANIL KUMAR, J. * The petitioners/Union of India through the General Manager, Northern Railway & Ors. have impugned the order dated 1st August, 2006 passed by the Central Administrative Tribunal, Principal Bench in OA 1821/2005 titled as Navrang Lal Vs. Union of India and Ors., allowing the application of the respondent for protection of his last drawn pay in the construction division before he was repatriated to his parent division with Northern Railways, Bikaner, Rajasthan. WP(C) 3226 of 2007 Page 2 of 7 Brief facts to comprehend the disputes are that the respondent was appointed as daily rated casual mate w.e.f. 11th January, 1977 in the scale of Rs. 210-270. Temporary status in the grade of 225-308 was granted to him and thereafter he was regularized as Gangman in Group-‘D’ post on 31st March, 1997. The respondent continued to work as a mate in Construction Division till he was repatriated to his substantial post in the parent division on 23rd June, 2001. After repatriation to the parent division, petitioner No. 3 sought protection of his pay on the basis of an order passed by the Tribunal in the matter of Liakat Ali Vs. Union of India & Ors. being OA 1917/2000 decided on 29th November, 2001 which order was confirmed by the High Court in WP(C ) No.-7417/2001 titled as Liakat Ali Vs. Union of India & Ors. by order dated 19th August, 2003. On the basis of the said decision of the Tribunal, which was confirmed by the High Court, the respondent claimed from the petitioner that in the Construction Division, he had a pay scale of Rs. 3050-4590 while on repatriation he was downgraded to the scale of Rs. 2550-3600. On failure of the petitioners to protect his pay of Rs. 3050-4590, the respondent filed an original application being OA No. 1821/2005. Before the Tribunal, the reliance was placed on behalf of the respondent to Bhadei Rai Vs. Union of India & Ors., (2005) 11 SCC 298, holding that though an employee who is repatriated may not be entitled for WP(C) 3226 of 2007 Page 3 of 7 regularization on higher group post, however, such an employee is entitled to relief of pay protection. The application before the Tribunal was contested by the petitioners on the ground that the original application was barred under the principal of res judicata as the respondent had earlier filed an original application being OA No. 1583/2001 assailing the order dated 26th March, 2001 whereby the respondent was repatriated as ad hoc mate in Construction Division to his parent division in a substantive post and the said OA was dismissed by order dated 23rd May, 2002. The petitioners had contended that pay protection ought to have been sought while challenging the order dated 26th March, 2001. The plea of the original application of the respondent being barred by principal of res judicata was repelled on the ground that in OA No. 1583/2001, pay protection was not sought by the respondent and what was sought was his repatriation as ad hoc mate in the Construction Division to his parent division and the plea that the respondent is entitled to be regularized as mate in the Construction Division. The Tribunal also held that had the original application No. 1583/2001 been allowed, the question of protection of pay would not have arisen and only after adjudication of the prayer against the repatriation from mate in the Construction Division to his substantive post, the question of pay protection has arisen. In the circumstances, it was held that the issue WP(C) 3226 of 2007 Page 4 of 7 of protection of pay after repatriation had arisen only after the prayer against the repatriation was finally decided. Since, the question of pay protection was not raised in the earlier petition which was filed against the repatriation and the said plea was not available to the respondent at that time nor the Tribunal had adjudicated about the pay protection in its order dated 23rd May, 2002, the subsequent original Application filed by the respondent for pay protection was not barred by the principal of res judicata. Since the pay protection was the subsequent cause of action, which could not be taken at the time of repatriation as it was challenged, the same is not even barred by the principal of constructive res judicata. The Tribunal relied on judgment of the Supreme Court in Bhadei Rai (supra) and Inder Pal Yadav Vs. Union of India, (2005) 11 SCC 301 and distinguished the decision cited by the petitioners, 1996 (1) ATJ 625 (SC) Union of India and Anr. Vs. Moti Lal & Ors. and has held that respondent’s pay which he last drew on the date when he was repatriated from Group-‘C’ post to Group ‘D’ post would be protected. The learned counsel for the petitioner has assailed the order of the Tribunal primarily contending that since the respondent is working in the Group-D post and so he is not entitled for the emolument of Group- ‘C’ post. WP(C) 3226 of 2007 Page 5 of 7 The learned counsel for the petitioner, is however, unable to distinguish the decision of the Supreme Court in the case of Inder Pal Yadav (supra) and Bhadei Rai I(supra). In Inder Pal Yadav (supra), the Apex Court had held that while the employees cannot be granted the relief that they should not be reverted to a lower post or if they have been promoted by reason having worked in the projects then they are entitled to continue in such projects, nevertheless, if such employees are directed to join their parent cadre or other project in future, while posted to their parent cadre or on such other projects they shall be entitled to the same pay as that of their contemporaries unless the posts held by such contemporary employees at the time of such reposting of such employees is based on selection. The Supreme Court had further held that it would be open to Railway Administration to utilize the services of such employees in the open line and they could for the purpose of determining efficiency and fitment take into account the trade tests which may have been passed by such employees as well as the length of service rendered by such employees in the different projects subsequent to their regular appointment. In Bhadei Rai (supra), the employee had started his services in the Railways at daily rate working as khallasi and he was conferred temporary status later on. That employee was also granted promotion on ad hoc basis to the post of rigger in the pay scale of 121-1500 and WP(C) 3226 of 2007 Page 6 of 7 he continued to work for a long period between 1985 to 1999 on the promoted post of rigger carrying a higher scale of pay, which was also a Group ‘C’ post. The said employee was however, regularized and absorbed in lower Group ‘D’ Post in 1999 although he had completed more than 20 years of service on higher Group ‘C’ post of rigger. On his repatriation, he claimed absorption and regularization on the higher Group ‘C’ post where he had worked on ad hoc basis for 20 years which claim was rejected and rejection of claim was up held by the Supreme Court. The Apex Court, however, protected the pay which he had last drawn before his repatriation from Group ‘C’ post to Group ‘D’ Post relying on the ratio of judgment in Inder Pal Yadav (supra). In case of respondent also, he worked as a mate in the Construction division for a long time before he was repatriated on 23rd June, 2001 to his substantive post in the parent division, petitioner No. 3. Applying the ratio of Inder Pal Yadav (supra) and Bhadei (supra), the respondent shall be entitled for protection of his pay which he had been drawing in Construction Division in the grade of Rs. 3050-4590 though on repatriation, he was given the scale of Rs. 2550-3600. In the circumstances, the plea of the learned counsel for the petitioner that though the respondent is working in Group ‘D’ post and he will not be entitled for the pay scale of Group ‘C’ post on which he had worked for a long time, cannot be accepted and the decision of the Tribunal on this WP(C) 3226 of 2007 Page 7 of 7 ground cannot be faulted on the ground as has been raised by the learned counsel for the petitioners. In the circumstances, learned counsel has failed to make out any such illegality, irregularity or such perversity in the order of the Central Administrative Tribunal, Principal Bench which has been impugned before us which shall necessitate any interference by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India. The writ petition, in the facts and circumstances is, therefore, without any merit and it is dismissed. ANIL KUMAR, J. April 28, 2010 MOOL CHAND GARG, J. ‘rs’

Central Excise Tarriff act, 1985-Chapter Heading 19.04 & 21.07 (remoulded as Chapter Heading 21.08 during AY 1996-97)-Assessee making `puffs' by swelling/roasting of cereals-Demand raised on accessee on ground of misdeclaration of product-Confirmed by authorities below as well as Tribunal-Main question required to be decided was whether the `puffs' would fall under Chapter Heading 19.04 or under Chapter Heading 21.07 (remoulded as Chapter Heading 21.08 during AY 1996-97)-But Tribunal gave no finding as to whether `puffs' would fall under the Chapter Heading 19.04-It did not consider various important issues questions-Matter remanded to adjudicating authority for fresh determination. Assessee manufactures `puffs' from cereals, namely wheat and soya nuts. The product is packed in unit containers and supplied to Integrated Child Development Scheme (ICDS) in Haryana. Department issued show cause notice raising demand on the assessee for mis-declaration of the said products as `chabena/prasad'. It was further alleged that the products were sold in the market under the brand name `bonton' as breakfast cereals, high in protein and low in cholesterol and also sold to five star hospitals and public schools. In the circumstances, the assessee was asked to pay Rs.2.31 crores as duty. The demand was confirmed by the authorities below as well as the Tribunal. Hence the present appeal.

Allowing the appeal, the Court HELD: 1.1. The `puffs' prepared from cereals cannot fall within the item `Prasad/prasadam'. To that extent the impugned order of adjudication is acceptable. [Para 8] [394-E] 1.2. The main question required to be decided was whether `puffs' made from cereals would at all fall under Chapter Heading 19.04 or whether they would fall under Chapter Heading 21.07 (remoulded as Chapter Heading 21.08 during the Assessment Year 1996-97). In the entire discussion in the impugned judgment there is no finding given by the Tribunal as to whether `puffs' prepared from cereals would fall under the Chapter Heading 19.04. As far as `puffs' prepared from soya nuts are concerned there is no finding as to the quantity of puffed soya nuts sold by the assessee during the requisite period of ICDS, Haryana and the quantity of the said product sold by the assessee during the same period to public schools and five star hospitals. There is also no finding as to whether `puffed soya nuts' were supplied to ICDS, Haryana under the brand name `bonton' or whether they were supplied without any brand name being affixed to the unit containers. These questions are important since the entry 2108.91 refers to nil rate of duty for "Other Edible Preparations" as long as the product is supplied without a brand name. These questions are also important to be decided particularly since the General Exemption No.83 states that the benefit of exemption shall be given only if the product is a soya based food preparation for infant use. According to the assessee puffed soya nuts is a soya based food preparation under item No.25 of the Notification No.2 of 1994 (General Exemption No.83). According to the assesee puffed soya nuts were supplied to the schools under ICDS programme. None of the questions have been decided. [Para 9 and 11] [394-E, F; 396-B-E] 2. In the circumstances, the judgment of the Tribunal is set aside and the matter is remanded to the adjudicating authority for fresh determination in accordance with law. [Para 12] [396-E, F] A.R. Madhav Rao, Alok Yadav and M.P. Devnath for the Appellant. V. Shekhar, C.K. Sucharita and B.K. Prasad for the Respondent. , 2007(5 )SCR389 , 2007(9 )SCC32 , 2007(6 )SCALE22 , 2007(8 )JT338 CASE NO.: Appeal (civil) 654 of 2002 PETITIONER: M/s. Adhunik Food Products (P) Ltd., U.P. RESPONDENT: Commissioner of Central Excise, Meerut DATE OF JUDGMENT: 20/04/2007 BENCH: S.H. KAPADIA & B.SUDERSHAN REDDY JUDGMENT: J U D G M E N T KAPADIA, J. A short point which arises for determination in this civil appeal is : whether 'puffs' obtained by the swelling or roasting of cereals constitute preparations of cereals under Chapter Heading 19.04. According to the appellant 'puffs' from cereals fall under Chapter Heading 21.07 (Edible preparations). The assessee manufactures 'puffs' from cereals namely wheat and soya nuts. The said product is packed in unit containers and supplied to Integrated Child Development Scheme (for short 'ICDS') in Haryana. On 21.3.1997 a show-cause notice was issued by the Department raising a demand on the assessee for mis-declaration of the said products as 'chabena/prasad'. In the said show cause notice it was further alleged that the products were sold under the brand name 'bonton'. Under the said show cause notice it was also alleged that the said 'puffs' were sold in the market as breakfast cereals, high in protein and low in cholesterol. It was further alleged that the said products were sold to five star hospitals and public schools. In the circumstances the assessee was called upon to pay to the Department Rs.2.31 crores as duty for the aforesaid period. This demand has been confirmed by the authorities below as well as by the Tribunal. Hence this civil appeal. In this case we are concerned with two sets of the same entry since the show cause notice covers the period of 5 years between 1992-93 to 1996-97. For the period 1994-95 we quote hereinbelow Chapter Heading 19.04 "CHAPTER 19 PREPARATIONS OF CEREALS, FLOUR, STARCH OR MILK; PASTRY COOKS' PRODUCTS Notes: 1. xxx xxx xxx 2. Heading No.19.04 does not cover preparations containing more than 8% by weight of cocoa powder or coated with chocolate or other food preparations containing cocoa of Chapter 18. Heading No. Sub- heading No. Description of goods Rate of duty (1) (2) (3) (4) 19.04 Prepared foods obtained by the swelling or roasting of cereals or cereal products (for example, corn flakes); cereals, other than maize (corn), in grain form, pre- cooked or otherwise prepared 1904.10 Put up in unit containers and ordinarily intended for sale 10% 1904.90 Other Nil For the same period we quote hereinbelow Chapter Heading 21.07: "CHAPTER 21 MISCELLANEOUS EDIBLE PREPARATONS Notes : 1 to 4. xxx xxx xxx 5. Heading No.21.07, inter alia, includes: (a) protein concentrates and textured protein substances; (b) preparations for use, either directly or after processing (such as cooking; dissolving or boiling in water, milk or other liquids), for human consumption; (c) preparations consisting wholly or partly of foodstuffs, used in the making of beverages or food preparations for human consumption; (d) powders for table creams, jellies, ice- creams and similar preparations, whether or not sweetened; (e) flavouring powders for making beverages, whether or not sweetened; (f) peanut butter; (g) preparations consisting of tea or coffee and milk powder, sugar and any other added ingredients; (h) preparations (for example, tablets) consisting of saccharim and a foodstuff, such as lactose, used for sweetening purposes; (i) pre-cooked rise cooked either fully or partially and their dehydrates; and (j) preparations for lemonades or other beverages, consisting, for example, of flavoured or coloured syrups, syrup flavoured with an added concentrated extract, syrup flavoured with fruit juices and concentrated fruit juice with added ingredients. (emphasis supplied) Heading No. Sub- heading No. Description of goods Rate of duty (1) (2) (3) (4) 21.07 Edible preparations, not elsewhere specified or included 2107.10 Prasad or prasadam Nil 2107.20 Sterilised or pasteurized miltone Nil Other: 2107.91 Put up in unit containers and ordinarily intended for sale 50% 2107.99 Other 50% At this stage it may be noted that Chapter sub- heading 2107.91 during the relevant period attracted 50% duty. However, the effective rate of duty was nil in view of general exemption No.83 (item No.25) of the Notification No.2/1994 dated 1.3.1994. We quote hereinbelow item No.25 of General Exemption No.84 vide Notification No.2/1994. "GENERAL EXEMPTION NO.83 Effective rate of duty for certain specified goods of Chapters 4 to 22 In exercise of the powers conferred by sub- section (1) of section 5A of the Central Excises and Salt Act, 1944 (1 of 1944), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts goods specified in column (3) of the Table hereto annexed and falling under the Chapter or sub-heading No. of the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), specified in the corresponding entry in column (2) of the said Table, from so much of the duty of excise leviable thereon which is specified in the said Schedule, as is in excess of the amount calculated at the rate specified in the corresponding entry in column (4) thereof. Heading No. Sub- heading No. Description of goods Rate of duty (1) (2) (3) (4) 25 2107.91 (i) Soya textured protein, Soya yoghurt, soya tofu, soya based food preparations for infant use, soya milk powder, soya noodles, soya macaroni and soya tempeh, whether or not containing other food ingredients but not containing cocoa; (ii) Powders of fruitsand vegetables; (iii) Papad, idli-mix, vada- mix, dosa-mix, jalebi-mix, gulabjamun-mix or namkeens, such as bhujyia, chabena. Nil Heard learned counsel on both sides. In the present matter the show cause notice concentrated more on the denial of exemption claimed by the assessee, than the classification. We may make it clear that the 'puffs' prepared from cereals cannot fall within the item 'Prasad/prasadam'. To that extent we are in agreement with the impugned order of adjudication. The main question which was required to be decided was whether 'puffs' made from cereals would at all fall under Chapter Heading 19.04 or whether they would fall under Chapter Heading 21.07 (remoulded as Chapter Heading 21.08 during the Assessment Year 1996-97). For the sake of clarity we also quote hereinbelow the remoulded Chapter Heading 21.08. "CHAPTER 21 MISCELLANEOUS EDIBLE PREPARATONS Notes : 1 to 8. xxx xxx xxx 9. Heading No.21.08, inter alia, includes: (a) protein concentrates and textured protein substances; (b) preparations for use, either directly or after processing (such as cooking; dissolving or boiling in water, milk or other liquids), for human consumption; (c) preparations consisting wholly or partly of foodstuffs, used in the making of beverages or food preparations for human consumption; (d) powders for table creams, jellies, ice- creams and similar preparations, whether or not sweetened; (e) flavouring powders for making beverages, whether or not sweetened; (f) peanut butter; (g) preparations consisting of tea or coffee and milk powder, sugar and any other added ingredients; (h) preparations (for example, tablets) consisting of saccharim and a foodstuff, such as lactose, used for sweetening purposes; (i) pre-cooked rise cooked either fully or partially and their dehydrates; and (j) preparations for lemonades or other beverages, consisting, for example, of flavoured or coloured syrups, syrup flavoured with an added concentrated extract, syrup flavoured with fruit juices and concentrated fruit juice with added ingredients. Heading No. Sub- heading No. Description of goods Rate of duty (1) (2) (3) (4) 21.08 Edible preparations, not elsewhere specified or included 2108.10 Preparations for lemonades or other Beverages intended for use in the manufacture of Aerated Water 40% 2108.20 Sharbat 20% 2108.30 Prasad or Prasadam Nil 2108.40 Sterilised or pasteurized miltone Nil Other: 2108.91 Not bearing a brand name Nil 2108.99 Other 20% In the entire discussion in the impugned judgment there is no finding given by the Tribunal as to whether 'puffs' prepared from cereals would fall under the Chapter Heading 19.04. As far as 'puffs' prepared from soya nuts are concerned there is no finding as to the quantity of puffed soya nuts sold by the assessee during the above period to ICDS, Haryana and the quantity of the said product sold by the assessee during the said period to public schools and five star hospitals. There is also no finding as to whether 'puffed soya nuts' were supplied to ICDS, Haryana under the brand name 'bonton' or whether they were supplied without any brand name being affixed to the unit containers. These questions are important since the entry 2108.91 refers to nil rate of duty for "Other Edible Preparations" as long as the product is supplied without a brand name. These questions are also important to be decided particularly since the General Exemption No.83 states that the benefit of exemption shall be given only if the product is a soya based food preparation for infant use. According to the assessee puffed soya nuts is a soya based food preparation under item No.25 of the Notification No.2 of 1994 (General Exemption No.83). According to the assessee puffed soya nuts were supplied to the schools under ICDS programme. None of the questions have been decided. In the circumstances, we set aside the impugned judgment of the tribunal and remand the matter to the adjudicating authority for fresh determination in accordance with law. The appeal is accordingly allowed with no order as to costs.