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