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CASE NO.: Appeal (civil)  4449 of 1997

PETITIONER: Superintending Engineer & Ors.                           

RESPONDENT: A. Sankariah                                                      

DATE OF JUDGMENT: 17/10/2003

BENCH: Ashok Bhan & Dr. AR. Lakshmanan.

JUDGMENT: J U D G M E N T

BHAN, J.

       The respondent herein was appointed as Junior Engineer in the  Dandakarnya Development Authority on 30.5.1980 in the pay scale of Rs.  425-700.  Subsequently, he was declared surplus in the said project.  With a  view to mitigate the hardship which would result from such retrenchment of  employees, a scheme for re-deployment of surplus staff was formulated by  the Government of India vide Ministry of Home Affairs, O.M. No. 3/27/65- CSII dated 25.2.1966 to provide facility for re-deployment/alternative  placement in other Government Offices where suitable vacancies exist.   While the re-deployment of surplus staff was treated as transfer in public  interest for specific purposes like transfer-TA, joining time, joining time  pay, leave and pension, the surplus staff was treated as fresh entrants in the  new office for the purpose of seniority and seniority based matters in that  office.

       In view of the above O.M. respondent was offered an appointment in  CPWD as Junior Engineer which he jointed on 19.8.1988 as a fresh entrant.   In the letter of appointment it was specifically stated that the appointment  will take effect from the date he actually joins the duty.  That he would be on  probation for a period of 2 years and required to pass a departmental  examination in simple accounts within two years from the date of  appointment and in the event of his failure to pass the said test within the  stipulated time the second increment and future increment would be  withheld till he passes the test.  The appointment was temporary and liable  to be terminated at any time by giving one month’s notice.  That he would  not be granted the benefit of past service rendered by him prior to  deployment for the purposes of seniority.     

       Directorate General of Works, Central Public Works Department vide  O.M. No. A-11014/1/91EC /VI dated 27.3.1991 took a decision that with  effect from 1.1.1986 the Junior Engineers (Civil and Electrical) and the  Section Officers (Horticulture) of  CPWD on their completion of 5 years  service in the entry grade pay scale of Rs. 1400-40-1800-EB-50-2300 (Pre- revised pay scale of Rs. 425-15-500-EB-15-500-20-700) may be placed in  the higher grade pay scale of Rs. 1640-60-2600-EB-75-2900 subject to the  rejection of unfit and vigilance clearance by the DPC.  In order to clarify that  the benefit of past service rendered prior to deployment would not be  counted for fixation of revised pay scales as per OM dated 27.3.1991 the  Directorate General of Works, Central Public Works Department, issued  O.M. No. A-26017/4/91/EC /VI dated 16.8.1991 clarifying that the Junior  Engineers re-deployed in the CPWD shall not be entitled to take the benefit  of past service for getting the benefit of two higher pay scales vide Memo  dated 27.3.1991 as the same benefit was not admissible to the CPWD Junior

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Engineers who were senior to them with less than 5/15 years service.   Relevant extract of O.M. dated 16.8.1991 is reproduced below:

"The matter has been considered and it has been  observed that according to the instructions  contained in the scheme of re-deployed staff issued  by the Government from time to time the re- deployed staff are treated as fresh entrants in the   new offices/organisations for the purpose of fixing  their seniority and they are placed below the  employees who have already joined the new  offices/organisations wherein they count the date  of their seniority from the date of  joining/confirmation.  The intention behind the  policy is that the benefit of past service should be  allowed to them where it does not adversely affect  the interest of the employees already senior in the  office/organisation to which they are re-deployed.   It has, therefore, been decided that the Junior  Engineer’s re-deployed in the CPWD are not  entitled to the past service benefit for getting the  benefit of the two higher pay scales vide this  Directorate O.M. No. A 11014/1/91/EC/VI dated  27.3.1991 as the same benefit is not admissible to  the CPWD Junior Engineers who are senior to  them with less than 5/15 years service."

       O.M. dated 27.3.1991 was to work out as under:

(a)     Rs. 1400-40-1800-EB-50-2300 â\200\223 At the entry stage.

(b)     Rs. 1640-60-2600-EB-75-2900  - after completion of 5 years of     service in the entry grade effective from 1.1.1996.

(c)     Rs. 2000-60-2300-EB-75-3200-100-3500 â\200\223 After completion of  15 years service effect from 1.1.1991.

The Department  of CPWD being of the opinion that on re- deployment the respondent joined the CPWD as Junior Engineer (Civil) on  19.8.1988 as a fresh entrant became eligible for the grant of higher scale of  pay of Rs. 1640-2900 after completion of 5 years in CPWD, gave him the  benefit of higher pay scale on 19.8.1993, i.e., on completion of 5 years of  service in the CPWD.    

       Respondent feeling aggrieved against the order granting the benefit of  higher pay scale w.e.f. 19.8.1993 filed O.A. No. 929 of 1995 before the  Central Administrative Tribunal, Hyderabad Bench, hereinafter referred to  as "the Tribunal", claiming that his past service in Dandakarnya  Development Authority should have been taken into account for fixation of  higher pay scale w.e.f. 19.8.1988.  Appellant in its written statement took the  stand that for the eligibility of higher pay scale the period of service  rendered in the Dandakarnya Development Authority could not be counted  for giving higher pay scale.   For fixation higher scale of pay as per O.M.  dated 27.3.1991, the only service, which could be counted was the service  rendered in the CPWD.

Tribunal following the judgment and order in OA No. 2241 of 1991  allowed the OA filed by the respondent.  Against the order in OA No. 2241  of 1991 the appellant had filed special leave petitionâ\200¦ CCP 328 of 1993

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(Union of India Vs. R.S. Saini) in this Court but the same was dismissed on  the ground of delay on 30.11.1993.   Since CCP 328 of 1993 in OA No.  2241 of 1991 was not disposed of on merits the appellant filed Special Leave  Petition No. 421 of 1996 in this Court against the judgment and order in OA  No. 929 of 1995 (filed by the respondent) which was disposed of on  10.9.1996 by observing that since this Court had not disposed of the special  leave petition â\200¦CCP 328 of 1993 in OA No. 2241 of 1991 on merits the  decision rendered by this Court could not be taken as a precedent.    The  special leave petition was disposed of reserving liberty with the appellant to  file a review before the Tribunal within a period of 30 days.  Thereafter the  appellant filed Review Application No. 88 of 1996 before the Tribunal  which has been dismissed by the impugned order.  It was held that:

"It clearly appears to us that the provisions of OM  dated 27.2.1991 which speak of the requirement of  completed 5 years of service in the grade mean the  entry into the pay scale of Rs. 1400-2300 including  pre-revised scale Rs. 425-700 and it has no  reference to the post in which the employee has  been re-deployed or to the post he was holding  earlier under the Dandakarnya Project.  Admittedly  the applicant was in that pay scale at any rate since  prior to 1983 and he had completed 5 years in that  grade which was the entry grade by the date on  which he was re-deployed i.e. on 19.8.1988.  In  our view it would not be correct interpretation to  be placed on the OM to read the length of period  of 5 years as from the date of entry in the  redeployed post.  The applicant thus having  fulfilled the requisite condition to get the scale of  pay of Rs. 1640-2900 w.e.f. 19.8.1988 as held in  the order under the review we see no reason to  hold that there is an error apparent on the fact of  the record or even otherwise any legal error  therein. "

       Aggrieved by  the order passed by the Tribunal the appellant has come  up in this appeal.

       Learned counsel for the parties have been heard at length.

       In O.M. dated 25.2.1966 providing facility for re-deployment/  alternative placement of the retrenched employees in other Government  Offices it was specifically mentioned that re-deployment of surplus staff was  treated as transfer in public interest for the specific purposes like transfer- TA, joining time, joining time pay, leave and pension, but,  for all other  intents and purposes,  the surplus staff on re-deployment  would be treated  as a fresh entrant in the service of the new department.  The purpose behind  this was not to disturb the seniority of the persons who were already working  in the equivalent post in that department.  This fact is re-enforced by the  subsequent O.M. dated 16.8.1991 wherein it is mentioned that the intention  behind the policy was that the benefit of past service could not be allowed to  re-deployed employees so as not to affect the interest of the employees  already senior in the office/organisation in which they are re-deployed. O.M.  dated 16.8.1991 was issued to clarify that the Junior Engineers re-deployed  in the CPWD are not entitled to the  past service benefit for getting the  benefit of two higher pay scales as the same benefit was not admissible to  the CPWD Junior Engineers who are senior to them with less than 5/15  years service.

 If the OM dated 27.3.1991 is understood and interpreted in the  manner it has been done by the Tribunal, it would create an anomalous  situation. Juniors in service would get higher pay than their seniors.  For

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instance, a person recruited fresh from the open market in the service of  CPWD as a Junior Engineer in the year 1987 would get the benefit of higher  grade in terms of O.M. dated 27.3.1991 in the year 1992 whereas the re- deployed Junior Engineer who joined the CPWD in the year 1988 and  placed junior to the person who joined in the year 1987, would get the  benefit of higher scale of pay under the O.M. on the basis of the past service  rendered by him earlier to the person senior to him.  Precisely to avoid such  a situation, in the policy framed for the re-deployment of the surplus staff, it  was made clear that the re-deployed staff in the new department would be  treated as a fresh entrant and the service rendered by him in the previous  department would not be counted towards seniority.  Appointment on  deployment was to be  treated as on transfer only for specified purposes like  transfer-TA, joining time, joining time pay, leave and pension only.  The  Tribunal while interpreting the O.M. dated 27.3.1991 held that respondent’s  past service in Dandakarnya Development Authority was to be counted for  fixation the higher pay scale, without considering the fact that respondent’s  re-deployment in the CPWD w.e.f. 19.8.1988 was totally a fresh  appointment.   O.M.dated 27.3.1991 was issued by the Department of CPWD to give  the benefit of higher pay-scale/revised pay scale to its Junior Engineers on  completion of 5 years of service in CPWD for the entry grade pay scale of  Rs. 1400-40-1800-EB-50-2300 (Pre-revised pay scale of Rs. 425-15-500- EB-15-500-20-700) which could not be given to an employee who was taken  on re-deployment in the CPWD who was working in the pre-revised pay  scale of Rs. 425-15-500-EB-15-500-20-700, as they had not completed 5  years of service in the department of CPWD.  The benefit of revised pay  scale could be given only on completion of 5 years of service in the CPWD  in the entry grade pay scale of Rs. 1400-40-1800-EB-50-2300.  Respondent  could not be given for the benefit of working  in the pre-revised scale of Rs.  425-15-500-EB-15-500 -20-700 in his previous department. The emphasis in  the O.M. was for the service of 5 years rendered in the CPWD and not for  working in a particular grade in his service career, as has been understood by  the Tribunal.  Tribunal has proceeded as if this benefit was given to a person  who had rendered service in a particular grade in his service career including  some other department.  In our opinion, in the O.M. the emphasis was to  give benefit to the Junior Engineers working in the CPWD of a higher grade  on their completion of 5 years of service.  The respondent was to be treated  as a fresh entrant and the benefit of the  O.M. dated 27.3.1991 could be  given to him on completion of 5 years of service in CPWD from the date of  his joining the CPWD.

       On re-deployment the respondent joined the service in the CPWD as  Junior Engineer on 19.8.1988 as a fresh entrant and in the offer of  appointment dated 11.8.1988 it was clearly stipulated that his re-deployment  in the CPWD will not get the benefit of his past service in Dandakarnya  Development Authority and his seniority in CPWD will be reckoned from  the date of his actual joining the CPWD as Junior Engineer.  He had  accepted this offer and joined the Junior Engineer in terms of letter of re- deployment in the CPWD.  In case the interpretation put by the Tribunal is  accepted the very purpose of putting the term mentioned in the letter of  appointment that on re-deployment the employee would not get the benefit  of his past service would be nullified.  This would go against the express  condition contained in the policy as well as in the letter of appointment to  the respondent.  It was not an appointment by way of transfer as has been  understood by the Tribunal.  It was a fresh appointment for all intents and  purposes but in order to give certain specified benefits like transfer-TA,  joining time, joining time pay, leave and pension the re-deployment was  treated as transfer in public interest and not for any other purpose.   

Since the respondent had not completed 5 years of service in CPWD  in terms of O.M. dated 27.3.1991 he could not claim the benefit of  O.M.dated 27.3.1991 from the date he joined the CPWD.  He could claim  the benefit only after completion of 5 years of service in the CPWD.   It has  to be appreciated that re-deployment of the respondent in the CPWD was  only with a view to mitigate the hardship caused to him by his retrenchment

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from service in Dandakarnya Development Authority project.  It was to  protect his retrenchment from service.  As per the terms of the policy and the  letter of appointment, his re-deployment in the CPWD was to be treated as a  fresh employment.  His past service rendered in Dandakarnya Development  Authority could not be counted for extending the benefit of O.M. dated  27.3.1991.

       For the reasons stated above, the appeal is accepted and the order of  the Tribunal is set aside.  It is held that the respondent would be entitled to  the benefit of the O.M. dated 27.3.1991 only after completion of 5 years of  service as Junior Engineer in the CPWD.  There will be no order as to costs.