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PETITIONER: CHANDRESHWAR NARAIN DUBEY AND ORS.

       Vs.

RESPONDENT: UNION OF INDIA AND OTHERS

DATE OF JUDGMENT:       14/08/1998

BENCH: SUJATA V. MANOHAR, S. RAJENDRA BABU

ACT:

HEADNOTE:

JUDGMENT:                             WITH          CIVIL APPEAL NOS. 4570-4571/96 & 4572/1996                       J U D G M E N T Rajendra Babu, J.      These three  sets of  appeals arise  out of  the orders made  by  the  Central  Administrative  Tribunal  (Principal Bench). The  appellants  herein  are/were  employed  in  the pension paying offices attached to the respective Ministries in the  Embassy of  India at  Nepal. Writ petitions had been preferred  before   this  Court  under  Article  32  of  the Constitution  and   on  the  establishment  of  the  Central Administrative  Tribunal,   this  Court   transferred  these petitions for  its consideration  by an  order made  on  3rd November, 1992  in W.P. No. 591 of 1987, 903 of 1988, 620 of 1991 and 181 of 1987.      In Civil  Appeal No.  4569 of  1996,  there  are  three appellants and  they  were  recruited  by  the  Ministry  of Defence, Government  of India  in Nepal  and posted  in  the Pension Pay Office at Pokhran. While the first appellant was appointed as  a lower division clerk on 24.7.1972, appellant No. 2  was appointed  on 21.10.1964  and appellant  No. 3 on 2.9.1985. Thus  at the  time of  filing  of  these  appeals, appellant No.  1 had  put in 20 years service, appellant No. 2, 29 years and appellant No. 3, 8 years of service in their respective offices.  They claim  for confirmation  in  their posts  and   for  parity   in  emoluments,   paid  to  their conterparts designated  as India Based Employees inasmuch as both of them were performing identical works and employed in the same establishment.      In  Civil  Appeal  No.  4570  of  1996,  there  are  28 appellants and  they are Nepali nationals recruited in Nepal on different  dates. They also seek for identical reliefs as in Civil as in Civil Appeal Nos. 4569 of 1996, 4571/1996.      In  Civil  Appeal  No.  4571  of  1996,  there  are  29 appellants, while  appellants  24,  26  and  27  are  Indian citizens rest of them are nepali nationals. Appellant No. 28 though a Nepali national is recruited in India and posted in Nepal. A  claim is made on behalf of 32 others whose details are mentioned  in Annexure  I but they were not impleaded as parties. On transfer of the proceedings to the Tribunal, the

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Tribunal did  not choose  to treat  them  as  party  to  the proceedings before  it. These 32 persons have not challenged the said  orders made by the Tribunal although such an order had been  made adverse  to them.  Hence we do not propose to consider their  cases. The rest of the appellants apart from claiming the  benefit as  has been done by the appellants in C.A. No.  4569 and  4570 of  1996,  also  claim  that  their termination  is   illegal  and   that  they  deserve  to  be reinstated in service.      C.A. No. 4569 and 4571/1996      ------------------------------      We shall first take up for consideration the claim made by the appellants in this appeal for parity of pay and other benefits. A  contention had  been raised before the Tribunal that the  appellants cannot claim equality as provided under Article 14  of the  Constitution inasmuch  as the appellants are all  posted outside  the country  and  there  cannot  be enforcement of  the Constitution  inasmuch as the appellants are all  posted outside  the country  and  there  cannot  be enforcement of  the Constitution outside India. The tribunal took the view that the Pension paying office at Nepal cannot be treated  to be an extension of the territory of India for the  purpose   of  Article   14  of  the  Constitution  and, therefore, the  appellants cannot  invoke the same. However, we do  not propose to examen the correctness of this view in these proceedings as we propose to examine the merits of the matter and decide the same.      The Tribunal  based its  decision on the enunciation of law made  by this  Court in Air India vs. Nergesh Meerza AIR 1981 SC 1829, which is as follows: -      " a)  the nature,  the mode and the      manner   of    recruitment   of   a      particular category  from the  very      start.      b)  the   classifications  of   the      particular category.      c)  the  terms  and  conditions  of      service  of   the  members  of  the      category.      d) the  nature and character of the      posts and promotional avenues.      e) the  special attributes that the      particular category  possess  which      are  not   to  be  found  in  other      classes, and the like. "      On the  basis of these tests, the Tribunal examined the cases of  appellants and  held that  the appellants  who are locally recruited in Nepal cannot claim as a matter of right parity of  pay-scale  with  their  counter-parts  in  India. Classification between  locally recruited employees in Nepal and India  Based employees  in Pension  paying Offices  is a valid classification.  However,  the  Tribunal  allowed  the claim  to   the  extent  of  declaring  that  those  of  the appellants who  had been confirmed in various posts pursuant to order  dated 20th  March, 1972,  shall be  demand  to  be confirmed  employees  and  shall  be  entitled  to  benefits flowing from  there as  are admissible  to locally recruited employees who are confirmed.      Civil Appeal No. 4572 of 1996      ------------------------------      In this  appeal, apart from the claims regarding paying of pay-scales  and other  monetary benefits,  the appellants claim for  quashing the respective orders made in respect of the appellants terminating their services while the Tribunal reiterated its view on the claim regarding the parity of pay

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and other  emoluments. It  held that termination of services of  appellants   Nos.1  ,   2  and  4  was  justified  while termination of  services of 3rd, 5th and 29th appellants was set aside  with the  direction  a  that  in  Liew  of  their reinstatement, should be given to the tune of six months pay to each one of them on the basis of pay they were getting on the  date  of  termination  and  their  services  in  nepali currency. At  the time  of consideration  of the matter, the appellants did  not press  their claim  regarding the relief for similar  pay and  other benefits and gave up their claim and the  Tribunal reserved  that part  of  the  case  to  be agitated in  appropriate forum.  The Tribunal found that the appellants had  all been  appointed to  temporary posts  and their services could be terminated at any time. While in the case of  respondents Nos. 1,2 and 4, it was noticed that the orders of  termination merely stated that their services had been terminated  with effect from 31.12.1986 or 1.1.1987. In case of  others wherein it was indicated that their services had been  terminated on  disciplinary grounds,  but  without holding an  enquiry, it  was held  that  the  same  was  not permissible as such orders would cast a stigma on the career of the  appellants. Therefore, their services could not have been terminated  in that  manner and  thus,  set  aside  the directions with a compensation as stated above.      The Tribunal  has examined  the conditions  of services applicable to  the appellants  right from  the inception and has found that the locally recruited candidates in Nepal and those that  were recruited  in India  and sent on deputation stood in  two different  classes. The Tribunal also found on facts that there were good reasons to treat them differently considering the  exigencies of service and the circumstances in which  the appellants  in these cases had been recruited. The appointments  were purely temporary to serve a temporary purpose  to  off  set  the  extra  load  of  work  in  their respective offices  and in their very nature could not claim to become  permanent. Apart  from this  fact,  it  was  also noticed that the said posts are not transferable while those recruited in  India and  deputed in  different Ministries in Nepal were liable to be transferred anywhere in the country. The conditions in similar employment prevalent in India were not the  conditions in  Nepal, and therefore, the terms upon which they  ere appointed  were found  to be  reasonable. In these circumstances,  if the  Tribunal found  that the tests laid down in Nergesh Meerza’s case to which we have adverted to earlier  are satisfied  in these  cases, we  do not think there is  any merit in these appeals so far as the claim for parity in pay and pension is concerned.      As regards the order made by the Tribunal in respect of termination of  services of  the  appellants  is  concerned, again we  may state  that the  Tribunal had noticed that the appellants had  not ben  recruited on a permanent basis, but are purely  employees whose  services could be terminated at any time,  but in  doing so  bore in  mind the circumstances available to  each one  of the  appellants under which their services were  terminated. While  in the case of some, where the order was termination simplicitor, the Tribunal held the same as  valid and  in  case  of  others,  grounds  such  as disciplinary or  others reasons  were set  out the  same was held to  attach stigma  to such  persons and  therefore, set aside  the   termination,  but   in  lieu   thereof  granted compensation. The  Tribunal has  adopted a rational basis in dealing with the matter. We do not think there is any reason to interfere with the order made by the Tribunal.      In the  result, these  appeals stand  dismissed.  There shall be no order as to costs.

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