IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.967 OF 2007

Rameshwar Dayal         …. Appellant     Versus

Indian Railway Construction Co. Ltd. & Ors. …. Respondents

WITH CIVIL APPEAL NO.968 OF 2007

Ranjit Sinha (Deceased Through  LRs Mrs. Anjana Sinha …. Appellant

Versus Indian Railway Construction Co. Ltd. …. Respondent

WITH CIVIL APPEAL NO.969 OF 2007

Rakesh Ratti Kapoor …. Appellant Versus

Indian  Railway Construction Co. Ltd. …. Respondent

J U D G M E N T

CHANDRAMAULI KR. PRASAD, J.

1. All these appeals arise out of a common judgment dated  

14th February, 2006 passed by the Division Bench of the Delhi  

High Court in LPA Nos.189 of 2000, 289-290 of 2000 and 294

of  2000,  whereby  the  appeals  of  the  appellants  have  been  

dismissed and the appeal preferred by the respondent against  

the common judgment of the learned Single Judge dated 3rd  

March, 2000 in C.W.Nos.2296, 2297 and 2298 of  1995 has  

been allowed.

2. Short  facts  giving  rise  to  the  present  appeals  are  

that   in   the   month  of   March,  1982 respondent  Indian  

Railway Construction Company Limited (hereinafter referred to  

as the  ‘IRCON’)  a  Government   of   India  Undertaking was  

awarded two  railway  projects in Algeria. In June, 1982 the  

respondent inducted Ranjit  Sinha appellant (since deceased)  

in Civil Appeal No.968 of 2007, a temporary employee of the  

Council of Scientific Industrial Research as French Translator  

in  the  pay  scale  of  Rs.700-1200.  On  18th February,  1984  

IRCON advertised four posts of French Translator out of which  

two were for General Category and one each reserved for the  

members  of  the  Scheduled  Castes  and  Scheduled  Tribes.  

Rameshwar Dayal (appellant in Civil Appeal No.967 of 2007)  

offered  his  candidature  as  Scheduled  Caste  candidate.

Rameshwar Dayal was selected for appointment and he joined  

the Corporate Office of IRCON as a French Translator in the  

pay  scale  of  Rs.550-750  on  10th June,  1985,   in  terms  of  

appointment  letter  dated 4th June,  1985.  On submission  of  

testimonials Rameshwar Dayal was allowed the scale of pay of  

Rs.700-1200 with effect from 25th July, 1985. Other posts of  

French Translators which were advertised on 18th February,  

1984  were  filled  up  by  regularizing  the  services  of  Ms.  

Jayshree  Krishnaswamy,  Rakesh  Ratti  Kapoor  (appellant  in  

Civil  Appeal  No.969  of  2007)  and  one  Ashit  Saha.  On  4th  

October,  1985  appellant  Rameshwar  Dayal  and  said  Ms.  

Jayashree  Krishnaswamy  were  nominated  to  be  sent  to  

Algeria.  Appellant Rameshwar Dayal signed the contract for  

assignment to Algeria for one year and also signed the Bond to  

serve  the  IRCON on his  return from Algeria  for  double  the  

period of his assignment in Algeria, subject to maximum five  

years. Appellant Rameshwar Dayal joined the project office in  

Algeria on 17th November, 1985. In the balance-sheet of the  

profit and loss account and annual report for the year 1986-87  

submitted to the Registrar of Companies appellant Rameshwar

Dayal  was  shown  as  a  permanent  employee  and  the  

emoluments of the employees in Indian Rupees by converting  

at the rate of exchange prevalent at the end of the financial  

year.  Appellant  Rameshwar  Dayal  realised  that  he  is  being  

paid less emoluments than what he was entitled as per Board  

Resolution of  1982 and accordingly  filed  representation but  

the same did not yield any result.

3. The  post  of  French  Translator  was  re-designated  as  

Assistant  Manager  (Language)  by  order  dated  12th January,  

1988 and posts of Deputy Manager (Language) were created in  

the  pay  scale  of  Rs.1100-1600.  According  to  the  appellant  

Rameshwar  Dayal  one  of  the  said  two  posts  of  Deputy  

Manager(Language) ought to have been filled up by a member  

of the reserved category but without considering his case and  

de-reserving the posts IRCON promoted two persons, namely,  

Dr.  Ranjit  Sinha(appellant  in  Civil  Appeal  No.968  of  2007)  

and  Ms.  Poonam  Bhowmick.  Appellant  Rameshwar  Dayal’s  

pay was revised by order dated 14th November, 1990 in the pay  

scale of Rs.2000-3500. It is his grievance that his scale of pay

ought to have been revised in the pay scale of Rs.2200-4000.  

After  the  return  from  Algeria  the  appellants  in  all  these  

appeals  made  a  joint  representation  laying  the  following  

claims:

“(a) Fixation  of  their  pay  in  the  pay  scale  of  Rs.2200-4000  instead  of  Rs.2000-3500,  as  being  given by its sister concern RITES as per Para 8.79 of  H.P.P.C. report implemented as per the directions of  this Hon’ble Court in Jute Corporation Case;

(b)   Appellant’s  promotion to the reserved post as  per reservation policy;

(c)   Release of foreign emoluments at the rate of US  $ 1450/- p.m. instead of US $ 880 to comply with  Board of Director’s resolution dated 03.03.1982;

(d)   Compensation for  denying  air  passage  to  the  appellant as was given to Sh. M.K. Seth;

(e)  Further promotion as per rules.”

4. By  a  separate  memo  dated  7th June,  1995,  IRCON  

informed the  appellants  that  they  were recruited as French  

Translators  when  the  Company  was  executing  projects  in  

French speaking companies  abroad and those projects have  

come to an end and in view of that it shall not be possible for  

the  IRCON  to  utilise  their  services  in  the  area  of  their  

specialisation for which they were recruited. Accordingly they

were advised to look out for the job outside IRCON where their  

expertise can be utilised in a better way.

5. Appellant  Rameshwar  Dayal,  Dr.  Ranjit  Sinha  and  

Rakesh  Ratti  Kapoor  filed  separate  writ  petitions.   Relief  

sought  for  by  the  appellant  Ranjit  Sinha and Rakesh Ratti  

Kapoor pertained to quashing of the aforesaid memo dated 7th  

June,  1995  as  also  for  release  of  the  salary  in  foreign  

emoluments at the rate of US $ 1450 instead of US $ 880 per  

month with interest at the rate of 2% per month and to place  

them in the pay scale  of  Rs.2200-4000 instead of  Rs.2000-

3500. They also prayed for a direction to compensate them for  

not allowing them free air passages from Algeria to India and  

back  for  the  period  1989  to  1992.    In  addition  thereto  

appellant Rameshwar Dayal prayed for direction to consider  

his case for promotion.

6. During  the  pendency  of  the  writ  petitions  Dr.  Ranjit  

Sinha died  and appellant  Rakesh Ratti  Kapoor  resigned  on  

23rd March,  1996  and  in  that  view  of  the  matter  the  High

Court considered their claim along with the claim of appellant  

Rameshwar Dayal of higher emoluments only and found that  

the claim made by them is  not tenable.  The learned Single  

Judge in this connection observed as follows:

“Therefore, I am unable to accept the submissions of Mr. O.P.   Khadaria,  the  learned  counsel  for  the  petitioners,  that  the  respondent/Corporation  had  committed  any  illegality  or  irrationality in fixing the emoluments of the petitioners while   they  are  sent  on  assignments  to  Algeria  as  French  Translators.”

So  far  as  the  grievance  of  appellant  Rameshwar  Dayal  in  

regard to  the dispensing with his  services  is  concerned the  

learned Single Judge held that IRCON is bound to regularise  

his services.

7. It seems that the claim for compensation for denying the  

air  passage  and  promotion  being  stale,  it  was  not  pressed  

during the course of hearing and the learned Single Judge has  

not adjudicated issues.   

8. Appellants aggrieved by the order by which their claim for  

higher emoluments has been rejected preferred LPA Nos.189  

and  289-290  of  2000  and  the  IRCON  aggrieved  by  the

direction  to  regularise  the  services  of  appellant  Rameshwar  

Dayal preferred LPA No.294 of 2000. The Division Bench of the  

High  Court  by  a  common order  dated  14th February,  2006  

dismissed  the  appeals  preferred  by  the  appellants  against  

rejection of their claim of higher emoluments but the appeal  

filed  by  the  IRCON  against  the  direction  to  regularize  the  

services of appellant Rameshwar Dayal has been allowed and  

the said direction has been set aside.  The Division Bench has  

not adverted to the other reliefs sought by the writ petitioners.

9. The appellants are before us against the said order.

10. We have heard Mr. O.P. Khadaria, learned counsel for the  

appellants  and Mr.  Chetan Sharma,  learned Senior  Council  

appearing on behalf of the respondents. Mr. Khadaria has also  

filed written submissions.  

11. Mr. Khadaria points that the Board of Directors of IRCON  

in its meeting held on 3rd March, 1982 and that of the meeting  

held on 10th January, 1983 decided to pay remuneration to the

employees in Algeria on the basis of the scale of pay they are  

getting in the IRCON and hence, granting lesser emoluments  

to the appellant is illegal. We do not find any substance in the  

submission of Mr. Khadaria and the reliance placed by him on  

the decisions of the Board of Directors of the IRCON dated 3rd  

March,  1982 and 10th January,  1983 are  misconceived and  

have  no  bearing  so  far  as  the  claim  of  emoluments  is  

concerned.  Undisputedly,  emoluments  of  these  appellants  

were  fixed  after  the  aforesaid  Resolution  of  the  Board  of  

Directors.  Their emoluments therefore shall be governed by  

the terms and conditions agreed upon. It is relevant here to  

state that the appellants claim  parity  with two persons who  

were sent  to Algeria as Chartered Accountant and Engineer  

(Technical  Officers).   Appellants  were  working  as  French  

Translators  and,  therefore,  they  cannot  claim parity  on the  

basis of similarity in the scale of pay when they belong to a  

different category.  As rightly observed by the Division Bench  

of the High Court that once the appellants have entered into  

an  agreement  they  cannot  go  back  and  claim  for  higher  

emoluments. Relevant portion of the judgment of the Division

Bench in this regard reads as follows:

“So far as the plea for higher emoluments is concerned, the  petitioner  had  accepted  his  assignment  in  Algeria  and  he  cannot go back on his agreement now. It  is entirely for the   authority concerned to decide what pay scale should be given  to a particular employee and court cannot interfere with the   pay scale vide Delhi Tapedic Unmulan Samiti vs. Babita Rani  & Ors.(supra).   At any event, as held by the learned Single  Judge, the appellant can file a suit for this purpose.”

12. As  regards  the  claim  of  Rameshwar  Dayal  for  

regularisation  in  service,  Mr.  Khadaria  submits  that  his  

performance being satisfactory he cannot be thrown out from  

service and as such the Division Bench erred in setting aside  

the direction given by the learned Single Judge for regularising  

his services. The observation of the learned Single Judge in  

this connection reads as follows:

“Now,  I  come  to  the  question  of  the  respondent’s  authority  to  dispense  with  the  services  of  the  petitioner  in   CW.2298/95. There is considerable force in the submission of   Mr. O.P. Khadaria that the petitioner, Rameshwar Dayal, who  belongs to a Scheduled Caste category, whose post has been  re-designated, cannot be sent out by the respondent.  It is not  the case of the petitioner in CW.2298/95, Rameshwar Dayal,   is  not capable  of  working on ministerial  assignment  having   regard  to  his  long  experience  in  the  organisation.   The  respondent/Corporation being a public authority, is bound to  act  in  accordance  with  fairplay  and  justice,  and  cannot   dispense with the services of the petitioner in CW.2298/95 by  simply issuing a show cause noticed asking him to fend for  himself.  It  may also be noticed that it is not the case of the   respondent/Corporation  that  the  performance  of  the  petitioner, Rameshwar Dayal, has not been satisfactory.”

13. However,  the  Division  Bench  while  setting  aside  the  

aforesaid direction observed as follows:

“As regards question of regularization we have already  held in Delhi Tapedic Unmulan Samiti vs. Babita Rani & Ors.  LPA No.2554/2005, decided on 16th January, 2006, that the   Court  cannot  issue  directions  for  regularization  as  it  is  an  executive function, and it depends on the relevant rules and  can only be directed by the Authorities concerned and not the  Court.  The entire case law on the point has been considered   in  Delhi  Tapedic  Unmulan  Samiti  vs.  Babita  Rani  &  Ors.  (supra) and hence we are not repeating the same again.”

14. Mr. Sharma, however,  contends that in the absence of  

any  policy  or  scheme  framed  by  the  employer  no  claim  of  

regularisation can be made.  He points out that the IRCON  

needed the  services  of  the  French Translators  when it  was  

executing projects in French speaking countries and now that  

no such project is with it, services of the appellant cannot be  

regularised.

15. Having appreciated the rival submission, we do not find  

any  substance  in  the  submission  of  Mr.  Khadaria.   This  

appellant was appointed temporarily and excepting the report  

submitted to the Registrar of Companies, there is nothing on  

record to show that he was ever made permanent.  The service

of  this  appellant  as  French  Translator  has  been  dispensed  

with  as  no  project  in  French  speaking  country  is  with  the  

IRCON.  In the face of it, the action of the IRCON in dispensing  

with the services of this appellant cannot be said to be illegal  

or arbitrary.

16. As the  High Court  has not  gone into  the  claim of  the  

appellants  for  payment  of  compensation  for  denying  air  

passage  and  claim  of  promotion  of  appellant  Rameshwar  

Dayal,  we  are  not  inclined  to  look  into  these  grievances  in  

present appeals.

17. To put the record straight, Mr. Khadaria has referred to a  

large number of authorities which have no relevance at all to  

the issues involved in these appeals and accordingly we do not  

consider it expedient to incorporate the same.  

18.  In the result, we do not find any merit in these appeals  

and they are dismissed accordingly, but without any order as  

to costs.

…….………………………………….J.                   ( G.S. SINGHVI )

                                          ………..……………………………….J.

                                  (CHANDRAMAULI KR. PRASAD) NEW DELHI, AUGUST 17, 2010.