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CASE NO.: Appeal (civil)  2823 of 2005

PETITIONER: Union of India

RESPONDENT: Anup Kumar Roy

DATE OF JUDGMENT: 19/07/2006

BENCH: ARIJIT PASAYAT & ALTAMAS KABIR

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J

       Union of India calls in question legality of the judgment   rendered by a Division Bench of the Guwahati High Court  dismissing the writ petition filed by the appellant. In the Writ  Petition challenge was made to the legality of the order passed  by the Guwahati Bench of the Central Administrative  Tribunal, Guwahati Bench (in short the ’CAT’).  

The controversy lies within a very narrow compass.

       The respondent was working as Transmission Executive  in the Broadcasting Ministry of the Government of India. In  November 1997, All India Radio was a part of the Ministry of  Broadcasting. The Prasar Bharati (Broadcasting Corporation of  India) Act, 1990 (in short the ’Act’) was enacted providing for  creation of a Corporation with effect from the appointed date  which is 23.11.1997. The respondent took voluntary  retirement on 31.7.1997.  Section 11 of the Act provided that  option is to be called for from the employees working in the  Doordarshan and All India Radio as and when they opted for  the transfer from the Central Government to Prasar Bharati.  No final decision in these matters had been taken. With effect  from 23.11.1997 some employees were deemed to be sent on  deputation to Prasar Bharati. There were demands for higher  scales of pay by some employees considering which  Memorandum dated 25.2.1999 was issued. The respondent  filed an application before the CAT claiming that he was  entitled to the benefits flowing from the aforesaid  Memorandum dated 25.2.1999. The respondent in the original  application i.e. present appellant took a positive stand that  benefits flowing from the Memorandum dated 25.2.1999  issued by the Government of India, Ministry of Information  and Broadcasting was available to only those who were  working on the date of the Circular. During the hearing of the  Original Application before the CAT several orders passed by  various Benches of CAT taking similar view were placed for  consideration. It was clearly held that persons similarly  situated as respondents were not entitled to the benefits  flowing from the Memorandum dated 25.2.1999. By its  impugned judgment dated 20.12.2002 the Guwahati Bench  held that the applicant who was in service till 1997 was  entitled to the benefits mentioned in Clause (iv) of para 2 of  the Memorandum dated 25.2.1999.

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       The Guwahati Bench of CAT in its judgment which was  assailed before the High Court noted that the earlier judgment  of Principal Bench, CAT was clearly binding on it. After having  noted this position in law, which according to us is a correct,  the Tribunal came to an abrupt conclusion that the applicant  who was in service till 1997 was entitled to the benefits.  A  writ petition was filed in the Guwahati High Court which by  the impugned order held that the Tribunal’s judgment did not  suffer from any infirmity.  

       Learned counsel for the appellant submitted that a bare  reading of the Memorandum makes it clear that it is only  available to existing incumbents i.e. to those who were  presently in service. Since the respondent took voluntary  retirement even before the Prasar Bharati Corporation came  into existence on 23.11.1997, the benefits claimed cannot be  given.   

       Learned counsel for the respondent on the other hand  submitted that the fixation of the benefits is done on the basis  of negotiation, the intention is clear that those who had at any  point of time been working in the All India Radio or Prasar  Bharati were entitled to the benefits.  

       Clause 2(i) of the Memorandum dated 25.2.1999 needs to  be noted. It clearly makes the position clear that the  upgradation of pay scales to certain categories of employees  related to those who were working in Prasar Bharati.  Admittedly, the respondent was neither working in the All  India Radio or Doordarshan on 25.2.1999. "Upgradation"  referred to in clauses 2 and 4 read as follows:

"2. The grant of revised pay scales as  mentioned in para 1 above will be subject to  the following conditions:

(i)     The upgraded scales will be allowed not  as Government employees per se but as  Government employees currently in service of  Prasar Bharati (Broadcasting Corporation of  India). As and when the employees presently  working in All India Radio and Doordarshan  are asked to exercise their option, those  employees who do not opt for Prasar Bharati  will revert as Government servants and will no  longer be entitled to above scales. They will  also have to refund all benefits availed of by  them as a result of the grant of higher scales of  pay. They will be liable to recovery of all such  benefits. An undertaking in the proforma given  at Annexure-II to this effect has to be  submitted by each and every employee  concerned before availing the benefit of  upgraded scales of pay. This is in accordance  with their agreement with the Government to  avail these upgraded scale son this condition  only.  

(ii)    Upgraded pay scales would be effective  from 1.1.1998 but payment of salary to  employees as per upgraded scales of pay will  be made with effect from Ist March, 1999.  

(iii)   xx              xx              xx              xx      

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(iv)    In addition, the pay of those employees of  All India Radio and Doordarshan who had  been working as Transmission Executives as  on 1.1.1978 or afterwards would be notionally  fixed in the pay scale of Rs.550-900 with effect  from 1.1.1978 and in the pay scales of Rs.200- 3200 with effect from 1.1.988 before fixing  their pay in the upgraded pay scale as on  1.1.1998. But as per their agreement with the  Government, this will not entitle them to any  payment of arrears for the period prior to  1.1.1996 and will be limited to fixation of their  current pay as on 1.1.1996.

The pay fixation in the upgraded scales of  pay shall be done as provided in CCS (RP)  Rules, 1997.

4.      The benefit of the upgraded pay scales  will be available to existing incumbents only  and those new direct recruits who join after  issuance of these orders will not be entitled to  these scales, but will be governed by pay  scales recommended by the Vth Pay  Commission. However, all promotions of  existing incumbents shall be made in  upgraded scales only."  

                               (Underlined for emphasis)

       A bare reading of the provisions makes the position clear  that the benefits were intended to be given to those who were  working in Prasar Bharati or were currently in service of  Prasar Bharati (Broadcasting Corporation of India).  The  underlined words leave no manner of doubt.  Therefore, the  respondent was not entitled for upgradation of scales of pay.   That being so, the order of the Tribunal as affirmed by the  High Court cannot be maintained. We observe with some  amount of dismay that the Guwahati Bench of CAT after  having referred to various orders passed by different benches  had proceeded and held that the view of co-ordinate bench of  CAT was binding on it, and that the Memorandum applied to  existing employees.  It did not give any reason why it thought  that the respondent was entitled to the benefits  notwithstanding the said view. The impugned order of the  Guwahati High Court affirming the order of the Guwahati  Bench of CAT is set aside.  

       The appeal is allowed. There will be no order as to costs.