Supreme Court of India
JAGDISH PARWANIversusUNION OF INDIA & ORS.
- Citation
- 2011 INSC 495
- Decided
- 15 July 2011
- Disposal
- Dismissed
- Bench
- MUKUNDAKAM SHARMA
Holding
The appellant was not entitled to pay protection because the 28 February 1992 notification applied only to appointments on or after 1 February 1992 and the earlier 7 August 1989 notification did not cover State PSU employees.
Summary
Jagdish Parwani, a former employee of the Uttar Pradesh State Electricity Board, was appointed to a Central Government post in the Military Engineering Service on 23 February 1990 with a pay scale fixed at the minimum of Rs. 2200. He later claimed pay protection under the Ministry of Personnel's notification of 7 August 1989 and, subsequently, the notification of 28 February 1992 which extended pay protection to State PSU employees joining Central Government service. The Supreme Court examined whether the 1992 notification, which was prospective from 1 February 1992, could be applied to Parwani's appointment that pre‑dated it, and whether the 1989 notification covered his category of employee. The Court held that the 1992 notification applied only to appointments on or after 1 February 1992 and that the 1989 notification did not extend pay protection to State PSU employees, rendering Parwani ineligible for the benefit. Consequently, the Court dismissed the appeals, upholding the High Court's decision that Parwani was not entitled to pay protection.
Issues considered
- Whether an employee of a State Government undertaking appointed to a Central Government post before 1 February 1992 is entitled to pay protection under the 7 August 1989 notification.
- Whether the 28 February 1992 notification, which has prospective effect from 1 February 1992, applies to appointments made prior to that date.
- Whether denial of pay protection to the appellant amounts to discrimination.
- Interpretation of the scope and temporal applicability of pay protection notifications.
Subjects
pay protectionstate government undertakingcentral government recruitmentnotificationprospective effectservice lawdiscrimination
Judgment
[2011] 8 S.C.R. 246
--
A JAGDISH PARWANI
v.
UNION OF INDIA & ORS.
(Civil Appeal No. 5481 of 2011)
JULY 15, 2011
B
[DR. MUKUNDAKAM SHARMA AND
ANIL R. DAVE, JJ.]
Service Law:
c
Pay protection - Entitlement of - Employee of State
Electricity Board recruited by selection to Central Government
on 23.02.1990 - Pay protection claimed by employee by
virtue of Notification dated 07.08. 1989 - Subsequent
0 Notification dated 28. 02. 1992 issued extending grant of pay
protection to the employees of State Government
Undertakings joining service in Central Government on and
after 01.02.1990 - High Court ho/din? that the employee not
entitled to pay protection - On appeal, held: The issue for
E getting pay protection arises as soon as an employee joins
his new post, where he gets his new pay scale by whatever
Notifications, memorandums which are available and
applicable at that stage laying down such rules regarding pay
protection - Notification dated 28.02.1992 clearly states that
the employees of the State Government Undertakings
F selected for posts in Central Government on direct recruitment
basis on and after 01.02.1992 were also extended the benefit
of pay protection, as was provided in the case of the
employees of Central Government Public Undertakings as
per Notification dated 07. 08. 1989 - On facts, said employee
G was selected and appointed to the post in Central Government
on 23.03.1990 after working as an employee of the State
Government Undertaking-State Electricity board, thus, the
Notification was not applicable and could not have claimed
for any pay protection - Also the employee accepted the
H 246
-- JAGDISH PARWANI v. UNION OF INDIA & ORS. 247
appointment without any demur or protest on the issue of pay A
- Thus, order passed by the High Court was justified -
Memorandum "DoPT .OM N0.1211188-Estt (Pay-/) dated
28.2.1992.
Appellant was an employee of the State Government
8
Undertaking, the Uttar Pradesh State Electricity Board
(UPSEB). He was selected and appointed to the post in
the Central Government on 23.02.1990. The respondent-
Union of India fixed his pay scale at the minimum of pay
scale of Rs. 2200/-. The appellant continued to receive the C
said pay for more than one and a half years. Thereafter,
the appellant submitted representations claiming pay
protection on the basis of a Notification issued by the
Ministry of Personnel, Public Grievances and Pensions
[Department of Personnel & Training] dated 07.08.1989.
The appellant claimed that when he was released from D
the service of the UPSEB on 19.02.1999, he was drawing
the basic pay of Rs. 2750 per month and as such he was
entitled to receive a salary of Rs. 3000/- per month, w.e.f.,
23.2.1990 and not Rs. 2200/-. Meanwhile, another
Notification dated 28.02.1992 was issued extending the E
grant of pay protection to the employees of State
Government Undertakings joining service in Central
Government on and after 01.02.1990. The representations
of the appellant were rejected. Thereafter, the appellant
filed an application before the Tribunal seeking an order F
giving him the pay protection which was last paid to him
by the UPSEB. The application was allowed. The
respondents-Union of India filed a writ petition. The High
Court allowed the writ petition holding that the appellant
was not entitled to pay protection. Aggrieved, the G
appellant filed a Review Petition and the same was
dismissed. Therefore, the appellant filed the instant
appeals.
Dismissing the appeals, the Court
H
248 SUPREME COURT REPORTS (2011] 8 S.C.R.
--
A HELD: 1.1. A bare perusal of the Memorandum
"DoPT OM N0.12/1/88-Estt (Pay-I) dated 28.2.1992 would
make it crystal clear that the employees of the State
Government Undertakings selected for posts in Central
Government on direct recruitment basis on and after
B 01.02.1992 were also extended the benefit of pay
protection, as was provided in the case of the employees
of Central Government Public Undertakings as per
notification dated 07 .08.1989. In the said Notification, it
was clearly stipulated that the said benefit of pay
c protection is effective only from the first day of the month
in which the OM is issued, i.e., from 01.02.1992, which
means that the said OM was given prospective effect
only.- Therefore, the said OM could even be said to be a
clarification on the issue. In the said Notification the
employees like the appellant would be entitled to get such
0
pay protection, as employees of the State Government
Undertakings on their appointment in Central
Government service only from the effective date of
01.02.1992. If the appellant would have been appointed
for a post in Central Government on direct recruitment
E basis after 01.02.1992 such benefit of pay protection
could have been made available to him. But since the ·
appellant was selected and appointed to a post in Central
Government on 23.02.1990 after working as an employee
of the State Government Undertaking, viz., UPSEB, the
F Notification dated 07.08.1989 was not applicable to him
and, therefore, he could not have legally claimed for any
pay protection. [Paras 14 and 15] [255·0-H; 256-A-B]
1.2. Being fully aware of the said position the
G appellant accepted the appointment without any demur
or protest on the issue of pay being given to him under .
the appointment order issued to him by the Military
Engineering Service, Ministry of Defence, fixing his pay
scale at the minimum of the pay scale of Rs. 2200. He
H
-- •
JAGDISH PARWANI v. UNION OF INDIA & ORS. 249
accepted the said pay scale without raising any A
grievance and c~ntinued to receive the same till
11.09.1991, when for the first time he submitted his first
representation for payf!protection as per Notification dated
07 .08.1989. [Para 16) [256-C-D)
B
1.3. So far getting pay protecti~n is concerned, the
said issue arises as soon as an employee joins his new
post, where he gets his new pay scale and if he is entitled
to any pay protection that is the stage and date when it
is granted by whatever Notifications, memorandums
Which are available and applicable at that stage laying C
down such rules regarding pay protection. At that stage
what was operating in the field was the Notification
issued on 07.08.1989 which was not applicable to the
appellant. The appellant also clearly understood the
position and therefore, based his entire claim and right D
on the subsequent Notification dated 28.02.1992,
although appointed to the post of Central Government on
23.02.. 1990. [Para 18) [257-8-D]
1.4. In the instant case, it cannot be said that a E
Notification issued after two years of the appointment of
the appellant which is also specifically stated to have
been issued with prospective effect is applicable in his
case. The High Court was justified in setting aside the
order of the Tribunal as the Tribunal has misread and F
misinterpreted the facts as also the legal principles in law.
[Paras 19 and 20] [257-E-G]
T. S. Thiruvengadam v. Secretary to Government of India,
Ministry of Finance, Deptt. of Expenditure, New Delhi (1993) Gj
2 sec 174 - distinguished.
Case Law Reference:
(1993) 2 sec 174 distinguished. Para 18
H
250 SUPREME COURT REPORTS [2011) 8 S.C.R.
--
A CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5481 of 2011.
From the Judgment & Order da ..=d 11.9.2009 of the High
Court of Madhya Pradesh Bench Gwalior, in Review Petition
B No. 185 of 2009.
WITH
C.A. No. 5482 of 2011.
C Arijit Bhattacharjee, A.K. Aggarwal, Sarbani Kar,
Ambreesh Kumar Aggarwal for the Appellant.
Mohan Jain, ASG, Prabhant Kumar, Deepak Jain, Arti
Singh, Anil Katiyar for the Respondents.
o The Judgment of the Court was delivered by
DR. MUKUNDAKAM SHARMA, J. 1. Leave granted.
2. The appeals are directed against the judgment and
order dated 11.09.2009 passed by the High Court of Madhya
E Pradesh Bench at Gwalior in Review Petition No. 185 of 2009.
The said review petition was filed by the appellant herein
against the order dated 16.04.2009 passed by the High Court
of Madhya Pradesh, Gwalior Bench, in Writ Petition (s) No. 882
of 2003. Appellant has also preferred a separate appeal
F [arising out of SLP(C) No. 8404 of 2010] against the said
decision of the High Court of Madhya Pradesh in the Writ
Petition No. 882 of 2003. By this order we propose to dispose
of both the appeals filed by the appellant.
G 3. The facts leading to filing of the aforesaid appeals are
that the appellant being a graduate engineer appeared for
Indian Engineering Services examination which was held
pursuant to an advertisement issued by the Union Public
Service Commission in the year 1987 for filling up the post of
Assistant Executive Engineer [Buildings and Roads] in Military
H
JAGDISH PARWANI v. UNION OF INDIA & ORS. 251
[DR. MUKUNDAKAM SHARMA, J.]
Engineering Service, Ministry of Defence. The appellant was A
working as an Assistant Engineer in Uttar Pradesh State
Electricity Board {for short "UPSEB"], w.e.f., 1st January, 1988.
He having qualified in the aforesaid competitive examination,
the appellant was offered an appointment as Assistant
Executive Engineer [Buildings and Roads] in the Military B
Engineering Services by an appointment letter issued by the
Ministry of Defence dated 06.09.1989. Consequently, he
resigned from the UPSEB and as per his last pay certificate
from UPSEB, he was drawing a basic pay of Rs. 2750/-. His
resignation was accepted and he was released from the service c
of UPSEB on 19.02.1990.
4. Pursuant to the aforesaid letter of appointment issued
by the Ministry of Defence the appellant joined the Military
Engineering Service Department on 23.02.1990 in the pay
scale of Rs. 2200-4000. In the appointment letter issued on D
06.09.1989 the appellant was also informed that his pay would
be fixed at the minimum of the pay scale, viz., Rs. 2200. The
aforesaid appointment of the appellant was against a temporary
post but the same was likely to continue indefinitely. The
appellant was also placed on probation for a period of two years E
from the date of his appointment with a clear stipulation that
his appointment could be terminated at any time on one
month's notice given on either side without assigning any
reason. The appellant continued to receive the aforesaid pay
as fixed by the respondents till the month of September, 1991, F
i.e., for a period of more than one and a half years and
thereafter he submitted three representations on 11.09.1991,
12.02.1992 and 14.12.1992 respectively claiming pay
protection on the basis of a notification issued by the Ministry
of Personnel, Public Grievances and Pensions (Department of G
Personnel & Training] dated 07.08.1989. In the said
representations the appellant claimed that he was entitled to
receive a salary of Rs. 3000/- per month, w.e.f., 23.2.1990 and
not Rs. 2200/-.
H
--
252 SUPREME COURT REPORTS [2011] 8 S.C.R.
A 5. While the aforesaid representations of the appellant
were being considered by the respondents, another notification
came to be issued on 28.02.1992 by the Department of
Personnel & Training extending grant of pay protection to the
employees of State Government Undertakings joining service
B in Central Government on and after 01.02.1990.
6. By a Communication dated 14.02.1995 the appellant
was informed by the respondents that he is not entitled to such
pay protection as claimed by him in the representations
C submitted by him.
7. Being aggrieved by the aforesaid communication dated
14.02.1995 communicating the rejection of the representations
of the appellant for pay protection, the appellant filed an Original
Application before the Central Administrative Tribunal [Jabalpur
D Bench], Jabalpur [for short "Tribunal"] claiming and seeking an
order for giving him the pay protection which was last paid to
him by the UPSEB. The Tribunal issued an order on
01.10.2002 directing the respondents to fix pay of the appellant
by giving him pay protection within six months and also to pay 1
E him the arrears of pay and allowances.
8. Aggrieved· by the said order of the Tribunal the
respondents-Union of India filed a Writ Petition which was
registered as WP(S) No. 882 of 2003 before the Madhya
Pradesh High Court, Gwalior Bench. The High Court after
F considering the facts of the case passed judgment and order
dated 16.04.2009. holding that the appellant is not entitled to
pay protection and, therefore, his claim was rejected. It was
further held by the High Court that the Tribunal committed grave
error in granting pay protection to the appellant. The appellant
G aggrieved by the aforesaid order of the High Court, preferred
a Review Petition before the Madhya Pradesh High Court which
was dismissed by order dated 11.09.2009 holding that there
is no mistake apparent on the face of the records in the order
impugned in the review petition. The aforesaid orders are
H challenged in the present appeals on which we heard the
-- JAGDISH PARWANI v. UNION OF INDIA & ORS. 253
[DR. MUKUNDAKAM SHARMA, J.]
learned counsel appearing for the parties and also perused the A
records.
9. The facts, which are stated hereinbefore, leading to filing
of the present appeals are not disputed. The appellant joined
the UP State Electricity Board on 01.01.1988 and while working B ..
with the Board he resigned from the service and at that time
he was drawing the basic pay of Rs. 2750/- per month.
Thereafter his resignation was accepted and he was released
from the service of the UPSEB on 19.02.1990. The appellant
was given the appointment to the post of Assistant Executive C
Engineer [Buildings and Roads] in Military Engineering Service
[for short "MES"], Ministry of Defence and he joined the said
post on 23.02.1990 and at the time of appointment his terms
and conditions of appointment were clearly set out in the order
of appointment whereby his pay was fixed in the. pay sale of
Rs. 2200-4000 with a stipulation that he would be paid basic D
salary of Rs. 2200 plus dearness allowance.
10. Reliance was placed by the appellant on the contents
of the Memorandum dated 06.09.1989 which was in the nature
of guidelines issued by the Ministry of Defence fixing the pay. E
A copy of the said memorandum is annexed to· the
memorandum of appeal as Annexure-P1.
11. Paragraph 1 of the said guidelines provided that as
per the extant rules/orders, on fixation of pay, pay protection is F
granted to candidates who were appointed by the method of
recruitment by selection through the Union Public Service
Commission if such candidates are in Government service. It
was also stipulated in the said paragraph 1 of the memorandum
that no such pay protection would be granted to candidates
working in public sector undertakings, universities, semi- G
Government institutions or autonomous bodies, when they are
so appointed in Government.
12. Paragraph 2 thereof on which reliance was placed by
the counsel appearing for the appellant provided that the H
254 SUPREME COURT REPORTS [2011] 8 S.C.R.
--
A question as to how pay protection can be given in the case of
candidates recruited from the public sector undertakings, etc.,
has been engaging the attention of the Government for
sometime and that after careful consideration of the same the
President was pleased to decide that in respect of candidates
s working in public sector undertakings, universities, semi-
Government institutions, autonomous bodies, who were
appointed as direct recruits on selection through a properly
constituted agency including departmental authorities making
recruitment directly their initial pay could be fixed at a stage in
c the scale of pay attached to the post so that the pay and DA
already beirg drawn by them in their parent organisation may
be protected. It was also stipulated therein that in the event of
such a stage not being available in the post to which they have
been recruited, their pay may be fixed at a stage just below in
D the scale of the post to which they have been recruited, so as
to ensure a minimum loss to the candidates.
13. It is evident from the aforesaid stipulation in the relevant
clause that such pay scale received is protected in the case of
only Central Government Public Sector Undertakings, etc.,
E inasmuch as the decision to grant such benefit was restricted
specifically to Central Government employees and also
employees of central government public sector undertakings.
This position got fortified and clearly explained by the issuance
of the subsequent notification dated 28.2.1992, to which
F reference is made immediately hereafter.
14. Reliance was placed by the counsel appearing for the
appellant on the subsequent OM issued by the Department of
Personnel and Training issued on 28.02.1992. The contents of
G the said notification/memorandum is extracted hereinbelow for
easy reference and for better understanding: -
"DoPT OM N0.12/1/88-Estt (Pay-I) dated 28.2.1992.
"PAY PROTECTION ALSO TO CANDIDATES FROM
H STATE PSUs RECRUITED BY PROPER SELECTION TO
-- JAGDISH PARWANI v. UNION OF INDIA & ORS. 255
[DR. MUKUNDAKAM SHARMA, J.]
CENTRAL GOVERNMENT" A
The Undersigned is directed to say that question of
inclusion of employees of State Government undertakings
within the purview of this Department's OM No. 12/1/88-
Estt (Pay-I), dated 7.8.1989 has been engaging the B
attention of the Government for some time. The matter has
been carefully considered and the president is pleased to
decide that provisions of this Department's OM of even
num.ber dated 7.8.1989, m,ay be extended to the
employees of State Government Undertakings selected for
posts in Central Government on direct recruitment basis C
as in case ~f Central Public Undertakings.
These orders take effect from the first of the month in
which this OM is issued."
D
A bare perusal of the Memorandum would make it crystal clear
that the employees of the State Government Undertakings
selected for posts in Central Government on direct recruitment
basis on and after 01.02.1992 were also extended the benefit
of pay protection, as was provided in the case of the employees E
of Central Government Public Undertakings as per notification
dated 07.08.1989.
15. In the aforesaid notification, it was clearly stipulated that
the said benefit of pay protection is effective only from the first
of the month in which the OM is issued, i.e., from 01.02.1992, F
which means that the said OM was given prospective effect
only. Therefore, the said OM could even be said to be a
clarification on the issue which is sought to be raised in the
present case. It was clearly pointed out in the said notification
that employees like the appellant would be entitled to get such G
pay protection, as employees of the State Government
Undertakings on their appointment in Central Government
service only from the effective date of 01.02.1992. If the
appellant would have been appointed for a post in Central
Government on direct recruitment basis after 01.02.1992 such H
256 SUPREME COURT REPORTS [2011] 8 S.C.R.
--
A benefit of pay protection could have been made available to
him. But since the appellant was selected and appointed Jo a
post in Central Government on 23.02.1990 after working as an
employee of the State Government Undertaking, viz., UPSEB,
the notification dated 07.08.1989 was not applicable to him
B and, therefore, he could not have legally claimed for any pay
protection.
16. Being fully aware of the aforesaid position the appellant
accepted the appointment without any demur or protest on the
issue of pay being given to him under the appointment order
C issued to him by the Military Engineering Service, Ministry of
Defence, fixing his pay scale at the minimum of the pay scale
of Rs. 2200. He accepted the said pay scale without raising
any grievance and continued to receive the same till
, 11.09.1991, when for the first time he submitted his first
D representation for pay protection as per notification dated
07.08.1989.
17. The position with regard to the entitlement or otherwise
of the appellant for getting pay protection was made clear by
E issuing the notification dated 28.02.1992 clearly stipulating
therein that an employee of the State Government Undertaking
selected for post in Central Government on direct recruitment
basis would be entitled to pay protection upon appointment in
Central Government only effective from 01.02.1992. The
F appellant having joined the MES, Ministry of Defence prior to
the aforesaid date was not entitled to the benefit of the aforesaid
notification which was issued much after his joining date and,
therefore, the benefit of the aforesaid notification is not
available to the appellant.
G 18. Counsel appearing for the appellant however sought
to submit that to deny the benefit of the notification dated
28.02.1992 to the appellant was discriminatory in nature and
in support of the said contention the counsel relied on the
decision of this Court in the case of r.s.
Thiruvengadam v.
H
-- JAGDISH PARWANI v. UNION OF INDIA & ORS. 257
. [DR. MUKUNDAKAM SHARMA, J.]
. Secretary to Government of India, Ministry of Finance, Deptt. A
of Expenditure, New Delhi reported in (1993) 2 SCC 174. In
our considered opinion the ratio of the aforesaid decision was
rendered in respect of case of pension which is a continuing
cause of action. Facts of the said case are clearly
distinguishable from the facts of the present case and, B
therefore, the ratio of the said decision is not applicable to the
case in hand. There is an inherent clear distinction between the
two concepts of pay protection and pension. So far getting pay
protection is concerned, the said issue arises as soon as an
employee joins his new post, where he gets his new pay scale c
and if he is entitled to any pay protection that is the stage and
date when it is granted by whatever notifications,
memorandums which are available and applicable at that stage
laying down such rules regarding pay protection. At that stage
what was operating in the field was the notification issued on
0
07.08.1989 which was not applicable to the.appellant. The
appellant also clearly understood the position and therefore
based his entire claim and right on the subsequent notification
dated 28.02.1992, although appointed to the post of Central
Government on ?3.02.1990.
I E
19. In the present case i~ cannot be said that a notification
. issued after two years of the appointment of the appellant which
is also specifically stated to have been issued with prospective
effect is applicable .in his case.
F
20. Consequently, we hold that the High Court was justified
in setting aside the order of the Tribunal as the Tribunal has
misread and misinterpreted the facts as also the legal
principles in law.
21. We, therefore, find no merit in these appeals, which G
are dismissed, but, leaving the parties to bear their own costs.
N.J. Appeals dismissed.
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