DR. KANWAL SINGH  Vs UNIVERSITY GRANT COMMISSION (UGC) & ANR -Judgment by Delhi High Court

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IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment Delivered on: 12.01.2023

+ REVIEW PET. 157/2022 in W.P.(C) 9346/2018

DR. KANWAL SINGH ….. Petitioners

Versus

UNIVERSITY GRANT COMMISSION (UGC) & ANR
….. Respondents

Advocates who appeared in this case:

For the Appellant : Mr. Anil Kumar, Advocate.
For the Respondents : Mr. Apoorv Kurup, Ms. Swati Bhardwaj, Ms. Aparna
Arun, Ms. Damini Garg, Mr. Ojaswa Pathak
and Ms. Nidhi Mittal, Advocates for R-1/UGC.

CORAM:
HON�BLE MR. JUSTICE SIDDHARTH MRIDUL
HON�BLE MR. JUSTICE TALWANT SINGH

J U D G M E N T
TALWANT SINGH, J.
CM APPL. 29753/2022 (Delay)
1. For the reasons stated in the application, the delay in filing the review petition is condoned.
2. The application is disposed of.
REVIEW PET. 157/2022
3. The petitioner has preferred this review petition seeking review of the final judgment dated 13.11.2019 by which the writ petition filed by him was dismissed. While giving the background of the matter, it has been submitted that the petitioner was not satisfied regarding fixing of his pay at the time of his appointment as an Education Officer in the UGC w.e.f. 28.03.1995. He preferred OA No. 687/2018 before the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as �the Tribunal�). The Tribunal dismissed the said OA on the ground of limitation. Being aggrieved, the petitioner filed Writ Petition (Civil) No. 9346/2018 before this Court, which was dismissed on merits vide order dated 13.11.2019.
3.1 In grounds of review, the petitioner has submitted that Section 114 of Code of Civil Procedure, 1908 (hereinafter referred to as �CPC�) read with Order XLVII Rule 1 of CPC covers an instance of misconception of fact or law by the Court or by an Advocate and the said mistakes deserve to be cured. The impugned pay fixation by respondents is against the assurance given to the petitioner in the Offer of Appointment dated 14/15.03.1995; it is a misconception of fact by this Court regarding the aims and objectives of DOP&T OM dated 07.08.1989, which was issued to ensure minimum loss to the candidates, who join government service from a Public Sector Undertaking; the respondent lost sight of OM dated 07.08.1989 issued under FR 22 (24) while fixing the pay of the petitioner; the impugned pay fixation is causing consequential continuous loss in terms of the pay and pension to the petitioner month by month and he is entitled to pay protection.
3.2 The petitioner has referred to certain judgments regarding maintainability of the review petition and thereafter he has prayed that judgment and order dated 13.11.2019 be recalled and Writ Petition (Civil) No. 9346/2018 be allowed with costs.
4. We have heard the petitioner on 18.11.2022. The only ground on which the petitioner has preferred the review petition is that there is a misconception of fact or law by this Court while interpreting the DOP&T OM dated 07.08.1989 and the illustrations given in the said OM. The DOP&T OM No. 12/1/88-Est. (Pay-I), which deals with the guidelines for pay protection of candidates recruited from PSUs in Government service is reproduced hereunder:-
�D.P.T., O.M. No. 12/1/88-Est. (Pay-I),
Dated 7-8-1989

Guidelines for pay protection of candidates recruited from P.S.Us., etc.

The undersigned is directed to say that as per extant rules/orders on the subject, pay protection is granted to candidates who are appointed by the method of recruitment by selection through the Union Public Service Commission if such candidates are in Government service. No such pay protection is granted to candidates working in Public Sector Undertakings, Universities, Semi-Government Institutions or Autonomous Bodies, when they are so appointed in Government. As a result of this, it has not been possible for government draw upon the talent that is available in non-Government organizations.

2. The question as to how any protection can be given in the case of candidates recruited from Public Sector Undertakings, etc., has been engaging the attention of the Government for some time. The matter has been carefully considered and the President is pleased to decide that in respect of candidates working in Public Sector Undertakings, Universities, Semi-Government institutions or Autonomous Bodies, who are appointed as direct recruits on selection through a properly constituted agency including departmental authorities making recruitment directly, their initial pay may be fixed at a stage in the scale of pay attached to the post so that the pay and D.A. as admissible in the Government will protect the pay + D.A. already being drawn by them in their parent organisations. 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 the scale of the post to which they have been recruited, so as to ensure a minimum loss to the candidates. The pay fixed under this formulation will not exceed the maximum of the scale of the post to which they have been recruited. The pay fixation is to be made by the employing Ministries/Departments after verification of all the relevant documents to be produced by the candidates who were employed in such Organisations.
These orders take effect from the first of the month in which this Office Memorandum is issued.
ANNEXURE
ILLUSTRATION I

An Officer in a Public Sector Undertaking in the scale of Rs. 2,450-100-2,750 with a basic pay of Rs. 2,550 and D.A. of Rs. 1,016.55 to be appointed in Government in the scale of pay Rs. 3,000-4100-3,500-125-4,500:

Rs, P.
Basic pay in P.S.U. � � � 2,550.00
D.A. .. � � � 1,016.55
Ad hoc Relief� � � � 840.00
Total 4,406.55
Pay in the Government will be fixed as under:
I II III
Rs. Rs. Rs.
Basic pay � � 3,000 3,500 3,625
D.A. 23% � � 690 805 805
_____ _____ ______
3,690 4,305 4,430 _____ _____ ______
So pay will be fixed at Rs. 3,500 on his appointment in Central Government�.
4.1 While dealing with this OM in the final judgment dated 13.11.2019, this Court has observed as under:-
�12�…The Respondents have relied upon the rules for pay fixation stated under DOPT OMs dated 7th August, 1989 and 10th July, 1998, which have been relied by the present Petitioner also. It has been submitted on behalf of the Respondent that it is the Pay + Dearness Allowance drawn by the candidate recruited from Public Sector Undertaking which to be protected. The relevant portion of the OM has been reproduced as under:
�2. The question as to how pay protection can be given in the case of candidates recruited from Public Sector Undertakings, etc., has been engaging the attention of the Government for some time. The matter has been carefully considered and the President is pleased to decide that in respect of candidates working in Public Sector undertakings, Universities, Semi-Government Institutions or Autonomous Bodies, who are appointed as direct recruits on selection through a properly constituted agency including departmental authorities making recruitment directly, their initial pay may be fixed at a stage in the scale of pay attached to the post so that the pay and D.A., as admissible in the Government will protect the pay + D.A. already being drawn by them in their parent organizations.�
13. As per the Respondents, the assertion of the Petitioner is incorrect to the extent that only his pay is to be protected and rather it is the pay + Dearness Allowance which is to be protected. As per the revised salary certificate dated 27th March, 1995 from NFL, the Petitioner was entitled to basic pay of Rs.5200 + Dearness Allowance of Rs.1211.60. So, his previous monthly entitlement was Rs.6411/- and when he was appointed with Respondents, his basic pay was fixed at Rs.3000/- + Dearness Allowance at the rate of Rs.125% i.e. Rs.3750/-, totalling to Rs.6750/-. Thus, his basic pay and Dearness Allowance, which he was entitled to draw in his previous employment was duly protected as per rules. Even the Department of Personnel Training (DoPT) by office note dated 26th March, 1996 has confirmed as under:
�If the UGC is following Govt. rules, the pay of the official concerned will be fixed under the DoPT O.M. dated 7-8-1989.�
14. The internal audit cell had re-analysed the pay package of the Petitioner following his representation dated 6th March, 1996 and it was found that his pay was fixed higher than it ought to have been in the first place. DoPT was consulted and accordingly his pay was re-fixed. It has been denied that there is any ground to challenge the order regarding pay fixation and it has been prayed that the writ petition be dismissed.
15. It is clear that the DoPT?s OMs dated 7th August, 1989 and 10th July, 1998 make it evidently clear that where candidates have been recruited in Government service from Public Sector Undertakings, then their initial pay is to be fixed in the scale of pay which is attached to the post so that the pay and Dearness Allowance to be paid to the Government servant should be protected at the cumulative level, which was already drawn by him in his previous organisation. In the present case, the Petitioner was drawing
Rs.6411/- (basic pay Rs. 5,200 + Dearness Allowance Rs.1211.60)�.

4.2 As per the petitioner, the above-mentioned OM dated 07.08.1989 has not been correctly interpreted by this Court. The petitioner has relied upon two judgments passed by the Division Bench of this Court in Nagendra Kumar Jha vs. UOI & Anr. 2016 SCC Online Del 72 and Sanjog Kapoor vs. Union of India and Ors. (2007) 6 SLR 76 (Del) (DB).
4.3 In the matter of Nagendra Kumar Jha vs. UOI & Anr (supra), the petitioner was earlier employed as lecturer with Samstipur College of Lalit Narayan Mithila University and later on he was selected in CISF as an Assistant Commandant. He had sought an order of pay protection to ensure that his earlier salary, emoluments and increments be taken into consideration while fixing the basic salary at an appropriate stage. The CISF rejected his claim vide letter dated 23.11.2004 on the ground that pay protection is available only to the persons who are working with Government undertakings, State undertakings, Universities, Semi Government Institutions/ Autonomous Bodies only. Mr. Jha was appointed through Civil Service Examination conducted by the UPSC and his pay is not liable to be protected. However, this Court ordered that pay protection be granted to the petitioner, Mr. Jha. In the present case also, pay protection was granted to the present petitioner and accordingly his pay was fixed.
4.4 In the matter of Sanjog Kapoor vs. Union of India and Ors. (supra), the petitioner was working as a Senior Officer (Marketing) in Videsh Sanchar Nigam Limited (VSNL) and later on he cleared Civil Services Examination. His pay was revised in VSNL and he was also certified as �deemed confirmed� for the purpose of claiming pay protection. Accordingly, the petitioner had submitted a representation to his department for revising his pay in terms of OM dated 07.08.1989. Here again, his claim was rejected on the ground that he was selected through an open competitive examination. This Court ordered that the pay of the petitioner be protected in the said case and his salary be re-drawn. In the present case also, the U.G.C. had fixed the salary of the present petitioner keeping in view his last pay drawn as well as the dearness allowance being paid to him.
4.5 This Court has rightly come to the conclusion that the purpose of OM dated 07.08.1989 is to protect the �basic salary� plus �dearness allowance� of the petitioner and the respondent UGC has rightly followed the directions contained in the circulars issued by DOP&T from time to time. Moreover, the DoP&T was also consulted at the time of re-fixing salary of the petitioner in response to his representation as detailed in para 16 of the final judgment dated 13.11.2019.
5. In our view, there is no mistake or error apparent on the face of record and as such the present review petition is not maintainable and the same is hereby dismissed.

TALWANT SINGH
(JUDGE)

SIDDHARTH MRIDUL
(JUDGE)

JANUARY12, 2023/nk

Neutral Citation No.2023/DHC/000199

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