SUPREME COURT OF INDIA
Union of India
Vs
Anup Kumar Roy
Appeal (Civil) 2823 of 2005
(Arijit Pasayat and Altamas Kabir, JJ)
19.07.2006
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.
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)
(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.