Delhi High Court
S.C. Dikshit vs Chairman, Dda on 21 July, 2006
Equivalent citations: 132(2006)DLT253
Author: S. Muralidhar
Bench: Mukul Mudgal, S. Muralidhar
JUDGMENT
S. Muralidhar, J.
1. By this common judgment both the above writ petitions, namely, WP 1830/91 and WP 1831/91 are being disposed of. The petitioner, who joined the U.P. Civil Services (Executive) in the year 1957, joined the Delhi Development Authority (DDA) in the year 1970 on deputation as Officer on Special Duty. Till 1978 he served the DDA in various capacities. Between 1978-80 he worked as General Manager of the Delhi Small Industries Development Corporation as well as Secretary of the New Okhla Industrial Development Authority (NOIDA). On April 17, 1980 the DDA wrote to the Government of the State of Uttar Pradesh that it requires the services of officers who have experience of dealing with the problems of urban development. This letter written by the DDA to the Chief Secretary to the Government of U.P., requested that the services of the petitioner be placed with the DDA, in public interest at the earliest. The petitioner joined the DDA on deputation as a Director (Commercial Lands) pursuant to a request made in this behalf by the DDA. The Government of Uttar Pradesh on December 15, 1980 wrote to the Vice-Chairman, DDA that it had no objection to the DDA’s proposal to absorb the services of the on ‘permanent post of Deputy Commissioner (Implementation) in the pay scale of Rs. 1500-2000’. Pursuant to this development, the petitioner on December 30, 1980 sent his consent to the DDA and enclosed to it his resignation from the U.P. Civil Service with effect from 1.1.1981. He requested that this be forwarded to the Government of U.P. The consent letter of the petitioner also stated that he was giving his consent to his ‘permanent absorption in the Delhi Development Authority against the permanent post of Deputy Commissioner (Implementation) in the time-scale of pay of Rs. 1500-2000 with effect from 1.1.1981’.
2. Thereafter on 8.1.1981 the DDA wrote to the Government of Uttar Pradesh, referring to its earlier correspondence and requested that the decision of the U.P. Government in the matter of acceptance of the resignation of the petitioner may be conveyed at the earliest. It was specifically mentioned in this letter as under:
…As intimated in our earlier communication dated 24.11.1980, it was originally proposed to absorb Sh. Dikshit in the DDA against the permanent post of Dy. Commissioner(Implementation) in the time-scale of pay of Rs. 1500-2000 w.e.f. 1.1.1981. His permanent absorption in the DDA is to synchronize with the date on which his resignation from the U.P. Civil Service (Executive Branch) is accepted by the U.P. Govt. If it is decided by the U.P. Govt. to accept Sh. Dikshit’s resignation w.e.f. 1.1.1981 he will be absorbed in the said post in the DDA permanently from the same date and in the alternative from the date on which his resignation is accepted by the U.P. Govt. I am, therefore, to request that the decision of the U.P. Government in the matter may kindly be conveyed to this organisation at the earliest possible.
3. By a letter dated 6.4.1981, the Government of U.P., conveyed its acceptance to the resignation of the petitioner from the U.P. Civil Service. The relevant portion of this letter reads as under:
(i) The resignation submitted by Shri Satish Chandra Dixit from Uttar Pradesh Civil (Administrative Branch) Service w.e.f. 1st January, 1981 has been accepted. The formal order/notification pertaining to the acceptance of the resignation letter is being issued separately. In relaxation to F.R.56(EO) of Section 2 to 4 in Financial Handbook part 2, Shri Dixit will therefore be considered as retired from service w.e.f. the date of enforcement of his resignation, on retiring pension and he shall be paid pension/gratuity including death-cum-retirement gratuity in relation to his qualifying pensionable service rendered by him under the State service, payment of which shall become due forthwith. Whatever salary Shri Dixit will get under the Delhi Development Authority that shall be exclusive or the State pension admissible to him. If the service of the Shri Dixit are terminated for any reason from the above Authority whether at his instance or at the instance of the Authority, within two years from the date of the absorption, he shall not be entitled to accept any other private service without written permission of the State Government.
4. This was followed by an Order dated 4.8.1981 issued by the DDA absorbing the petitioner against the post of Deputy Commissioner (Implementation) with effect from 1.1.1981. A copy of this order was marked to the Government of Uttar Pradesh with reference to its letter dated 6.4.1981.
5. Thereafter the petitioner was promoted as Commissioner (Housing) with effect from 1.1.1984. It is stated that although the petitioner was entitled to the pay scale of Rs. 1800-2000 the DDA did not finalise his pay scale. An order of compulsory retirement was passed against the petitioner by the DDA on 23.12.1985 but this was set aside by this Court and upheld by the Hon’ble Supreme Court leading to the reinstatement of the petitioner as Commissioner (Coordination), in the DDA in February, 1987.
6. On 5.5.1988 the DDA wrote an internal letter to the Government of India stating that they had absorbed the petitioner with effect from 1.1.1981 in the pay scale of Rs. 1500-1800 which had been subsequently increased to Rs. 1500-2000 on his being promoted as Commissioner (Housing). This, it appears, was contrary to the original proposal of DDA to absorb the petitioner with effect from 1.1.1981 in the permanent post of Deputy Commissioner (Implementation) in the time-scale of pay of Rs. 1500-2000.
7. Consequently, the petitioner made representations on 22.7.1988, 30.12.1988, 24.7.1989 and 20.8.1990. It is the petitioner’s case that there was no response whatsoever to any of these representations. In these representations the petitioner made a grievance about the pay scale not being fixed in accordance with the original proposal contained in the letter dated 8.1.1981 of the DDA, i.e., Rs. 1500-2000 and further that pension paid by the State of U.P., was being deducted from his salary contrary to the letter dated 6.4.1981 by the State of U.P to the DDA.
8. The petitioner retired from the DDA on 30.11.1990 by which time the aforesaid issues remained unresolved.
9. On 28.5.1991 the petitioner filed the two writ petitions in this Court. In Civil Writ Petition No. 1830/91 the prayers are as under:
(a) direct the respondents by an appropriate writ order or directions to correctly fix the pay of the petitioner in the pay scale of Rs. 1800-2000 in accordance with the terms and conditions of absorption with effect from 1.1.1981; and
(b) direct the respondents to place the petitioner in the revised pay scale of Rs. 4100-5300 with effect from the date the pay scales were revised and at any rate w.e.f. 29.8.1986 when the junior officer to the petitioner namely Shri Ranbir Singh was given the said pay scale.
(c) pass such other or further orders or directions as deemed fit and proper by this Hon’ble Court in the facts and circumstances of the case and in the interest of justice and with costs.
10. The prayers in the Civil Writ Petition No. 1831/91 read as under:
(a) direct the respondent D.D.A. by an appropriate writ order or directions to release a sum of Rs. 59,000/- approx. deducted from the salary of the petitioner being the State Pension and gratuity paid by the State of Uttar Pradesh upon retirement of the petitioner with interest thereon at the rate of 18% p.a.; and
(b) pass such other or further orders or directions as deemed fit and proper by this Hon’ble Court in the facts and circumstances of the case and in the interest of justice and with costs.
11. The respondent DDA in its counter affidavit in WP (C) 1830/91, which relates to the fixation of pay, took the stand that the pay of the petitioner on his re-employment with the DDA with effect from 1.1.1981 was to be fixed in terms of the directions issued by the Ministry of Finance, Department of Expenditure vide OM dated 25.11.1958 as amended from time to time. In para 14 of its counter affidavit the DDA stated:
That the petitioner was absorbed in the pay-scale of Rs. 1500-2000 from 1981 and his pay was to be fixed in the said scale irrespective of his subsequent promotion in the respondent No. 2 authority.
Strangely, contrary to what was noticed hereinabove, the DDA took the stand that it was not bound by the letter dated 6.4.1981 issued by the Government of U.P. In para 6 of its counter affidavit, it stated thus:
That it is specifically denied that the respondent No. 2 had agreed to permanently absorb the petitioner on the terms and conditions set out in the letter dt. 6.4.81 issued by the State of U.P. The terms and conditions set out in the letter dated 6.4.81 are not binding upon the respondent No. 2 authority.
12. Although in para 7 of the writ petition, the petitioner had specifically adverted to and annexed copies of the letters dated 8.1.1981 of the DDA and the acceptance by the State of U.P., vide letter dated 6.4.1981, in its para-wise reply to the writ petition, the DDA did not deny the existence of the letter dated 8.1.1981 and the contents thereof. It also did not deny the contents of the petitioner’s consent letter dated 30.12.1980 adverted to in para 6 of the writ petition and copy whereof was annexed to the petition. It also did not deny the fact of the issuance by the DDA of the order dated 4.8.1981 which was referred to in para 9 of the writ petition and copy whereof was also annexed to the petition.
13. As regards the grievance that the pension paid to the petitioner by the State of U.P., was wrongly being deducted from the pay of the petitioner, contrary to the express stipulation in the letter dated 6.4.1981 of the Government of U.P., the stand of the DDA in its counter affidavit in WP(C) 1831/91 was that the said letter was not binding on the DDA and that it could not be interpreted to mean that the salary drawn by the petitioner should not take into account the pension drawn by the petitioner from the State of U.P.
14. The position that emerges from the above narration is that the DDA, without any explanation, decided to go back on its original assurance to the petitioner that it was absorbing him permanently on the pay scale of Rs. 1500-2000. In our view, the stand now taken by the DDA in its counter affidavit before this Court appears to be wholly unreasonable and unacceptable. Having urged the Government of U.P., by its letter dated 8.1.1981, to convey its acceptance of the petitioner’s resignation from the U.P. Civil Service for being absorbed in the services of DDA on the pay scale of Rs. 1500-2000, and having got the State of U.P. to accept this proposal , it is not open to the DDA to do a volte face and deny that it was bound by the terms and conditions set out in the letter dated 6.4.1981 of the Government of U.P. For a public body, exercising statutory functions, it does not behove the DDA to be arbitrary and unreasonable in the manner of its treatment of its employees. The only explanation that the DDA has offered was that it had to follow an OM dated 25.11.58 of the Ministry of Finance for fixing the pay scale of the petitioner. This explanation clearly is an afterthought since there is no whisper of this OM having to be followed in any of DDA’s correspondence referred to earlier. At no point did they inform the petitioner that this was the reason. None of his representations were answered. The position taken in the letter dated 8.1.81, extracted above, was never resoled from. In our view, therefore, the explanation offered by the DDA for not fixing the pay of the petitioner with effect from 1.1.1981 on the scale of Rs. 1500-2000, which was its original proposal, is wholly unacceptable and ought to be rejected as such. The omission of the DDA in the instant case can only be termed as unreasonable and unfair and calls for interference by the court.
15. It is unfortunate that the petitioner has had to be kept waiting for so many years for a resolution of the dispute regarding the fixation of his pay. We also deprecate the attitude of the respondent DDA in not replying to the numerous representations made by the petitioner regarding his pay fixation even when he was holding a very senior position in the DDA. The petitioner has had to live with a brooding sense of injustice for many years now.
16. The stand of the DDA as regards the deduction of pension and the binding nature of the letter dated 6.4.1981 of the State of U.P., is also at variance with the Regulation 510 of the Civil Service Regulations which reads as under:
510. When a person who was formerly in the civil or military employment of any Govt. India obtains re-employment, whether temporarily or permanently, in Govt. Service or in the service of a local fund, it shall be incumbent on him to declare to the appointing authority the amount of gratuity, bonus or pension granted to him in respect of previous employment. The authority reappointing him shall specifically state in the order of reappointment whether any deduction is to be made from pension or salary as required by the rules of this Chapter and shall communicate a copy of the order to the Audit Officer.
DDA’s order dated 4.8.81 absorbing the petitioner as Deputy Commissioner (Implementation) with effect from 1.1.81 makes no mention of any deduction of pension. On the other hand, it makes a reference to the letter dated 6.4.81 of the Government of U.P., which requires it not to deduct the pension paid to the petitioner. Thus the action of the DDA in deducting the pension amount received from the Government of U.P. from the petitioner’s salary is unjustified.
17. In view of the above discussion, both the writ petitions are allowed and it is directed that the respondent DDA shall, within a period of four weeks from today:
(a) Fix the pay of the petitioner in the pay scale of Rs. 1500-2000 with effect from 1.1.1981 and consequently place the petitioner in the revised pay scale of Rs. 4100-5300 with effect from the date when pay scales were revised and work out all consequential dues to the petitioner and make the payment of such amounts to the petitioner.
(b) Repay to the petitioner the entire sum which was the pension and gratuity paid by the State of Uttar Pradesh and which was deducted from the salary of the petitioner during his service with the DDA; together with the interest at the rate of 12 per cent per annum from the date of filing of the writ petitions, i.e., May 28, 1991 till the date of payment.
(c) The sums calculated as per (a) and (b) above shall be paid to the petitioner, within four weeks, along with interest @ 9% per annum from the date of filing these petitions, i.e., 28.5.1991 till the date of payment.
(d) Pay the petitioner the costs of these two writ petitions which are quantified at Rs. 10,000/-.