IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.5492 of 1990 (O&M) Date of decision:19.04.2010 S.C.Gupta ….Petitioner versus Indian Railway Construction Company Limited and another. …Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Girish Agnihotri, Senior Advocate with Mr.Vijay Pal, Advocate, and Ms. Binayjeet Sheoran, Advocate, for the petitioner. Mr. A.P.Nagrath, Advocate, and Mr. Manuj Nagrath, Advocate, for the respondents. ----- 1. Whether reporters of local papers may be allowed to see the judgment? No. 2. To be referred to the reporters or not? No. 3. Whether the judgment should be reported in the digest? Yes. ----- K.Kannan, J. 1. Two decades of the case in Court has deflected the focus of attention from the essential reliefs sought for in the petition for a promotion to higher post, which, according to the petitioner, was denied to him, flouting the issue of seniority to whether the petitioner could have the benefit of the promotion post by providing to him the monetary benefits which would obtain if he had been promoted and to consider how they impact the terminal benefits and pension payable to such an employee. Civil Writ Petition No.5492 of 1990 (O&M) - 2 - 2. The petitioner's case is rested on his claim that he was selected as a Junior Engineer (Civil) on 23.06.1981 in open competition and put on a scale of pay of Rs.550-750. The service was subsequently regularized and by the time when the case was taken up, the admitted position is that he had retired from service. His grievance is that a regular employee in Indian Railway Construction Company (IRCON) was sidelined and better treatment with promotion to later entrants, who had come on deputation from the Indian Railways and giving them highly invented and exalted designation as Technical Officers and placing them on higher scales of pay that gradually allowed the latter to steal a march over persons like the petitioner in their career progression. 3. The grievance of the petitioner is not placed in the air but gives concrete instances of how when he was recruited on a scale of pay of Rs.550-750, some other persons like R.Venkataraman and R.K. Singh, who had come on deputation from the Railways subsequently and who drew scales at par or below the scale which the petitioner was drawing in the Railways administration, were later absorbed and posted to higher positions than what the petitioner held. The above two persons had been absorbed on 07.05.1987 and 05.03.1986 respectively. They were still deputationists but they had been offered higher scales on absorption as Assistant Engineers/Technical Officers at Rs.700-900 for R. Venkataraman and Rs.700-1200 for R.K. Singh. All the three had a brief stint of work at Iraq. While the petitioner had been assigned to the work on 13.05.1982 and returned to India on 13.02.1987, R.K. Singh joined subsequently on 27.05.1982 and returned to India earlier on Civil Writ Petition No.5492 of 1990 (O&M) - 3 - 09.07.1986. The petitioner had the unsavory experience of finding that R.K. Singh, who joined IRCON as a deputationist and returning to India was being put on a scale higher than the petitioner. The petitioner's contention in comparison to his status with R.K. Singh was that there were both Technical Officers and the designation as such was project specific and not related to salary. 4. The petitioner would also give the chart showing the details of successive promotions given by the 1st respondent to some deputationists taken from Railways which showed that although he was on a scale higher than the other deputationists at the time of initial posting, the deputationists were given higher scales and quicker promotions. The promotion channel in the railways was as follows:- Sr.No. From Scale To scale 1. 425-700 550-750 2. 550-750 700-900 3. 700-900 840-1040 4. 840-1040 700-1200 5. 700-1200 1100-1600 6. 1100-1600 1500-2000 Referring to the fact that none of the deputationists were at higher scales than the petitioner in the parent department and making an inference that lower scale meant a lower post, the petitioner would contend that the deputationists could not have been granted any higher scales and further promotions against the principles of equality outlined by Article 14 of the Constitution. 5. The channel of promotion in the technical cadre of Civil Engineering in the IRCON is stated to be as follows:- Civil Writ Petition No.5492 of 1990 (O&M) - 4 - Sr. No. Rank Scale Class 1. Junior Engineer (Civil) Rs.550-750 Class III to 2. Engineer (Civil) Rs.750-1000 Class II (Probation) to 3. Assistant Manager/ Rs.750-1200/ Class I Technical Officer Rs.700-1200 to 4. Deputy Manager Rs.1100-1600 Class I to 5. Manager Rs.1500-2000 Class I and so on” 6. The comprehensive response to the contention of the petitioner in the statement on behalf of the respondents is that for posts of Junior Engineer/Foreman, the onward promotion was to the post of Senior Foreman in the scale of Rs.700-900 and, thereafter, the post of Technical Officer in the scale of Rs.700-1200 and then to the post of Deputy Manager in the scale of Rs.1100-1600. The appointment to the post of Assistant Manager and Engineer (Civil) was by direct recruitment from open market from the engineering graduates and the scales of pay of Rs.750-1200 and onwards promotion was to the post of Deputy Manager and the scales of Rs.1100-1600. The promotion to the post of the Deputy Manager, therefore, came through two sources from Technical Officer and from Assistant Manager and that promotions were made on the basis of selection. Referring to the fact that the 1st respondent was undertaking projects at a global level and the need for personnel with technical expertise, many persons had been brought on deputation from amongst the employees of Indian Railways and while drafting the best of talent, they had to be offered higher scales and the Civil Writ Petition No.5492 of 1990 (O&M) - 5 - Recruitment Rules provided that Board of Directors could make provision for absorption of staff brought on deputation, possessing exceptional skills in any higher grade which they considered appropriate. The learned counsel appearing for the respondents would contend that the Recruitment Rules themselves were not in challenge and the seniority of deputationists which was set in para 11.3 of the Rules enabled the respondents to afford higher scales to persons, who were brought on deputation and if the source of power could be seen as legitimate, the action of the respondents cannot be assailed, unless mala fides or bias in the action could be attributed. 7. To examine the respective contentions between the parties, it becomes necessary to take the case on an admitted premise that the petitioner had been an earlier regular appointee of the 1st respondent, that he was on a scale higher than the scale of a person brought on deputation to the 1st respondent from his parent department viz., of Indian Railways who was on a scale lower than the petitioner, that he worked on the same post but was given a higher scale of pay and absorbed also to a higher scale. Para 6 of the Recruitment Rules set out the sources and modes of recruitment which includes recruitment in open market as well as recruitment by deputation. The issue of seniority has been set in para 11 and 11.1.1 sets the relative seniority of all direct recruits shall be determined on the basis of merit order as assigned on the approved panel. Seniority amongst the deputationists is set out in para 11.3 and 11.3.3 is what is relevant to us immediately:- “11.3.3. Staff shall normally be considered for absorption in the grade in which he was working on Civil Writ Petition No.5492 of 1990 (O&M) - 6 - Railways at the time of absorption. Staff can be considered for absorption in next higher grades in the Company provided they would have rendered more than 5 years service in that grade in Railways had they continued on the Railways. The Board of Directors may, however, decide the absorption on staff, possessing exceptional merits, in any higher grade which they may consider appropriate.” The absorption of deputationists is provided in para 12.1. 8. If the petitioner's grievance is that the persons, who had been on lower scale in Railways than the scale which the petitioner had in the 1st respondent-Company and on deputation, he had been put on a scale higher than the petitioner, the petitioner's challenge could be sustained only if the deputationist was perforce to draw only the same scale as attached to the post. If, on the other hand, the Rules provide for a deputationist to be put on a higher scale then the challenge cannot be on the basis of discrimination of two persons in the same post drawing different scales since the two persons were in different categories and at least identified to be so by the source of recruitment. There is no difficulty in accepting the fundamental position canvassed by the petitioner that a person, who is put on a higher scale would also be considered as holding a higher post. It may not always however turn out to be so for two categories of persons working in the same post may still draw different scales depending on which category he belonged. While there cannot be two different scales for the same post by persons directly appointed by the establishment, they could, if Rules so permitted, be placed on different scales if he is brought on deputation. Here, the Civil Writ Petition No.5492 of 1990 (O&M) - 7 - higher scale assigned to a deputationist could be questioned only if it is seen as arbitrary or if the Rules themselves are under challenge as being violative of Article 14 of the Constitution on the touchstone of arbitrariness or discriminatory treatment. 9. The argument on behalf of the respondents is that the Recruitment Rules themselves are not in challenge and if services of deputationists, who had been brought from Railways and posted in overseas assignments, could be obtained only by throwing out an olive branch by providing to them higher scales that could not be said to be wrong. In the written statement referring to the two channels of promotion to the post of Deputy Manager (Civil) one through the post of Technical Officer in the scale of Rs.700-1200 and another from Junior Engineer/Junior Foreman in the scale of Rs.550-750, the contention is that the petitioner, who was in the scale of Rs.550-750, had been promoted to the post of Senior Foreman in the scale of Rs.700-900 and he could not compare himself with persons, who had been promoted from the post of Technical Officer in the scales of Rs.700-1200. The issue of equal pay, equal work has been the basis of many a dispute between direct recruits and deputationists subsequently absorbed. If a deputationist is doing the same work as a direct recruit, the offer of higher scale may not always be justified. In Nehru Yuva Kendra Sangathan Versus Rajesh Mohan Sukla-(2007) 6 SCC 9, the parity of deputationists and direct recruits on contract basis was ordered to be maintained. The Court held that discrimination based on source of recruitment would not be justified. In Food Corporation of India Civil Writ Petition No.5492 of 1990 (O&M) - 8 - Versus Ashish Kumar Ganguly-(2009) 7 SCC 734, the provision for advance increments to one set of employees and denying to another doing the same type of work, when the tie was between permanent transferees from Central Government and persons absorbed permanently as State Government deputationists, was found to be discriminatory. However, the discrimination by grant of lower scales to deputationists on absorption on the ground that the post carrying a particular scale was not available in the transferee organization shall be seen differently to a situation where persons are brought on deputation to do highly skilled jobs in the transferee organization, since enough hands were not available. If in such a situation, higher scales are offered as incentives, and they are also provided in the Recruitment Rules, no objection on the ground of discrimination could be made. Further, as pointed out already, there were two distinct channels of promotion to the post of Deputy Manager. The petitioner, who was a Junior Engineer/Foreman, was promoted as Senior Foreman in the scale of Rs.700-900 on his turn in 1987. The next higher post was Technical Officer in the scale of Rs.700- 1200 and then to the higher post of Deputy Manager. Since the petitioner had not been promoted to the post of Technical Officer, there was no way of jumping one post to be promoted directly as Deputy Manager. The petitioner could not compare himself to Assistant Manager (Civil) who had been drawn from the open market on the basis of their being graduate engineers. 10. After the case was reserved for judgment, an application filed by the petitioner for taking on record a case filed at the instance of Civil Writ Petition No.5492 of 1990 (O&M) - 9 - some persons, who had grievance about the manner of settling the inter se seniority when the Central Administrative Tribunal had held that the persons appointed on higher scales should be treated as Seniors for the purpose of further promotion and the persons who had joined IRCON earlier and working on posts carrying higher scales, had a prior right of consideration for promotion to the next higher posts. The case had been filed seeking for a direction for absorption from the date of issue of sanction from the Government and that persons, who had been brought on deputation, ought not to be given promotion to chose their own date of absorption suitable to them. The fact that the applications were allowed and that further Special Leave Petition before the Hon'ble Supreme Court had been dismissed, does not, in my view, make the difference or obtain to the petitioner any additional benefit. No proposition of law could be said to have been made generally that a deputationist could not have been offered higher scales of pay and later absorbed to a post on a higher scale and promoted by the only fact that such a person had come on deputation at a date later than the person, who was regularly appointed in open competition. The petitioner and the persons, who had come on deputation from Railways, had different promotion channels with distinct scales. While the petitioner had to go through the channel as Senior Foreman to Technical Officer before offered a promotion to Deputy Manager, the persons, who had come on deputation were later absorbed as Assistant Managers in a different scale before being promoted to the post of Deputy Manager. 11. I cannot find fault with the actions of the respondents and Civil Writ Petition No.5492 of 1990 (O&M) - 10 - the petitioner's claim for promotion comparing his own status with deputationists has no merit. The writ petition would, therefore, requires to be dismissed. However, there shall be no directions as to costs. (K.KANNAN) JUDGE 19.04.2010 sanjeev