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Judgment
A.K. Sikri, J,
The petitioner, when he was working as Maj. Gen. in Indian Army, was sent on deputation with the respondent No. 2 i.e. Centre for Development of Telematics. While he was on deputation, the respondent No. 2 addressed letter dated 16.10.93 to the Government of India, Ministry of Defense stating that his performance during his short tenure with the respondent No. 2 was outstanding and the respondent No. 2 had re-designated him as Engineer in Chief (Works). It was also stated therein that the petitioner was to be put through a Selection Board scheduled in November, 1993 for promotion as Lt. Gen. and in case he is promoted to that post, C-DOT was willing to retain the respondent No. 2 in the higher rank on deputation. Petitioner when he was still on deputation with respondent No. 2 retired from service of Army w.e.f. 31.10.94. Three days before his retirement the respondent No. 2 wrote him a letter dated 28.10.94 making him offer to appoint him as Chief Consultant (Works) w.e.f. 1.11.94. It was stated in this letter that the Project Board had agreed that the package being offered to him would match or will be better than his then remuneration and would have same responsibility as he was having during his deputation period. Petitioner started working as Chief Consultant (Works) w.e.f. 1.11.94. However, he was given appointment letter to this effect on 12.12.94 along with which terms and conditions of the appointment were annexed. As per these terms and conditions, his engagement period was till the completion of campus project including finalisation of accounts commencing from 1.11.94. As noted earlier, the designation given to him was Engineer-in-Chief (Works). Clause relating to remuneration reads as under:--
Consultancy Fee - Rs. 4,000/- (Four thousand only) per month.
Project Board may take into account the effect of the Fifth Pay Commission to safeguard your interest and enhance the remuneration appropriately at the right time as per Government guidelines.
Apart from the aforesaid remuneration, it was stated that the petitioner would be entitled to leased accommodation upto rental limit of Rs. 5,000/- per month including fittings and fixtures, conveyance of Rs. 3,000/- per month and Rs. 3,000/- for site visits, one day''s casual leave and two and half days earned leave for every completed month of service with provision of encashment of leave as per C-DOT Rules. It was also provided that his travel would be regulated as per category A of C-DOT, TA rules for all his official duties and he would be provided telephone for his residence and office as per C-DOT rules. This contractual appointment was terminable by either side by giving one month notice.
Petitioner started getting consultancy fee of Rs. 4,000/- along with other benefits. It may be mentioned that Ministry of Personnel. Public Grievances & Pensions, Department of Personnel & Training had issued memorandum dated 21.12.93 vide which scheme for engagement of consultancy was notified. The said scheme, inter alia, provides that if in case the fee would be fixed at subject to ceiling of Rs. 4,000/- per month. Keeping in view the office memorandum if consultancy fee of Rs. 4,000/- was fixed in case of petitioner with stipulation that Project Board may take into account the effect of Fifth Pay Commission to safeguard his interest and remuneration paid to him would be enhanced appropriately.
It is a matter of record that at the time of the petitioner''s engagement w.e.f. 1.11.94, Fifth Pay Commission had already been constituted which was holding its deliberations. It ultimately submitted its report to the Government of India which was accepted with certain modifications and the recommendations became operative from 1.1.96. The recommendations in respect of consultants etc. like the case of petitioner were however accepted w.e.f. 1.12.97. Office memorandum dated 13.2.98 revising the guidelines regarding scheme of engagement of consultants was also issued by DOPT to bring in line with recommendation of Fifth Pay Commission. As per this office memorandum fee in the case of retiring/retired government servants engaged as full time consultants could be fixed subject to ceiling of Rs. 13,000/- per month. It was clarified that they could draw their pension and relief thereon in addition. It has also been provided that while fixing the pay it could be ensured that the fee plus pension drawn by such consultants should not accept the less pay drawn.
Petitioner made representation for revision of his consultancy fee after the issuance of aforesaid memorandum dated 13.2.98. However, it was not revised. On the contrary petitioner received communication dated 17.4.2000 as per which one month notice was given to him terminating his contract w.e.f. 6.5.2000. Petitioner ceased to be consultant w.e.f. 6.5.2000.
It may be mentioned at this stage that petitioner was also given necessary interim relief of Rs. 720/- w.e.f. 1.9.94. However, this interim relief was withdrawn vide communications dated 17.11.98 and 25.11.98.
Present petition has been filed by the petitioner claiming for revision of consultancy fee w.e.f. 1.12.97 and payment of arrears thereof along with interest upto 6.5.2000 as well as interim relief.
During the arguments, interim relief was not pressed.
The issue, therefore, which needs to be decided is as to whether the petitioner is entitled to revision of consultancy charges as per the 5th Pay Commission recommendations w.e.f. 1.12.1997 when these recommendations were implemented.
From the narration of events mentioned above, it is clear that while fixing petitioner''s consultancy fee at Rs. 4,000/-, it was specifically mentioned that Project Board may take into account the effect of the 5th Pay Commission to safeguard his interest and enhance the remuneration appropriately at the right time as per Government guidelines. Thus such a term that petitioner''s fee would be enhanced depending upon the outcome of 5th Pay Commission was specifically inserted in the terms and conditions on which petitioner was appointed as consultant. Significantly, fee of Rs. 4,000/- which was fixed at that time of petitioner''s appointment was the maximum payable for such assignment. The 5th Pay Commission, inter alia, recommended that in case of retiring/retired government servants engaged as full time consultants fee will be fixed subject to ceiling of Rs. 13,000/- per month. It was also mentioned that they would also draw pension and relief thereon in addition. Thus in normal course the petitioner should have been given this revision after the recommendation of 5th Pay Commission was accepted w.e.f. 1.12.1997. However, when the petitioner made the representation, it was rejected vide communication dated 27.11.1998 wherein it was stated that 5th Pay Commission''s Recommendations were not applicable in respect of consultants and, therefore, there was no question of granting him benefits arising therefrom.
Significantly in the counter-affidavit filed to this writ petition, this stand that 5th Pay Commission''s Recommendations are not applicable has not been pressed and on the other hand non-grant of revision is justified by taking altogether different posture. It is alleged that the petitioner is not entitled for refixing as his engagement as consultant was beyond the period of six months and also because of other gross illegalities committed by him, namely, drawal of certain benefits which were not admissible to the consultants. Learned Counsel for the respondents referred to Annexure R-6 in this behalf which is a comparative chart of payment of consultancy fee showing comparison between the petitioner and one Mr. N.S. Chakarvorty on the basis of which it was sought to argue that conveyance reimbursement, medical reimbursement, leave encashment etc. which the petitioner was drawing were not given to Mr. Chakarvorty and drawal of these benefits by the petitioner was not proper. He also submitted that audit had raised objections in this behalf and in fact recoveries were due from the petitioner on this account.
It is thus clear that the respondents are not taking the plea now that recommendations of 5th Pay Commission are not applicable. Insofar as the aforesaid grounds taken by the respondents in the counter affidavit to deny the benefits to the petitioner, the same are clearly untenable.
It may be noticed in the first instance that the other benefits drawn by the petitioner were in terms of his appointment letter. In any case even if it is presumed, for the sake of arguments that these benefits were not admissible to him, it would have no bearing on the issue of revision of consultancy fee of the petitioner. Relevant consideration in this behalf would only be the recommendations of the 5th Pay Commission which were accepted by the respondents. As per these recommendations if the petitioner was entitled to the revision, he has to be given the said revision and it could not be denied on the specious plea that the petitioner was given other certain benefits not admissible to him. For other alleged inadmissible benefits given to the petitioner the respondents could take steps to recover the same. Nowhere it is pointed out that any steps were taken in this behalf. Payment of such perks, as a part of the terms of his appointment, could not be a ground to deny revision in the consultancy fee. Further, learned Counsel for the respondents could not dispute the contention of the petitioner that there was nothing to show that his engagement as consultant was for six months only. Moreover, appointment letter clearly stipulates that his engagement period was till the completion of campus project. It may also be mentioned that terms and conditions on which the petitioner was appointed were duly approved by the Board and the petitioner has filed documents in support thereof. If these include certain perks, which the Board fixed, as were allegedly not to be given, it is the Board which is to be blamed and not the petitioner. In my opinion the present petition deserves to be allowed. Rule is made absolute. The respondents are directed to pay the petitioner consultancy fee at the rate of Rs. 13,000/- (as the petitioner was given pre-revised fee at the rate of Rs. 4,000/- per month which was maximum) w.e.f. 1.12.97 till 6.5.2000. The arrears in this respect should be worked out and paid to the petitioner within a period of two months along with interest at the rate of 7% per annum.
No costs.