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Judgment
Vinod K. Sharma, J.—The petitioner has approached this Court with a prayer for issuance of a Writ in the nature of Certiorari, to quash the order passed by the first respondent, dated 28.03.2002, and that of the second respondent communicating the order to the petitioner, with the consequential prayer to direct the respondent to pay the petitioner, two increments denied to him.
The case pleaded by the petitioner, is that the petitioner is an ex-service men, who served with the Indian Air Force for 15 years. The petitioner after retirement joined the service of the second respondent bank, as Clerk-cum-cashier on 21.07.1980 and he retired in the year 30.09.2004. That the Government of India as a matter of Policy declared certain benefits for ex-servicemen towards reservation of post, and counting of defense service on joining civil post, after their release from the Forces to protect their interest, and to keep them at parity with their counter parts in civil appointments in Government.
Though the averments are not controverted by filing counter, but, these cannot be accepted, as the policy of the Government was required to be adopted by the second respondent/bank, as it does not automatically apply to the bank.
It is also the submitted that respondent No.2 and 3 are Public Sector Undertakings functioning under the control of Reserve Bank of India, therefore, are bound by the instructions issued by respondent No.1,and are required to be carried out by respondent No.2 and 3. It may be noticed here, that no instruction have been placed on record, in support of the claim.
The petitioner also submitted that one of the instruction issued by the Ministry of Finance was to regulate the pay of re-employed ex-service men, issued vide OM No.8(34) E iii/57, dated 25.11.1958 and that, the pay of the re-employed pensioner is required to be fixed as follows:
The initial pay on re-employment, shall be fixed at the minimum Stage of the scale of pay prescribed for the posting which an individual is reemployed.
In cases where it is felt that the fixation of initial pay of the re employed officer at the minimum of the prescribed pay scale will cause un due hardship, the pay may be fixed at the higher stage by allow in gone increment for each year of service which the officer has rendered before retirement in a post not lower than that in which he is re-employed.
The instruction was subsequently modified vide memorandum issued by the Ministry of Finance, dated 11.04.1963 and 16.01.1964. Subsequently, in the year 1978, the Government considered the question of raising the limits in pursuance to liberalisation of pension Rules and general increases in pay-scales on the basis of the pay commission recommendations, wherein, it was provided as under:
This has been subsequently modified in the Office Memorandum issued by the Ministry of Finance dated 11.4.1963 and 16.1.1964 and the subsequently in the year 1978 vide OM No.F.5(14)/E 111(b)/77, dated 19.07.1978. The Government have had under consideration the question of raising these limits consequent in liberalization of pension Rules and the general increases in pay scales on the basis of the pay commission recommendations. The President had been pleased to devide that in the case of persons retiring before attaining the age of 55 years the pension as shown belay may be ignored in fixing their pay on re-employment.
In the case of pensions not exceeding Rs.125/-per mensum the actual pension. In other cases the first Rs.125/-of the pension.
It is pleaded that the petitioner joined with the first respondent in the year 21.07.1980 and his salary was fixed as follows:
Basic pay
�Rs.325.00
D.A.
....Rs.204.75
�.
....Rs.329.75
�.
That the third Bipartite Settlement was in force when petitioner joined with the respondent, and at that time scale of pay were as follows:
325-20-405-25-455-30-545-35-580-40-660-45-750-50-800-60-1040
14 2 3 1 2 2 1 4
Therefore as per guidelines of the Ministry of Finance and taking in to consideration the last pay, with the defence and my pension as well as after deduction Rs.125/-(ignoring of Rs.125/-) and giving weight age of to 15 years of service was scale of pay was to be fixed at Rs. 407/-, where as pay was fixed at Rs.325/-which was the initial pay for employment at the time of joining.
That at the time of retirement from defence service, his last drawn pay was as follows:
Basic pay :
Rs.392/-
Good conduct Padge pay :
Rs.15/-
The respondent without considering the guidelines fixed, the pay at Rs.325/-and continued, to pay the same.
That on the representation dated 11.08.1982 the third respondent revised his basicpayatRs.345/-from 21.07.1980, vide their Ref.No.SF/Gen/203/82, dated 18.11.1982.
It is submitted that the fixation of the Basic pay was also erroneous in view of the Fact that the respondent bank did not abide by the guide lines of Ministry of Finance, under which his pay should have been fixed as follows:
Basic pay in Bank
---Rs. 325/
-ADD (Pension)
---Rs. 155/-
ADD (Peg)
---Rs. 18/
----Rs.498/-
Less:Ignorable Pension amount
---Rs.125/
----Rs.373/-
Then petitioner was required to be placed in basic pay at Rs.430/-instead of Rs.345/
The instruction relied upon by the petitioner are with regard to fixation of pension which have nothing to do with the fixation of pay-scale, or grant of increment.
It is also pleaded that subsequently the Government had issued instructions to ignore the total pension of the defense, while granting pension.
It is the case of the petitioner, that the stand of the second respondent/bank prejudiced the right of the petitioner, to receive pay as per the direction of the Ministry of Finance throughout the tenure of his service and that his pension was also not fixed as per the guidelines of the Ministry of Finance.
A reading of the impugned order shows that dispute qua pension was not raised before the authorities. The only question raised before the authorities was with regard to fixation of his pay at the time of joining service.
The petitioner had joined the service in 1990, and his pay was also fixed in the year 1990, it was only in the year 1994, for the first time, the petitioner filed representation.
The case of the petitioner was that the representation filed by him was not decided by the respondents, which had forced the petitioner to file W.P.No.4070 of 1996. The Writ was disposed by this Court, with the direction to the respondents, to consider and pass orders thereon.
In compliance with the order passed by this Court, the letter impugned was issued, which reads as under:
UCO BANK
Head office
O.S.T.M. Barani Brabourne Road, Calcutta-700 001.
K.K. Nagar, Madurai (1177)Branch
SF/2/2002
09.04.2002
To
Mr. S. Periakaruppan (DF No.25903), Head Cashier (E), Ex. K.K.nagar, Madurai.
Sir,
Sub: Your pay fixation-Ex-service men-High Court order-Regarding.
Please refer your letter dated 25.02.2002 regarding above subject. You are aware that the High Court vide order dated 11-12/01, inter alia directed the Union of India to dispose of your representation dated 20.05.1994 with in four months. Our H. Oreferred the matter to the Ministry the same with a request to dispose with in the stipulated time.
Now we have received a letter No. 6/3/02-SC (8) dated 28.03.2002 of the Ministry of on perusal of which we find that the representation of you had been considered by the Ministry and has rejected the same. The representation has thus been disposed by the Ministry in compliance with the court''s order.
Please find herewith a copy of the letter received from Ministry of Finance and acknowledge in two copies.
(sd/-) Manager.
Encl.: As above.
The second respondent forwarded the letter, which is also impugned order.
The letter reads as under:
Court Case
Urgent
Bi,6/3/20020SCT(B) Government of India, Minstry of Financing Banking division.
Jeevandeep Building, New Delhi/ 28th March 1992.
To The CMD, Uco Bank, Kolkatta.
Subject: Writ Petition No. 4040 of 1996 in the Madras High Court filed by Shri. peria Karuppan, Cashier-cum-Godown Keeper.
***
Sir,
I am directed to refer to your letter No. PER/ER(L)/2002/738 dated 16.03.2002 and to say that fixation of pay of an employee of the public Sector banks has no appeal against the fixation of pay lies with in the limit.
Further, in view of the order of the Honourable High Court of Madras, Ministry of Finance, has considered the representation dated 20-21/5''1006 submitted by Shir. Periakaruppan. The Government has issued guide lines purely as a welfare measure that an ex-Service men joining the service of a public Sector bank should be paid emoluments not less than that were given to him in the Armed Force. It is seen that on his appointment Asst. Cashier-cum-go down Keeper. The bank has fixed his pay at 345/-and his emoluments including the dearness allowance and pension in excess of Rs.125/-was more than what he has drawing at the time of discharge from the Air Force. Shri. Karuppan also does not appear to have made any representation against the fixation of pay on his initial appointment in the bank.
Vide Banking Division''s letter11.3.1983,the ex-service men who are employed in the Public Sector banks are given an option of having their pay re-fixed in accordance with the Ministry of Defence OM No. 2(1)/03/D(Civ-1) dated 8.2.1983. It was clearly mentioned in the OM that in case of those who opt for there-fixation of pay, their case will be considered as if they were re-employed on or after 25.01.1983 it is seen that the pay of Shri Peria Karuppan was re-fixed in accordance with the Government guide lines and there is no justification for increasing his pay to Rs.485/-from 25.01.1983 as represented by him. Therefore, the representation dated 20/21-5-1994 submitted by him is rejected. The employee may kindly be in for medanda copy of his dated acknowledgement may kindly be sent to Banking Division.
Yours faithfully, (sd/-) (A. Thomas)
Under Secretary to the Govt. of India.
A reading of the order show, that the claim of the petitioner for re-fixation
The Circular on which reliance has been placed, only deal with the of salary at higher stage than the one fixed by the Bank was rightly rejected. protection of the salary drawn in the defense service. A positive finding has been recorded, that the pay of the petitioner was fixed higher than the one he was drawing in Indian Air Force, and thus was not entitled to any benefit under the instructions.
The learned counsel for the petitioner vehemently contended that the petitioner is entitled to two increments. On being questioned as to what is the basis of claim for two increments, the learned counsel for the petitioner contended that it is for the respondents to place on record the service record of the petitioner, it is not in possession of the petitioner, that the petitioner is unable to place on record the service record. 18. This contention is totally misconceived. It is well-settled law, that the petitioner has to stand on his own leg. It is only when the case is made out by the petitioner that the respondents are called upon to answer it. The petitioner has failed to make out a case for grant of relief claimed, nor was able to challenge the findings recorded in impugned order.
The reading of the impugned order shows, that the only claim of the petitioner was for re-fixation of salary at higher rate, than the one fixed by the respondents. The claim has rightly been rejected, as the pay of the petitioner in defense was duly protected.
The learned counsel for the petitioner contended that the question to be answered in this Writ Petition is whether the appointment of the petitioner, with the second respondent bank amounted to break in service, can only be answered if the service record of the petitioner is produced. This Court being a court of record, is bound to decide the case on the basis of records.
This contention is totally misconceived. It is not the stand of the respondents, that there was any break in service. The petitioner was given fresh employment, after retirement from defense force. It is under the instruction of the bank, that benefits were given on re-employment. Keeping in view the fact, that the employers salary of the defense service already stood protected, and there was no question of giving higher pay to the petitioner, the petitioner''s demand was not justified. There is another question to be answered here.
The Honourable Supreme Court, has laid down, that the belated writ petition cannot be entertained. The petitioner was admittedly appointed in 1990,and his pay was fixed.
It was only after the limitation to file the suit had expired that a representation was made for the first time. The respondents were not bound to consider it, as the petitioner had no right to challenge that fixation. It is only on account of the directions by this Court that the impugned order was passed.
The claim of the petitioner deserves to be rejected, on the ground of delay and laches itself.
The learned counsel for the petitioner also contended, that due to non-production of record by the respondents, the petitioner has been gravely prejudiced. This contention is again misconceived, as already noticed, it is for the petitioner to make out a case, as the petitioner is to stand on his own legs. The respondents cannot be directed to produce the Service record without that being any basis to call for it. The pleadings in the writ do not make out any case to interfere with the impugned order declining his request for grant of two increments.
No merit. Dismissed.
No costs.