AI Structured Summary
Not yet generated for this judgment
Judgment
Sanjiv Khanna, J.—The Petitioners herein are class III and class IV employees of Delhi Regional Office-II of New India Assurance Company Ltd., (Respondent for short).
To streamline and revise the pay scale of employees of the Respondent, the Department of Economic Affairs, Ministry of Finance framed ''General Insurance'' (Rationalization and Revision of basic pay scales and other conditions by services of Supervisory, Clerical and Subordinate staff) Scheme, 1985.
The said scheme was published in the Official Gazette on 15th October, 1985 and became applicable with effect from the said date.
Paragraph 6A of the scheme relates to fixation of basic salary in the revised scale of pay. Clause 1 of paragraph 6A dealt with employees who were in service as on 31st March, 1983 and Clause 2 thereof dealt with employees who were appointed on or after 1st April, 1983 but before publication of the scheme in the Official Gazette.
Clause 3(a) however, gave an option to employees in clauses 1 and 2 to choose and opt for the basic salary in the revised scale of pay w.e.f. date of publication of the scheme in the Official Gazette. The said option had to be exercised within 30 days of the publication of the scheme. For the sake of convenience paragraph 6A-(1), (2) and 3(a) are reproduced below:
(1) The basic salary of every employee in service as on the 31st day of March, 1983, shall be fixed at a corresponding stage in the relevant revised scale of pay with effect from the 1st day of April, 1983 Provided that where an annual increment is due to such an employee on the 1st day of April, 1983, he shall be granted such an increment in the revised scale of pay immediately after such fixation of basic salary. Provided, further that where the basic salary of such an employee is fixed at the maximum of the relevant revised scale of pay no such increment shall be granted.
(2) the basic salary of every employee appointed on or after the 1st day April 1983 but before the publication of the Amendment Scheme in the Official Gazette, shall be fixed at the corresponding stage in the relevant revised scale of pay with effect from the date of his appointment; Provided that the benefit on the fixation of basic salary (namely, the increase in the total of basic salary and dearness allowance under the "revised terms" over the total of the basic salary, personal pay, if any, dearness allowance and personal allowance under the "existing terms") shall not be less than the amount specified in Column(2) of the table annexed hereto in relation to the categories of employees specified in the corresponding entry in column(1) of the said table.
Category of Employees
Minimum Benefit per month Rs.
Subordinate Staff
35.00
Record Clerk
40.00
All employees in the scale of Pay of Assistant
50.00
Senior Assistant/Stenographer/ Superintendent
60.00
Provided further that if the fixation of basic salary in the relevant revised scale of pay does not result in the minimum benefit as specified in the aforesaid Table, the basic salary of the employee will be fixed at one or more higher stages in there relevant revised scaled of pay so as to ensure that the (sic) gets the minimum benefit specified in the aforesaid Table.
Provided also that where the fixation of basic salary at the maximum of the relevant revised scale of pay, does not enable the employee to get the minimum benefit specified in the aforesaid Table, he will be granted adjustment allowance to the extent of the shortfall which allowance shall be adjusted against any future increase in basic salary or dearness allowance due on or after the publication of the Amendment Scheme in the Official Gazette. 3(a) Notwithstanding anything contained in sub-paragraphs (1) and (2), the employee may choose that his basic salary may be fixed in the revised scales of pay with effect from the date of publication of the Amendment Scheme in the Official Gazette; in which case he shall intimate this fact in writing to the Corporation or Company within 30 days of such publication of the Amendment Scheme or such further period as may be allowed by the managing Director or Chairman-cum-Managing Director of the Company.
It is clear from the aforesaid clauses that employees who wanted to opt under Clause 3(a) had to exercise their option within 30 days from the date of publication of the scheme in the Official Gazette i.e. on 15th October, 1985. Petitioners do not claim that they had exercised the option under paragraph 3(a) of the scheme.
On 23rd December, 1986, amendments were made in the administrative instructions of the scheme which were called Supplemental-II. This was necessitated in view of the fact that the price index figures for the quarter ending 30th June, 1985 were increased w.e.f. 1.10.1985. Thus the employees were not given an effective choice. By the supplemental-II amendment dated 23rd December, 1986, a right of exercising the option under Clause 3(a) was extended up to 31st January, 1987. The Petitioners did not opt and exercise their option till 31st January, 1987. This is an admitted position. It appears that this time was extended again. It is not the case of the Petitioners that they exercised the option within the extended period.
The Petitioners contend that they were not made aware of the supplemental-II and therefore they did not exercise the option. The said allegation of the Petitioners has been controverted and denied by the Respondent in the counter affidavit. It has been stated that the circular in respect of the implementation of supplemental-II was displayed in all offices and many employees including the colleagues of the Petitioners had taken benefit of supplemental-II by exercising their option. It is further averred in the counter affidavit that some of the Petitioners had in fact forwarded the representations of the subordinate exercising their option. Pay fixation and the right to exercise option and extension of time obviously was not inconsequential or an innocuous matter which could have gone unnoticed. It is difficult to accept that the Petitioners were not aware or had no knowledge about their right to exercise option.
The Petitioners in the writ petition have made a case of discrimination alleging that some of employees had exercised their option in 1989 or thereafter and their options were accepted by the Respondent. Looking into the allegation of discrimination and the ambiguous stand of the Respondent in the counter affidavit, the following order was passed on 19th May, 2008.
As per the Scheme, Class III and IV employees of LIC were required to exercise their options by 31st of July, 1987. It is an admitted case of the parties that the Petitioners did not exercise their option by the said date.
The Petitioners have made out a case of discrimination. It is stated that the Petitioners are entitled to parity with all others who had exercised their option in 1989 or thereafter but their options were accepted.
To determine and decide the question of discrimination, certain facts are required to be ascertained. In para 8 of the counter affidavit, it is stated that seven employees posted at Agra were allowed to exercise their options in January, 1989. Learned Counsel for the Respondent, on instructions, states that there are no other cases where employees were permitted and allowed to exercise their option after 31st July, 1987, except in isolated and individual cases which were decided on merits. However, in para 10 of the counter affidavit, LIC has taken a different stand and has accepted that the benefit was extended to other employees.
The Respondent-LIC will file an additional affidavit clearly indicating:
(i) Whether any application for exercising option was entertained after January, 1989?
(ii) How many applications were received?
(iii) The dates on which the applications were received?
(iv) Whether the applications were accepted and in how many cases?
(v) The date of orders passed by the Respondent-Management, where applications were accepted.
The Respondent-Management will also indicate the date on which the Petitioners had exercised their option and whether any application made after the said date has been accepted in other cases.
Liberty is granted to the Petitioners to furnish and give the exact dates on which they made applications for exercising their options. The Petitioners will furnish date of their application within two weeks from today. The Respondent-LIC will file an additional affidavit within four weeks thereafter. List again on 27th August, 2008.
The Petitioners did not file any affidavit giving the exact dates on which they made applications exercising their options. The Respondent, however, filed an affidavit on 1st September, 2008. In this affidavit it is stated that no application had been received from any of the Petitioners after January, 1989 or even up to 5th May, 1989, the date on which last permission for exercising of option was granted by the Head Office to seven employees of the Respondent at Agra. It is further stated that after 5th May, 1989 applications of others for option were sent to Bombay (now Mumbai) but were rejected on the ground that the option was exercised belatedly.
The Petitioners thereafter filed an affidavit on 5th March, 2009 giving names and particulars of six employees and it was further alleged that 27 employees had applied on different dates in 1989-90 and their requests were considered and accepted.
The Respondent filed a rejoinder affidavit on 1st December, 2009, controverting and denying the allegations made by the Petitioners. They specifically dealt with the allegations made by the Petitioners with reference to the case of Mr. S.C. Pathak and Mrs. Krishna Dey. It is stated that the order passed by Mr. S.C. Pathak does not show date on which he had made the application. Similarly, in the case of Mrs. Krishna Dey it is pointed out that it was the case of re-fixing of salary and not a case of option. It is noticed that in the case of Mr. S.C. Pathak, the option was exercised on 3rd July, 1989.
In the present case the Petitioners if at all had exercised their option only on 18th December, 1990 by writing a letter. This is 1 1/2 years after the option was exercised by Mr. S.C. Pathak in July, 1989. The Petitioners cannot therefore play parity with the case of Mr. S.C. Pathak. The Respondent in their counter affidavit have clarified that towards end of 1989 they had started receiving large number of applications for exercise of option under supplemental-II Clause 3(a). These facts were brought to the notice of the Respondent''s Head Officer and the Board and it was decided by the Respondent''s Head Office vide letter dated 23rd August, 1990 that no further sanction for option of an employee would be entertained or granted. It was further clarified that earlier orders allowing some of the employees to opt fixation of salary was on the basis of hardships. As noticed above, the applications of Petitioners for option was made on 4th December, 1990, which is after the letter dated 23rd August, 1990 was written by the Board categorically stating that no sanction for option shall be henceforth granted. The Petitioners have not placed on record any letter of option prior to 23rd August, 1990. It may also be noted that the representation of the Petitioners for option was rejected by the Respondents by letter dated 4th January, 1991 and the present writ petition was filed on or about 24th May, 1995, after delay of more than 4 years. Thus, the Petitioners have approached the Court after a great delay.
14 . In view of the aforesaid I do not find any merit in the present writ petition. Writ petition is hence dismissed.
There would be no order as to costs.