REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   5481 OF 2011 [Arising out of SLP (C) No. 8403 of 2009]

Jagdish Parwani                                                …. Appellant

Versus

Union of India & Ors.                                       …. Respondents

WITH

CIVIL APPEAL NO.  5482 OF 2011 [Arising out of SLP (C) No. 8404 of 2009]

                                        JUDGMENT

Dr. MUKUNDAKAM SHARMA, J.

1. Leave granted.

2. The appeal is directed against the judgment and order dated  

11.09.2009  passed by  the  High  Court  of  Madhya  Pradesh  

Bench at Gwalior in Review Petition No. 185 of 2009. The said  

review petition was filed by the appellant herein against the  

Page 1 of 14

order dated 16.04.2009 passed by the High Court of Madhya  

Pradesh, Gwalior Bench, in Writ Petition (s) No. 882 of 2003.  

Appellant has also preferred a separate appeal [arising out of  

SLP(C) No. 8404 of 2009] against the said decision of the High  

Court of Madhya Pradesh in the Writ Petition No. 882 of 2003.  

By this order we propose to dispose of both the appeals filed  

by the appellant.

3. The facts leading to filing of the aforesaid appeals are that the  

appellant  being  a  graduate  engineer  appeared  for  Indian  

Engineering Services examination which was held pursuant to  

an  advertisement  issued  by  the  Union  Public  Service  

Commission  in  the  year  1987  for  filling  up  the  post  of  

Assistant Executive Engineer [Buildings and Roads] in Military  

Engineering Service,  Ministry of  Defence. The appellant was  

working  as  an  Assistant  Engineer  in  Uttar  Pradesh  State  

Electricity  Board  [for  short  “UPSEB”],  w.e.f.,  1st January,  

1988.  He  having  qualified  in  the  aforesaid  competitive  

examination,  the  appellant  was  offered  an  appointment  as  

Assistant  Executive  Engineer  [Buildings  and  Roads]  in  the  

Military Engineering Services by an appointment letter issued  

by the Ministry of Defence dated 06.09.1989. Consequently,  

Page 2 of 14

he resigned from the UPSEB and as per his last pay certificate  

from UPSEB, he was drawing a basic pay of Rs. 2750/-. His  

resignation was accepted and he was released from the service  

of UPSEB on 19.02.1990.

4. Pursuant to the aforesaid letter of appointment issued by the  

Ministry  of  Defence  the  appellant  joined  the  Military  

Engineering  Service  Department  on  23.02.1990  in  the  pay  

scale of Rs. 2200-4000. In the appointment letter issued on  

06.09.1989  the  appellant  was  also  informed  that  his  pay  

would be fixed at the minimum of the pay scale, viz., Rs. 2200.  

The  aforesaid  appointment  of  the  appellant  was  against  a  

temporary  post  but  the  same  was  likely  to  continue  

indefinitely. The appellant was also placed on probation for a  

period of two years from the date of his appointment with a  

clear stipulation that his appointment could be terminated at  

any time on one month’s notice given on either side without  

assigning any reason. The appellant continued to receive the  

aforesaid pay as fixed by the respondents till  the month of  

September, 1991, i.e., for a period of more than one and a half  

years  and thereafter  he  submitted  three  representations  on  

11.09.1991, 12.02.1992 and 14.12.1992 respectively claiming  

Page 3 of 14

pay protection  on the  basis  of  a  notification  issued  by  the  

Ministry  of  Personnel,  Public  Grievances  and  Pensions  

[Department  of  Personnel  & Training]  dated  07.08.1989.  In  

the  said representations the appellant  claimed that  he  was  

entitled to receive a salary of  Rs.  3000/- per month, w.e.f.,  

23.2.1990 and not Rs. 2200/-.  

5. While  the  aforesaid  representations  of  the  appellant  were  

being  considered  by  the  respondents,  another  notification  

came  to  be  issued  on  28.02.1992  by  the  Department  of  

Personnel & Training extending grant of pay protection to the  

employees of State Government Undertakings joining service  

in Central Government on and after 01.02.1990.

6. By  a  Communication  dated  14.02.1995  the  appellant  was  

informed by the respondents that he is not entitled to such  

pay  protection  as  claimed  by  him  in  the  representations  

submitted by him.

7. Being  aggrieved  by  the  aforesaid  communication  dated  

14.02.1995  communicating  the  rejection  of  the  

representations  of  the  appellant  for  pay  protection,  the  

appellant  filed  an  Original  Application  before  the  Central  

Page 4 of 14

Administrative Tribunal [Jabalpur Bench], Jabalpur [for short  

“Tribunal”] claiming and seeking an order for giving him the  

pay protection which was last paid to him by the UPSEB. The  

Tribunal  issued  an  order  on  01.10.2002  directing  the  

respondents  to  fix  pay  of  the  appellant  by  giving  him  pay  

protection within six months and also to pay him the arrears  

of pay and allowances.  

8. Aggrieved by the said order of the Tribunal the respondents-

Union of India filed a Writ  Petition which was registered as  

WP(S) No. 882 of 2003 before the Madhya Pradesh High Court,  

Gwalior Bench. The High Court after considering the facts of  

the case passed judgment and order dated 16.04.2009 holding  

that  the  appellant  is  not  entitled  to  pay  protection  and,  

therefore, his claim was rejected. It was further held by the  

High  Court  that  the  Tribunal  committed  grave  error  in  

granting  pay  protection  to  the  appellant.  The  appellant  

aggrieved by the aforesaid order of the High Court, preferred a  

Review Petition before the Madhya Pradesh High Court which  

was dismissed by order dated 11.09.2009 holding that there is  

no mistake apparent on the face of the records in the order  

impugned  in  the  review  petition.  The  aforesaid  orders  are  

Page 5 of 14

challenged  in  the  present  appeals  on  which  we  heard  the  

learned counsel appearing for the parties and also perused the  

records.  

9. The facts, which are stated hereinbefore, leading to filing of  

the present appeals are not disputed. The appellant joined the  

UP State Electricity Board on 01.01.1988 and while working  

with the Board he resigned from the service and at that time  

he  was  drawing  the  basic  pay  of  Rs.  2750/-  per  month.  

Thereafter his resignation was accepted and he was released  

from the service of the UPSEB on 19.02.1990. The appellant  

was given the appointment to the post of Assistant Executive  

Engineer  [Buildings  and  Roads]  in  Military  Engineering  

Service [for short “MES”], Ministry of Defence and he joined  

the said post on 23.02.1990 and at the time of appointment  

his terms and conditions of appointment were clearly set out  

in the order of appointment whereby his pay was fixed in the  

pay sale of Rs. 2200-4000 with a stipulation that he would be  

paid basic salary of Rs. 2200 plus dearness allowance.  

10.Reliance was placed by the appellant on the contents of the  

Memorandum dated 06.09.1989 which was in the nature of  

Page 6 of 14

guidelines issued by the Ministry of Defence fixing the pay. A  

copy  of  the  said  memorandum  is  annexed  to  the  

memorandum of appeal as Annexure-P1.  

11.Paragraph 1 of the said guidelines provided that as per the  

extant  rules/orders,  on  fixation  of  pay,  pay  protection  is  

granted to candidates who were appointed by the method of  

recruitment  by  selection  through  the  Union  Public  Service  

Commission if such candidates are in Government service. It  

was  also  stipulated  in  the  said  paragraph  1  of  the  

memorandum that no such pay protection would be granted  

to  candidates  working  in  public  sector  undertakings,  

universities,  semi-Government  institutions  or  autonomous  

bodies, when they are so appointed in Government.  

12.Paragraph  2  thereof  on  which  reliance  was  placed  by  the  

counsel appearing for the appellant provided that the question  

as  to  how  pay  protection  can  be  given  in  the  case  of  

candidates recruited from the public sector undertakings, etc.,  

has  been  engaging  the  attention  of  the  Government  for  

sometime and that after careful consideration of the same the  

President was pleased to decide that in respect of candidates  

Page 7 of 14

working  in  public  sector  undertakings,  universities,  semi-

Government  institutions,  autonomous  bodies,  who  were  

appointed as direct recruits on selection through a properly  

constituted agency including departmental authorities making  

recruitment directly their initial pay could be fixed at a stage  

in the scale of pay attached to the post so that the pay and DA  

already being drawn by them in their parent organisation. It  

was also stipulated therein that in the event of such a stage  

not  being  available  in  the  post  to  which  they  have  been  

recruited, their pay may be fixed at a stage just below in the  

scale of the post to which they have been recruited, so as to  

ensure a minimum loss to the candidates.   

13.It  is  evident  from the  aforesaid  stipulation  in  the  relevant  

clause that such pay scale received is protected in the case of  

only  Central  Government  Public  Sector  Undertakings,  etc.,  

inasmuch as the decision to grant such benefit was restricted  

specifically  to  Central  Government  employees  and  also  

employees of central government public sector undertakings.  

This  position  got  fortified  and  clearly  explained  by  the  

issuance of  the subsequent notification dated 28.2.1992,  to  

which reference is made immediately hereafter.

Page 8 of 14

14.Reliance  was  placed  by  the  counsel  appearing  for  the  

appellant on the subsequent OM issued by the Department of  

Personnel and Training issued on 28.02.1992. The contents of  

the  said  notification/memorandum is  extracted  hereinbelow  

for easy reference and for better understanding: -

“DoPT OM NO.12/1/88-Estt (Pay-I) dated 28.2.1992.

“PAY PROTECTION ALSO TO CANDIDATES FROM  STATE PSUs RECRUITED BY PROPER SELECTION TO  

CENTRAL GOVERNMENT”

The Undersigned is directed  to say that  question  of   inclusion  of  employees  of  State  Government  undertakings within the purview of this Department’s   OM  No.  12/1/88-Estt  (Pay-I),  dated  7.8.1989  has  been  engaging  the  attention  of  the  Government  for  some time. The matter has been carefully considered  and the president is pleased to decide that provisions  of  this  Department’s  OM  of  even  number  dated  7.8.1989, may be extended to the employees of State   Government Undertakings selected for posts in Central   Government on direct recruitment basis as in case of   Central Public Undertakings.

These orders take effect from the first of the month in  which this OM is issued.”

A bare perusal of the Memorandum would make it crystal clear  

that  the  employees  of  the  State  Government  Undertakings  

selected for posts in Central Government on direct recruitment  

basis on and after 01.02.1992 were also extended the benefit of  

Page 9 of 14

pay protection, as was provided in the case of the employees of  

Central  Government  Public  Undertakings  as  per  notification  

dated 07.08.1989.

15.In the aforesaid notification, it was clearly stipulated that the  

said benefit of pay protection is effective only from the first of  

the month in which the OM is issued, i.e., from 01.02.1992,  

which means that the said OM was given prospective effect  

only.  Therefore,  the  said  OM  could  even  be  said  to  be  a  

clarification on the issue which is sought to be raised in the  

present case. It was clearly pointed out in the said notification  

that employees like the appellant would be entitled to get such  

pay  protection,  as  employees  of  the  State  Government  

Undertakings  on  their  appointment  in  Central  Government  

service  only  from  the  effective  date  of  01.02.1992.  If  the  

appellant  would  have been appointed for  a  post  in  Central  

Government  on  direct  recruitment  basis  after  01.02.1992  

such benefit of pay protection could have been made available  

to him. But since the appellant was selected and appointed to  

a post in Central Government on 23.02.1990 after working as  

an  employee  of  the  State  Government  Undertaking,  viz.,  

UPSEB, the notification dated 07.08.1989 was not applicable  

Page 10 of 14

to him and, therefore, he could not have legally claimed for  

any pay protection.

16.Being  fully  aware  of  the  aforesaid  position  the  appellant  

accepted the appointment without any demur or protest  on  

the issue of pay being given to him under the appointment  

order  issued  to  him  by  the  Military  Engineering  Service,  

Ministry of Defence, fixing his pay scale at the minimum of the  

pay scale of Rs. 2200. He accepted the said pay scale without  

raising any grievance and continued to receive the same till  

11.09.1991,  when  for  the  first  time  he  submitted  his  first  

representation  for  pay  protection  as  per  notification  dated  

07.08.1989.

17.The position with regard to the entitlement or otherwise of the  

appellant for getting pay protection was made clear by issuing  

the notification  dated 28.02.1992 clearly  stipulating  therein  

that  an  employee  of  the  State  Government  Undertaking  

selected for post in Central Government on direct recruitment  

basis would be entitled to pay protection upon appointment in  

Central  Government  only  effective  from  01.02.1992.  The  

appellant having joined the MES, Ministry of Defence prior to  

Page 11 of 14

the  aforesaid  date  was  not  entitled  to  the  benefit  of  the  

aforesaid notification which was issued much after his joining  

date and, therefore, the benefit of the aforesaid notification is  

not available to the appellant.

18. Counsel appearing for the appellant however sought to submit  

that to deny the benefit of the notification dated 28.02.1992 to  

the appellant was discriminatory in nature and in support of  

the said contention the counsel relied on the decision of this  

Court  in  the  case  of  T.S.  Thiruvengadam v.  Secretary  to  

Government  of  India,  Ministry  of  Finance,  Deptt.  of  

Expenditure, New Delhi reported in  (1993) 2 SCC 174.  In  

our considered opinion the ratio of the aforesaid decision was  

rendered in respect of case of pension which is a continuing  

cause  of  action.  Facts  of  the  said  case  are  clearly  

distinguishable  from  the  facts  of  the  present  case  and,  

therefore, the ratio of the said decision is not applicable to the  

case in hand. There is an inherent clear distinction between  

the two concepts of pay protection and pension. So far getting  

pay protection is concerned, the said issue arises as soon as  

an employee joins his new post, where he gets his new pay  

scale and if  he is entitled to any pay protection that is the  

Page 12 of 14

stage and date when it is granted by whatever notifications,  

memorandums  which  are  available  and  applicable  at  that  

stage laying down such rules regarding pay protection. At that  

stage  what  was  operating  in  the  field  was  the  notification  

issued  on  07.08.1989  which  was  not  applicable  to  the  

appellant. The appellant also clearly understood the position  

and  therefore  based  his  entire  claim  and  right  on  the  

subsequent notification dated 28.02.1992, although appointed  

to the post of Central Government on 23.02.1990.

19.In the present case it cannot be said that a notification issued  

after two years of the appointment of the appellant which is  

also specifically stated to have been issued with prospective  

effect is applicable in his case.  

20.Consequently, we hold that the High Court was justified in  

setting aside the order of  the Tribunal  as the Tribunal  has  

misread  and  misinterpreted  the  facts  as  also  the  legal  

principles in law.

21.We,  therefore,  find  no  merit  in  these  appeals,  which  are  

dismissed, but, leaving the parties to bear their own costs.

Page 13 of 14

                         ............................................J                                                      [Dr. Mukundakam Sharma]

  ............................................J                                [Anil R. Dave]

New Delhi, July 15, 2011.

Page 14 of 14