* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 05.05.2011
+ R.S.A.No. 16/2008 & CM Nos.1014-16 /2008
BSES YAMUNA POWER LTD. ...........Appellant
Through: Mr.Sandeep Prabhakar and
Mr.Prena Mehta, Advocates.
Versus
SH. S.K. CHOUDHARY & ANR. .........Respondents
Through: Mr.Nandita Rao, Advocate.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
CM Nos.1015-16 /2008 (for exemption)
Allowed subject to just exceptions.
R.S.A.No. 16/2008 & CM Nos.1014/2008 (for stay)
1. This appeal has impugned the judgment and decree dated
24.10.2007 which had reversed the finding of the trail judge
RSA No. 16/2008 Page 1 of 9
dated 20.12.2003 whereby the suit filed by the plaintiff Sh. S.K.
Choudhary seeking a declaration (to the effect that he should be
granted his second time financial upgradation after 13 years of
service which had been denied to him be set aside and be
declared null and void; further prayer that he should be placed in
the pay scale of 15800-21100 with notional pay fixation of basic
pay of Rs. 17150/- from 01.01.1996 as also relief of mandatory
injunction i.e. payment of arrears in the aforenoted pay scale
w.e.f. 01.01.1996) had been dismissed. The impugned judgment
had reversed this finding. Suit of the plaintiff stood decreed.
2. Plaintiff was employed with defendant no. 2 since June
1984. He was an Executive Engineer. Vide the resolution of DVB
dated 29.04.1998, provisional pay scale for executive engineers
and superintendent engineers was worked out; this was a
modification of an earlier office order; second financial
upgradation was permitted to the plaintiff after having completed
13 years of service which he had completed in the year 1994; he
was thus entitled to the second financial upgradation; one
Mr.Jagdish Kumar had already got this benefit; plaintiff not
having got this benefit, he had filed the present suit.
RSA No. 16/2008 Page 2 of 9
3. In the written statement, it was stated that the second
entitlement of the plaintiff for financial upgradation was 8 years
after his first upgradation i.e. after 18 years of service. Plaintiff
had not completed 18 years of service; Sh. Jagdish Kumar was
working on an adhoc basis as an assistant engineer and he had
thereafter been selected by the UPSC and even in his case, he
was entitled for a second upgradation only after 18 years of
service.
4. In replication, the plaintiff made reference to the case of
one Mr. V.K. Sood who was given promotion after completion of
13 years of service.
5. On the pleadings of the parties, following issues were
framed:-
“1. Whether plaintiff is entitled to second time bound
promotion after service of 13 years? OPP
2. Whether plaintiff is entitled to get the benefits of past
service rendered in the Government Organization for the present
suit? OPP
3. Whether plaintiff is liable to pay court fees on declaration?
OPD
4. Relief.”
6. Documentary evidence was led. The documents adduced
are, in fact, not in dispute.
A. The first document is the office order of the DVB
dated 23.07.1997. In terms of this office order, the time
RSA No. 16/2008 Page 3 of 9
bound promotional scale was introduced in the DVB. It
states that the employees of the DVB shall be entitled for a
first time bound promotional scale after completion of 10
years of regular service. The second time bound
promotional scale shall be given on a completion of further
8 years i.e. after 18 years of service from the date of their
induction.
B. The second document is the office order dated
30.04.1998. This order modifies the existing pay scales of
the following persons. It reads as follows:
“To revise the pay scales of the officers/employee, Delhi Vidyut
Board w.e.f. .1.1996 and to pay the allowances alongwith
revised scales of pay or pay the Vidyut Board (Revised pay) Rules
1998 (enclosed) as Appendix I) except in the case of Executive
Engineer and Superintending Engineer in whose case the scales
shall be as under which shall be provisional till further orders.
Sl.No. Designation Existing Scale Revised scale
1. ………………………………………………………………………
2.Suptd. Engineer 3700-5000 14300-400-18300 on
completion of 13 years
service in group A i.e. on the
14th years."
Learned counsel for the appellant has pointed out
that this was only a provisional pay scale. This document
had been heavily relied upon by the learned counsel for the
RSA No. 16/2008 Page 4 of 9
respondent to advance her submission that after 13 years
of service, the superintendent engineer is entitled to a
second financial upgradation.
C. The third document is the office order dated
20.11.2001. Vide this office order, the provisional pay scale
of the engineers which was being implemented w.e.f
01.01.1996 had been finalized.
This office order stated that the existing time bound
promotional pay scale will be allowed to continue.
Learned counsel for the appellant has pointed out
that the existing time bound promotional pay scale makes
the reference to the first scheme i.e. scheme of 21.07.1997
by virtue of which the second financial upgradation will be
granted only after 18 years of service and not after 13
years of service.
7. Arguments have been countered by the learned counsel for
the respondent. It is pointed out that the provisional pay scale
for superintendent engineers (which includes the plaintiff) had
come into effect provisionally on 30.04.1998. This was the cut-off
date; on this date, the plaintiff was admittedly eligible for the
second upgradation as he had completed 13 years of service.
This date would in fact be the relevant date for fixing the
RSA No. 16/2008 Page 5 of 9
financial upgradation of the eligibility criteria for the plaintiff.
Moreover, there is also no answer as to how Mr. V.K. Sood had
been granted a financial upgradation after 13 years of service.
Learned counsel for the respondent has drawn the attention of
this court to the affidavit which had been filed before this court
wherein this fact had been so stated in para 1. Copy of the
noting/order pertaining to this second time bound promotion
granted to Mr. V.K. Sood had also been perused. This was vide
order dated 13.06.2000. This document states that Mr. V.K. Sood
had completed 13 years of group A service; he was liable for the
revised pay scale with effect from 01.01.1996.
8. A counter affidavit (to this affidavit) had been filed by the
appellant. Para 7 states that Mr. V.K. Sood had only been
granted a provisional revised pay scale which was subsequently
adjusted once the pay scales were regularized in the year 2001.
At the request of the learned counsel for the respondent,
the record has also been produced from the Department. This
record shows that the second financial upgradation which had
been granted to Mr. V.K. Sood was only a provisional measure;
this financial upgradation had been adjusted at the time of
finalization of his accounts.
9. The documents on record support the case of the appellant.
RSA No. 16/2008 Page 6 of 9
An employee was entitled to claim a second time bound
promotional scale only after 18 years; the question of a second
financial upgradation after a period of 13 years was only
encompassed as a provisional measure; i.e. till the time and when
the final pay scale was notified on 20.11.2001. It stated that
“the existing second time bound promotional scale scheme
is already continued”.
10. This existing second time bound promotional scheme
admittedly refers to the scheme of 23.07.1991. This is also not
disputed before this court. In this view of the matter, it is clear
that the second financial upgradation could have been granted to
the plaintiff only after 18 years of his service. The impugned
judgment holding otherwise is a perverse finding. It is liable to
be set aside.
11. The contention of the learned counsel for the appellant that
she had completed the 13 years of her service admittedly on or
before 30.04.1998 i.e. at the time when the provisional pay scale
had been introduced and thus the plaintiff was eligible on that
date and had to be considered is an argument to be noted only to
be rejected. Admittedly, as per the case of the respondent, the
office order of 30.04.1998 was provisional; the word „provisional‟
as is evident from its meaning makes reference to a temporary
RSA No. 16/2008 Page 7 of 9
period i.e. a fill-in-gap arrangement till the time when the matter
is finally decided. Admittedly, this provisional pay scale of
30.04.1998 was finally settled on 20.11.2001, on which date the
office order clearly states that the existing time bound
promotional scale scheme will continue; there is no dispute that
the existing second time bound promotional scale scheme makes
reference to the scheme of 23.07.1997 which stipulated that a
second financial upgradation will be granted to an employee only
after 18 years of service.
12. Reliance by the learned counsel for the respondent on
the judgment reported in (2010) 2 SCC 422 Union of India Vs.
Kartick Chandra Mondal is misplaced. In this case the office
memorandum was under consideration which was in express
language; there being no intention expressed in the notification
that it would apply retrospectively; it could not be given a
retrospective effect. Ratio is wholly inapplicable. In the instant
case what is under consideration and vehemently relied upon by
the respondent is the office order dated 30.4.1998; the intent
gathered from this document is clear; it clearly specifies that this
pay scale is only provisional.
13. The arguments on discrimination has also been answered
after the perusal of the record. The provisional upgradation
RSA No. 16/2008 Page 8 of 9
granted to Mr. V.K. Sood had been adjusted against his final
dues.
14. The appeal is accordingly allowed. Substantial question of
law is answered in favour of the appellant and against the
respondent. Suit of the plaintiff is decreed. Pending application
is disposed of.
INDERMEET KAUR, J.
MAY 05, 2011
SS/nandan
RSA No. 16/2008 Page 9 of 9