LPA NO.690/2001 Page No.1
REPORTABLE
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA NO. 690 OF 2001
% Date of Decision : March 3, 2009.
SHRI G.R.CHAWLA & OTHERS .... Appellants.
Through Mr. K. Venkat Raman,
Advocate.
VERSUS
DELHI DEVELOPMENT AUTHORITY &
ANOTHER .... Respondents.
Through Ms. Anusuya Salwan,
Advocate.
CORAM:
HON’BLE MR. JUSTICE AJIT PRAKASH SHAH, CHIEF JUSTICE
HON’BLE MR. JUSTICE SANJIV KHANNA
1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be reported
in the Digest ?
SANJIV KHANNA, J:
1. The present intra Court Appeal under Clause X of the Letters
Patent has been filed by four employees (hereinafter referred to
as the appellants, for short) of the Delhi Development Authority
(hereinafter referred to as respondent, for short) against the
judgment dated 5th October, 2001 passed by the learned Single
Judge in Writ Petition (Civil) No.1768/88. By the impugned
LPA NO.690/2001 Page No.2
judgment, the learned Single Judge has held that the initial pay
fixation of the appellants shall be under Fundamental Rule 22-B
and thereafter their pay would be fixed under the normal Rules.
2. The appellants were earlier working as Junior Engineers in Central
Public Works Department (hereinafter referred to as CPWD, for
short). They applied through proper channel for appointment as
Junior Engineers in the respondent-DDA. After selection the
appellants were appointed as Junior Engineers with the
respondent but were asked to give an undertaking that they shall
not claim benefit of past service in CPWD. The undertaking was
given by the appellants.
3. After some time, the appellants made a representation for fixation
of their pay under Fundamental Rule 22 by giving them benefit of
their past service. The representation was rejected and aggrieved,
the appellants along with some others had filed Writ Petition
(Civil) No. 1768/1988 titled G.R. Chawla and others versus Delhi
Development Authority and another. In the impugned judgment,
the learned single Judge has observed that the principal issue that
arose for consideration was whether Fundamental Rule 22 or 22-B
was applicable to the facts of the present case. Relying upon the
undertakings given by the appellants and the fact that the
appellants were initially appointed on probation, it was held by the
learned Single Judge that Fundamental Rule 22 would not be
LPA NO.690/2001 Page No.3
applicable and provisions of Fundamental Rule 22-B would be
applicable.
4. Two aspects which require adjudication in the present Appeal are
: (1) the effect of the undertakings given by the appellants (2)
Whether Fundamental Rule 22 or 22-B is applicable.
5. During the course of hearing, learned counsel for the parties had
drawn our attention to Rule 22(I)(a)(2) and 22-B and submitted
that the second question involves interpretation of the said Rules.
Relevant portions of Rule 22(I)(a)(2) and Rule 22-B read as
under:
“F.R.22(I) The initial pay of a Government
servant who is appointed to a post on a time-scale
of pay is regulated as follows:-
(a) (1) x x x x
(2) When the appointment to the new post does
not involve such assumption of duties and
responsibilities of greater importance, he shall
draw as initial pay, the stage of the time-scale
which is equal to his pay in respect of the old post
held by him on regular basis, or, if there is no
such stage, the stage next above his pay in
respect of the old post held by him on regular
basis:
Provided that where the minimum pay of the
time-scale of the new post is higher than his pay
in respect of the post held by him regularly, he
shall draw the minimum as the initial pay:
Provided further that in a case where pay is
fixed at the same stage, he shall continue to draw
that pay until such time as he would have received
an increment in the time-scale of the old post, in
cases where pay is fixed at the higher stage, he
shall get his next increment on completion of the
period when an increment is earned in the time-
scale of the new post.
LPA NO.690/2001 Page No.4
On appointment on regular basis to such a new
post, other than to an ex cadre post on
deputation, the Government servant shall have the
option, to be exercised within one month from the
date of such appointment, for fixation of his pay in
the new post with effect from the date of
appointment to the new post or with effect from
the date of increment in the old post.”
“22-B. (1) Notwithstanding anything contained
in these Rules, the following provisions shall
govern the pay of a Government servant who is
appointed as a probationer in another service or
cadre, and subsequently confirmed in that service
or cadre-
(a) During the period of probation, he shall draw pay
at the minimum of the time-scale or at the
probationary stages of the time scale of the
service or post, as the case may be:
Provided that if the presumptive pay of the
permanent post on which he holds a lien or would
hold a lien had his lien not been suspended should
at any time be greater than the pay fixed under
this clause, he shall draw the presumptive pay of
the permanent post;
(b) On confirmation in the service or post after the
expiry of the period of probation, the pay of the
Government servant shall be fixed in the time-
scale of the service or post in accordance with the
provisions of Rule 22 or Rule 22-C, as the case
may be:
Provided that the pay of Government servant
shall not be so fixed under Rule 22 or Rule 22-C
with reference to the pay that he would have
drawn in the previous post which he was holding
in a temporary capacity, but he shall continue to
draw the pay in the time-scale of the service or
post.”
LPA NO.690/2001 Page No.5
6. Rule 22-B(1) begins with a non-obstante clause and applies to all
cases where a Government servant is appointed in another service
or cadre as a probationer. Under Rule 22-B(1)(a) during the
period of probation such officer is entitled to pay at the minimum
of the time scale or the probationary stage of the time scale of the
said post to which he is appointed. Proviso to Rule 22-B(1)(a)
gives pay protection during the probationary period, if the
probationer is holding a permanent post in the first service on
which he holds a lien or would have held the lien but for
suspension relatable to the second appointment. In such cases,
the probationer on appointment in the second service will be
entitled to presumptive pay equal to amount being paid to him in
his first service.
7. Rule 22-B(1)(b) applies after a probationer is confirmed. Upon
confirmation, the Government servant is entitled to same pay as
would be payable in accordance with Rule 22 or Rule 22-C
whichever is applicable. The question whether after confirmation
Rule 22-B or Rule 22 would apply, is answered by the language of
Rule 22-B(1)(b) itself as the said clause stipulates that the pay
scale of the appellants after confirmation will be fixed in terms of
Rule 22 or Rule 22 C. It has not been argued before us that Rule
22-C is applicable. Thus upon confirmation Rule 22 is applicable to
the appellants.
LPA NO.690/2001 Page No.6
8. Fundamental Rule 22(I)(a)(2) quoted above is the relevant sub-
Clause which applies as duties and responsibilities of the
appellants in the respondent-DDA and CPWD are same. The said
sub-Clause stipulates that the Government servant after
confirmation will be entitled to draw initial pay at the stage of the
time scale which the Government servant was enjoying in the first
post held by him on regular basis and if there is no such stage,
the stage next above the pay in the first post held by him on
regular basis. The first proviso stipulates that the employee is
entitled to minimum pay scale in the new post, if it is higher than
the pay in the first post which was held by him. The first proviso is
not applicable in the present case. In view of the above, the
appellants on confirmation will be entitled to fixation of pay under
Fundamental Rule 22(I)(a)(2) read with other Fundamental Rules,
if applicable. The second question is accordingly answered in
favour of the appellants and it is held that on completion of the
probation period and on confirmation, the appellants will be
entitled to fixation of their pay in terms of Fundamental Rule
22(I)(a)(2).
9. We do not think that the respondents can rely upon the
undertakings given by the appellants to deny them benefit of the
statutory rules. To rely upon the undertakings and not apply
Fundamental Rule 22 will be contrary to the statutory rules and
LPA NO.690/2001 Page No.7
therefore bad in law. Undertakings to the extent they are contrary
to the statutory Rules cannot be applied. It does appear that the
appellants in this case were compelled and forced to give the said
undertakings at the time of appointment by the respondents. It
cannot be said that the said undertakings were given out of free-
will and without force or coercion. Even if the appellants have
given the said undertakings, the respondent-DDA being a
statutory authority is bound by Fundamental Rules and cannot act
contrary to the Fundamental Rules or ignore the same. This will
be contrary to law.
10. The respondent themselves have ignored the undertakings and
followed the Fundamental Rules in other cases and given other
employees benefit of past service. We do not accept the
contention of the respondent that other cases were of old/earlier
appointed employees and the administrative branch had treated
them differently. The facts of other cases and the case of the
appellants are identical. The undertakings and the relevant
Fundamental Rules applicable are the same. The question relates
to applicability of the Rules and in that context we find that no
distinction can be made between the case of the appellants and
other cases, wherein benefit of past service has been given.
11. Lastly, we find that the representations of the appellants after
filing of the writ petition were considered and thereafter referred
LPA NO.690/2001 Page No.8
to the Government of India. Government of India in their opinion
dated 6th December, 1993 has opined that resignations given by
the appellants herein to the CPWD before taking up employment
with the respondent-DDA were a technical formality. Therefore
during the probation period, the pay of the appellants will be fixed
under Rule 22-B and thereafter under the normal Rules. The
normal Rules refers to Rule 22, in view of Rule 22-B(1)(b). The
respondent has therefore misunderstood the opinion of the Union
of India. The first question is accordingly decided.
12. In view of the above findings, the Appeal is allowed. It is held
that the appellants’ salary during the probation period will be fixed
in accordance with Rule 22-B and upon confirmation under Rule
22. No costs.
(SANJIV KHANNA)
JUDGE
(AJIT PRAKASH SHAH)
CHIEF JUSTICE
MARCH 3, 2009.
P