1. The petitioners have filed the instant petition under Article 226 of the Constitution of India being aggrieved by order dated 05.08.2022 (Annexure P/1), whereby the learned Central Administrative Tribunal, Jabalpur (for short ‘the CAT’) allowed the application of respondent holding him to be entitled for pay protection along with all the consequential benefits.

2. Brief facts of the case, as projected by the petitioners are that initially on 14.12.2009, the applicant/respondent herein joined the service as Indian Railway Service of Mechanical Engineers probationer (for short "IRSME") and after completing the probation period, he was promoted to the post of Junior Administrative Grade of IRSME & at present the applicant/respondent herein is working as Senior Divisional Mechanical Engineer (Diesel), at Raipur Division. Before joining the service under IRSMe, the applicant/respondent herein served as regular employee of Oil and Natural Gas Corporation (for short ‘the ONGC’) in the capacity of Executive Engineer (Mechanical) & after completion of training he was posted as Assistant Executive w.e.f 23.03.2004. Thereafter, the applicant/respondent succeeded in the UPSC Engineering Service Examination 2008 and was appointed as IRSME and was released from ONGC on 10.12.2009 and joined the services of IRSME probationer on 14.12.2009. The applicant/respondent resigned from ONGC and by that time he was drawing basic pay of Rs. 35560/- with DA amounting to 8997/- (in pay scale of Rs.29100-54500/-) and while joining IRSME the applicant/respondent was grated basic pay of Rs. 21,000/- (in Pay Scale of 15,600-39100/-) GP 5400/-in Pay Band -3. After completion of probation period of the applicant/respondent, he preferred a representation on 12.03.2013 for grant of benefit of pay protection followed by several reminders. Vide letter dated 08.06.2020 (Annexure P/2), the representation of the applicant/respondent was decided stating that the appointment of the applicant/respondent in IRSME (Railways) was direct recruitment through open competitive examination and not through interview, which was in accordance with Establishment Rule No. 27/2001. Being aggrieved by the rejection of representation claiming pay protection, the applicant/respondent moved an application before learned Central Administrative Tribunal on 01.12.2020 being registered as O.A No. 203/650/2020 claiming benefit of Pay Protection.

3. The respondent/petitioners herein filed their reply to the O.A. No. 203/650/2020 stating that the representation of the applicant/respondent was rightly rejected denying pay benefits in accordance with Establishment Rule No. 27/2001 dated 22.03.2001 (Annexure P/4), which has been framed in consonance with R.B.E No.16/2001 dated 12.02.2001. Further, the Said R.B.E No.16/2001 is a repatriation of DOP&T's OM No. 12/1/96-Estt. (Pay 1) dated 10.07.1998. However, the learned CAT, relying upon the judgment passed in the matter of Sanjog Kapoor V. Union of India (2007 LawSuit (Del) 107) allowed the application of the applicant/respondent vide order dated 05.08.2022 (Annexure P/1) granting benefit of pay protection with all consequential benefit, which is under challenge in this petition.

4. Learned counsel for the petitioners submit that the judgment passed by the learned CAT is arbitrary, illegal and contrary to the law applicable to the facts and circumstances of the case. The applicant/respondent had accepted the terms of work and grade pay while accepting the employment under IRSME through direct recruitment and it was within the knowledge of applicant/respondent that the joining post carries the lower grade pay but the said fact has not been taken into consideration by the learned CAT while allowing the case of the applicant/respondent. Learned counsel further submits that the learned CAT failed to differentiate the finding of Sanjog Kapoor’s (supra), wherein while rejecting the claim, the Chief Commissioner of Income Tax solely relied upon Department of Personnel and Training’s (DOP&T’s) OM. No. 12/1/96-Estt. (Pay-I) dated 10.07.1998, whereas in the present case, the representation of the appellant/respondent was rejected under the provision of Establishment Rule No.27/2001 dated 22.03.2001, which was framed in consonance with R.B.E. No. 16/2001. The petitioners have their own set of standing rules which restricts pay protection to the candidates whose appointment is made through an open competitive examination. Learned counsel also submits that in Sanjog Kappor (supra), the reasonableness of O.M.-1998 was censured and it was not set-aside nor declared ultra vires and when an appeal was preferred by the Union of India before the Hon’ble Supreme Court, it was dismissed on the ground of delay leaving the question of law open, meaning thereby the O.M.-1998, which primary stops the pay benefits to the candidates who are selected through open competitive examination stands still.

5. Learned counsel also submits that even if it is assumed that O.M.-1998 has been struck off or declared ultra vires, even then the R.B.E. No.16/2001 passed on 12.02.2001 which was circulated through Establishment Rule No.27/2001 is deemed to be stands still till date because it has not been set aside by the learned CAT and the petitioners (Railway) are not bound by the memorandum issued by the DoPT and are empowered to frame its own rules to lay down the service conditions of its employee, as such the existence of O.M.-1998 is not conjoined with R.B.E. No. 16/2001 & Establishment Rule No.27/2001. Learned counsel also submits that the applicant was appointed as direct recruit of IRSME through UPSC on 14.12.2009 and at that time the Establishment Rule No.27/2001, R.B.E. No.16/2001 & DoPT’s OM No.12/1/96-Estt (Pay-1) are still deemed to be in existence. It has been further submitted by learned counsel that the benefit of pay protection is not granted on the wimps and fancies of the candidate and as per the R.B.E. No.16/2001 passed on 12.02.2001, whenever such protection is to be given, UPSC will indicate in its recommendation letter that pay of such candidate should be fixed as per the guidelines laid down in above quoted letter, however, the applicant/respondent did not produce any such letter of recommendation which recommends pay protection to the applicant/respondent. Thus, the impugned order passed by the learned CAT is liable to be set aside the the petition deserves to be allowed. In support of his submission, learned counsel placed reliance on the decisions of Hon’ble Supreme Court in the matter of Jagdish Parwani V. Union of India & Ors. reported in 2011 LawSuit (SC) 713 and M.R. Gupta V. Union of India & Ors. reported in (1995) 5 SCC 628.

6. Per contra, learned counsel for respondent submits that the learned CAT, after having appreciated all grounds of respondent and various judgments of High Court of Delhi, passed the impugned order in favour of respondent. The order passed by the learned CAT is well reasoned order and no interference is called for by this Court. Thus, the appeal being without any merit is liable to be dismissed. In support of his contention, learned counsel placed reliance on the decisions of High Court of Delhi in the matter of Union of India Vs. Manjesh Porwal & Ors. [W.P.© 12475/2023 & CM APPl. 49183/2023] and Nagendra Jha V. Union of India reported in 2016 SCC Online Del 72 and decision of High Court of Kerala at Ernakulam in the matter of Union of India & Anr. V. Mukesh Rajora & Anr. [OP (CAT) No. 78 of 2020],

7. We have heard learned counsel for the parties and perused the material available on record.

8. It is an admitted position in this case that respondent Devidatta Satapathy joined services as an IRSME Probationer on 14.12.2009. Prior to joining IRSMe, the respondent had served as a regular employee of ONGC Ltd. and was working on the post of Executive Engineer (Mech) in Godavari Bhawan, ONGC Base Complex Rajahmundry, Andhra Pradesh. After completion of training the respondent was confirmed to the post of Asstt. Executive in the grade of Rs.12000-17500 w.e.f 23.03.2004. After succeeding in the UPSC Engineering Service Examination, 2008 the respondent was offered appointment as an IRSME Probationer and released from ONGC Ltd on 10.12.2009 and joined the services of IRSME Probationer on 14.12.2009. The respondent was drawing basic pay of Rs.35560/- with DA 8997/- (in the pay scale of Rs.29100-54500/-) in ONGC and joined the IRSME services at a starting basic pay of Rs.21000/- (15600- 39100) GP 5400/- in pay Band – 3. After completion of probation period of 36 months, the respondent requested the petitioners for benefit of pay protection vide application dated 12.03.2013 followed by several reminders in this regard. The representation of the respondent was decided on 08.06.2020 denying the benefit of pay protection. Being aggrieved by the denial of benefit of pay protection, the respondent filed a petition before the CAT and vide impugned order dated 05.08.2022, the learned CAT relying upon the judgment in the matter of Sanjog (supra) allowed the petition of respondent and directed the petitioners to grant the benefit of pay protection to the respondent by relying on the service certificate and salary certificate issued by ONGC with all consequential benefits.

9. The impugned order of the learned CAT objected by the learned counsel for the petitioners on the ground that the learned CAT did not appreciate the fact that OM-1998 was neither set aside nor declared ultra vires by any of the High Courts or Hon’ble the Supreme Court and the Hon’ble Supreme Court in the matter of Sanjog (supra), dismissed the appeal of Union of India on the ground of delay leaving the question of law open. This means, the OM-1998 which primary stops the pay benefits to the candidates who are selected through open competitive examination stands still. Further submission of learned counsel for the petitioner is that even if O.M.-1998 is said to be struck off or declared ultra vires, even then R.B.E. No.16/2001 passed on 12.02.2001 which was circulated through Establishment Rule No.27/2001 is deemed to stands still till date because it has not been set aside by the learned CAT and the petitioners (Railway) are not bound by the memorandum issued by the DoPT and are empowered to frame its own rules to lay down the service conditions of its employees.

10. While dealing with the issue of pay protection to the candidate like the respondent, the High Court of Kerala in the matter of Mukesh Rajora (supra), held in para 10 and 11 as under :-

“10. After hearing both sides and after going through the pleadings on record, we are fully in concurrence with the considered views and findings made by the Delhi High Court in Annexure A4 and Annexure R1(b) judgments. It is a matter of common knowledge that very often selection for appointment through the Civil Service Examination to All India Service like IAS, IPS and IFS, Union Territory services etc. is on the basis of written examination as well as interview. To hold that the benefit of pay protection in terms of the former office memorandum would be confined only if the appointment in the latter service is solely on the basis of interview and that the same will be denied if the selection is through written examination etc. is rather arbitrary and the said classification does not appear to have any rational nexus with the objectives sought to be achieved. The objective sought to be achieved is that to attract the best talent to Government service and necessary incentives like pay protection in the nature of the former office memorandum is granted. True that the said benefit would certainly available where appointment in the latter service is exclusively on the basis of interview. But to hold that the said benefit of pay protection would be confined only if the selection is through interview and the same would be denied if the selection is through written examination etc., is to say the least arbitrary and irrational. Further the Delhi High Court has also found in the above said judgments that the former office memorandum is issued for on and behalf of President of India as per the Rules of Business whereas the latter office memorandum is only clarificattory G.O and the same is not seen authenticated and issued for and behalf of the President of India by following the rigour of those Rules. The fact of the matter is that there is hostile discrimination in the classification sought to be made out is on the basis of latter office memorandum at Annexure A3.

11. In that regard, we are of the firm view that the Tribunal has rightly followed the well considered findings and views of the Delhi High Court at Annexure A4 and Annexure R1(b) etc. Hence we are not in a position to hold that the impugned Ext.P2 final order rendered by the Central Administrative Tribunal, Ernakulam in the instant O.A No.507/2017 in favour of the applicant herein deserves interdiction at the hands of this Court in exercise of the powers conferred under Articles 226 and 227 of the Constitution of India.”

11. Further, High Court of Delhi in an identical matter in Manjesh Porwal (supra) observed in para 4, which reads thus :-

“4. Issue which arose for consideration before the Tribunal was that the respondents who were working in various Public Sector Undertakings were appointed to the Indian Cost Accounts Service ('ICAS', in short) pursuant to an advertisement issued by UPSC for the post of Assistant Director (Cost). The selection process included a written examination and interview. The respondents sought 'pay protection' on their appointment in ICAS. The same was denied to them, which resulted in the filing of the Original Application. The case of the petitioner before the Tribunal was that, the 'pay protection' is granted only to those employees who have been recruited through the process of interview only and not through the process of written examination and interview, the Tribunal negated the said stand of the petitioner by stating in paragraphs No.9 to 13, which have already been reproduced above. In fact, Mr.Tushar Ranjan Mohanty, Advocate appearing for the respondents states that the issue is no res-integra, as this Court in Sanjog Kapoor v. Union of India & Ors., W.P.(C) No.5518/2004 decided on April 20, 2007 has settled the issue. The judgment has been followed in Nagender Kumar Jha v. Union of India & Ors., W.P.(C) No.8660/2005 decided on January 06, 2016 and also in Union of India & Anr. v. Abhay Kumar, W.P.(C) No.3338/2022 decided on February 23, 2022, wherein the courts have categorically held in favour of the Officers in those cases. In this regard, we may reproduce the relevant paragraphs of the latest judgment of this Court in Union of India & Anr. v. Abhay Kumar (supra) as under:

"3.3. We may note that the aforementioned judgment delivered by the Division Bench of this court in Sanjog Kapoor case, was followed by another Division Bench judgment of this court in Nagendra Kumar Jha v. Union of India & Anr. This judgment is dated 06.01.2016 and the matter was registered as W.P.(C.) No.8660/2005.

3.4. Mr Singh, however, relies upon a later circular dated 12.02.2001 to press his submission that the respondent cannot be accorded pay protection as he was selected through an open competitive examination. Mr. Singh contends that only, if the respondent had been recruited through an interview-would pay protection be accorded to him having moved from one public sector undertaking to another instrumentality of the state.

3.5. A careful perusal of the circular dated 12.02.2001, issued by the Government of India, Ministry of Railways (Railway Board), would show that it is founded on the aforementioned O.M. i.e., O.M. dated 10.07.1998.

3.6. As noticed above, two Division Benches of this court have rendered a view concerning the DoPT's O.M. dated 10.07.1998. Therefore, the submission advanced by Mr. Singh that the pay protection could have been accorded to the respondent only if he had been selected [i.e., had been recruited through an interview] cannot be accepted.

3.7. We may also note that it is Mr. Singh's submission that the circular dated 10.07.1998 does not apply to the Central Government.

3.7(a) We are unable to appreciate this submission for the reason that what the petitioners needed to follow was the ratio of the Division Bench judgments adverted to hereinabove. The judgments, unreservedly, hold that the distinction drawn for according pay protection to employees based on the manner of recruitment was both arbitrary and unfair. Therefore, this submission does not impress us.

4. Before we conclude, we may express our concern that the departments continue to file petitions and drag employees to court, even when there are rulings rendered by Court with regard to the issue at hand.

4.1. In this case, as noticed hereinabove, there were two judgments of two Division Benches concerning the DoPT's O.M. dated 10.07.1998. Therefore, the circular dated 12.02.2001 could not have furthered the cause of the petitioners and yet a petition was filed.

4.2. This is an aspect which the legal advisors of the petitioners should have taken into account before seeking to drag the respondent into the litigation arena.

4.3. We would have imposed heavy costs on the petitioners had the respondent joined the proceedings.

5. Mr. Singh would do well to place the judgment passed by us today before the officer who was concerned with sanctioning the institution of the present writ petition."

12. In the case in hand, the respondent was selected through UPSC Engineering Services Examination and it is the submission of learned counsel for respondent that petitioners (Railway) are extending benefit of pay protection officer who are junior to the respondent and denied the benefits of pay protection to respondent which is arbitrary. The learned CAT having considered all objections of petitioners and having gone through the guidelines of different High Courts passed the impugned order in favour of respondent holding the respondent to be entitled for pay protection. It was held by the learned CAT in para 14 and 15, which reads thus :-

“14. The Hon’ble High Court of Delhi in WP(C) 5518/2004 has further indicated that the Division Bench in the Court order dated 20.04.2007 titled as Sanjog Kapoor (supra), have been followed by another Division Bench of the Court in the matters of Nagendra jha Vs. Union of India & Ors. in WP(C) No.8660/2005.

15. The Railway Board has issued the clarification dated 08.07.2022 (Annexure MA/2) which was passed on 21.10.2021 and the case pertaining to the applicant is of the year 2009 when the applicant was released from ONGC on 10.12.2009 and have joined IRSME. In view of the fact the instructions issued by the DoPT and Railway Board Annexure MA/2 is irrelevant and the case of the applicant is fully covered by the judgment passed by the Hon'ble High Court of Delhi in the matters of Sanjog Kapoor (Supra) which has been further followed by the Hon'ble High Court of Delhi in Narendra Jha (supra)’s case and the applicant is entitled to protection given in the case of Sanjog Kapoor (supra)’s case."

13. So, following the judgments in the matter of Sanjog (supra), Manjesh Porwal (supra) ane Mukesh Rajora (supra) of High Court of Delhi and Kerala respectively, we do hereby discountenance the above said contention of the learned counsel for the petitioners and countenance the contention raised on behalf of the respondent. We are also of the considered view that the learned CAT has rightly held that the instructions issued by the DoPT and Railway Board is irrelevant and the case of the appellant/respondent herein is fully covered by the judgment passed by the High Court of Delhi in the mater of Sanjog (supra) & held him to be entitled for pay protection. We see no error or infirmity in the said finding of the learned CAT warranting interference in this writ petition. There is no merit in the writ petition and thus, the same deserves to be dismissed.

14. In the result, the writ petition is dismissed.