Benefit Of Past Service Not To Be Denied In Case Of Transfer Of Service: Delhi HC
The Delhi High Court has held that in a case of transfer of service, the benefit of past service cannot be denied to a person whose services stand transferred.
The court said that an employee cannot be treated as a ‘fresh appointment’ if their services were ‘transferred.’
A Division Bench of Justice Suresh Kumar Kait and Justice Shalinder Kaur observed “To deprive the respondent of the benefit of past service rendered by him would definitely work against his interest and to his disadvantage. The very word ‘absorption’ ‘pay protection’ and the sequence of events as detailed above prove that it was not a case of new appointment particularly when the pay was also protected. The said noncounting of past service rendered by the respondent in CISF prior to transfer to the petitioners is contrary and contradictory to rule of pay protection.”
Advocate Jasbir Bidhuri appeared for the petitioners while Advocate M. K. Bhardwaj appeared for the respondent.
The petitioners challenged the Central Administrative Tribunal's (CAT) order that directed Mahanagar Telephone Nigam Ltd. (MTNL) to count the past service of the employee on 'absorption basis', who joined them as a Wrestling Coach after resigning from Central Industrial Security Force (CISF). The employee argued that the ‘past service’ should be counted during ‘absorption.’ The CAT ruled in favour of the employee, prompting the petitioners to file the current writ petition under Article 226 of the Constitution.
The High Court determined whether the employee was entitled to 'pay protection' and also for counting of the 'past service' spent in CISF.
Addressing the issue of pay protection and past service counting, the Court discussed the circumstances surrounding the employee’s transition from CISF to the petitioners' department. The employee’s appointment was not ‘fresh appointment’ but based on ‘absorption basis’, and the resignation from the previous job did not negate past service.
The Court held that “Under a technical resignation, for all instances and purposes, the period of service of the respondent with CISF was not wiped out. Thus, the Technical resignation in the present case cannot be equated with the resignation in common parlance. The past service obviously had to be counted for the purposes of seniority, fixation of pay, promotion etc. Further the appointment which was offered to the respondent was on “Pay Protection” basis. In case of absorption on transfer, promotion earned in previous or present organization together with past regular service shall also be counted for all purpose.”
The Court stated that the CAT correctly held that the pay of the employee is to be protected from his date of joining service. An employee has a right to be paid an accurate salary in accordance with the rules. Incorrect pay fixation creates a fresh cause of action every time the employee is paid contrary to the rules.
The High Court directed the petitioners to pass appropriate orders to implement directions from the Court.
Cause Title: Mahanagar Telephone Nigam Ltd. & Anr v. Balbir Gulia
