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Sunder Singh Raghubans Vs. Embassy of India, in Nepal and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution;Service
CourtHimachal Pradesh High Court
Decided On
Case NumberC.W.P. No. 28 of 1974
Judge
Reported inAIR1976HP58
ActsCode of Civil Procedure (CPC) , 1908 - Section 20; ;Constitution of India - Article 309
AppellantSunder Singh Raghubans
RespondentEmbassy of India, in Nepal and anr.
Appellant Advocate Kamlesh Sharma, Adv.
Respondent Advocate H.K. Paul, Adv.
DispositionPetition dismissed
Cases ReferredRamswaroop Agarwal v. Poison Ltd.
Excerpt:
.....of court. -..........of the indian embassy were divided into two classes, those recruited locally and those treated as 'india based' employees. the latter enjoyed more favourable terms of pay and allowances. the petitioner, it seems was allowed pay and other conditions of service on the basis that he was recruited locally. his claim that he should be treated as an 'india based' employee of the indian embassy in nepal has been rejected. the petitioner urges that he is an 'india based' employee because when he was recruited he was residing in india. accordingly, he has filed the present writ petition for relief-2. at the outset, an objection has been raised by shri h.k. paul, holding the brief for the learned advocate general, that the writ petition is not maintainable. he urges that this court has no.....
Judgment:
ORDER

R.S. Pathak, C.J.

1. The petitioner has his permanent place of residence in the village of Arla, situate in the district of Solan in this State. He retired from the Army in 1956 and settled down as a farmer in his village. On October 28, 1958 he received a telegram from the Indian Embassy in Nepal informing him that if he desired to accept the post of a Lower Division Clerk in the Military branch for Pokhara camp for a period of six months he should 'confirm acceptance' by telegram. On October 29, 1958 the petitioner sent a telegram conveying his acceptance of the offer. This was followed by a letter dated October 30, 1958. The petitioner joined the post in Nepal. According to Annexure P-3 to the writ petition, he held the post of Lower Division Clerk from November 8, 1958 to May 3, 1959. It seems that he was thereafter appointed to the post of Upper Division Clerk from May 4, 1959 to April 30, 1960. From May 1, 1960 to September 22, 1960 he held the post of Lower Division Clerk again. Subsequently he was appointed to the post of Upper Division Clerk from September 23, 1960 where he continued until November 8, 1960. Thereafter he held the post of Assistant for various periods. In between he held the post of Sub Treasury Officer for temporary periods.

He was finally appointed to the post of Sub Treasury Officer from August 9, 1961 which post he holds to the present day. Now, the employees of the Indian Embassy were divided into two classes, those recruited locally and those treated as 'India based' employees. The latter enjoyed more favourable terms of pay and allowances. The petitioner, it seems was allowed pay and other conditions of service on the basis that he was recruited locally. His claim that he should be treated as an 'India based' employee of the Indian Embassy in Nepal has been rejected. The petitioner urges that he is an 'India based' employee because when he was recruited he was residing in India. Accordingly, he has filed the present writ petition for relief-

2. At the outset, an objection has been raised by Shri H.K. Paul, holding the brief for the learned Advocate General, that the writ petition is not maintainable. He urges that this Court has no jurisdiction inasmuch as the cause of action accrued entirely within Nepal. In my opinion, the objection is sound in so far as the petitioner's case relates to the appointments following his initial appointment. The telegram dated October 28, 1958 issued by the Indian Embassy offered a post of Lower Division Clerk for a period of six months. That offer was accepted by the petitioner by a telegram date October 29, 1958. So far as that contract is concerned, it was completed by the telegram of acceptance. Reliance is placed by learned counsel for the respondents on Ramswaroop Agarwal v. Poison Ltd., (1973) 1 Serv LR 968 (Madh Pra). In that case, the facts were entirely different. The terms of the offer clearly indicated that it could be accepted only by the plaintiff joining the post, and the Madhya Pradesh High Court held that inasmuch as he joined the post at Anand (Gujarat), his letter intimating acceptance and sent from Nagpur, within the State of Madhya Pradesh, could not give rise to any cause of action.

3. I am of opinion that so far as the petitioner's initial appointment is concerned, the cause of action arose in part at Solan within the jurisdiction of this Hon'ble Court. But subsequently, as detailed in An-nexure P-3, the petitioner was appointed to different posts at different times. They were all fresh appointments and not part of the original engagement. It will be noted that on October 6, 1959 the Government of India sanctioned certain posts, including those of Lower Division Clerks, Upper Division Clerks and Sub Treasury Officers for Pokhara for a further period. This was followed by a similar order sanctioning the posts with effect from October 1, 1960 for the period beyond that. The petitioner was never appointed as member of a service in which all the posts held from time to time by him were encadred, so that even when he was moved from one post to another it could be said to be under his original appointment to the service. On the contrary, he was appointed successively to specific posts. Each appointment was a fresh appointment. All the appointments made after the initial one were made in Nepal, and therefore, fell outside the jurisdiction of this Court.

4. On the merits, the question is whether the petitioner can be considered as an 'India based' employee. The petitioner contends that he is entitled to that status because he was residing in India at the time when the initial offer was made by the Indian Embassy in Nepal. The respondents say that a person is an 'India based' employee only if he holds a post in India at the time when the offer is made to him for appointment in the Indian Embassy at Nepal. Now, as I have held, this court has jurisdiction to consider the claim of the petitioner only in respect of the period of his initial appointment. That is the period upto May 3, 1959. It does appear from the terms of service appended at the foot of the Government of India letter No. 4674/AG/ PS4(a) 365/S/D/Pension/Services that the expression 'India based' employee refers to a person recruited from India as distinguished from a person recruited locally in Nepal. When the person was recruited initially, he was residing in India. On recruitment, he was an 'India based' employee. For the period upto May 3, 1959, in respect of which alone this Court has jurisdiction, he is entitled to the pay and allowances admissible to an 'India based' employee.

Now, there is no material which indicates what were the pay and allowances for that period. The Government of India's letter dated October 6, 1959 referred to above and similar letters issued subsequently relate to the period thereafter. If this Court had the jurisdiction to entertain the petitioner's claim for that subsequent period. I would have had no hesitation in upholding the petitioner's claim for that period. In my opinion, the entire tenor of the Government of India's letters points to! one conclusion, and that is that persons residing in India when they agreed to serve in the Indian Embassy at Nepal cannot be considered as recruited locally and must be regarded as 'India based' employees. It is their residence in India, and not that they held Government employment in India, which makes them 'India based'. Even after the initial appointment, when the petitioner was appointed to successive posts, he cannot be said to have taken up residence in Nepal and therefore liable to be treated as a local recruit. But for his employment in the Indian Embassy he would have been residing in India. He cannot be said to have abandoned his residence in India at any point of time.

5. But, as I have said, this Court must be confined to the claim for the period ending May 3, 1959. The initial appointment of the petitioner was to the post of Lower Division Clerk and for a period of six months only. There is nothing to show that the period was extended. The post itself appears to have been sanctioned for a temporary period only. In the absence of any material showing that an 'India based' employee had any different terms of service regarding pay and allowances for the period ending May 3, 1959 than what the petitioner has been paid, no relief can be granted to the petitioner.

6. As regards the period from October 6, 1959, when the Government of India letter was issued specifically providing for the terms of service of 'India based' employees, I would have been inclined to grant relief to the petitioner if I had found that this Court had jurisdiction. While denying him relief because of want of jurisdiction, I think it appropriate to observe that the administrative authorities may consider whether the petitioner should not be granted relief by them out of court without compelling him to judicial proceedings in an appropriate court of law.

7. The writ petition fails and is dismissed. There is no order as to costs.


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