Full Text
HIGH COURT OF DELHI
Date of Decision: 01st May, 2023
M K GUPTA ..... Petitioner
Through: Mr. Mohan Kumar, Advocate.
Through: Mr. Apoorv Kurup and Ms. Swati Bhardwaj, Advocates for
R-2/UGC.
Ms. Monika Arora and Mr. Subhrodeep Saha, Advocates for R-3/JNU.
JUDGMENT
1. Petitioner herein challenges an order dated 19.04.2018 whereby his claim for upgradation of Pay Scale at par with Senior Technical Assistant (‘STA’) has been rejected. A direction is also sought to the Respondents to give effect and benefit of the Resolution of Executive Council (‘EC’) dated 27.09.1995.
2. Facts to the extent relevant are that Petitioner was appointed as Statistical Assistant (‘SA’) on 24.07.1985 in Jawaharlal Nehru University/Respondent No.3 (‘JNU’) in the Pay Scale of Rs.1400-
2300. Post of SA was an isolated post without any promotional avenues and as per the Petitioner, continues to be so. Prior to 5th CPC, revision of Pay Scales of SA was under consideration, as most of the Central Government Departments and Kendriya Vidyalaya Sangathan, etc. had placed their SAs in the Pay Scale of Rs.1640-2900. Pay Scale of the Petitioner was revised to Rs.1640-2900 w.e.f. 01.04.1992 vide Notification dated 20.10.1995.
3. Initially, JNU had resolved to merge the cadre of SA with the cadre of Junior Engineer (‘JE’) by EC Resolution dated 18.08.1992, which was objected to by the Petitioner, as the charter of duties, nature of work and qualifications at the entry level were different. Petitioner represented that he may be merged/equated with STA or Senior Assistant instead.
4. Representations of the Petitioner were placed before Cadre Review Committee (‘CRC’) comprising of various subject experts and under the Chairmanship of Prof. R.P. Kaushik, who was also a Member of UGC/Respondent No.2 and the CRC recommended that Petitioner be given parity with STA, keeping in view that qualification of SA is higher than Technical Assistant and STA at entry level and they have special qualifications to handle their jobs. Decision of CRC was approved by EC vide Resolution No. 7.15 dated 27.09.1995.
5. Since the Pay Scale of the Petitioner was under revision, core Pay Scale of the Petitioner was revised vide Notification dated 20.10.1995 to Pay Scale of Rs.1640-2900 w.e.f. 01.04.1992. This was communicated to the Petitioner vide letter dated 13.12.1995. Petitioner was also held entitled to One Upward Movement (‘OUM’) on completion of 8 years of service in the Pay Scale of Rs.2000-3500 and accordingly, Petitioner’s post was equated with STA.
6. By Resolution No. 5.[1] dated 12.07.1996, JNU revised the Pay Scale of STA from Rs.2000-3500 to Rs.2200-4000 as first OUM. The Petitioner was, however, not placed in the said higher scale as first OUM and his parity with the post of STA was disturbed. Petitioner represented several times for removal of the disparity, however, despite the decision of Redressal Grievance Committee (‘RGC’) recommending in favour of the Petitioner in 2010, the benefit of the higher Pay Scale was not given to the Petitioner. When the representations did not receive any positive response, Petitioner filed W.P.(C) 1016/2018 in this Court, which was disposed of on 05.02.2018 recording the grievance of the Petitioner that he was being denied parity with STA and that the representations made by him were decided by a cryptic and non-speaking order and directing the Respondents to re-decide Petitioner’s representation dated 02.01.2017 by passing a speaking order so that it is known as to why Pay Scales of SAs cannot be at par with STAs, particularly when they have no further promotional avenues even after rendering 30 years’ service and are stagnating.
7. Pursuant to the directions of the Court, the matter was reconsidered by JNU and by a letter dated 19.04.2018, it was communicated that Petitioner was not entitled for upgradation at par with STA and there was no question of stagnation, as upgradations were available under the ACP and MACP Schemes. Representation was, therefore, rejected. Since JNU had, in the rejection letter, relied on a letter issued by Ministry of Human Resource Development (‘MHRD’) dated 08.04.1998, reflecting the scales of SA and STA under 4th CPC, copy of the letter was sought by the Petitioner under Right to Information Act, 2005. No information was, however, furnished by UGC or MHRD in this regard, after which the Petitioner filed the present writ petition.
8. Contention of Mr. Mohan Kumar, learned counsel for the Petitioner is that the post of SA was an isolated post when Petitioner was appointed on 24.07.1985 in the Pay Scale of Rs.1400-2300 and continues to be isolated with no promotional avenues. Since the post was isolated, CRC recommended grant of parity with the post of STA in the Pay Scale of Rs.1640-2900. Petitioner was placed in the Pay Scale of Rs.2000-3500 after 8 years of service as first OUM scale equivalent to the Grade of STA. On 13.12.1995, Petitioner’s Pay Scale was revised to Rs.1640-2900 w.e.f. 01.04.1992 and while the EC resolved to grant OUM Scale of Rs.2200-4000 in place of Rs.2000-3500 to STAs on 12.07.1996, the same benefit was not extended to the Petitioner leading to disparity, contrary to the recommendations of CRC that parity should be maintained between the post of SA and STA.
9. The next contention is that the stand of JNU in the impugned order that the post of SA was placed at par with STA in the Pay Scale of Rs.1640-2900 initially without the mandatory approval of UGC and MHRD and was thus erroneous, is wholly misconceived inasmuch as JNU is a Statutory Autonomous Institution and all Administrative and Academic decisions are taken by its EC which is the Apex Body for JNU. In the case of the Petitioner, EC vide Resolution dated 27.09.1995, on recommendations of CRC had placed the Petitioner at par with the STAs and the decision was never recalled or reviewed by the EC and has attained finality.
10. The impugned order of rejection has been passed overlooking a vital fact that prior to 5th CPC, in UGC itself SAs were re-designated as Senior SAs in the scale of Rs.1640-2900 vide order dated 27.12.2019 and all posts of SAs were abolished w.e.f. 01.12.2019. In any event, as per the notification of pay scales for each category approved by EC vide Resolution No. 4.18 dated 19.04.2001 for implementation of 5th CPC, Petitioner’s pay scale must be treated as Rs.2200-4000 i.e. at par with STA as first OUM and the pay scale of Rs.3000-4500 as Second Upward Movement (‘SUM’), keeping in view ECs decision dated 27.09.1995, which was a one-time decision treating the post of SA at par with STA.
11. Per contra, learned counsel for JNU contends that no doubt, post of SA was treated at par with STA and placed in the scale of Rs.1640-2900 under 4th CPC, however, this was without the mandatory approval of UGC and MHRD and contrary to the Government of India approved pay scale of Rs.1400-2300 under 4th CPC, as prescribed in MHRD letter dated 08.04.1998. Therefore, no benefit can be sought by the Petitioner from an error committed by JNU, as the action was without a legal sanction. The recommendation of CRC was to place the existing SAs in the pay scale of Rs.1640- 2900 to enable them to get OUM scale of Rs.2000-3500 on completion of 08 years of service in the combined pay scales of Rs.1400-2300 and Rs.1640-2900, but there was no recommendation to revise the core pay scale of SA which was Rs.1400-2300. Neither CRC nor EC recommended that pay scale of SA would be revised in accordance with revision of pay scales of STA. RGC examined the grievance put forth by the Petitioner and recommended in his favour but the same was subject to approval of EC and the law and cannot be looked in isolation.
12. It is further contended that after a decision was taken by JNU to place SA in the scale of Rs.1640-2900, clarification was sought from UGC on this aspect and UGC vide letter dated 05.10.1999 stated that JNU had, contrary to norms and instructions contained in General Financial Rules and other Government of India Instructions issued from time to time, implemented the said decision of higher scales and without the prior approval of the Competent Authority. UGC also pointed out that as per the core scales enclosed in Appendix-IV to the said letter, SA was entitled to core pay scale of Rs.1400-2300 and OUM of Rs.1400-2600, for which the revised pay scale under 5th is Rs.4500-7000. Subsequently, again vide letters dated 07.11.2014 and 05.05.2017, UGC clarified that the core pay scale of the post of SA is Rs.4500-7000 (pre-revised) and approval cannot be granted for a higher pay scale. According to Ms. Arora, the request of the Petitioner cannot be acceded to in light of the stand of UGC and MHRD and therefore, no illegality can be found with the impugned order.
13. Counsel for UGC has argued on the same lines as JNU and emphasized that Petitioner cannot assert a right predicated on EC’s Resolution of JNU since the same did not have a sanction/approval from the MHRD or UGC.
14. I have heard the learned counsels for the parties and examined the aforesaid contentions.
15. From the narrative of facts, it emerges that post of SA is an isolated post without any promotional avenues. Petitioner was appointed on 24.07.1985 as SA in the pay scale of Rs.1400-2300. On 18.08.1992, EC of JNU resolved to frame a cadre structure of SA with JE, which was objected to by the stakeholders, as there was a difference in job profile and entry qualifications etc. Keeping this in mind, CRC was constituted, which recommended parity between the post of SA and STA and resultantly grant of pay scale of Rs.1640- 2900 to SAs. This recommendation was approved by the EC in its 18th meeting held on 27.09.1995. Relevant extract form the EC Resolution is as under:- “….
4. Grant of parity to the Statistical Assistants with the Sr. Technical Assistants: The Committee noted that the Statistical Assistants are in the scale of 1400-2300 and there are no promotional avenues at all for them except, like other cadres, provision of upward movement. It was also noted that the Statistical Assistants had special qualifications to handle the jobs assigned to them. For the Sr. Technical Assistants who are in the pay scale of Rs. 1640- 2900, the University has already provided First Upward Movement in the scale of Rs. 2000-3500. In the Delhi University also the same pay structure is being followed. Keeping in view the above, the CRC recommended that existing Statistical Assistant be placed (without promotion fixation, but on placement fixation) in the scale of Rs. 1640-2900; they will be eligible for consideration for the first upward movement scale of Rs. 2000-3500 on completion of 8 years of total service in the scales 1640-2900 and 1400-2300; thereby putting them at par with the Technical staff.”
16. As a matter of fact, pay scale of the Petitioner was revised from Rs.1400-2300 to Rs.1640-2900 and he was given one OUM in the scale of Rs.2000-3500, which was equivalent to the scale of STA. The disparity started when STA was granted upgraded scale of Rs.2200- 4000 in 1996 as OUM and the same was not granted to the Petitioner. Representations made by the Petitioner yielded no positive result and positive recommendations of the RGC also did not receive approval compelling the Petitioner to approach this Court.
17. The main plank of argument of the Petitioner is that SA being an isolated post, a conscious decision was taken by the EC of JNU, which is the Apex Body for taking decisions to grant parity with the post of STA. Decision was taken after a duly constituted CRC with experts in the field recommended for grant of parity and placement of the post of SA in the pay scale of Rs.1640-2900. Respondents, on the other hand, contest the petition on the ground that the decision of the EC was without approval from UGC and MHRD and the decision was without legal sanctity. Much reliance is placed on the letter dated 05.10.1999 to underscore that the core pay scale of the post of SA was Rs.1400-2300 and OUM scale was Rs.1400-2600.
18. It is not disputed today even before the Court that CRC had recommended in favour of the post of SA being placed in the scale of Rs.1640-2900 at par with STA and this decision was approved by the EC. The defence of JNU is largely based on UGC’s letter dated 05.10.1999 and therefore, the stand needs to be examined primarily in the context of this letter. Reading of the letter shows that no doubt, there were directions that core pay scales of posts in the Universities would be the pay scales applicable to corresponding posts in the Central Government, however, the letter will have to be read as a whole. Para 4(viii) of the letter provides that no promotion/career growth schemes will be operated in JNU after 08.04.1998 and in case such schemes have been introduced after 08.04.1998, these will not be taken into account for determining the pay of an employee on 01.01.1996. It was also provided that all future recruitments will take place only in the approved core scales as existing in the Central Government, however, the OUM scales allowed to existing incumbents will be personal to them. The intent was clearly to ensure that employees who had been placed in higher scales or scales different from the Central Government should not be adversely affected by reduction of the pay scales. This intent is reinforced by perusing the proposal which was discussed in a meeting held on 31.03.2001 between Secretary, MHRD; Vice-Chancellor, JNU and Delhi University; Chairman, UGC and other officials and in the meeting of Finance Committee held on 09.04.2001, which was finally approved. The decisions taken for implementing the 5th CPC Recommendations and the ACP Scheme in JNU are culled out as follows:- “(i) After 8.4.98 all promotions/Career Growth Schemes stand discontinued and the Govt. scales and promotion rules shall be applicable in the University.
(ii) All those recruited/promoted after 8.4.98 will be governed by the ACP scheme and the approved Government pay scales;
(iii) Only two upward movements in the total span of service, if already allowed till 8.4.98, will be regularised against ACP schemes and there will be no further upward movement for those who have received two upward movement till 8.4.98.
(iv) In cases, till 8.4.98, where distinct University hierarchy/line of promotion existed, the replacement scales shall be in accordance with that. Where no University hierarchy/line of promotion existed, the replacement scales shall be the approved government scales. The replacement scales so granted, if different from government scales, shall be given as personal to the existing incumbents.
(v) Hereafter the pension shall be finally regulated in accordance with the above said implementation.
(vi) The pay scales proposed in the Annexure to the Agenda for the Finance Committee meeting held on 9.4.2001 and placed below shall be implemented.”
19. It is palpably clear from the aforementioned documents that all promotions/career growth schemes in JNU were to be discontinued and the Government pay scales were to apply, in order to maintain uniformity. But what is being overlooked is the exception or carve out by way of clause (iv) of the approval, wherein it is provided that wherever distinct University hierarchy/line of promotion existed till 08.04.1998, which was the cut-off date for implementation of Government pay scales, the replacement scales were to be in accordance with the University hierarchy and only where no such hierarchy existed, Government scales were to apply. To obviate any doubt with respect to pay scales already fixed and granted to the incumbents prior to 08.04.1998, there was a clarification that replacement scales wherever granted, shall be personal to the existing incumbents in the event they were at variance from the Government scales. The common thread that runs in the directions issued by UGC in the letter dated 05.10.1999 and the proposal made, which was subsequently approved, is that even the UGC never intended to disturb the status quo that existed prior to 08.04.1998, realizing that this would have an adverse impact on the employees drawing higher scales for a considerable length of time. In the present case, Petitioner was granted the pay scale of Rs.1640-2900 on 13.12.1995 w.e.f. 01.04.1992 by Notification dated 20.10.1995 and his case clearly falls in the excepted category i.e. cases prior to 08.04.1998 and undoubtedly, the scale would have to be protected as personal to him.
20. The impact of impugned decision would be that the parity maintained between the posts of SA and STA would be taken away and consequentially the pay scale of Rs.1640-2900, thus reducing the pay scale of the Petitioner retrospectively. The other direct impact on the emoluments of the Petitioner would be that he would become disentitled to the upgraded scale of Rs.2200-4000 which was granted to STAs in 1996 as OUM scale, which he has been seeking predicating his case on parity which was established and recommended by CRC and approved by the EC.
21. The issue that really falls for consideration therefore is whether the parity between SA and STA can be disturbed or diluted, resulting in reduction of pay scale of the Petitioner. The issue of reduction of the pay scale in JNU premised on the letter dated 05.10.1999 is, in fact, no longer res integra and came up for adjudication before this Court in Bam Dev Chhetri and Ors. v. Jawaharlal Nehru University and Anr., 2013 SCC OnLine Del 4705. Petitioners in the said case were Caretakers employed with JNU and were initially appointed in the pay scale of Rs.950-1500. Subsequently, they were placed in a higher pay scale of Rs.1350-2200, pursuant to various orders passed by JNU through its Executive Council. On the directions of UGC, pay scale of Rs.1350-2200 was sought to be reduced to Rs.950-1500 on the ground that grant of higher pay scale to Caretakers was without the approval of MHRD and consent of UGC and was creating an anomaly in other Departments. Interestingly and significantly, the Court relied on the letter dated 05.10.1999, more particularly, Clause (viii) of paragraph 4 thereof, as extracted hereinabove and letter dated 10.04.1998 and held as under:- “6. A reading of the aforesaid communications of the UGC brings out the following admitted facts:-
(i) By its letter dated 8.4.1998 it was specifically stated that the non-teaching employees of respondent no. 1/University were to be given pay scales as specified in annexure to the letter, and which annexure gives the new pay scales as per the Fifth Pay Commission to care takers in the existing core scale of pay of Rs. 1350-2200/- the higher pay scale (pursuant to Fifth Pay Commission recommendations) of Rs. 4500-7000/-.
(ii) The issue arose as to the fact that actually care takers of
Central Government did not have the core scale of pay of Rs. 1350-2200/-, but only had core scale of pay of Rs.950-1500/-, and therefore what would be actually the core scale of pay of care takers of respondent no. 1/University, the same was resolved in terms of para (2) of the letter of the UGC dated 10.4.1998 and which provided that the replacement pay scales no doubt would be as per the recommendations of the Fifth Pay Commission Report, however, if caretakers/category (ii) employees are already getting a different higher pay scales then such higher pay scales will be protected as personal rights of such existing employees with the condition that core scale of pay for new recruits (future recruitment) will be at the lower scale of Rs.950-1500/- and not at Rs. 1350-2200/-.
(iii) The communication of UGC dated 5.10.1999 did not in any specific manner override or deny benefit of higher pay scales to care takers being category (ii) employees of the respondent NO. 1/University, and personal rights of such persons although actual core scale of pay would be lower as per the Fifth Pay Commission Report, the existing higher pay scales were protected, and it was simply specified as per para 4(iii) that core scale of pay would be the core scale of pay of corresponding posts in Central Government i.e. the personal entitlement of a higher pay scale given by the communication of UGC dated 10.4.1998 was not in any manner taken away by the communication of UGC dated 5.10.1999 and all that was specified was that only the core scale will remain equivalent to the corresponding post in Central Government for future recruitment, and this is when one so reads this with para (2) of the letter of the UGC dated 10.4.1998 and para 3(v) of the selfsame letter dated 5.10.1999 of UGC, that existing incumbents of posts were to get the normal replacement scales as personal to them with new recruitments taking place in rationalized pay structure corresponding to Government pay scales for equivalent categories/posts.
(iv) Therefore once the higher pay scale already stood granted to category (ii) employees, including the care takers such as the petitioners, the Government did not and could not reduce the core pay scale of care takers from Rs. 1350-2200/- to Rs.950- 1500/-, and once personal pay scales of Rs. 1350-2200/- are accepted so far as petitioners/caretakers are concerned, the pay scale which would then be granted to such persons as per the Fifth Pay Commission Report would be in the band of Rs. 4500- 7000/-.
7. In view of the above, I do not agree with the contentions and arguments urged on behalf of the respondent nos. 1 and 2 that by the communication dated 5.10.1999 of the respondent no. 2 and 29.7.1999 of Ministry of Human Resource Development specified core scale of pay by the same core scale of pay as Central Government employees, and accordingly therefore such language means that already existing higher pay scales of petitioners as care takers would be taken away from them although such rights were preserved and personal to the existing employees in terms of para (2) of the communication of UGC dated 10.4.1998. Retrospectively, the monetary benefits granted to employees, are never ordinarily taken away by the government.
8. In view of the above, writ petition is allowed. It is directed that petitioners/care takers of the respondent no. 1/University who have been enjoying higher pay scales in terms of the notification of the respondent no. 1/University dated 21.3.1996 would be put in the core scale of pay of Rs. 1350-2200 being the existing scale to be revised as per the Fifth Pay Commission Report, and which Fifth Pay Commission Report revised the pay scales of Rs. 1350-2200/- to Rs. 4500-7000/-. Petitioners will be entitled to all consequential monetary benefits as to be calculated in terms of this judgment and the respondent no. 1 now will pay the appropriate monetary benefits and consequential monetary benefits to the petitioners within a period of six months from today. If the appropriate monetary benefits are not paid within six months from today, then, petitioners so far as future period after six months is concerned, will be entitled to interest @ 7 ½% per annum simple on all arrears which are to be paid in terms of this judgment and not paid within a period of six months from today. Parties are left to bear their own costs. W.P.(C) Nos. 1364/2000, 2735/2000 and 6231/2001 In these writ petitions, petitioners are also category (ii) employees in terms of the communication of the UGC dated 10.4.1998 and therefore they will get the same benefits as per the ratio in the judgment in W.P.(C) No. 1050/2000. These writ petitions are also therefore allowed and same directions are also issued against the respondent no. 1/University as issued in W.P.(C) NO. 1050/2000. Parties are left to bear their own costs.”
22. The observations of the Court in the aforementioned judgment are both relevant and significant for the present writ petition, inasmuch as the Court negated the contention of JNU that by communication dated 05.10.1999, UGC intended to reduce the existing higher pay scales of the incumbents, though preserved and personal to them under paragraph 2 of UGCs communication dated 10.04.1998. Court also observed that monetary benefits granted to the employees are ordinarily not taken away by the Government, retrospectively. For the sake of completeness, I may also extract hereunder the letter dated 10.04.1998:- “SPEED POST UNIVERSITY GRANTS COMMISSION BAHADURSHAH ZAFAR MARG NEW DELHI-110 002 No. F.31-3/97(CU) 10th April, 1998 The Registrar Jawaharlal Nehru University New Mehrauli Road New Delhi-110 067 Subject: Pay revision of employees of Central Universities, etc. pursuant to the recommendations of the Fifth Central Pay Commission-Jawaharlal Nehru University. Sir, I am directed to refer to this officer letter of even number dated 8th April, 1998 conveying the approval of the University Grants Commission to revision of scales of pay of non-teaching employees of the Jawaharlal Nehru University as recommended by the Group of Officers and to say that the matter has been further considered by the Commission with in consultation with Government of India and the Commission has decided as under: -
1. The Group of Officers constituted by UGC had identified two categories of cases in the above institutions, namely -(i) Categories where pay scales and conditions of service are similar to those in Government; and (ii) Categories where scales and conditions of services are different from those available in Government employees.
2. As regards cases falling in category (ii) above, the Commission have examined the matter in consultation with the Ministry of Human Resource Development and Ministry of Finance (Department of Expenditure) and it has been decided that the corresponding replacement pay scales given in the First Schedule, Part A, Central Civil Service (Revised Pay) Rules, 1997 to the pay scales which have been extended to the existing incumbents with prior permission to the competent authorities but are different from those approved by the Government may be given as personal to the current incumbents of those posts on the consideration that they have already been drawing benefit of the grade in the pre-revised scale. The University may ensure that once these incumbents vacate the posts, the pay scales would be reverted to the approved level which exists in Government. New recruitment would also take place at the level of scales approved by Government.”
23. Therefore, applying the aforesaid judgment to the facts of this case, the pay scale of Rs.1640-2900 granted to the Petitioner is protected under the UGC’s directions and cannot be taken away. Since a conscious decision was taken by the EC to grant parity to SA with STA considering that it was an isolated post, this Court finds no reason to permit the Respondents to disturb the said parity. No material has been placed on record to enable this Court to come to a different conclusion as none of the factors that existed while taking a decision to grant parity have changed thereafter. SA continues to be an isolated post with no promotional avenues even today and it is not the case of the Respondents that any other factor such as job profile or qualifications etc., which were in reckoning when the decision was taken have altered. UGC has itself taken a conscious decision and right so not to undo the decisions pertaining to pay scales prior to the cut-off date of 08.04.1998 and the impact of disturbing the parity would in fact amount to undoing pay structure of the post of SA. Therefore, in view of the established parity between SA and STA, Petitioner is right in seeking the pre-revised pay scale of Rs.2200- 4000, as given to the STAs as an OUM scale. It is, therefore, held that Petitioner is entitled to the benefits of pay scales as granted to the post of STA both for the pay scale of Rs.1640-2900 and OUM scale of Rs.2200-4000 and the impugned order dated 19.04.2018 rejecting the representation of the Petitioner is quashed and set aside.
24. Accordingly, the writ petition is allowed holding that Petitioner will be entitled to the core pay scale of Rs.1640-2900 (revised 5500- 9000 under 5th CPC; Rs.9300-34800 with Grade Pay of Rs.4200/under 6th CPC and Level-6 under 7th CPC) and OUM scale at par with STA i.e. Rs.2200-4000 (revised Rs.8000-13500 under 5th CPC; Rs.9300-34800 with Grade Pay of Rs.5400/- under 6th CPC and Level-9 under 7th CPC) along with consequential benefits of higher pay scales under the ACP/MACP Schemes due or as and when the upgradations become due. JNU is accordingly directed to re-fix the salary and other emoluments of the Petitioner and grant consequential benefits of arrears. The entire exercise shall be completed within a period of two months from today.
25. Writ petition stands allowed and disposed of in the aforesaid terms.