Full Text
HIGH COURT OF DELHI
Date ofDecision:22.05.2017
K ASOKAN Appellant
Through: Mr. Krishna Kumar, Mr. Shekhar Vyas, Mr. Arun Pathak & Ms. Yukti Bishnoi,Advocates.
^
Through: Ms. Mahika Trivedi, Advocate for respondent No.1.
HON'BLE MS.JUSTICE ANU MALHOTRA VIPIN SANGHI.J.(ORALl
Caveat No.507/2017
1• Learned counselforthe caveator has appeared.
JUDGMENT
2. Accordingly,the caveatstands discharged. CM.No.19402/2017
3. Exemption allowed,subjectto alljustexceptions.
4. The application stands disposed of. LPA 395/2017 «,.r,c Page I of15 2017:DHC:8884-DB CM.No.19403/2017./
5. List ofdates is taken on record.
6. The application stands disposed of. LPA 395/2017 and C.M.No.19401/2017
7. The appellant has preferred the present Letters PatentAppealto assail thejudgment dated 28.03.2017 passed by,the learned Single Judge in W.P. (C)No.1813/2003,whereby the appellant's aforesaid writ petition has been dismissed with costs of Rs.30,000/-. The appellant had preferred the said writ petition to seek the relief ofgrant ofhigher pay grade in the scale of Rs.3000-4500 as payable to a.Scientist-'D' instead of Rs.2200^000, on which the appellantwas appointed as Scientist—'C'/Scientist Coordinator.
8. The respondent Nuclear Science Centre (NSC) issued an advertisement in December 1993 inviting applications to the post of Scientists in the pay scale of Rs.2200^000. Amongst the Scientists, the applications were invited for Scientist Coordinator. For the said post, the advertisement provided the minimum qualification as M.Sc.in Physics with experience,or Ph.D.(Physics). The advertisement,inter alia, provided that ''higher starting salary/ grade may be admissible to a candidate having suitable experience and qualifications". The appellant applied in response to the said advertisement. The Selection Committee - consisting of five Scientists,interviewed the appellant apart from eight other candidates. The Selection Committee made its report dated 24.02.1994, which reads as follows: LPA 395/2017 ^ V SELECTION COMMITTEEREPORT The Selection Committee constituted to interview the candidates called for the post of SCIENTISTS (COORDINATOR)in the scale of2200—4000 met on February 24, 1994. In response to the advertisement 93/12 dated 9.12.93, 48applications were received. A screening committee constituted by the Director selected 10 candidates to be called for the interview. 9candidates appearedfor the interview. The Selection Committee's recommendations are: Dr. K. Asokan may be appointed in the scale of Rs.2200-4000 withfour increments. Itshould be specifiedin the letter ofappointmentthat hisjob is to assist the Convener AUC in coordinating user activities, workshops/ seminars, publications andliaison work in experiments. Sd/- Sd/- PROF.PRASANTA SEN PR/OF. S.C.PANCHOLI S.I.N.P., Calcutta Delhi University Sd/- Sd/- Sd/- DR.R.K. BEOWMIK DR.S.K. Ddtta PROF. G. K. MEHTA" (emphasis supplied) y 9. On the basis ofthe said report,an offer was made to the appellant on 07.04.1994. In the offer made to the appellant, the respondent, inter alia, clearly stated: "DearDr.Ashokan, With reference to the interview you attendedon February 24, 1994,I wish to inform you that you have been selectedfor the post of Scientists (Cordinator) in the Nuclear Science LPA 395/2017 Page3of15 Centre on the basicsalary ofRs.2500/-per month in thegrade of Rs.2200-75-2800-EB-100-4000. You will be entitled to allowances as admissible in the centre(annexure enclosed). Your terms ofappointment and other service condition will be governed by the bye-laws and the rules ofthe Centre framedfrom time to time. Your duties will be to assist the Convenor, AUC in coordinating user activities, workshops/ seminars,publications and liaison work in experiments besides work assigned by theDirector. "
10. The appellant accepted the said offer vide communication dated 18.04.1994. While accepting the offer, he pleaded that he be granted higher grade of Rs.3000-4500. In his aforesaid communication, he, inter alia, stated that: "Dear Sir, I take this opportunity to thank you for your offer of appointment. While accepting the offer, I submit the followingforyour kindconsideration andperusal.
1. I intend to complete the medical examination before joiningNSC. Iwill be reachingNSCon'23''^Aprilafternoon. I would like to have medical examination on'25"'and 26'^ April '94 since I have booked by return (train) ticketfor 26''' April V/ (2115hours). I request to you, kindly to inform the Chief Medical Officer, Ram Manohar Lohia Hospital, regarding this andalso make the reference letter ready. Please do the needful at your end in this regard. Please confirm whether the above programme is O.K byfax 08172-67423 or 08712-68650 Attn: Dr. K. Asokan. LPA 395/2017 Page4of15 I may need accommodation during this period (23^^ to 26'^ April)
2. Ihope to be relievedfrom INSAT-MCF by May. I would be reportingatNSCby16"'Mayandhence kindly extend myjoining time accordingly.
5. Iam to requestyou,kindly to place me in higher grade based on thefollowing consideration: (a) PhD(Physics)completedin 1992. (b) About eight years service in ISRO unit after post graduation in Physics and experience in working in shifts, exposure to computers and also published both technical papersandreports.
(c) recently, I have also forwarded applications (through proper channel) for the post of Scientist in the grade of Rs.3000-4500 in Satellite Applications Centre (ISRO), Ahmedabad, DRDO and also CAT, DAE. In fact, when I appliedfor NSC,I was under the impression thatI would be placed in this grade based on my qualification and experience. I understand thatthere is a provisionfor this in the Advt. StillIam going ahead with the otherformalities."
11. From the aforesaid, it would be seen that while appointing the appellant, he was offered four increments at the initial stage itselfin the pay grade ofRs.2200-4000. Fie even accepted tlje same. He claimed that he was under the impression that he would get the higher grade of3000-4500. His communication shows that he pleaded for grant ofthe higher pay gradebut, without asserting a right to the same on the basis of any rule or regulation. LPA 395/2017 Page5of15
12. It appears that the appellant kept representing to claim the higher pay grade ofRs.3000-4500. The representation ofthe appellant was rejected by the Governing Body (GB) of NSC on 21.08.1998. The appellant still continued to represent and the same was again rejected by the GB on 02.12.2002.
13. Thereafter, the appellant preferred the aforesaid writ petition. The appellant sought to place reliance on the words used in the advertisement to contend that since he had obtained Ph.D. degree in Physics, he was entitled to the higher pay grade ofRs.3000^500. The learned Single Judge rejected the submission by observing thatthe advertisement had used the word'may' and not 'shall', and thus, there was no representation held out to the appellant that he shall be granted the higher pay grade of Rs.3000-4500. Moreover, the appellant had been granted higher salary by granting 4 increments in terms ofthe representation held outin the advertisement.
14. The learned Single Judge, while rejecting the appellant's claim, also took notice of the fact that the appellant had been made an offer by the respondent, as aforesaid, v/hich he accepted with open eyes, and thus, he could not havereneged from his agreernent,and after havingjoined the post, he could not have claimed the higher pay grade. Rejection of his ^ representation for grant of higher pay grade ofRs.3000^500 did not give him a cause ofaction since he has no vested rightto seek a higher pay grade as claimed by hirn.
15. The learned Single Judge also took note ofthe fact that the rejection ofthe appellant's claim by the Governing Board, which is the highest body LPA 395/2017 Page6ofIS ofrespondent No.l, was communicated to him on 21.08.1998. Yet he did not agitate his grievance, if any, before the Court till 2003. Thus,the writ petition was held to be barred by delay and laches. Mere rejection on second occasion by the Governing Board of the appellant's claim on 02.12.2002 did not furnish a cause of action, since, repeated rejection of subsequent representations would not extend the time period during which the appellantcould have preferred the writpetition.
16. The appellant also sought to make out a case of discrimination by pointing out six other cases, where persons with Ph.D. qualification had been placed in the higher pay grade ofRs.3000^500. The learned Single Judge rejected the said submission in paragraphs 10 & 11 ofthe impugned judgment,which read as follows: "10. Counselfor thepetitioner argued discrimination against the petitioner and in this regard the relevant averments are made in para 14 ofthe writpetition, and which para reads as under "14. The petitioner made repeated requests in this regard to the respondents and made a representation even beforejoining that he should be given a highergrade. The Grievance Committee ^ which consists ofRetiredJudge ofthe High Court and two external experts examined the representation of the petitioner and came to the conclusion that the primafacie, the grievance of the petitioner appears to be genuine and the petitioner should be put in the grade at par with other Scientists possessing Ph.D placed in the scale of3000-4500. The report of the Grievance Committee which was infavour ofthe petitioner was neverprovided to thepetitioner andthe report LPA 395/2017 Page 7of15 has not been accepted by the Governing Body of the respondents and there have been no reasons assignedfor riot accepting the recommendations made by the Grievance Committee. It is submitted that this is a clear case ofviolation ofArticle 14of the Constitution ofIndia as the petitioner having Ph.D is offereda lower grade whereas thepersons with Ph.D areplaced in the scale ofRs.30b0-4500 and infact, the other six Scientists working with the respondents with the Ph.D are being given the higher grade asper the bye laws and it is only in the case ofthe petitioner alone that the bye laws are not beingfollowedfor some ulterior motive of harassing the petitioner. The other six Scientists having the Ph.D who are.getting the higher grade are as under
1. Dr. A.K.Avasthi • 2.Dr.D.Kanjilal
3. Dr. A.Mondal
4. Dr.S.Mookerjee
5. Dr. RaviKumar
6. Dr.T.Nandi Itis relevant to note that outofthe above scientists joined with the respondents,.Dr. A.Mondal was given the grade ofScientist-D while he was doing Ph.D which is given for a candidate having. qualification ofPhD as per the Bye-laws ofthe Respondents. Incidentally, Dr. S.Mookerjee and the Petitioner obtained their doctoral degreefrom Department ofPhysics, University of Rajasthan, Jaipur andjoined the Respondent based on Ph.D qualification butplaced in different grades, while LPA 395/2017 • Page8of15 the Petitioner was placed as Scientist-C and Dr. S.Mookerjee in Scientist/Engineer-D." V 11.(i)ln response to this stand of the petitioner, respondent no.l as per its counter-affidavit (para 14) has denied the equality ofthepetitioner with sixpersons mentionedinpara 14 ofthe writpetition bypleading as under:-
of the Grievance Committee and averments contrary to the same are denied. The reliance on the report of the Grievance Committee is completely misplaced inasmuch as it is the Governing Body, which is the deciding authority, where the report ofthe Grievance Committee are only recommendatory in nature. It iswrong to suggestthat the reportofthe Grievance Committee was in any mannerfavourable to the Petitioner. The Petitioner hasfailed to make out any case of violation of Article 14 of the Constitution inasmuch as the instances of the six Scientists given by the Petitioner, who are getting higherpay scale, had applied against the post advertised in the higher grade. The rest ofthe contentions made in the paragraph under reply are not true and denied. Out ofthe list given by the Petitioner, the first three persons were appointed during the initial stage in the development of the Centre, prior to the formulation of the Bye-laws. Their primary responsibility was installation and commissioning of different scientific facilities required by the Centre. Similarly, the remaining three persons mentioned in the list were given responsibilities in the development of various LPA 395/2017 Page9of15 research and computational facilities of the Centre. All those six persons had several years of post doctoral/managing experience beforejoining the Centre. It would he improper to equate their qualification/experience with the petitioner, who did not have any post doctoral/research/teaching/managerial experience. at the time ofjoining the Centre. Also, the job description of the Scientist Coordinator is completely different and does not require any developmentactivity relatedto the Centre."
(ii) It may be noted thatpetitioner was admittedly appointed as a Scientist Coordinator i.e Scientist-C.Inpara 14 ofthe writ petition when the petitioner compares himself with six other persons alleging discrimination against him, the petitioner has notpleaded thatsix otherpersons were appointedas Scientists- C or Scientist Coordinators. Accordingly, petitioner cannot successfully plead a case of discrimination because it is not pleaded or established that six other persons with whom the petitioner claims equality were appointed as Scientist Coordinator/Scientist-C in the respondent no.I at a higher pay grade of Rs.3000-4500/-. Also, the respondent no.I in its counter-ajfidavit in para 14 has stated validfacts as to how petitioner cannotclaim equality with such sixpersons inasmuch as three out of the six persons were appointed before formulation of the bye-laws of the respondent no.l and the other three persons had much more qualifications than the petitioner including ofpost doctoral experience beforejoining the respondent no:1, and petitioner admittedly had no experiencepostobtaining thePh.D qualification."
17. Similarly, the appellant sought to place reliance on another instance relating to one Mr. G. Samudra, who was made an offer ofappointment on 24.09.1985 as a Scientist in the grade of Rs.700-1300. He was informed that he will be given the grade of Rs.1100-1600 after he secures his Ph.D. degree. The submission ofthe appellant was thatthis shows that the higher LPA 395/2017 Page10ofIS \{ grade was admissible under the bylaws to the Ph.D. holders. This submission has also been rejected by the learned Single Judge in paragraph 12 oftheimpugnedjudgment,which reads as follows: '72. Learned counsel for the petitioner then argued by placing reliance upon a documentfiled with the rejoinder being the letter dated 24.9.1985 addressed by the Director of the respondent no.1 to one Mr. G.Samudra, however, it isseen that thisletter in no waystates thatMr. G.Samudara wasappointed as a Scientist Coordinator or Scientist- C (letter only says „Scientist") and since he had a Ph.D qualification he was hence granted the pay grade ofRs.3000-4500/- inspite ofbeing only appointed as a Scientist-Coordinator. Even assuming that Mr. G. Samudra was appointed as Scientist-C at grade pay of Rs.3000-4500/-, even then till it is known as to whatpersonnel position existed in 1985 and whether they were identical in 1993, petitioner cannot claim equality with Mr. G. Samudra. The letter dated 24.9.1985 is therefore reproduced and which will show as baseless the stand of the petitioner that Mr. G.Samudra was a Scientist Coordinator andyet got the higher pay-scale of Rs.3000-4500/- and simply because Mr. G. Samudra hadaPh.D in Physics. Thisletter reads as under:- "Prof. A.P.Patro Director September 24, 1985. Mr. G. Samudra DepartmentofPhysics Purdue University WESTLAFAYETTEln.47906 U.S.A LPA 395/2017 Page11ofIS Dear Mr.Samudra, You have been in touch with Prof. Mehta. We recently had a selection committee meeting and. considered your bio-data. We are pleased to offer you the position ofa ""Scientist" in our Centre in the grade RsJOO-1300 W.P.(C) No.1813/2003 Page 15 of18 which will be Rs.1100-1600 After you getyour Ph.D degree. In addition to the.basic pay you will be entitled to the allowance as permissible to Central Govt. employees in Delhi. The totalemohiments, atthe minimum basicsalary ofRs.1100, will come to Rs.2715. We willprovide accommodation to come to Rs. 2715. We will provides accommodation to our scientists as per Govt. rules. If you are interested in our offer please let us ktiow the date by which you canjoin. We are lookingforwardto hearingfrom you. Yoursfaithfully, Sd/- (Prof. A.Patro) Director""
18. The submission of Mr. Krishna Kumar, learned counsel for the appellant is thatthe advertisement itselfprovided that higher starting salary/ grade pay may be admissible to the persons having suitable experience and qualification. He points out that the minimum qualification prescribed for the said post was M.Sc. in Physics with experience, or Ph.D. in Physics. This itselfshows that candidates who have Ph.D. in Physics would get the higher pay grade. He submits that the four increments granted to the appellant at the initial stage were granted in routine to all candidates who came with experience. He submits thatthe appellantcame to the respondent LPA 395/2017 Page12of15 organisation with eight years of experience. Therefore, grant of four increments at the initial stage to the appellant was not on account of his possessing the higher qualification ofPh.D.in Physics,but on account ofhis earlier experience.
19. Mr.KrishnaKumar has also soughtto place reliance on Annexure-I to the bylaws which prescribes the pay scales for Scientists and Technical Staff. He submits that in respect ofthe designation Tech.-J/JE-E/E-C/SC, the pay scale was Rs.2200-4000 and the minimum qualification was M.Se. vy or B.E. with one year experience. However,in respect ofTech.J/ JE-F E- D/SD,the pay scale was Rs.3000-4500 and the minimum qualification is Ph.D. or B.E. with five years experience, or M.Tech. with two years experience. The submission of Mr. Krishna Kumar, therefore, is that the higher pay grade is determined by the higher qualification, and not by the designation in respect whereofthe appointmentis made.
20. On the other hand, learned counsel for the respondent/ caveator submits that the appellant having accepted the offer made to him with open eyes,cannotrenege firom the same. She has placed reliance on the report of the Selection Committee which assessed the capability and functionality of ^ theappellantatthetimeofhisappointment,andonthatbasis,recommended his appointmentto the pay scale ofRs.2200^000 with four increments.
21. She also submits that the representation ofthe appellant having been rejected at the highest level in the year 1998,the filing ofthe writ petition was highly belated and barred by delay and laches in the year2003.
22. Having heard learned counsels and perused the impugned order as LPA 395/2017 Page13of15 well as the record,we are ofthe view thatthere is no merit in the appeal and the impugnedjudgment does not call for interference.
23. We have extracted hereinabove the report ofthe Selection Committee. The Selection Committee made the assessment in relation to the ''suitable experience and qualifications^^ ofthe appellant. The Selection Committee consisted of experts and if, in their assessment, the appellant deserved the pay scale ofRs.2200-4000 with four increments,the said opinion ofexperts, in any event, is not open to judicial review. The appellant was made an offer ofappointment on 07.04.1994 clearly stating that he would be entitled to basic salary of Rs.2,500/- per month in the pay scale of Rs.2200-4000. Thus,there was no scope ofany doubt in the mind ofthe appellant that he had been appointed and offered the position ofScientist-'C in the pay scale of Rs.2200-4000. The letter of acceptance issued by the appellant also clearly shows that he was very much conscious of the fact that the offer made to him was in respect of the pay scale of Rs.2200-4000 with four increments. He consciously accepted the same, as would be seen from the extract of his communication dated 18.04.1994. Having so accepted the grade offered to him with4increments,he could not have turned around'and \ ^ • I challenged the pay grade with increments offered to him and accepted by him,particularly when,the claim is notpremised on any statutory basis..J
24. The submission of Mr.Kumar that the pay scale ofRs.3000-4500 is attached to the qualification ofPh.D. with Physics, has no merit. The pay scales are prescribed in respect of different posts/ designations to which appointments are made. If the appellant was so minded, he could have applied in respect ofa vacancy,ifany,for appointment ofScientist-'D'. If LPA 395/2017 Page14of15 he chose to apply in respect ofa vacancy for Scientist-'C - for which the minimum qudification was M.Sc., despite his holding a Ph.D. degree in Physics, he cannot turn around and say that on account of his higher qualification, he should be paid the pay scale which is admissible to Scientist-'D', for which one of the minimum qualifications is Ph.D. in Physics.
25. We also find merit in the submission of learned counsel for the v. respondent thatthe writ petition itselfwas barred by delay and laches when he approached the Court after five years of being communicated the rejection ofthe representation bythe Governing Board.
26. The case of discrimination alleged by the appellant has been appropriately dealt with by the learned Single Judge in the extract quoted hereinabove,and we need say any further.
27. For all the aforesaid reasons, the appeal is dismissed. However, keeping in view the circumstances ofthe case,the costs imposed upon the appellant by the impugnedjudgment are waived. V/ VIPIN SANGHI,J ANU MALHOTRA,J MAY 22,2017 B.S.Rohella LPA 395/2017 pggeISofIS