Delhi High Court - Orders
Satyapal Tyagi vs Union Of India And Anr on 24 February, 2020
Author: S. Muralidhar
Bench: S.Muralidhar, Talwant Singh
$~21
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 9973/2017
SATYAPAL TYAGI ..... Petitioner
Through: Mr. Sanjay Sharawat, Mr. Divyank
Rana, Mr. Abhishek Dhankar and Mr.
Ashok Kumar, Advocates.
versus
UNION OF INDIA AND ANR ..... Respondents
Through: Mr. Jasmeet Singh, CGSC and
Mr. Srivats Kaushal, Advocates for
R-1/UOI.
Ms. Sonia A. Menon and Mr. Vanita
Chauhan, Advocates for R-2.
CORAM:
JUSTICE S.MURALIDHAR
JUSTICE TALWANT SINGH
ORDER
% 24.02.2020
1. The challenge in the present petition is to an order dated 11th April, 2017 passed by the Central Administrative Tribunal, Principal Bench, New Delhi („CAT‟) in TA No. 59/2012. By the said impugned order, the CAT rejected the aforementioned TA of the Petitioner, which inter-alia prayed for a direction to the Respondents to grant to the Petitioner the pay scale of Rs. 1640-2900/- with effect from 1st January, 1986 as recommended by the 4th Central Pay Commission („CPC‟) and the Departmental Anomalies Committee („DAC‟), and further to grant the corresponding pay scales, as recommended by the 5th and 6th CPCs.
W.P.(C) 9973/2017 Page 1 of 132. This is the second round of litigation at the instance of the Petitioner, seeking the same relief as was prayed for in the earlier rounds.
3. The background facts are that the Petitioner was appointed as a Research Analyst („RA‟) with the National Institute of Urban Affairs („NIUA‟), Respondent No. 2 herein, in October 1985 in the pay scale of Rs. 450-900, which is stated to be in accordance with the 3rd CPC. In terms of the recommendations of the 4th CPC, the NIUA, and its governing ministry i.e. the Ministry of Urban Development („MoUD‟) revised the pay scale of the petitioner to Rs. 1600-2660 with effect from 1st April, 1987. The case of the Petitioner was that he was entitled to the pay scale of Rs. 1640-2900.
4. The Petitioner based his claim on a letter of the Ministry of Finance („MoF‟) dated 16th March, 1985, which clarified that no permission of or reference to the Central Government is required for adopting the scales of pay and allowances payable to the employees of the Central Government for corresponding posts in autonomous bodies like the NIUA. A reference is also made to the MoF‟s letter dated 29th October, 1986, which is also to the same effect.
5. The Petitioner is stated to have made a representation dated 8 th January, 1992 requesting for removal of the "anomaly" in his pay scale by granting him the pay scale of Rs. 1640-2900, in conformity with the recommendations of 4th CPC. It is stated that as a "large number of employees in different posts" in the NIUA were aggrieved by anomalies in their pay scales, the NIUA constituted a DAC under the Chairmanship of W.P.(C) 9973/2017 Page 2 of 13 Dr. Gangadhar Jha to prepare a comprehensive report in relation to existing anomalies in the pay scales of the employees of the NIUA and to suggest appropriate pay scales to be adopted by the NIUA. The said DAC examined the pay scales offered to the employees in similar autonomous bodies such as the Indian Institute of Mass Communication („IIMC‟) and National Institute of Education Planning and Administration („NIEPA‟) and submitted a report dated 14th December, 1992. In respect of RAs, the report made the following suggestions:
"1.11. As regards the senior research staff, the existing array of diverse designations and anomalous pay scales need to be rationalised. If is, therefore, suggested that these may be changed to four designations with four corresponding pay scales. The positions are suggested to be redesignated as Senior Fellow (Rs.4500-7300), Fellow (Rs.3700-5700), Associate Fellow (Rs.3000-5000) and Junior Fellow (Rs.2200-4000) . The suggested positions down below are Senior Research Analyst Rs.2000-3500, Research Analyst (Rs.1640-2900 and Research Investigator (Rs.1400-2000). It is worth noting that following the guiding principle of parity, the pay scales for the last two positions have been suggested to be brought in parity with the pay scale existing in Government. Adoption of four pay scales for the senior research, staff will open up avenues for vertical mobility. As there exists large gap between the starting salary and the highest, basic pay in the suggested pay scales it will also provide a long inning to the incumbents so that even if they do not get promoted, it will not create frustration amongst the incumbents"
6. It appears, however, that when the report of the DAC was examined by the MoUD, it did not accept the recommendations therein. As far as the NIUA is concerned, the DAC by a letter dated 15th April 1994, urged the MoUD to rectify the anomaly in the pay scale offered to RAs working in W.P.(C) 9973/2017 Page 3 of 13 NIUA. It was categorically stated in the said letter that the "representation made by Research Analysts is valid" and further, that the anomaly was "an error" which needed "rectification." The letter also mentioned that Governing Council („GC‟) of the NIUA "advised the administration to submit the proposal" in relation to revision of pay scales to the "Ministry for approval".
7. Subsequently, a letter dated 11th October, 1994 written by the MoUD to the NIUA where, inter-alia, the stand taken was that the revision of pay scale of RA to Rs.1640-2900 as requested by NIUA "cannot be approved as there is no anomaly in fixation of pay of Research Analysts". It was added in the said letter that "the question of revision the pay scales of NIUA‟s staff will be considered after the recommendations of 5 th Pay Commission are accepted by the Government of India".
8. When despite the above strong recommendations by the NIUA, the MoUD did not respond, a writ petition being W.P.(C) No.4138/1996 was filed by three employees of NIUA, including the present Petitioner, in this Court. During the pendency of the aforesaid writ petition, the Director, NIUA by a letter dated 6th February, 1998 to the MoUD, while reiterating the above request, brought the following aspect to MoUD‟s attention:
"Keeping in view, the recruitment qualifications and the type of work Research Analysts are expected to produce, the pay scale as requested by Research Analysts may be considered favourably".
9. The writ petition came to be disposed of twelve years later i.e. on 1st July, W.P.(C) 9973/2017 Page 4 of 13 2008 by a learned Single Judge of this Court. The said judgment, inter alia, noted the stand of the MoUD as under:
"...The counter was also filed by respondent No. l/UOI although no serious contest was made by the Union of India at the time of final hearing of the matter. The stand of respondent No. 1/UOI in the counter affidavit inter alia is that NIUA was adopting the pay structure for its employees which was different from the pay structure of the Central Government employees. Respondent No.1 has further stated that in the month of January, 1987, Director of NIUA has made a request to the Ministry of Urban Development for extending the recommendations made by Fourth Pay Commission to the core staff of NIUA and pursuant to the said request, the Government of India in their meeting held on 26.2.1987 had agreed to extend the Pay Commission recommendations to the staff of NIUA. Since the NIUA employees were having different pay scales from that of the Central Government employees, therefore, a Committee was constituted by the Government of India to bring the pay structure of the NIUA employees at par with the Central Government employees and this exercise was completed by the Committee in June, 1987 and accordingly NIUA was informed about the extension of Fourth Pay Commission recommendations to its employees from 1.4.1987. It is also stated that employees of NIUA are not at par with the Central Government employees, although efforts were made to bring the core staff of NIUA as close as possible with the Central Government employees but still the fact would remain that the NIUA employees cannot claim parity with the Central Government employees. It is further stated that as on 1.1.1986, pay structure of the employees of NIUA was different from those of Central Government employees, therefore, the recommendations of the Fourth Pay Commission could not be applied to NIUA w.e.f. 1.1.1986.
I have heard learned counsel for the parties at great length. I have also perused various documents filed by the respective parties on record.W.P.(C) 9973/2017 Page 5 of 13
The main thrust of argument of Mr. D.K. Garg, Senior Advocate appearing for petitioner no.2 hinges upon the recommendations of 4th Pay Commission as well as the recommendations made by the Departmental Anomalies Committee headed by Shri Gangadhar Jha. The counsel contended that 4th Pay Commission had recommended pay scale of RS.1640-60-2600-EB-75-2900 after raising the pay scale and therefore, the respondents deviated from the said recommendations and wrongly granted petitioner no.3 the pay scale of RS.1600-50-3200-EB-60-2060/-."
10. The learned Single Judge took note of the DAC‟s recommendations in its report of December, 1992 and observed as under:
"From the aforesaid facts, it would be noticed that the Central Government at no stage had considered the recommendations made by the Anomalies Committee headed by Dr. Gangadhar Jha and the stand taken by respondent No. 3 about the recommendations made by this Committee having become insignificant as in the meantime the recommendations of the 5th Pay Commission came into being for their implementation w.e.f. 1.1.1996 is not at all convincing. This approach of respondent No.3, under no circumstance can be held to be justified. The Anomalies committee was constituted by respondent No.3, itself, to prepare a comprehensive report regarding existing anomalies and appropriate structure of pay scales to be adopted at NIUA and the said Committee had gone into various aspects of anomalies as it existed then in the pay structure of NlUA in comparison with those of other similar autonomous bodies including the Central Government pay structure and then made certain recommendations. This Anomalies Committee had recommended and suggested the pay scale of Research Analyst at Rs. 1640-2900, which was found existing in various Government offices and Autonomous Research Institutes for the said post and, therefore, the recommendations of this Committee could not have been easily ignored by the Central Government. The only problem with W.P.(C) 9973/2017 Page 6 of 13 which one is confronted in this regard is that the 4th Pay Commission recommendations were implemented w.e.f. 1.1.1986 in general and in the case of NIUA employees w.e.f. 1.4.1987, but the aforesaid Anomalies Committee gave its report in the year 1992. This would clearly mean that at the time of fixation of the pay scales of the employees of NIUA including the Research Analyst the report of the said Anomalies Committee was not before the Central Government. It is equally true that the suggestions and recommendations made by the Anomalies Committee had no binding effect on the Central Government for revising the pay scales. However, the plea of the Central Government does not appear to be plausible or well reasoned that the recommendations made by the Anomalies Committee lost its significance. This Anomalies Committee was constituted by the Governing Council of NIUA and now NIUA itself is turning around by stating that it lost its significance. Once NIUA found certain anomalies in the pay structure of the NIUA employees vis-a-vis other Government autonomous bodies and government employees, then now when the said Anomalies Committee made certain suggestions to rectify the said anomalies, the better course for the Central Government was to at least examine the said recommendations made by the Anomalies Committee instead of making such recommendations totally redundant of otiose."
11. Consequently, directions were issued by the learned Single Judge remanding the matter to the respondents for "reconsideration of the matter afresh after properly examining and evaluating "recommendations of the DAC in its report dated 14.12.1992". Further, a specific direction was issued that the "decision in this regard shall be taken by respondents No.1 and 2 within a period of two months from the date of this order". In other words, a decision was to be taken by MoUD and NIUA.
W.P.(C) 9973/2017 Page 7 of 1312. It transpires that subsequent to the above decision of this Court, the NIUA set up a three-member Committee to re-examine the case of Petitioner in the light of the Court‟s directions. This three-member Committee submitted its report on 19th September, 2008, the first paragraph of which reads as under:
"A three member Committee was set up by N.I.U.A. to re- examine the case of Shri S.P. Tyagi as per the directions of the Court with regard to the matter given in the subject. The three member Committee consisted of Ms. Usha P. Raghupathi, Professor, (Chairperson) with Shri Vijay Dhar, HUDCO Chair Professor, and Ms. Nalini Sliangloo, Research Officer, as members. The Committee met on 9th September, 16th September and 22nd September 2008 and examined all relevant papers. The Committee has concluded that the stand of N.I.U.A remains the same as before, i.e. Shri S.P. Tyagi‟s pay scale cannot be changed unless the Ministry agrees to re-consider his case for a change in scale." (emphasis supplied)
13. Thereafter, the report proceeded to set out the stand of the NIUA in 5 points. It was noted that the recommendations of the DAC were not accepted by the MoUD and could, therefore, not be implemented by the NIUA. The report concluded by reiterating that the NIUA‟s stand "remains unchanged". It is clear that after this Court‟s judgment dated 1st July, 2008, it was only the NIUA and not the MoUD that considered the issue.
14. It is stated in the petition that since a copy of the aforesaid report of the three-member committee was not given to the Petitioner, he filed Contempt Case No. 90/2009 in this Court, which came to be disposed of by the learned Single Judge on 30th January 2009, on which date a copy of the said report was supplied to the Petitioner in Court. The Court observed that the W.P.(C) 9973/2017 Page 8 of 13 Respondents had complied with the earlier order dated 1st July, 2008 in the writ petition filed by the Petitioner as in terms of the aforesaid report dated 19th September 2008, a decision had been taken.
15. A second contempt petition being Cont Case (C) No. 150 of 2009 filed by the Petitioner questioning the decision dated 19th September 2008 as not being in conformity with the judgment dated 1st July 2008 was also dismissed by the learned Single Judge on 28 th April 2009. It must be noted here that the learned Single Judge, while dismissing the contempt petition, noted specifically that by the order dated 30 th January 2009 liberty had been granted to the Petitioner "to challenge the decision of NIUA dated 19 th September, 2008 in accordance with law".
16. Meanwhile, the Petitioner challenged the order of the learned Single Judge dated 1st July, 2008, by way of an LPA No. 273/2009, which was dismissed by the Division Bench on 29th May, 2009. The Petitioner‟s SLP No.17050/2009 against the order dismissing his LPA came to be dismissed by the Supreme Court by its order dated 21st February, 2012.
17. Thereafter, the second round of litigation began. The Petitioner filed W.P.(C) No. 3425/2012 challenging the decision of the NIUA. The said writ petition was transferred to the CAT and re-numbered as TA No. 59/2012.
18. The said TA No. 59/2012 came to be dismissed by the impugned order dated 11th April, 2017, essentially on two grounds. The first was that the earlier round of litigation precluded the Petitioner from re-agitating the W.P.(C) 9973/2017 Page 9 of 13 matter. Secondly, it was held that the determination of pay scales was a "specialized subject and should be left to the executive to decide based on recommendations of the expert bodies like a Pay Commission". Reference was made to the report of NIUA committee dated 19th September, 2008, which, according to the CAT, made it "clear" that the post of RA did not "correspond to any central government pay scale" and that, therefore, no question of parity arose.
19. Before this Court, the stand taken by the Respondent No. 1/MoUD is that it had rejected the report of DAC. It is pointed out by learned counsel appearing for Respondent No. 1 that the Recruitment Rules (RRs) and service bye-laws of NIUA were finalized by a Committee which comprised the MoUD and that this was approved by the Director and the GC, NIUA in a meeting held on 24th June, 1996. The RRs were subsequently approved by the MoUD and became effective from 1st March, 1997.
20. The stand of Respondent No.2 /NIUA appears to have changed from the stand that it initially took soon after the report of the DAC. The three- Member Committee constituted by it after the judgment dated 1 st July 2008 appears to have viewed the DAC as an „internal Committee‟. Ms. Sonia Arora, learned counsel for Respondent No.2, repeatedly urged that the NIUA did not support the Petitioner and that the MoUD was justified in rejecting the report of the DAC.
21. Having heard learned counsel for the parties, the Court is of the view that the MoUD never really did properly examine the issue at hand after the W.P.(C) 9973/2017 Page 10 of 13 judgment of this Court dated 1st July, 2008 took note of the report of the DAC and specifically required not just the NIUA, but, importantly, the MoUD to revisit the issue.
22. The Court is unable to discern from any correspondence, or even the counter affidavit filed in the present petition, why the MoUD chose to disagree with the recommendations of DAC made in December, 1992. The stand taken in the letter dated 11th October, 1994 that "there is no anomaly"
is a conclusion which is simply not supported by any reason whatsoever. When an expert body was constituted i.e. the DAC, which specifically took note of the issue as one of anomaly in pay scales in various posts and after comparing the pay scales of the employees of the NIUA with their counterparts in other Central Government institutions basis put forth a recommendation that RAs ought to be granted the same pay scale as is admissible to their counterparts in the Central Government, the MoUD was not justified in simply rejecting the report of DAC without adducing any reasons. Also, merely because RRs may have been framed thereafter, without considering the recommendations of the DAC in their true perspective, will not justify the MoUD‟s failure to once again consider the said recommendations of the DAC as directed by this Court by the order dated 1st July 2008.
23. From the stand taken before the CAT, it is apparent that the MoUD simply reiterated its earlier stand without actually revisiting the same after the judgment of the learned Single Judge of this Court dated 1 st July, 2008. In other words, the specific direction issued by this Court in its judgment W.P.(C) 9973/2017 Page 11 of 13 dated 1st July, 2008 was never implemented by the MoUD.
24. The Court is of the considered view that the CAT erred concluding that the earlier round of litigation precluded a challenge by the Petitioner to the decision of the NIUA as contained in the report dated 19th September, 2008. The CAT clearly overlooked the specific direction in the order passed by the learned Single Judge dated 30th January, 2009, dismissing the Contempt Case No. 90/2009, granting the Petitioner liberty to challenge the said decision of NIUA. The first ground on which the CAT the rejected the TA is, therefore, without basis. As far as the merits of the matter are concerned, the CAT again failed to note that there is no decision, as such, of the MoUD pursuant to the judgment dated 1st July, 2008 of this Court, which had attained finality.
25. While the CAT may not be incorrect in observing that it cannot itself take on the task of an expert body in examining anomalies in pay scales in an organization, as far as the present case is concerned, that task has already been undertaken by an expert body i.e. the DAC, which submitted its report on the issue at hand in December, 1992 itself. The Court is yet to be informed of the reasons that the MoUD rejecting the DAC‟s recommendations for accepting the demand of RAs for revising their pay scales. The changed stand of the NIUA, essentially on account of the stand of the MoUD, is equally inexplicable and cannot preclude the MoUD from re-examining the entire issue objectively and in light of the recommendations of the DAC.
W.P.(C) 9973/2017 Page 12 of 1326. For all the aforesaid reasons, the Court sets aside the impugned order of CAT dated 11th April, 2017. A direction is now issued to the MoUD to revisit the entire issue and consider the prayer of the Petitioner for revision of pay scale in the light of the report dated 14th December, 1992 of the DAC and the judgment dated 1st July, 2008 of the learned Single Judge in W.P.(C) No. 4138/1996. It will be open to the MoUD to arrive at a decision after taking into account the view of the NIUA, which had earlier supported the stand of the Petitioner. The decision of MoUD in the matter be conveyed to the Petitioner not later 30th June, 2020. If the Petitioner is aggrieved by such decision it will be open for him to seek appropriate remedies in accordance with law.
27. The petition is disposed of in the above terms.
S. MURALIDHAR, J.
TALWANT SINGH, J.
FEBRUARY 24, 2020 ssc W.P.(C) 9973/2017 Page 13 of 13