Meghalaya High Court
Mr.Manidhish Bhattacharjee vs Nehu And Others on 3 July, 2013
Author: T Nandakumar Singh
Bench: T Nandakumar Singh
THE HIGH COURT OF MEGHALAYA
AT SHILLONG.
WP(C) NO.(SH)204/2012
Mr.Manidhish Bhattacharjee,
S/o Shri.Sitangshu Kumar Bhattacharjee,
R/o Wearian Lane, Arbuthnot Road,
Laitumkhrah, Shillong-793003,
East Khasi Hills District, Meghalaya. :::: Petitioner
-Vs-
1. The North Eastern Hill University (NEHU),
a University established under an Act of
Parliament represented by the Registrar,
NEHU Campus, Mawkynroh Umshing,
Shillong-793022, Meghalaya.
2. The Registrar,
North Eastern Hill University,
NEHU Campus, Mawkynroh Umshing,
Shillong-793022, Meghalaya.
3. Shri. Lal Kishor Rathaur,
Presently serving as Junior Engineer,
North Eastern Hill University,
NEHU Campus, Mawkynroh Umshing,
Shillong-793022, Meghalaya. :::: Respondents.
BEFORE THE HON'BLE MR JUSTICE T NANDAKUMAR SINGH For the Petitioner : Mr. HS Thangkhiew, Sr.Adv, Mr. N. Mozika, Adv.
For the Respondents : Mr. K Khan, Adv for respdt.No.1&2.
Mr. BK Das, Adv for respdt.No.3.
Date of hearing : 12.06.2013
Date of Judgment & Order : 03.07.2013
WP(C) NO.(SH)204/2012 Page 1 of 26
By this writ petition, the petitioner is questioning the partiality in fixation of his pay as Junior Engineer lower than that of the respondent No.3, who is admittedly junior to the writ petitioner as Junior Engineer.
2. Heard Mr. HS Thangkhiew, learned senior counsel assisted by Mr.N Mozika, learned counsel appearing for the petitioner, Mr. K Khan, learned counsel appearing for the respondents No.1 & 2 and Mr. BK Das, learned counsel for the respondent No.3.
3. A short factual panorama, sufficient for deciding the matter in issue in the present writ petition, is recapitulated as under:-
The petitioner on the recommendation of the duly constituted Selection Committee was appointed as Junior Engineer (Electrical) in the respondent-university on regular basis vide Appointment Order No.F.8-2/Estt-
I/90/4168 dated 20.08.1991 and pursuant to the said appointment order, the petitioner joined his duty as regular Junior Engineer on 20.08.1991 and continued to serve in the post till date. The petitioner, as reflected in the pay slip for the month of March, 2012, is placed in pay band of Rs.9300/- to Rs.34,800/-
pm and his basic pay at present is Rs.16,550/-pm.
4. The respondent No.3 was initially appointed as Work Charged Junior Engineer w.e.f. 26.02.1990 in pay scale of Rs.1400-40-EB-1800-50-2300/- plus allowances as admissible under the University from time to time. It is an admitted case of both the parties that the respondent No.3 was initially appointed as Work Charged Junior Engineer w.e.f. 26.02.1990 and the appointment was made purely on temporary basis subject to termination at any time without assigning any reason. Subsequently, the respondent No.3 was brought to the WP(C) NO.(SH)204/2012 Page 2 of 26 regular establishment and on the recommendation of the Selection Committee was appointed as Junior Engineer on regular basis in the respondent-university w.e.f. 06.01.1999 vide Appointment Order No.F.8-2/Estt-I/Appt/90-1016 dated 21.08.1999 and the basic pay of the respondent No.3 was fixed at Rs.4500/- as indicated in the said regularization order dated 21.08.1999.
5. At the time of regular appointment of the respondent No.3 in the year 1999, the petitioner had already accrued several increments and as such, his basic pay for the month of January, 1999 was Rs.5850/-, whereas, the basic pay of the respondent No.3 for the month of January, 1999 as mentioned in the appointment order was Rs.4500/- pm only. Therefore, the petitioner being the senior Junior Engineer was getting more pay than that of the respondent No.3 in the month of January, 1999 i.e. at the time of joining the respondent No.3 as regular Junior Engineer in the respondent-university.
6. Even though the respondent No.3 was admittedly working as Work Charged Junior Engineer till he was brought to the regular establishment of the respondent-university vide the said order dated 21.08.1999 appointing him as regular Junior Engineer w.e.f. 06.01.1999, the whole period of service of the respondent No.3 as Work Charged Junior Engineer was taken as regular service and accordingly, he was allowed to enjoy regular annual increment, right from the date of his joining as Work Charged Junior Engineer vide Resolution No.EC 98:98:6.6(vi); and also the pay of the respondent No.3 was re-fixed and as reflected in the pay slip for the month of March, 2012, the basic pay of the respondent No.3 at present is Rs.16,940/-. Though the retrospective regularization was accorded to the respondent No.3 w.e.f. the date of his initial appointment as Work Charged Junior Engineer i.e. 26.02.1990, the seniority of the petitioner and the respondent No.3 were reckoned from the dates of their WP(C) NO.(SH)204/2012 Page 3 of 26 respective regular appointments viz 20.06.1991 (for the petitioner) and 06.01.1999 (for the respondent No.3) respectively. In the final inter-se seniority list prepared by the respondent-university, the petitioner by virtue of his regular appointment on 20.08.1991, had been made senior to the respondent No.3, who joined as regular Junior Engineer only on 06.01.1999. In the Gradation List issued vide Office Order No.F.22-35/Estt-I/Apptt/8-805 dated 14.12.2007, the name of the petitioner appeared at Srl.No.7, whereas, the name of the respondent No.3 appeared at Srl.No.9.
7. Therefore, the parties admitted that the petitioner is senior to the respondent No.3 in grade or in the post of Junior Engineer. Further, it is not the case of the parties that the respondent No.3 was allowed to enjoy special pay because of his onerous special duty performed by the respondent No.3 as regular Junior Engineer. As the said anomalous situation or anomaly in pay was created by the respondent-university because of treating the whole length of work charged service of the respondent No.3 as regular Junior Engineer, the petitioner submitted several representations. The Executive Council of the respondent-university in order to remove the anomaly in pay, constituted a Five Members Committee under the Chairmanship of Professor Lalthantluanga to look into the matter. The Committee after careful examination of the matter, came into conclusion that the regularization of the service of the respondent No.3 was irregular as his engagement as work charged employees should have been terminated when the project against which, he was engaged came to an end. The Committee, accordingly, vide minutes of the meeting dated 06.11.2008 recommended two options to set right the anomaly:-
(a) Since the regularization of the service of the respondent No.3 was irregular, his case might be reviewed and his pay be refixed.
OR WP(C) NO.(SH)204/2012 Page 4 of 26
(b) Stepping up of pay might be granted to Shri.Manidhish Bhattacharjee (the petitioner herein) and Shri. M.S. Cidiki, who are senior to Shri. Rathaur (respondent No.3) at par with their junior Shri.L.K. Rathaur (respondent No.3 herein).
The copy of the Minutes of the meeting of the said Committee dated 06.11.2008 is available at the Annexure to the writ petition. For easy reference, the minutes of the meeting of the said Committee held on 06.11.2008 is quoted hereunder:-
"MINUTES OF THE COMMITTEE TO LOOK INTO THE REPRESENTATION OF SHRI M.BHATTACHARJEE, JUNIOR ENGINEER, FOR STEPPING UP OF PAY HELD ON 6TH NOVEMBER, 2008 AT 2.30P.M. The Committee appointed by the Vice-Chancellor to look into the case of Shri Manidhish Bhattacharjee, Junior Engineer; who joined the University on 20.09.1991 and who was drawing less pay than that of Shri. L.K.Rathore, Junior Engineer, who joined the University on 06.01.1999; met on 6th November, 2008, in the Conference Room of the Administrative Building, NEHU, Shillong.
The following members were present:
1.Prof. Lalthantluanga, Dept. of Bio-Chemistry - Chairman
2.Prof. D.T.Khathing, Registrar - Member
3.Prof. D.R.Syiemlieh, Controller of Examinations- Member
4.Shri P.C.Majhi, Finance Officer - Member
5.Smti D.Bareh, Deputy Registrar (Estt.-I) - Member At the outset, the Chairman welcomed the members of the Committee, and the Convener informed the Chairman that Prof. K.Ismail had communicated about his inability to attend the meeting as he would be out-of-station.
The Committee examined the appointment of Shri L.K.Rathore who was first engaged by the University Engineer vide Order No.CD/Acctin/32/88-89/4625, dated 15.02.1990 in the scale of pay of Rs.1400-40-1800-50-2300, as Work Charged employee WP(C) NO.(SH)204/2012 Page 5 of 26 and he joined on 26.02.1990. The engagement was temporary and his services might be terminated at any time without assigning any reason thereon. There was no subsequent Order(s) to show that Shri Rathore was further engaged as Work charged employee till his regular appointment as Junior Engineer on 06.01.1999.
The engagement as Work Charged employee is temporary in nature, but the Executive Council Committee in its meeting held on 29.08.1998 recommended for consideration of his case as regular appointment as per the University rules as and when vacancy arises, and the E.C., vide Resolution EC:98:98:6:6(vi), accepted the recommendation of the Committee that his case might be settled within 1998.
The Committee examined and found that the regularization of the case of Shri L.K.Rathore was irregular as his engagement as Work Charged employee should have been terminated when the project against which he was engaged, came to an end.
The Committee recommended either 2(two) options to set right this case as follows:
1) Since the regularization of the service of Shri L.K.Rathore was irregular, the case of Shri Rathore might be reviewed and his pay might be re-fixed.
OR
2) The Committee recommended that stepping up might be granted to Shri Manidhish Bhattacharjee and Shri M.S. Cidiki who is also Senior to Shri Rathore at par with their junior, Shri L.K.Rathore, Junior Engineer.
The meeting ended with a vote of thanks from the Chair.
Sd/- Sd/- Sd/-
(Prof.R.Lalthantluanga) (Prof.D.T.Khathing) (Prof.D.R.Syiemlieh) Chairman Member Member The said Resolution of the Committee dated 06.11.2008 was placed before the Executive Council of the respondent-university. The Agenda WP(C) NO.(SH)204/2012 Page 6 of 26 placed before the Executive Council of the respondent-university, reads as follows:-
"AGENDA FOR THE EXECUTIVE COUNCIL STEPPING UP OF PAY IN RESPECT OF SHRI. MANIDHISH BHATTACHARJEE, JUNIOR ENGINEER.
Shri. Manidhish Bhattacharjee joined the University as regular Junior Engineer on 20.08.1991 and has represented that Shri. L.K. Rathore, Junior Engineer, who was appointed on regular basis w.e.f. 06.01.1999, was drawing more salary, though junior to him. The representation dated 26.11.2007 may kindly be referred to at Annexure-A. In this connection, it may be stated that Shri. L.K. Rathore was initially engaged as Worked Charged Assistant Junior Engineer in the core pay scale of Rs.1400-40-EB-1800-50-2300 plus allowances as per the Appointment Order No.CD/Acctts/32/68- 69/4625 dated 19.2.1990 (Annexure-B). His engagement was purely temporary and was to be terminated any time without assigning any reason or it was to be terminated after the completion of the project against which he was initially engaged. Thereafter, neither any subsequent Orders were issued in continuation of his original engagement as Work-Charge employee nor was it terminated after completion of the project against which he was engaged as Work-Charge Junior Engineer till his regular appointment as Junior Engineer on 06.01.1999.
The Executive Council, vide Resolution No.EC:97:98:6:6(x), constituted a Committee to look into the case of grant of increment and regularization of service in respect of Shri. L.K. Rathore, Work- Charge Junior Engineer, and the minutes of the EC Committee meeting held on 29.08.1998 may kindly be referred to at Annexure- C. The EC, vide Resolution No.EC:98:98:6:6(vi), considered the case of Shri. L.K. Rathore and accepted the recommendation of the Committee appointed by it. The Council further resolved that his case may be settled within 1998. Since the case of Shri. L.K. Rathore has been regularized, Shri. Rathore, Junior Engineer, was drawing more salary than Shri.Manidhish Bhattacharjee, Junior Engineer, though his regular appointment was only from 6.1.1999, and as per the seniority list, Shri.Manidhish Bhattacharjee is senior to that of Shri. L.K. Rathore and the final seniority list vide Order No.F.22-35/Estt.-I/Apptt/89-805 dated 14.12.2007, may kindly be referred to at Annexure-D. The office, while examining the representation of Shri.Manidhish Bhattacharjee, Junior Engineer, felt that the case of Shri. Bhattacharjee is not feasible as the length of service of Shri. L.K.Rathore after regularization is longer than that of Shri.Manidhish Bhattacharjee. Shri. Bhattacharjee has claimed solely on the basis of seniority list ignoring the administrative aspects such as length of service, date of increment, etc. and as per rule FR 22-C, if the junior draws from time to time a higher rate of pay than the seniority by virtue of grant of advance increment or on any other account, the provision will not be invoked to set up the pay of senior officer. This may kindly be referred to at Annexure-E. WP(C) NO.(SH)204/2012 Page 7 of 26 The Vice-Chancellor constituted a Committee consisting of the following members to look into the representation of Shri.M.Bhattacharjee, Junior Engineer, for stepping up of pay with reference to Shri.L.K.Rathore, Junior Engineer.
1. Prof.Lalthantluanga, Dept. of Bio-Chemistry - Chairman
2.Prof.K.Ismail, Dean, School of Physical Scs. & Technology - Member
3. Prof.D.T.Khating, Registrar - Member
4. Prof.D.R.Syiemlieh, Controller of Examinations - Member
5. Prof.P.C. Majhi, Finance Officer - Member
6. Smti.B Bareh, Deputy Registrar (Estt.-I) - Convener The Committee met on 6.11.2008, and the Minutes of the Committee may kindly be referred to at Annexure-F, where it recommended either of the following two options to set right the case.
1) Since the regularization of the service of Shri. L.K. Rathore was irregular, the case of Shri.Rathore might be reviewed and his pay might be re-fixed.
OR
2) The Committee recommended that stepping up might be granted to Shri.Manidhish Bhattacharjee and Shri. M.S. Cidiki, who is also senior to Shri.Rathore, at par with their junior, Shri.L.K. Rathore, Junior Engineer.
The matter is placed to the Executive Council for consideration."
The Executive Council after consideration of the recommendation of the said Committee, had accepted the recommendation of the Committee vide Resolution dated 07.06.2010, which reads as follows:-
"(ii) Case of Shri.L.K. Rathaur, Junior Engineer in connection with all such Engineers in NEHU.
No.EC:142:2010:4:(ii): The Council considered the case of Shri.L.K. Rathaur, Junior Engineer in connection with all such Engineers in NEHU, and RESOLVED that stepping up of pay already allowed to Shri.J Kalita and Shri. K Biswas, Junior Engineers stands and the request of Shri.M.Bhattacharjee and Shri.M.S. Cidiki for stepping up of their pay allowed. The Council further RESOLVED to regret the seniority claimed by Shri.L.K. Rathaur."
WP(C) NO.(SH)204/2012 Page 8 of 26
8. The said Resolution i.e. Resolution No.EC:142:2010:4(ii) of the Executive Council/respondent-university, which had been quoted above, to step up the pay of the petitioner at par with his junior i.e. respondent No.3 was not implemented for the reason best known to the respondent-university. But by a subsequent Resolution of the Executive Council in its meeting held on 24.05.2011 being EC:146:2011:6:6:(ii), held that stepping up of pay of the petitioner with reference to the respondent No.3 is not admissible to him. For ready reference, the said Resolution of the Executive Council dated 24.05.2011 is quoted hereunder:-
"(ii) Stepping up of pay of Shri.M.Bhattacharjee and Shri.M.S.Ciddiki, J.E. with reference to Shri.L.K.Rathaur, J.E. NO:EC:146:2011:6:6:(ii): The Council considered stepping up of pay of Shri.M.Bhattacharjee and Shri.M.S.Ciddiki, J.E. with reference to Shri.L.K.Rathaur, J.E., and after discussion on the matter the Council RESOLVED to regret the same as stepping up of pay is not admissible to them."
9. On bare perusal of the impugned Resolution dated 24.05.2011, it is clear that no reason had been assigned for reviewing the earlier resolution dated 06.11.2008 for stepping up of pay scale of the writ petitioner at par with that of the respondent No.3 and also for what reason stepping up of pay scale of the writ petitioner at par with his junior i.e. respondent No.3, is not admissible to him. Hence, this writ petition for quashing the said Resolution of the Executive Council dated 24.05.2011, which is a cryptic and non-speaking one and also for a direction to the respondent-university to remove the anomaly in pay between the petitioner and his junior i.e. respondent No.3 by stepping up of pay of the petitioner at par with that of the respondent No.3.
10. The respondent-university had filed affidavit-in-opposition, wherein, the respondent-university did not deny that the Executive Council of the respondent-university, on the basis of the said recommendation of the said WP(C) NO.(SH)204/2012 Page 9 of 26 Committee (specially constituted Committee under the Chairmanship of Prof. Lalthantluanga) in its meeting held on 06.11.2008, had passed the Resolution dated 07.06.2010 for stepping up of pay scale of the writ petitioner at par with the respondent No.3. The respondent-university also did not deny that the impugned Resolution dated 24.05.2011, does not mention any reason for passing the Resolution that stepping up of the pay scale of the petitioner at par with that of the respondent No.3 is not admissible to the writ petitioner, but the respondent- university is trying to justify the impugned Resolution by mentioning different reasons in the counter affidavit. It is well settled law that the satisfaction of the authority to form an opinion as to a particular fact is subject to judicial review, the Court can determine whether the formation of opinion is arbitrary, capricious or whimsical. It is always open to the court to examine the question whether the reasons for formation of opinion have rational connection or relevant bearing to the formation of such opinion and are not extraneous to the purposes of the statue. Public opinion or public orders must be construed objectively with reference to the language used in the order itself. The opinion cannot be construed in the light of explanations subsequently given by the decision making authority in the form of affidavit or otherwise. Reference may be made to the decisions of the Apex Court in Commr. of Police vs. Gordhandas Bhanji: AIR 1952 SC 16, Mohinder Singh Gill vs. Chief Election Commr.: (1978) 1 SCC 405: AIR 1978 SC 851 and Bhikhubhai Vithlabhai Patel vs. State of Gujarat & Anr: (2008) 4 SCC 144.
11. It is clear from the ratio decidendi of the above cases that the public order cannot be construed in the light of the explanations subsequently given by the decision making authority and it is also open to the court to determine whether the formation of opinion is arbitrary, capricious or whimsical. Coming back to the present case, the impugned Resolution of the Executive Council WP(C) NO.(SH)204/2012 Page 10 of 26 dated 24.05.2011 is a cryptic one and no reason is given for denying the stepping up of pay scale of the petitioner at par with his junior i.e. the respondent No.3. Even only on this score, the impugned Resolution of the Executive Council of the respondent-university is liable to be quashed. Paras 33 and 35 of the SCC in Bhikhubhai Vithlabhai Patel's case (Supra), read as follows:-
"33. The court is entitled to examine whether there has been any material available with the State Government and the reasons recorded, if any, in the formation of opinion and whether they have any rational connection with or relevant bearing on the formation of the opinion. The court is entitled particularly, in the event, when the formation of the opinion is challenged to determine whether the formation of opinion is arbitrary, capricious or whimsical. It is always open to the court to examine the question whether reasons for formation of opinion have rational connection or relevant bearing to the formation of such opinion and are not extraneous to the purposes of the statue.
35. Be that as it may, the impugned preliminary notification itself does not reflect formation of any opinion by the State Government that it had become necessary to make substantial modifications in the draft development plan and, for that reason, instead of returning in the plan, decided to publish the modifications so considered necessary in the Official Gazette along with the notice inviting suggestions or objections with respect to the proposed modifications. It is very well settled that public orders publicly made, in exercise of a statutory authority, cannot be construed in the light of the explanations subsequently given by the decision-making authority. Public orders made by the authorities are meant to have public effect and must be construed objectively with reference to the language used in the order itself. (See Commr. of Police vs. Gordhandas Bhanji: AIR 1952 SC 16 and Mohinder Singh Gill vs. Chief Election Commr.: (1978) 1 SCC 405: AIR 1978 SC
851)".
12. The Apex Court in Ravi Yashwant Bhoir vs. District Collector, Raigad & Ors: (2012) 4 SCC 407, held that "it is a settled proposition of law that even in administrative matters, the reasons should be recorded as it is incumbent upon the authorities to pass a speaking and reasoned order." Paras 38, 39, 40, 41, 42, 43, 44, 45 & 46 of the SCC in Ravi Yashwant Bhoir's case (Supra), read as follows:-
"38. It is a settled proposition of law that even in administrative matters, the reasons should be recorded as it is incumbent upon the authorities to pass a speaking and reasoned order.WP(C) NO.(SH)204/2012 Page 11 of 26
39. In Shrilekha Vidyarthi v. State of U.P. & Ors: (1991) 1 SCC 212: 1991 SCC (L&S)742: AIR 1991 SC 537, this Court has observed as under: (SCC P. 243, para 36).
"36. ............. Every such action may be informed by reason and if follows that an act un-informed by reason is arbitrary, the rule of law contemplates governance by law and not by humour, whim or caprice of the men to whom the governance is entrusted for the time being. It is the trite law that "be you ever so high, the laws are above you." This is what a man in power must remember always."
40. In L.I.C. of India v. Consumer Education and Research Centre: (1995) 5 SCC 482: AIR 1995 SC 1811, this Court observed that the State or its instrumentality must not take any irrelevant or irrational factor into consideration or appear arbitrary in its decision. "Duty to act fairly" is part of fair procedure envisaged under Articles 14 and 21. Every activity of the public authority or those under public duty must be received and guided by the public interest. A similar view has been reiterated by this Court in Union of India v. Mohan Lal Capoor & Ors: (1973)2 SCC836: 1974 SCC (L&S) 5: AIR 1974 SC 87 and Mahesh Chandra v. U.P. Financial Corpn: (1993) 2 SCC 279: AIR 1993 SC 935.
41. In State of W.B. v. Atul Krishna Shaw: 1991 Supp (1) SCC 414: AIR 1990 SC 2205, this Court observed that: (SCC p.421, para 7) "7. .......... Giving of reasons is an essential element of administration of justice. A right to reason is, therefore, an indispensable part of sound system of judicial review."
42. In S.N. Mukherjee v. Union of India: (1990) 4 SCC 594: 1990 SCC (Cri) 669: AIR 1990 SC 1984, it has been held that the object underlying the rules of natural justice is to prevent miscarriage of justice and secure fair play in action. The expanding horizon of the principles of natural justice provides for requirement to record reasons as it is now regarded as one of the principles of natural justice, and it was held in the above case that except in cases where the requirement to record reasons is expressly or by necessary implication dispensed with, the authority must record reasons for its decision.
43. In Krishna Swami v. Union of India & Ors:(1992) 4 SCC 605:
AIR 1993 SC 1407, this Court observed that the rule of law requires that any action or decision of a statutory or public authority must be founded on the reason stated in the order or borne out from the record. The Court further observed: (SCC p. 637, para 47) "47.Reasons are the links between the material, the foundation for their erection and the actual conclusions.
They would also demonstrate how the mind of the maker was activated and actuated and their rational nexus and synthesis with the facts considered and the conclusions WP(C) NO.(SH)204/2012 Page 12 of 26 reached. Lest it would be arbitrary, unfair and unjust, violating Article 14 or unfair procedure offending Article 21."
44. This Court while deciding the issue in Sant Lal Gupta & Ors. v. Modern Coop Group Housing Society Ltd. & Ors: (2010) 13 SCC 336: (2010) 4 SCC (Civ) 904, placing reliance on its various earlier judgments held as under: (SCC pp.345-46, para 27) "27. It is a settled legal proposition that not only administrative but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the Court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the Court to record reasons while disposing of the case. The hallmark of order and exercise of judicial power by a judicial forum is for the forum to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of the justice - delivery system, to make it known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of the principles of natural justice. '3. ........ The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before Courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the Court concerned had really applied its mind." The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. Recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected must know why his application has been rejected.
45. In Institute of Chartered Accountants of India v. L.K. Ratna:
(1986) 4 SCC 537: (1986) 1 ATC 714: AIR 1987 SC 71, this Court held that on charge of misconduct the authority holding the inquiry must record reasons for reaching its conclusion and record clear findings. The Court further held: (SCC p.558 para 30).
"30. ........In fairness and justice, the member is entitled to know why he has been found guilty. The case can be so serious that it can attract the harsh penalties provided by the Act. Moreover, the member has been given a right of appeal to the High Court under S. 22 A of the Act. The exercise his right of appeal effectively he must know the basis on which the Council has found him guilty. We have already pointed out that a finding by the Council is the first determinative finding on the guilt of the member. It is a finding by a Tribunal of first instance. The conclusion of the Disciplinary WP(C) NO.(SH)204/2012 Page 13 of 26 Committee does not enjoy the status of a "finding".
Moreover, the reasons contained in the report by the Disciplinary Committee for its conclusion may or may not constitute the basis of the finding rendered by the Council. The Council must, therefore, state the reasons for its finding".
46. The emphasis on recording reason is that if the decision reveals the 'inscrutable face of the sphinx', it can be its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind of the authority before the court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made. In other words, a speaking out, the inscrutable face of the sphinx is ordinarily incongruous with a judicial or quasi-judicial performance."
13. In the present case in hand, it is an admitted fact of the parties that the petitioner on the recommendation of the duly constituted Selection Committee was appointed as regular Junior Engineer vide order dated 06.08.1991 and the respondent No.3 was initially appointed as Work Charged Junior Engineer w.e.f. 26.02.1990 and he was brought to the regular establishment of the respondent-university by appointing him as a regular Junior Engineer w.e.f. 06.01.1999 vide order dated 21.08.1999. The Apex Court in State of Haryana & Ors vs. Paira Singh & Ors: (1992) 4 SCC 118, held that if and when adhoc/temporary employee is regularized, he should be placed immediately below the last regularly appointed employee in that category, class or service, as the case may be. Para 50 of the SCC in Paira Singh's case (Supra) reads as follows:-
"50. The proper course would be that each State prepares a scheme, if one is not already in vogue, for regularization of such employees consistent with its reservation policy and if a scheme is already framed, the same may be made consistent with our observations herein so as to reduce avoidable litigation in this behalf. If and when such person is regularized he should be placed immediately below the last regularly appointed employee in that category, class or service, as the case may be."WP(C) NO.(SH)204/2012 Page 14 of 26
14. The words "time-scale pay" under FR 9(31) (a) means "pay which, subject to any condition prescribed in these rules, rises by periodical increments from a minimum to a maximum. It includes the class of pay hitherto known as progressive." Removal of anomaly by stepping up of pay of senior on promotion drawing pay less than his junior by applying FR 22 (I)(a)(1), had been considered by the Government of India and issued the O.M. being No.G.I., M.F., O.M. No.F.2(78)-E.III (A)/66, dated the 4th February, 1966 and the G.I., M.F., O.M. No.1(14)-E.III/89, dated 16th June, 1989. The said G.I.s Orders are quoted below:-
"(22) removal of anomaly by stepping up of pay of Senior on promotion drawing less pay than his junior ---- (a) As a result of application of FR 22-C [Now FR 22 (I)(a)(1)]---- In order to remove the anomaly of a Government servant promoted or appointed to a higher post on or after 1-4-1961 drawing a lower rate of pay in that post than another Government servant junior to him in the lower grade and promoted or appointed subsequently to another identical post, it has been decided that in such cases the pay of the senior officer in the higher post should be stepped up to a figure equal to the pay as fixed for the junior officer in that higher post. The stepping up should be done with effect from the date of promotion or appointment of the junior officer and will be subject to the following conditions, namely:-
(a) Both the junior and senior officers should belong to the same cadre and the posts in which they have been promoted or appointed should be identical and in the same cadre;
(b) The scales of pay of the lower and higher posts in which they are entitled to draw in the same cadre;
(c) The anomaly should be directly as a result of the application of FR 22-C. For example, if even in the lower post the junior officer draws from time to time a higher rate of pay than the senior by virtue of grant of advance increments, the above provisions will not be invoked to step up the pay of the senior officer.
The orders refixing the pay of the senior officers in accordance with the above provisions shall be issued under FR 27. The next increment of the senior officer will be drawn on completion of the requisite qualifying service with effect from the date of refixation of pay.
[G.I., M.F., O.M. F.2(78)-E.III(A)/66, dated 4th February, 1966.] WP(C) NO.(SH)204/2012 Page 15 of 26
(b) As a result of FR 22 (I)(a)(1) application in the revised scales of CCS (RP) Rules, 1997. - In cases, where a Government servant promoted to a higher post before the 1st day of January, 1966, draws less pay in the revised scale than his junior who is promoted to the higher post on or after the 1st day of January, 1966, the pay of the senior Government servant should be stepped up to an amount equal to the pay as fixed for his junior in that higher post. The stepping up should be done with effect from the date of promotion of the junior Government servant subject to the fulfillment of the following conditions, namely:-
(a) both the junior and senior Government servants should belong to the same cadre and the posts in which they have been promoted should be identical in the same cadre.
(b) the pre-revised and revised scales of pay of the lower and higher posts in which they are entitled to draw pay, should be identical.
(c) the senior Government servants at the time of promotion have been drawing equal or more pay than the junior.
(d) the anomaly should be directly as a result of the application of the provisions of Fundamental Rule 22 or any other rule or order regulating pay fixation on such promotion in the revised scale. If even in the lower post, the junior officer was drawing more pay in the pre-revised scale, than the senior by virtue of any advance increments granted to him, provisions of this Note need not be invoked to step up the pay of the senior officer.
2. The order relating to refixation of the pay of the senior officer in accordance with the above provisions should be issued under FR 27 and the senior officer will be entitled to the next increment on completion of his required qualifying service with effect from the date of refixation of pay.
[Note 9 below Rule 7 of CCS (RP) Rules, 1997.] Such stepping up is permissible if the anomaly has arisen as a result of the application of provisions of FR 22-C [Now FR 22(I) (a) (1)] or any other rules or order regulating pay fixation on such promotion in the revised scale vis-à-vis the fulfillment of other conditions mentioned therein. The anomaly can be said to exist only if a senior employee, drawing equal or more pay than his junior in the lower post and promoted earlier, starts drawing less pay than such junior promoted later on regular basis. Further, two employees are said to be drawing equal pay if they have been drawing pay at the same stage with same date of increment. In case the junior has been drawing the same pay with date of increment earlier than senior, then senior cannot be said to have been drawing equal pay and hence no anomaly.
WP(C) NO.(SH)204/2012 Page 16 of 26 Instances have come to notice where the pay of a senior Government servant has been allowed to be stepped up equal to junior even though there was no anomaly because the senior had no occasion to draw more or equal pay than junior in the lower post. Such stepping up wherever allowed should be rectified.
2. It has also come to notice that in certain cases, where anomaly arose not because of application of Rule 22-C [Now FR 22(I)(a)(1)] or any other rule/order regulating pay fixation on promotion, pay has been stepped up under Note 7 below Rule 7 of CCS [RP] Rules, 1986. These are the cases where the junior Government servant started drawing enhanced pay in lower post itself because of increments under Provisos 3 and 4 of Rule 8 of CCS (RP) Rules, 1986 and then on promotion his pay fixed under FR 22-C [Now FR 22 (I)(a)(1)]. As the junior employee started drawing more pay not because of application of FR 22-C [Now FR 22 (I)(a)(1)] but more pay as a result of increments in lower post under Provisos 3 and 4 of Rule 8 ibid Note 7 below Rule 7 ibid is not attracted, and stepping up of pay under these provisos is not in order.
3. Nevertheless, the Government is of the view that even if the anomaly is as a result of increments in terms of Provisos 3 and 4 of Rule 8 of CCS (RP) Rules, 1986, combined with application of FR 22-C [Now FR 22 (I)(a)(1)], anomaly may be rectified by stepping up the pay of senior promoted before 1-1-1986, equal to junior promoted on or after 1-1-1986 subject to fulfillment of following conditions:-
(a) both the junior and senior Government servants should belong to the same cadre and the posts in which they have been promoted should be identical in the same cadre.
(b) the pre-revised and revised scales of pay of the lower and higher posts in which they are entitled to draw pay, should be identical.
(c) the senior Government servant promoted before 1-1-
1986, has been drawing equal or more pay in the lower post than his junior promoted after 1-1-1986.
4. Further, it has also been decided that where a senior Government servant was promoted after reaching the maximum of the pre-revised scale of the lower post before 1-1-1986, he should be deemed to have been drawing equal pay vis-à-vis his junior, who was also drawing pay at the maximum on that date (viz., date of promotion of senior) and promoted after 1-1-1986.
[G.I., M.F., O.M. No.1(14)-E.III/89, dated 16th June, 1989.]"
15. From the above O.M.s, the essential conditions to be fulfilled for stepping up of the pay scales of the senior at par with the junior are (a) both the junior and the senior Govt. servants should belong to the same cadre and the WP(C) NO.(SH)204/2012 Page 17 of 26 posts in which they have been promoted should be identical in the same cadre;
(b) the pre-revised and revised scales of pay of the lower and higher posts in which they are entitled to draw pay, should be identical. Since both the petitioner and the respondent No.3 are directly recruited to the post of Junior Engineer, there is no question of their pay scales in the lower posts.
16. The Apex Court in Roshan Deen v. Preet Lal, (2002) 1 SCC 100, that purpose of power conferred in High Court under Articles 226 arid 227 of the Constitution of India is to advance justice, not to thwart it. Even when justice is the by-product of an erroneous interpretation of law, High Court ought not to wipe out such justice in the name of correcting the error of law. The Apex Court in Air India Statutory Corporation v. United Labour Union & Ors (1997) 2 SCC 165, held that the founding father placed no limitation or fetters on the power of High Court under article 226 of the Constitution except self imposed limitation. The arm of the court is long enough to reach injustice wherever it is found. In State of Maharashtra v. Digambar (1995) 4 SCC 683, the Apex Court held that the power of the High Court to be exercised under article 226 of the Constitution if it is discretionary, its exercise must be judicious and reasonable admits of no controversy.
17. The Apex Court in State of Haryana v. Haryana Civil Secretariat Personal Staff Assn., (2002) 6 SCC 72 and K.T. Veerappa and Ors v. State of Karnataka and Ors (2006) 9 SCC 406 that fixation of pay and determination of parity in duties is the function of the executive and the scope of judicial review of administrative decision in this regard is very limited and it is also equally well settled that the courts should interfere with administrative decisions pertaining to pay fixation and pay parity when they find such a decision to be unreasonable, unjust and prejudicial to a section of employees and taken in ignorance of WP(C) NO.(SH)204/2012 Page 18 of 26 material and relevant factors. Para 13 of the SCC in K.T. Veerappa and Ors (Supra) reads as follows:-
"13. He next contended that fixation of pay and parity in duties is the function of the executive and financial capacity of the Government and the priority given to different types of posts under the prevailing policies of the Government are also relevant factors. In support of his contention, he has place reliance on State of Haryana v. Haryana Civil Secretariat Personal Staff Assn. (2002) 6 SCC 72: 2002 SCC (L&S) 822 and Union of India v. S.S. Vohra (2004) 2 SCC 150: 2004 SCC (L&S) 363. There is no dispute nor can there be any to the principle as settled in State of Haryana v. Haryana Civil Secretariat Personal Staff Assn. (2002) 6 SCC 72: 2002 SCC (L&S) 822 that fixation of pay and determination of parity in duties is the function of the executive and the scope of judicial review of administrative decision in this regard is very limited. However, it is also equally well settled that the courts should interfere with administrative decisions pertaining to pay fixation and pay parity when they find such a decision to be unreasonable, unjust and prejudicial to a section of employees and taken in ignorance of material and relevant factors".
18. The respondent-university, in the present case, had treated the past service of the respondent No.3 as Work Charged Junior Engineer before his regularization at par with regular employee i.e. the petitioner for the purposes of fixing his pay scales. It is a trite law that if the statutory order or a scheme under which the service of work charged employee is regularized, does not provide for granting of past service, the work charged employee cannot claim benefit of such service for the purposes of fixation of pay in higher scale, grant of increment etc. This settled law had been misunderstood by the respondent-university at the time of fixation of pay of the respondent No.3 as regular Junior Engineer. Regarding this settled law, we may refer to the decisions of the Apex Court in (i) Punjab State Electricity Board & Ors v. Jagjiwan Ram & Ors: (2009) 3 SCC 661 and
(ii) Ajmer Vidyut Vitran Nigam & Ors v. Navin Kumar Saini : (2010) 15 SCC
17. Paras 9, 10, 14, 19, 20 & 21 of the SCC in Punjab State Electricity Board's case (Supra), read as follows:-
WP(C) NO.(SH)204/2012 Page 19 of 26
"9. We have considered the respective submissions. Generally speaking, a work charged establishment is an establishment of which the expenses are chargeable to works. The pay and allowances of the employees who are engaged on a work charged establishment are usually shown under a specified sub-head of the estimated cost of works. The work charged employees are engaged for execution of a specified work or project and their engagement comes to an end on completion of the work or project. The source and mode of engagement/recruitment of work charged employees, their pay and conditions of employment are altogether different from the persons appointed in the regular establishment against sanctioned posts after following the procedure prescribed under the relevant Act or rules and their duties and responsibilities are also substantially different than those of regular employees.
10. The work charged employees can claim protection under the Industrial Disputes Act or the rights flowing from any particular statute but they cannot be treated at par with the employees of regular establishment. They can neither claim regularization of service as of right nor they can claim pay scales and other financial benefits at par with regular employees. If the service of a work charged employee is regularized under any statute or a scheme framed by the employer, then he becomes member of regular establishment from the date of regularization. His service in the work charged establishment cannot be clubbed with service in a regular establishment unless a specific provision to that effect is made either in the relevant statute or the scheme of regularization. In other words, if the statute or scheme under which service of work charged employee is regularized does not provide for counting of past service, the work charged employee cannot claim benefit of such service for the purpose of fixation of seniority in the regular cadre, promotion to the higher posts, fixation of pay in the higher scales, grant of increments etc.
14. The ratio of the above mentioned judgments is that work charged employees constitute a distinct class and they cannot be equated with any other category or class of employees much less regular employees and further that the work charged employees are not entitled to the service benefits which are admissible to regular employees under the relevant rules or policy framed by the employer.
19. In State of Punjab and others v. Ishar Singh:(2002) 10 SCC 674 and State of Punjab and others v. Gurdeep Kumar Uppal:
(2003) 11 SCC 732: 2004 SCC (L&S) 444, the two-Judge Benches referred to the judgment in State of Haryana v. Haryana Veterinary & AHTS Assn.:(2000) 8 SCC 4: 2000 SCC (L&S)1043 and held that ad hoc service rendered by the respondents cannot be clubbed with their regular service for the purpose of grant of revised pay scales, senior/selection grade, proficiency step-up and for fixation of seniority.
20. A reading of the scheme framed by the Board makes it clear that the benefit of time bound promotional scales was to be given to the employees only on their completing 9/16 years regular service. Likewise, the benefit of promotional increments could be given only WP(C) NO.(SH)204/2012 Page 20 of 26 on completion of 23 years regular service. The use of the term `regular service' in various paragraphs of the scheme shows that service rendered by an employee after regular appointment could only be counted for computation of 9/16/23 years service and the service of a temporary, ad hoc or work charged employee cannot be counted for extending the benefit of time bound promotional scales or promotional increments. If the Board intended that total service rendered by the employees irrespective of their mode of recruitment and status should be counted for the purpose of grant of time bound promotional scales or promotional increments, then instead of using the expression `9/16 years regular service' or `23 years regular service', the concerned authority would have used the expression `9/16 years service' or `23 years service'. However, the fact of the matter is that the scheme in its plainest term embodies the requirement of 9/16 years regular service or 23 years regular service as a condition for grant of time bound promotional scales or promotional increments as the case may be.
21. For the reasons mentioned above, we hold that the respondents were not entitled to the benefit of time bound promotional scales / promotional increments on a date prior to completion of 9/16/23 years regular service and the High Court committed serious error by directing the appellants to give them benefit of the scheme by counting their work charged service."
19. The Apex Court in Calcutta Municipal Corporation & Anr. v. Sujit Baran Mukherjee & Ors : (1997) 11 SCC 463, held that the senior is entitled to stepping up of pay with reference to the junior's pay if the senior as well as the junior discharge the same duties under the same responsibility and not in different circumstances. However, in case extra pay is granted to the junior's for discharging of onerous duty outside the normal duty hours assigned to a post, the senior is not entitled to stepping up of pay at par with the junior. Para 6 of the SCC in Calcutta Municipal Corporation's case (Supra), reads as follows:-
"6. A reading thereof would clearly indicate that the principal of stepping up of the pay would arise only when a junior employee, on his promotion, is drawing higher pay than his seniors; in that case, they would be entitled to the stepping up the pay so as to be on par with him on the principle that the persons who are similarly situated and are drawing the same scale of pay and pare doing the same duty and being seniors to the persons drawing higher pay, are entitled to have their pay stepped up but that principle is inapplicable to the situation, as in the present case, where a junior person on transfer to a different place is being paid extra payment by way or special pay or overtime pay, whatsoever the nomenclature be and could be treated to be a special pay since he WP(C) NO.(SH)204/2012 Page 21 of 26 has a discharge the duty outside his normal duty or due to special circumstances. Such a fortuitous circumstance would not be a ground for other seniors to claim party of pay bay stepping up of their scale of pay. If the connection is given acceptance, the extra salary would become payable to persons who do not take pains and do the normal work while staying in a convenient post/place with indolence whereas the person who undertakes special responsibility or puts up hard work would be put on par; and stepping up of pay would be a premium on laziness and indolence. It should be deleterious to augmentation of efficiency in service or dedication to duty. Under those circumstances, we think that the statutory principle of stepping up of the pay so as to be on par with junior would be not on rational principal. When all of them discharge the same duties and are under the same responsibility and not in different circumstances and if the juniors draw higher pay on promotion, the seniors who do not get the opportunity would be entitled to parity of pay with their juniors."
20. The Apex Court in Gurchanran Singh Grewal v. Punjab State Electricity Board & Ors : (2009) 3 SCC 94, held that the senior cannot be paid less than his junior even if anomaly in senior's pay is due to difference of incremental benefits. Para 17 of the SCC in Gurchanran Singh Grewal's case (Supra), reads as follows:-
"17. Something may be said with regard to Mr. Chhabra's submissions about the difference in increment in the scales in which Appellant 1 and Shri. Shori are placed, but the same is still contrary to the settled principle of law that a senior cannot be paid a lesser salary than his junior. In such circumstances, even if there was a difference in the incremental benefits in the scale given to Appellant 1 and the scale given to Shri. Shori, such anomaly should not have been allowed to continue and ought to have been rectified so that the pay of Appellant 1 was also stepped up to that of Shri. Shori, as appears to have been done in the case of the Appellant
2."
21. To the contra, it appears from the submission of Mr. K Khan, learned counsel appearing for the respondent-university that the justification of anomaly in pay scale by prescribing higher pay scale for the junior, i.e. the respondent No.3 is that the respondent No.3 was appointed earlier to the petitioner in the post of Junior Engineer, inasmuch as, the respondent No.3 was initially appointed as Work Charged Junior Engineer w.e.f. 26.02.1990. For the foregoing discussions, the work charged service of a work charged employee WP(C) NO.(SH)204/2012 Page 22 of 26 cannot be equated with the regular service of the regular employee for fixation of pay scale.
22. Mr. K Khan, learned counsel appearing for the respondent- university by relying on the decision of the Apex Court in State of Andra Pradesh & Anr v. G. Sreenivasa Rao & Ors: (1989) 2 SCC 290 contended that the higher pay scale of the junior is not per se bad. Classification based on intelligible differentia for fixing higher pay scale for the junior should be accepted. But the case in hand as stated above, the respondent-authority had utterly failed to make out any materials which are acceptable under the law for prescribing the higher pay for the junior of the petitioner i.e. the respondent No.3. Mr. K Khan, also further contended by relying on the decision of the Apex Court in Union of India & Ors v. R. Swaminathan & Ors: (1997) 7 SCC 690, that FR 22(I)(a)(1) recognized the adhoc/officiating appointment for the purposes of fixing of pay scale. However, he totally misread the fact of the case in R. Swaminathan's case (Supra), which relates with the appointments under the All India Services and also it is not the case of the appointment of an employee on work charged basis and later on appointed as regular employee to the regular establishment by issuing regular appointment order.
23. The Apex Court in a catena of cases held that a ratio of any decision must be understood in the background of the fact of that case. A little difference in facts or even one additional fact may make a lot of difference in the precedential value of a decision. The Apex Court in U.P. State Electricity Board vs. Pooran Chandra Pandey & Ors: (2007) 11 SCC 92 held that:
12. As observed by this Court in State of Orissa vs. Sudhansu Sekhar Misra: AIR 1968 SC 647(vide AIR pp. 651-52, para 13):WP(C) NO.(SH)204/2012 Page 23 of 26
"13.................. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. On this topic this is what Earl of Halsbury, LC said in Quinn v. Leathem, 1901 AC 495: (1900-03) All ER Rep 1 (HL) 'Before discussing the case of Allen v. Flood (1898) AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all.
13. In Ambica Quarry Works vs. State of Gujarat & others: (1987) 1 SCC 213 (vide SCC p.221, para 18) this Court observed:-
"18. ........................The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it."
14. In Bhavnagar University vs. Palitana Sugar Mill Pvt. Ltd:
(2003) 2 SCC 111 (vide SCC P.130, para 59), this Court observed:-
"59. ............ It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision."
(Emphasis supplied)
15. As held in Bharat Petroleum Corporation Ltd. & another vs. N.R.Vairamani & another: (2004) 8 SC 579: AIR 2004 SC 4778, a decision cannot be relied on without disclosing the factual situation. In the same Judgment this Court also observed: (SCC pp.584-85, paras 9-12) "9.Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid`s theorems nor as provisions of the statute and that too taken out of the context. These observations must be read in the context in which they appear to have been stated.
Judgments of Courts are not to be construed as statutes. To WP(C) NO.(SH)204/2012 Page 24 of 26 interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. vs. Horton:1951 AC 737: (1951) 2 All ER 1 (HL) (AC at p.761) Lord Mac Dermot observed: (All ER p.14 C-D).
"The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge.
10. In Home Office vs. Dorset Yacht Co. :1970 AC 1004:
(1970) 2 WLR 1140: (1970) 2 All ER 294 (HL) (All ER p.297 g-h) Lord Reid said, Lord Atkin`s speech .... is not to be treated as if it was a statute definition. It will require qualification in new circumstances.' Megarry, J. in Shepherd Homes Ltd. v. Sandham (No.2): (1971)1 WLR 1062: (1971) 2 All ER 1267, observed: (All ER p.1274 d).
"One must not, of course, construe even a reserved judgment of even Russell L. J. as if it were an Act of Parliament;
And, in Herrington v. British Railways Board: 1972 AC 877: (1972) 2 WLR 537: (1972) 1 All ER 749 [HL (E)] Lord Morris said: (All ER p. 761 c) "There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case."
11. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
12. The following words of Lord Denning in the matter of applying precedents have become locus classicus:
"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo, J. ) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."WP(C) NO.(SH)204/2012 Page 25 of 26
*** *** *** "Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path of justice clear of obstructions which could impede it." (Emphasis supplied)
16. We are constrained to refer to the above decisions and principles contained therein because we find that often Uma Devi (3) (2006) 4 SCC 1: 2006 SCC (L&S)753 is being applied by Courts mechanically as if it were a Euclid's formula without seeing the facts of a particular case. As observed by this Court in Bhavnagar University: (2003) 2 SCC 111 and Bharat Petroleum Corporation Ltd.: (2004) 8 SCC 579: AIR 2004 SC 4778, a little difference in facts or even one additional fact may make a lot of difference in the precedential value of a decision. Hence, in our opinion, Uma Devi's: (2006) 4 SCC 1: 2006 SCC (L&S)753 case cannot be applied mechanically without seeing the facts of a particular case, as a little difference in facts can make Uma Devi's: (2006) 4 SCC 1: 2006 SCC (L&S)753 case inapplicable to the facts of that case."
24. For the foregoing discussions and reasons, the impugned resolution dated 24.05.2011 is hereby quashed. The respondent-university is directed to remove the anomaly in pay between the petitioner and the respondent No.3 by stepping up the pay of the petitioner at par with that of the respondent No.3 in the post of Junior Engineer w.e.f. the date of the respondent No.3 was allowed to enjoy the pay higher to that of the petitioner as Junior Engineer within a period of two months from the date of receipt of a certified copy of this judgment and order.
25. The writ petition is allowed.
26. The parties are directed to bear their own costs.
JUDGE WP(C) NO.(SH)204/2012 Page 26 of 26