Kerala High Court
The Director vs Dr.Muraleedharan.C on 19 May, 2020
Author: V.G.Arun
Bench: A.M.Shaffique, V.G.Arun
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR.JUSTICE V.G.ARUN
TUESDAY, THE 19TH DAY OF MAY 2020 / 29TH VAISAKHA, 1942
WA.No.1399 OF 2019
JUDGMENT IN WP(C) 33827/2017(C) OF HIGH COURT OF KERALA
APPELLANT/S:
1 THE DIRECTOR, NATIONAL INSTITUTE OF TECHNOLOGY
CALICUT
NIT CAMPUS P.O., CALICUT - 673 601.
2 THE BOARD OF GOVERNORS
REPRESENTED BY ITS CHAIRPERSON, NATIONAL
INSTITUTE OF TECHNOLOGY, CALICUT, NIT CAMPUS
P.O., CALICUT - 673 601.
3 THE CHAIRPERSON
BOARD OF GOVERNORS, NATIONAL INSTITUTE OF
TECHNOLOGY CALICUT, NIT CAMPUS P.O., CALICUT -
673 601.
BY ADVS.
SRI.SHYAM PADMAN
SRI.C.M.ANDREWS
SRI.P.T.MOHANKUMAR
SMT.BOBY M.SEKHAR
KUM.LAYA MARY JOSEPH
RESPONDENT/S:
1 DR.MURALEEDHARAN.C
AGED 3 YEARS
PROFESSOR, DEPARTMENT OF MECHANICAL
ENGINEERING, NATIONAL INSTITUTE OF TECHNOLOGY,
CALICUT, NIT CAMPUS P.O., CALICUT - 673 601.
2 DR. JOSEPH. M. A.
W.A.Nos.1399, 1405, 1413, 1438,
1480 & 1531/2019
2
PROFESSOR, DEPARTMENT OF MECHANICAL
ENGINEERING, NATIONAL INSTITUTE OF TECHNOLOGY
CALICUT, NIT CAMPUS P.O., CALICUT - 673 601.
3 COUNCIL OF NATIONAL INSTITUTE OF TECHNOLOGY
REPRESENTED BY ITS CHAIRMAN, MINISTRY OF HUMAN
RESOURCE DEVELOPMENT OF INDIA, SASTRI BHAVAN,
NEW DELHI - 110 001.
4 UNION OF INDIA
REPRESENTED BY THE SECRETARY, MINISTRY OF HUMAN
RESOURCE DEVELOPMENT, DEPARTMENT OF SECONDARY
AND HIGHER EDUCATION, NEW DELHI - 110 001.
5 DR. M. D. NARAYANAN
ASSOCIATE PROFESSOR, DEPARTMENT OF MECHANICAL
ENGINEERING, NATIONAL INSTITUTE OF TECHNOLOGY
CALICUT, NIT CAMPUS P.O., CALICUT - 673 601.
R1-2, R5 BY ADV. VISHNU S(B/O)
R3-4 BY SMT.C.G.PREETHA, CGC
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
05.03.2020, ALONG WITH WA.1405/2019, WA.1413/2019,
WA.1438/2019, WA.1480/2019, WA.1531/2019, THE COURT ON
19.05.2020 DELIVERED THE FOLLOWING:
W.A.Nos.1399, 1405, 1413, 1438,
1480 & 1531/2019
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR.JUSTICE V.G.ARUN
TUESDAY, THE 19TH DAY OF MAY 2020 / 29TH VAISAKHA, 1942
WA.No.1405 OF 2019
AGAINST THE ORDER/JUDGMENT IN WP(C) 16901/2018(K) OF HIGH
COURT OF KERALA
APPELLANT/S:
1 THE DIRECTOR
NATIONAL INSTITUTE OF TECHNOLOGY, CALICUT, NIT
CAMPUS P. O., CALICUT - 673 601
2 THE BOARD OF GOVERNORS
REPRESENTED BY ITS CHAIRPERSON, NATIONAL
INSTITUTE OF TECHNOLOGY, CALICUT, NIT CAMPUS P.
O., CALICUT - 673 601
3 THE CHAIRPERSON
BOARD OF GOVERNORS, NATIONAL INSTITUTE OF
TECHNOLOGY, CALICUT, NIT CAMPUS P. O., CALICUT
- 673 601
BY ADVS.
SRI.SHYAM PADMAN
SRI.C.M.ANDREWS
SRI.P.T.MOHANKUMAR
SMT.BOBY M.SEKHAR
KUM.LAYA MARY JOSEPH
RESPONDENT/S:
W.A.Nos.1399, 1405, 1413, 1438,
1480 & 1531/2019
4
1 DR.A.K.KASTHURBA
PROFESSOR AND HEAD OF THE DEPARTMENT,
DEPARTMENT OF ARCHITECTURE, NATIONAL INSTITUTE
OF TECHNOLOGY, CALICUT, NIT CAMPUS P. O.,
CALICUT - 673 601
2 COUNCIL OF NATIONAL INSTITUTE OF TECHNOLOGY
REPRESENTED BY ITS CHAIRMAN, MINISTRY OF HUMAN
RESOURCE DEVELOPMENT OF INDIA, SASTRI BHAVAN,
NEW DELHI - 110 001
3 UNION OF INDIA
REPRESENTED BY THE SECRETARY, MINISTRY OF HUMAN
RESOURCE DEVELOPMENT, DEPARTMENT OF SECONDARY
AND HIGHER EDUCATION, NEW DELHI - 110 001
R1 BY ADV. VISHNU S(B/O)
R2-3 BY ADV. M.C.MONI,CGC(BY ORDER)
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
05.03.2020, ALONG WITH WA.1399/2019, WA.1413/2019,
WA.1438/2019, WA.1480/2019, WA.1531/2019, THE COURT ON
19.05.2020 DELIVERED THE FOLLOWING:
W.A.Nos.1399, 1405, 1413, 1438,
1480 & 1531/2019
5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR.JUSTICE V.G.ARUN
TUESDAY, THE 19TH DAY OF MAY 2020 / 29TH VAISAKHA, 1942
WA.No.1413 OF 2019
JUDGMENT IN WP(C) 34043/2017(E) OF HIGH COURT OF KERALA
APPELLANT/S:
1 THE DIRECTOR,
NATIONAL INSTITUTE OF TECHNOLOGY, CALICUT, NIT
CAMPUS P.O., CALICUT-673 601.
2 THE BOARD OF DIRECTORS
REPRESENTED BY ITS CHAIRPERSON, NATIONAL
INSTITUTE OF TECHNOLOGY CALICUT, NIT CAMPUS
P.O., CALICUT-673 601.
3 THE CHAIRPERSON
BOARD OF GOVERNORS, NATIONAL INSTITUTE OF
TECHNOLOGY CALICUT, NIT CAMPUS P.O., CALICUT-
673 601.
BY ADVS.
SHYAM PADMAN
SRI.C.M.ANDREWS
SRI.P.T.MOHANKUMAR
SMT.BOBY M.SEKHAR
KUM.LAYA MARY JOSEPH
RESPONDENT/S:
1 DR. V.MADHUSUDHANAN PILLAI
W.A.Nos.1399, 1405, 1413, 1438,
1480 & 1531/2019
6
ASSOCIATE PROFESSOR, DEPARTMENT OF MECHANICAL
ENGINEERING, NATIONAL INSTITUTE OF TECHNOLOGY
CALICUT, NIT CAMPUS P.O. CALICUT-673 601.
2 DR.GHULAM JILANI
PROFESSOR, DEPARTMENT OF MECHANICAL
ENGINEERING, NATIONAL INSTITUTE OF TECHNOLOGY
CALICUT, NIT CAMPUS P.O., CALICUT-673 601.
3 COUNCIL OF NATIONAL INSTITUTE OF TECHNOLOGY
REPRESENTED BY ITS CHAIRMAN, MINISTRY OF HUMAN
RESOURCE DEVELOPMENT, DEPARTMENT OF SECONDARY
AND HIGHER EDUCATION, NEW DELHI-110 001.
4 UNION OF INDIA,
REPRESENTED BY THE SECRETARY, MINISTRY OF HUMAN
RESOURCE DEVELOPMENT, DEPARTMENT OF SECONDARY
AND HIGHER EDUCATION, NEW DELHI-110001.
5 DR. A. SHAIJA,
ASSOCIATE PROFESSOR, DEPARTMENT OF MECHANICAL
ENGINEERING, NATIONAL INSTITUTE OF TECHNOLOGY
CALICUT, NIT CAMPUS P.O., CALICUT-673 601.
(DELETED).
R1-2, R5 BY ADV. SRI. S.VISHNU (B/O)
R3-4 BY SMT.C.G.PREETHA, CGC
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
05.03.2020, ALONG WITH WA.1399/2019, WA.1405/2019,
WA.1438/2019, WA.1480/2019, WA.1531/2019, THE COURT ON
19.05.2020 DELIVERED THE FOLLOWING:
W.A.Nos.1399, 1405, 1413, 1438,
1480 & 1531/2019
7
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR.JUSTICE V.G.ARUN
TUESDAY, THE 19TH DAY OF MAY 2020 / 29TH VAISAKHA, 1942
WA.No.1438 OF 2019
JUDGMENT IN WP(C) 34174/2017(V) OF HIGH COURT OF KERALA
APPELLANT/S:
1 THE DIRECTOR
NATIONAL INSTITUTE OF TECHNOLOGY CALICUT, NIT
CAMPUS P.O.,
CALICUT 673 601.
2 THE BOARD OF GOVERNORS
REPRESENTED BY ITS CHAIRPERSON NATIONAL
INSTITUTE OF TECHNOLOGY CALICUT NIT CAMPUS P.O.
CALICUT 673 601
3 THE CHAIRPERSON,
BOARD OF GOVERNORS,
NATIONAL INSTITUTE OF TECHNOLOGY CALICUT NIT
CAMPUS P.O. CALICUT 673 601
BY ADVS.
SRI.SHYAM PADMAN
SRI.P.T.MOHANKUMAR
SRI.C.M.ANDREWS
SMT.BOBY M.SEKHAR
KUM.LAYA MARY JOSEPH
RESPONDENT/S:
W.A.Nos.1399, 1405, 1413, 1438,
1480 & 1531/2019
8
1 VARAPRASAD GARAPATI
ASSISTANT PROFESSOR
DEPARTMENT OF MECHANICAL ENGINEERING NATIONAL
INSTITUTE OF TECHNOLOGY L CALIUT NIT CAMPUS
P.O. CALICUT. 673 601
2 JAYADEEP.U.B,
ASSISTANT PROFESSOR,
DEPARTMENT OF MECHANICAL ENGINEERING NATIONAL
INSTITUTE OF TECHNOLOGY CALICUT NIT CAMPUS P.O.
CALICUT 673 601
3 GEORGE.K. VARGHESE,
ASSISTANT PROFESSOR,
DEPARTMENT OF CIVIL ENGINEERING
NATIONAL INSTITUTE OF TECHNOLOGY CALICUT NIT
CAMPUS P.O. CALICUT 673 601
4 HANAS.T.
ASSISTANT PROFESSOR,
SCHOOL OF NANO SCIENCE AND TECHNOLOGY NATIONAL
INSTITUTE OF TECHNOLOGY CALICUT NIT CAMPUS P.O.
CALICUT 673 601
5 DR. SUDHEER.A.P.
ASSISTANT PROFESSOR,
DEPARTMENT OF MECHANICAL ENGINEERING
NATIONAL INSTITUTE OF TECHNOLOGY CALICUT NIT
CAMPUS P.O. CALICUT 673 601
6 HARIKRISHNA.M.,
ASSISTANT PROFESSOR,
DEPARTMENT OF CIVIL ENGINEERING
NATIONAL INSTITUTE OF TECHNOLOGY CALICUT NIT
CAMPUS P.O. CALICUT 673 601
7 SAJITH.A.S.,
ASSISTANT PROFESSOR,
DEPARTMENT OF CIVIL ENGINEERING
NATIONAL INSTITUTE OF TECHNOLOGY CALICUT NIT
CAMPUS P.O. CALICUT 673 601
W.A.Nos.1399, 1405, 1413, 1438,
1480 & 1531/2019
9
8 SHIJO THOMAS,
ASSISTANT PROFESSOR,
SCHOOL OF NANO SCIENCE AND TECHNOLOGY
NATIONAL INSTITUTE OF TECHNOLOGY CALICUT NIT
CAMPUS P.O. CALICUT 673 601
9 COUNCIL OF NATIONAL INSTITUTE OF TECHNOLOGY
REPRESENTED BY ITS CHAIRMAN,
MINISTRY OF HUMAN RESOURCE DEVELOPMENT OF
INDIA, SASTRI BHAVAN, NEW DELHI 110 001.
10 UNION OF INDIA
REPRESENTED BY THE SECRETARY,
MINISTRY OF HUMAN RESOURCE DEVELOPMENT,
DEPARTMENT OF SECONDARY AND HIGHER EDUCATION,
NEW DELHI 110 001
R1 BY ADV. S.VISHNU FOR R
R2-7 BY ADV. SRI.S.VISHNU
R8 BY ADV. SRI. S VISHNU FOR R-1 TO R-8B/O
R9 BY ADV. CENTRAL GOVT COUNSEL FOR R-9(B/O)
R10 BY ADV. CENTRAL GOVT. COUNSEL FOR R-10(B/O)
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
05.03.2020, ALONG WITH WA.1399/2019, WA.1405/2019,
WA.1413/2019, WA.1480/2019, WA.1531/2019, THE COURT ON
19.05.2020 DELIVERED THE FOLLOWING:
W.A.Nos.1399, 1405, 1413, 1438,
1480 & 1531/2019
10
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR.JUSTICE V.G.ARUN
TUESDAY, THE 19TH DAY OF MAY 2020 / 29TH VAISAKHA, 1942
WA.No.1480 OF 2019
JUDGMENT IN WP(C) 322/2018(M) OF HIGH COURT OF KERALA
APPELLANT/S:
1 THE DIRECTOR,
NATIONAL INSTITUTE OF TECHNOLOGY, CALICUT, NIT
CAMPUS P.O., CALICUT- 673601.
2 THE BOARD OF GOVERNORS,
REPRESENTED BY ITS CHAIRPERSON, NATIONAL
INSTITUTE OF TECHNOLOGY CALICUT, CALICUT-
673601.
3 THE CHAIRPERSON,
BOARD OF GOVERNORS, NATIONAL INSTITUTE OF
TECHNOLOGY CALICUT, NIT CAMPUS P.O., CALICUT-
673601.
BY ADVS.
SRI.SHYAM PADMAN
SRI.C.M.ANDREWS
SRI.P.T.MOHANKUMAR
SMT.BOBY M.SEKHAR
KUM.LAYA MARY JOSEPH
RESPONDENT/S:
1 DR.P.K.RAJENDRA KUMAR,
W.A.Nos.1399, 1405, 1413, 1438,
1480 & 1531/2019
11
PROFESSOR, DEPARTMENT OF MECHANICAL
ENGINEERING, NATIONAL INSTITUTE OF TECHNOLOGY
CALICUT, NIT CAMPUS P.O., CALICUT- 673601.
2 COUNCIL OF NATIONAL INSTITUTE OF TECHNOLOGY,
REPRESENTED BY ITS CHAIRMAN, MINISTRY OF HUMAN
RESOURCE DEVELOPMENT OF INDIA, SASTRI BHAVAN,
NEW DELHI- 110001.
3 UNION OF INDIA,
REPRESENTED BY THE SECRETARY, MINISTRY OF HUMAN
RESOURCE DEVELOPMENT, DEPARTMENT OF SECONDARY
AND HIGHER EDUCATION, NEW DELHI- 110001.
4 DR.GHULAM JILANI,
PROFESSOR, DEPARTMENT OF MECHANICAL
ENGINEERING, NATIONAL INSTITUTE OF TECHNOLOGY,
CALICUT, NIT CAMPUS P.O., CALICUT- 673601.
R1, R4 BY ADV. SRI.S.VISHNU(BY ORDER)
R2-3 BY SRI.JAISHANKAR V.NAIR, CGC
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
05.03.2020, ALONG WITH WA.1399/2019, WA.1405/2019,
WA.1413/2019, WA.1438/2019, WA.1531/2019, THE COURT ON
19.05.2020 DELIVERED THE FOLLOWING:
W.A.Nos.1399, 1405, 1413, 1438,
1480 & 1531/2019
12
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR.JUSTICE V.G.ARUN
TUESDAY, THE 19TH DAY OF MAY 2020 / 29TH VAISAKHA, 1942
WA.No.1531 OF 2019
JUDGMENT IN WP(C) 38412/2017(B) OF HIGH COURT OF KERALA
APPELLANT/S:
1 THE DIRECTOR, NATIONAL INSTITUTE OF TECHNOLOGY
NATIONAL INSTITUTE OF TECHNOLOGY, CALICUT, NIT
CAMPUS P.O., CALICUT-673 601
2 THE BOARD OF GOVERNORS,
REPRESENTED BY ITS CHAIRPERSON, NATIONAL
INSTITUTE OF TECHNOLOGY, CALICUT, NIT CAMPUS
P.O., CALICUT-673 601
3 THE CHAIRPERSON,
BOARD OF GOVERNORS,NATIONAL INSTITUTE OF
TECHNOLOGY, CALICUT, NIT CAMPUS P.O., CALICUT-
673 601
BY ADVS.
SRI.SHYAM PADMAN
SRI.C.M.ANDREWS
SRI.P.T.MOHANKUMAR
KUM.LAYA MARY JOSEPH
RESPONDENT/S:
1 SUNIL.M.S
ASSOCIATED PROFESSOR, PHYSICAL EDUCATION,
W.A.Nos.1399, 1405, 1413, 1438,
1480 & 1531/2019
13
DEPARTMENT OF PHYSICAL EDUCATION, NATIONAL
INSTITUTE TECHNOLOGY CALICUT, NIT CAMPUS P.O.,
CALICUT-673 601
2 COUNCIL OF NATIONAL INSTITUTE OF TECHNOLOGY
REPRESENTED BY ITS CHAIRMAN, MINISTRY OF HUMAN
RESOURCE DEVELOPMENT OF INDIA, SASTRI BHAVAN,
NEW DELHI-110 001
3 UNION OF INDIA,
REPRESENTED BY THE SECRETARY, MINISTRY OF HUMAN
RESOURCE DEVELOPMENT DEPARTMENT OF SECONDARY
AND HIGHER EDUCATION, NEW DELHI-110 001
R1 BY ADV. SRI VISHNU .S.(B/O)
R2-3 BY SMT.C.G.PREETHA, CGC
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
05.03.2020, ALONG WITH WA.1399/2019, WA.1405/2019,
WA.1413/2019, WA.1438/2019, WA.1480/2019, THE COURT ON
19.05.2020 DELIVERED THE FOLLOWING:
W.A.Nos.1399, 1405, 1413, 1438,
1480 & 1531/2019
14
JUDGMENT
Dated this the 19th day of May, 2020 V.G.ARUN, J.
The National Institute of Technology, Calicut, on behalf of which the appeals are filed, is one among the Regional Engineering Colleges that had acquired the status of National Institute of Technology on introduction of the National Institutes of Technology Act, 2007 ( "the NIT Act" for short). Thereafter, in exercise of the power conferred under the NIT Act, the Central Government framed the First Statute for the National Institutes of Technology. As per Statute 24(iii) therein, employees of the NIT are entitled for allowances, in addition to pay, as admissible to the Central Government employees. Hence, the periodic revision of pay of the Central Government employees, based on the Central Pay Commission W.A.Nos.1399, 1405, 1413, 1438, 1480 & 1531/2019 15 recommendations, are applicable to the employees of the NIT.
2. The issue which resulted in the filing of the writ petitions arose consequent to the recommendation of the 6 th CPC to grant three additional incentive increments to those faculty members of higher educational institutions who had acquired Ph.D qualification after 01.01. 2006. Implementation of this recommendation resulted in disparity in pay among the faculty members of the NIT inasmuch as, those faculty members who had acquired Ph.D degree prior to 01.01.2006 got lesser salary than those who had acquired Ph.D degree after 01.01.2006, in spite of both sets of faculty members having been in the same pay scale prior to 01.01.2006. This anomaly in pay scale led to numerous complaints being filed before the Board of Governors, compelling the Board to appoint a Faculty Grievance Redressal Committee and Pay W.A.Nos.1399, 1405, 1413, 1438, 1480 & 1531/2019 16 Anomaly Committee. The Pay Anomaly Committee found substance in the grievances. The Committee noticed that the faculty members, who were benefited by the 6 th CPC recommendation, did not possess any extra qualification for making them eligible for additional pay than their batch mates. The Committee observed that acquiring Ph.D qualification earlier should not result in penalising the faculty members of the same batch and recommended that the pay of faculty members who had acquired Ph.D prior to 01.01.2006 ought to be stepped up to be at par with those who are benefited by the 6th CPC recommendation. The recommendations were accepted by the Board of Governors and consequent orders passed in October, 2013. Much later, the Board of Governors in its 37th meeting held on 31.07.2017, decided to step down the pay of those members W.A.Nos.1399, 1405, 1413, 1438, 1480 & 1531/2019 17 of the faculty, who had benefited by stepping up their pay based on the recommendation of the Pay Anomaly Committee. Consequential orders were passed in the case of individual faculty members, stepping down their pay to the earlier scale. Aggrieved by the stepping down of their pay the affected faculty members filed writ petitions. The learned Single Judge heard the writ petitions jointly and by the common impugned judgement allowed the writ petitions, setting aside the orders by which the pay of the petitioner's was stepped down and directed to grant the petitioners all the benefits to which they became entitled based on the initial order by which the anomaly was rectified. Aggrieved, the NIT has preferred these writ appeals through its Director and Board of Governors.
3. Heard Sri.Shyam Padman, learned Counsel for the appellant, Sri. Vishnu Chempzhanthiyil, learned Counsel for W.A.Nos.1399, 1405, 1413, 1438, 1480 & 1531/2019 18 the respondents/writ petitioners and Smt. C.G. Preetha the learned CGC.
4. The learned counsel for the appellants contended that though it is settled law that a senior shall not draw lesser pay than his junior, all such instances need not be termed as an anomaly, giving rise to a claim for parity. The decision in Union of India and another v. R.Swaminathan [(1997) 7 SCC 690] is cited in support of this proposition. Reliance is placed on O.M.No.4/7/92-Estt.(Pay-I) dated 4-11-1993 of the Government of India, by which, it was clarified that, instances of a junior getting more pay due to additional increments earned on higher qualification do not give rise to a claim for stepping up of pay by the senior, for equating his salary with that of the junior. The learned Counsel points out that the successive Central Pay Commission's had recommended for W.A.Nos.1399, 1405, 1413, 1438, 1480 & 1531/2019 19 grant of incentive increment in different modes. The 5 th CPC recommended two advance increments for Lecturers as and when they acquire Ph.D degree in their service career. The 6th CPC recommended three advance increments to those the faculty members who had acquired Ph.D after 01.01.2006. It is contended that the writ petitioners had already received the advance increments based on the 5th CPC recommendation and therefore cannot complain about the grant of three advance increments to the faculty members who had acquired Ph.D after 01.01.2006, nor seek pay parity. It is contended that after issuance of the anomaly rectification orders, the Principal Director General of Audit, Chennai had objected to the grant of pay parity, on the premise that the action was contrary to the guidelines stipulated by the Government, vide decision No. 23 under Fundamental Rule 22 and had directed W.A.Nos.1399, 1405, 1413, 1438, 1480 & 1531/2019 20 to review and rectify all decisions granting pay parity. Thereupon, the issue was considered by the Board of Governors and decision taken to step down the pay. It is contended and that in such circumstances, the learned Single Judge should not have interfered with the decision of the Board of Directors.
5. The learned Counsel for the writ petitioners submitted that the issue is covered by the Division Bench decision of this court in W.A.No.488 of 2017, though not with respect to the faculty members of NIT. Reliance is also placed on the Division Bench judgment of the High Court of Bombay in Writ Petition No. 10283 of 2012, which was rendered under similar circumstance, relying on the decision of Apex Court in Gurucharan Singh Grewal v. Punjab State Electricity Board and Ors [2009 (3) SCC 94]. It is contended that the individual W.A.Nos.1399, 1405, 1413, 1438, 1480 & 1531/2019 21 grievances of the writ petitioners having been considered by the Pay Anomaly Committee and recommendation made for rectifying the anomalies, which was accepted and implemented by the Board of Governors, the stepping down of their pay without notice militates against the fundamental principles of natural justice and fair play.
6. Having heard the learned Counsel at length, we are of the considered view that the findings in the impugned judgement warrant no interference. As rightly held by the learned Single Judge, FR22(I)(a)(1) deals with fixation of pay on promotion to a higher post and has nothing to do with grant of pay parity to a senior drawing lesser salary than a junior on the junior being granted advance increments. Therefore the decision in R.Swaminathan (supra), which was rendered with reference to FR22(I)(a)(1) have no application W.A.Nos.1399, 1405, 1413, 1438, 1480 & 1531/2019 22 as far as the case at hand is concerned. For the same reason, the contention based on O.M.No.4/7/92-Estt.(Pay-I) dated 4- 11-1993 of the Government of India also do not merit consideration. Even otherwise the clarification in the OM is only to the effect that claim for pay parity by a senior will not be entertained when the junior gets more pay due to additional increments earned on higher qualification. Here the junior had acquired only a qualification which the senior had acquired much earlier and therefore under no circumstance can it be treated as acquisition of a qualification higher than that of the senior. In this context the following paragraphs of the Apex Court judgment in Gurucharan Singh Grewal (supra) assumes relevance:-
"11. Mr. Chhabra also attempted to justify the disparity in the pay of Shri. Shori and the appellant No. 1 by urging that the appellant No. 1 had been granted the promotional scale with effect from 1 st January, 1996, where the benefits of increment in the scale were lower. On the other hand, W.A.Nos.1399, 1405, 1413, 1438, 1480 & 1531/2019 23 Shri. Shori who joined the services of the Board in 1974, was granted the promotional scale on 17 th May, 2006, with effect from 1st September, 2001, when the increments and the pay- scales were higher. Mr. Chhabra submitted that it is the disparity in the incremental benefits that led to the anomaly of the appellant No. 1 getting a lower salary in the promotional scale.
12. xxx
13. Something may be said with regard to Mr. Chhabra's submissions about the difference in increment in the scales which the appellant No. 1 and Shri. Shori are placed, but the same is still contrary to the settled principle of law that a senior cannot be paid lesser salary than his junior. In such circumstances, even if, there was a difference in the incremental benefits in the scale given to the appellant No. 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 the appellant No.1 was also stepped up to that of Shri. Shori, as appears to have been done in the case of the appellant No. 2."
In such circumstances, the contention that the disparity in incremental benefits being the reason for disparity, the claim for parity cannot be entertained, is only to be discarded.
7. We may also refer to the following finding of a co- equal Bench of this court in its judgment in W.A.No.488 of 2017, rendered after considering the same issue;
"7. We have given our anxious consideration to the contentions raised by the learned Government Pleader W.A.Nos.1399, 1405, 1413, 1438, 1480 & 1531/2019 24 before us. Though it is true that respondents 1 to 5 are persons who have already been granted the benefits of career advancement for having acquired their Ph.D degrees, as per the earlier UGC Scheme, the implementation of the subsequent Scheme cannot justify a situation where their juniors draw higher salary than them. Though we wanted the learned Government Pleader as well as the learned counsel for the 7th respondent to enlighten us on the rationale that forms the basis of the decision to grant three additional increments to persons who have acquired their Ph.Ds after 01.09.2008, we could not get an answer. Admittedly, all the persons are Ph.D holders. The incentives are meant to be granted to persons who have acquired Ph.D Degrees. It is not in dispute that, there is no difference in the qualifications of respondents 1 to 5 and their seniors. Nature of the work discharged by each one of them is also similar. Therefore, there is no justification for classifying them into persons who have acquired Ph.D before 01.09.2008 and subsequent to the said date, for the purpose of conferring a career advancement increment. It may be true that, respondents 1 to 5 are persons who are not entitled to claim the benefit of the 6 th UGC Scheme, they being persons who have already obtained the benefits of career advancement under the earlier Scheme. However, implementation of the subsequent Scheme shall not result in a situation where their juniors are permitted to draw more salary than respondents 1 to 5. If such a situation is created, it is only appropriate that the said anomaly is corrected by having the pay of the seniors stepped up to that of their juniors. The above position has been settled by the Apex Court in the decision on which reliance is placed by the learned Single Judge. We find that the learned Single Judge has considered the issue in proper perspective and that, there are no infirmities warranting an interference with the judgment in appeal."
Suffice it to say that we are in respectful agreement with the W.A.Nos.1399, 1405, 1413, 1438, 1480 & 1531/2019 25 above judgment.
For the reasons mentioned above, we reject the challenge against the impugned judgment and accordingly dismiss the writ appeals. No order as to costs.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
V.G.ARUN JUDGE Scl/19.05.2020