Chattisgarh High Court
Union Of India vs Dr. Binu Mathew 55 Wps/4899/2019 Union ... on 27 February, 2020
Bench: P. R. Ramachandra Menon, Parth Prateem Sahu
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment Reserved on : 10.02.2020
Judgment Delivered on : 27.02.2020
Writ Petition (S) No. 4667 of 2019
1. Union of India through its Secretary, Ministry of Health & Family Welfare,
Nirman Bhawan, New Delhi
2. Chief Controller of Accounts, Ministry of Health & Family Welfare, Nirman
Bhawan, New Delhi
3. President Institute Body, All India Institute of Medical Science, Raipur
(C.G.) Tatibandh, G.E. Road, Raipur (C.G.)
4. Director, All India Institute of Medical Science, Raipur (C.G.) Tatibandh,
G.E. Road, Raipur (C.G.)
5. Administrative Officer, All India Institute of Medical Science, Raipur (C.G.)
Tatibandh, G.E. Road, Raipur (C.G.)
--- Petitioners
Versus
1. Dr. Binu Mathew, W/o Shri Sajan Joseph, Aged about 42 years, Working
as Assistant Professor (Nursing), R/o House No. HIG 32 Hudco Bhilai,
District Durg (C.G.)
2. State of Chhattisgarh, Through the Secretary, Department of Health,
Mahanadi Bhawan, Naya Raipur (C.G.)
---- Respondents
Writ Petition (S) No. 4899 of 2019
1. Union of India through its Secretary, Ministry of Health & Family Welfare, Nirman Bhawan, New Delhi
2. Chief Controller of Accounts, Ministry of Health & Family Welfare, Nirman Bhawan, New Delhi
3. President Institute Body, All India Institute of Medical Science, Raipur (C.G.) Tatibandh, G.E. Road, Raipur (C.G.)
4. Director, All India Institute of Medical Science, Raipur (C.G.) Tatibandh, G.E. Road, Raipur (C.G.)
5. Administrative Officer, All India Institute of Medical Science, Raipur (C.G.) Tatibandh, G.E. Road, Raipur (C.G.)
--- Petitioners Versus
1. Smt. Jeayareka, W/o B. Parthiban, Aged about 37 years, Working as Assistant Professor (Nursing), R/o H. No. 49, Balaji Green City, Sondongari, Near Heerapur Housing Colony, Raipur (C.G.) 2
2. State of Chhattisgarh, Through the Secretary, Department of Health, Mahanadi Bhawan, Naya Raipur (C.G.)
---- Respondents _______________________________________________________________ For Petitioners/UOI : Mr. B. Gopa Kumar, Asstt. Solicitor General with Mr. Himanshu Pandey. Advocate For Respondent No.1 : Dr. N.K. Shukla, Sr. Advocate with Mr. Ashwin Panickar, Advocate For Respondent No.2/State : Mr. Amit Buxy, Panel Lawyer ________________________________________________________________ Hon'ble Shri P. R. Ramachandra Menon, Chief Justice Hon'ble Shri Parth Prateem Sahu, Judge Per P. R. Ramachandra Menon, Chief Justice
1. A common order passed by the Central Administrative Tribunal, Jabalpur Bench in the relevant TAs (Transferred Applications) preferred by the private Respondents herein, declaring that they are entitled to a Basic Pay of Rs.30,000 + Grade Pay of Rs.8,000 from their date of appointment, simultaneously directing the arrears including the recovery made, if any, shall be paid within 60 days (without interest) and thus allowing the TAs, is subjected to challenge in these writ petitions filed by the Respondents in the TAs.
2. Writ Petition (S) No. 4667/2019 arising from TA No.203/00004/2018 is treated as the lead case and the parties and proceedings are referred to as mentioned therein, except where it is separately adverted to, with reference to the context.
3. We heard Mr. B. Gopa Kumar, the learned Assistant Solicitor General appearing for the Petitioners and Dr. N.K. Shukla, the learned Senior Counsel for the private Respondents.
3
4. The issue pertains to appointment to the post of Assistant Professor (Nursing) in the All India Institute of Medical Sciences (AIIMS), Raipur (C.G.), which is a statutory body brought into existence in terms of the All India Institute of Medical Sciences Amendment Act, 2012. In fact, the All India Institute of Medical Sciences, New Delhi was created by the Central Government in terms of the All India Institute of Medical Sciences Act, 1956. Later, the Government felt the necessity to set up 'six' more similar Institutes in different parts of the country in the same line and accordingly, the Act was sought to be amended as per the All India Institute of Medical Sciences (Amendment) Ordinance 2012 notified in the Official Gazette on 13.09.2012, which gave way to the All India Institute of Medical Sciences Amendment Act, 2012, brought into force w.e.f. 16.07.2012. As per the said amendment, similar units were established at Rishikesh, Bhopal, Jodhpur, Patna, Bhuwaneshwar and also at Raipur.
5. In connection with the setting up of the new institute at Raipur, in similar lines as of the AIIMS, New Delhi, Annexure-P/2 Notification dated 28.12.2011 was issued by the 1st Petitioner / Central Government, inviting applications for posts in four different categories; such as Professor, Additional Professor, Associate Professor and Assistant Professor. The dispute is only in relation to appointment of 'Assistant Professor (Nursing)' and as stipulated under paragraph XII 'Qualifications', in respect of Nursing, it shall be as per recommendations of the Nursing Council of India. Under paragraph XIII dealing with 'Experience', in the case of Assistant Professor, it was stipulated that it would be 3 years of 4 Teaching / Research Experience, after Qualifying degree or 3 years as Senior Resident or Equivalent. Under paragraph XIV dealing with the 'Pay', the post of Assistant Professor was to be in 'Pay Band-3' with Rs.15600-39100 with Grade Pay of Rs.8000 with a minimum of Rs.30,000/- + NPA (NPA for medically qualified candidates only); with provision to move to PB-4 after three years (Rs.37400-67000 wrongly typed as 6700) with Grade Pay of Rs.8700.
6. The Respondents, being qualified in all respects and working in different capacities elsewhere, applied for the post of Assistant Professor (Nursing) and on completion of the process of selection, as per Annexure-R/3 dated 31.01.2013, their selection was approved by the Ministry and appropriate direction was given to the Director of the Institute to issue appointment orders to the selected candidates. It was accordingly, that Annexure-R/4 appointment order dated 23.03.2013 came to be issued to the Respondents. On selection and appointment as above, the Respondents in both the cases, who were working elsewhere with rich experience and holding higher level posts, resigned from the said posts considering the better prospects and joined the AIIMS, Raipur on 28.03.2013 and 17.04.2013 respectively and they were drawing the 'Salary' and 'Grade Pay' as notified in the advertisement. It is pointed out that, though the Respondents have satisfactorily completed the probation and had completed 3 years [in terms of Appexure-P/2 Advertisement and Annexure-R/4 Appointment Order] they are still to be placed in the Pay Band Level No.4 : Rs.37400 - 67000 + Grade Pay of Rs. 8700. 5
7. While so, Annexure-P/6 communication came to be issued on 03.09.2015 from the Internal Audit Wing of the Ministry to the Director of the AIIMS, Raipur intimating that as per the audit report for the period from 2013-14 and 2014-15, few cases of excess / over payments and other irregularities were noted and as such, it was directed to be rectified immediately. The particulars given therein were also with reference to the wrong fixation of pay in the case of the Respondents herein, describing them as 'Nursing Lecturer'. The above observations are extracted below for convenience of reference :
"Para No. 21: Wrong pay fixation of Smt. Binu Methew, Nursing Lecturer.
Criteria : According to the PMSSY Division, MoHFW, New Deli letter No.A-
11012/01/2010-SSH dated 06.08.2013, at Para 1:4 (Page 4), the lecturer of Nursing reveals a scale of pay Rs.
15600-39100 and Grade Pay 6600.
Hence her pay be fixed at entry level as per sixth pay commission revised pay rules, 2008.
Conditions : As per Service Book, pay of Smt. Binu Mathew, has been fixed at entry level (i.e. on the date of joining 28.03.2013) Rs. 30,000/- in the Grade Pay of Rs.6600/-
It has been observed that pay of Smt. Mathew has been fixed equal to the pay of Doctors having Grade Pay of Rs.8000/- their entry level pay had been fixed at Rs.30,000/- (Annexure-J-
1). However as per the Sixth CPC revised Pay Rule, 2008, direct entry pay in the grade pay of Rs.6600/-
should be 25350/- (including Grade Pay). Therefore, it is clear that pay of Smt. Binu Mathew has been wrongly fixed & there has been excess payment from date of joining 28.03.2013 onwards.
Causes : AIIMS Raipur is not following the RR of Nursing lecturer fully.
6Consequences : Incorrect pay fixation and over payment resulting in loss of Govt.
Recommendations : It is suggested that the pay of Smt. Binu Mathew may be fixed at entry level as per RR of PMSSY and Revised Pay Rules 2008 and recovery of overpayment should be made under intimation to Internal Audit (HQ), Nirman Bhawan, New Delhi."
8. Pursuant to the above intimation, the pay of the Respondent came to be slashed down as per Annexure-P/7 office order dated 14.11.2015, which is to the following effect :
"Office Order Approval of Director, AIIMS, Raiur is hereby conveyed for revision in pay fixation of Mrs. J. Jeayareka, Assistant Professor, College of Nursing, AIIMS, Raipur in consonance with the recommendation of the Internal Audit Wing, MoHFW, New Delhi as detailed below :
S. Period Wrong Pay Revised Pay Fixation
No. Fixation (in Rs.) as per recommendation
of Internal Audit Party
(in )
1. 17-04-2013 to Pay - 30,000/- Pay - 18,750/-
30-06-2014 Grade Pay- 6,600/- Grade Pay - 6,600/-
2. 01-07-2014 to Pay - 31,000/- Pay - 19,510/-
30-06-2015 Grade Pay- 6,600/- Grade Pay - 6,600/-
3. 01-07-2015 to Pay - 32,400/- Pay - 20,300/-
30-06-2016 Grade Pay- 6,600/- Grade Pay - 6,600/-
Sd/-
(Sk. Gulam Jaweed)
Administrative Officer,
AIIMS, Raipur (C.G.)"
Similar deductions were made in the connected case as well.
9. By virtue of the above exercise, the pay packet came to be substantially reduced, which made the Respondent to file the writ petition before this Court as WPS No.4540/2015 (connected case WPS No. 4569/2019). 7 Later, by virtue of the Notification dated 22.06.2017, AIIMS, Raipur was notified under the provisions of Section 14(3) of the Administrative Tribunals Act, 1985. This Court vide order dated 09.11.2017 transferred the above cases to the CAT, Jabalpur, where separate numbers were assigned to the TAs.
10. The course and proceedings were sought to be justified by the Petitioners herein, contending that there was some mistake in the 'advertisement' and that the actual position was shown in the 'appointment orders', where it was clearly mentioned that the Applicants appointed as Assistant Professor (Nursing) would be getting the same pay structure as applicable to the employees of their status in the AIIMS, New Delhi or as may be decided by the competent authority; subject to the terms and conditions mentioned therein. As per Clause 18 of the appointment order, they were also insisted to give an 'undertaking' that the pay structure as suggested in the offer of appointment shall be agreeable and in no case, any reference of any of the pay structure envisaged during the procedure of selection shall be insisted during the currency of service in the grade. Such an undertaking was given as borne by Annexure-P/8. This being the position, it was contended that the right of the Applicants was only to get similar pay and benefits as payable and being paid to their counter part in the AIIMS, New Delhi; which is fixed in terms of the relevant provisions of the Act/ Rules / Regulations and hence the mistake was liable to be rectified and hence rectified. By virtue of the specific 'undertaking' given and also considering the fact that it was not a Group- III or Group-IV post coming within the purview of State of Punjab & 8 Ors. vs Rafiq Masih (White Washer) 1 but coming within the purview of subsequent ruling rendered by the Apex Court in High Court of Punjab and Haryana and Others vs. Jagdev Singh 2, it is contended that recovery ordered was perfectly valid and not liable to be interdicted.
11. During the course of hearing, it was brought to the notice of the Tribunal that exactly similar dispute arising from the common advertisement (Annexure-P/2) was pending before the CAT, Patna Bench and after drawing adverse inference (since, how the mistake was crept in the advertisement, was not explained from the part of the Central Government), the OA was allowed by the Patna Bench of the CAT, directing to refund the amount recovered from the Applicants within two months. Though, this was taken up by the Respondents in the OA by filing Civil Writ Jurisdiction Case No. 4605/2019 before the High Court of Patna, interference was declined and writ petition was dismissed, however without prejudice to the rights of the writ petitioners / Government to file an appropriate review application before the Tribunal itself.
12. With reference to the turn of events before the CAT, Patna Bench and the High Court of Patna and after extracting the above orders / observations, the CAT, Jabalpur Bench observed that the cases involved were exactly similar to the cases decided by the Co-ordinate Bench of the Tribunal at Patna and 'upheld' by the High Court of Patna and therefore, the applicants were entitled to get reliefs. It was accordingly, that the TAs were allowed, without further discussion, as given in paragraph 9 of 1 (2015) 4 SCC 334 2 (2016) 14 SCC 267 9 Annexure-P/1 order, which is reproduced below :
"9. Accordingly, both the TAs are allowed. The petitioners are entitled to a basic pay of Rs.30000 + GP Rs.8000 from the date of their appointment. Arrears due, including recovery made, if any, shall be paid within 60 days of the date of receipt of a certified copy of this order. No interest shall be payable, No order as to costs."
The course and proceedings pursued by the Tribunal are stated as not correct and hence the challenge in these two writ petitions, filed by the Respondents in the TAs.
13. Mr. B. Gopa Kumar, the learned Assistant Solicitor General submits that two questions are sought to be highlighted in these writ petitions. Firstly that, if any advertisement can be issued contrary to the relevant Rules and Secondly, if there is any mistake, can it not be corrected at a later stage ? The learned counsel submits that Annexure-R/4 appointment order does not mention any particular Pay scale or the quantum of Grade Pay or Allowances, but for clearly stating that the appointed persons will be entitled to get similar pay and benefits as payable and being paid to their counter parts in the AIIMS, New Delhi; which is fixed in terms of the relevant provisions of the Act / Rules / Regulations. Insofar as the counter parts of the Applicants are concerned, the service conditions are governed by Annexure-P/5 Rules. It is pointed out that in the AIIMS, New Delhi, the 'Lecturer Nursing' is having Pay Band of Rs.15,600 - 39,100 with Grade Pay of Rs. 6,600 and hence the original fixation given to the Applicants as borne by the pay-slips produced is not correct or sustainable, being contrary to the Rules. It was corrected accordingly, as 10 per Annexure-P/7 order dated 14.11.2015; in terms of the appointment order, read with Clause 18 of the terms / conditions incorporated therein and Annexure-P/8 'undertaking' given in this regard. Since the advertisement contains a mistake, contrary to the Rules and further since the service conditions are to be governed on the basis of the 'offer of appointment', which was accepted by the Applicants and subject to the 'undertaking' given, the Tribunal was not correct in relying on the verdict passed by Co-ordinate Bench of the CAT, Patna, merely w.r.t. the terms of the 'advertisement'.
14. It is further pointed out that the order passed by the Co-ordinate Bench of the CAT, Patna is not on merit, but on the basis of 'adverse inference' drawn, as the position was not explained from the part of the Central Government. It is not correct to say that the said finding / eligibility has been upheld by the High Court of Patna, though interference was declined and writ petition filed by the Government / Institution was dismissed. This is clear from the verdict of the Patna High Court, holding that the dismissal was without prejudice to the right of the Petitioners (Central Government) to file 'Review' before the Tribunal. Insofar as there is no decision on merit, the issue pending before the CAT, Jabalpur Bench was to be considered separately in the light of the merits brought on record and the verdict of the Co-ordinate Bench of CAT, Patna or that of the High Court of Patna, which do not have any precedential value, could not have been relied on, to have the TAs allowed. Reference is also made to Annexure-P/3 advertisement dated 04.04.2013 and such other subsequent advertisement (Annexure-P/4) dated 06.08.2013 in 11 respect of the filling up of posts in the AIIMS, Raipur. There, in respect of the Nursing College and Hospital Services, it has been mentioned under Sl. No. 3 that, 'Lecturer in Nursing (Assistant Professor)' would carry a Scale of Pay & Grade Pay of Rs. 15600-39100 + G.P. Rs.6600/- and hence the position mentioned in Annexure-P/2 advertisement was only a mistake. It is contended that there cannot be different pay scales / pay packets in respect of similar posts and there cannot be differentiation resulting in violation of the principle of 'Equal Pay for Equal Work'.
15. Dr. N.K. Shukla, the learned Senior Counsel for the Respondents points out with reference to the contents of the reply that there is absolutely no basis for the contentions raised before this Court and that the issue has been correctly and properly appreciated by the Tribunal, which does not warrant any interference. It is pointed out that the Respondents / Applicants were possessing higher qualifications (one Petitioner is having Ph.D and the other was pursuing research for obtaining Ph.D) and were holding very high positions in other Institutions, where they were working with rich experience. It was on the basis of the clear stipulation and assurance in Annexure-P/2 advertisement that they had participated in the selection. This was assured by issuing Annexure-R/4 appointment order as well and hence they did not find anything wrong in giving the 'undertaking' as insisted in Clause 18 of Annexure-R/4. Having offered the appointment and after making the applicants resigned from their posts held by them elsewhere and after fixing and giving the salary as notified, it cannot be simply taken back or reduced detrimental to their 12 rights and interest, that too without hearing them; which goes against the principle of 'promissory estoppel' as well.
16. The relevant paragraph dealing with 'Pay' i.e. XIV in Annexure-P/2 advertisement dated 28.12.2011 is as follows :
"XIV Pay :
1. Professor : Pay Band-4 : Rs.37400-67000 with Academic Grade Pay of Rs.10500 (Plus NPA for medically qualified candidates only) with the minimum pay of Rs.51600/- and AGP of Rs.10500/-. Up to 40% of posts of Professors will get Higher Administrative (HAG) scale subject to clearance of the prescribed process.
2. Additional Professor : Pay Band-4 :
Rs.37400-67000 with Academic Grade Pay of Rs.9500 (Plus NPA for medically qualified candidates only) with minimum Pay being Rs.46000/- and AGP of Rs.9500/-
3. Associate Professor : Pay Band-4 :
Rs.37400-67000 with Academic Grade Pay of Rs.9000 (Plus NPA for medically qualified candidates only) with minimum Pay being Rs.42800/- and AGP of Rs.9000/-
4. Assistant Professor : Pay Band-3 :
Rs.15600-39100 with Grade Pay of Rs.8000 with a minimum of Rs.30,000/- + NPA (NPA for medically qualified candidates only) with provision to move to PB-4 after three years (Rs.37400-67000 wrongly typed as '6700') with Grade Pay of Rs.8700/-
5. Senior Residents : As admissible at AIIMS Delhi.
6. Contractual Appointments : Salaries are usually negotiated but based Last Pay Drawn especially for Government Institution Employees or remuneration given for similar posts by the ministry.
Plus Usual Allowances admissible to equivalent posts in Government of India.
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17. With regard to the questions raised by the Petitioners as to whether there can be any advertisement contrary to the Rules and if there is a mistake, can it not be corrected at a later stage, this Court does not find it necessary to spend much time to hold that mistake is always a mistake and it requires to be corrected at the earliest opportunity. No writ of mandamus can be issued to perpetuate a mistake even if benefit has been wrongly given to somebody, by referring to the doctrine of Equality. We find support from the ruling rendered by the Supreme Court in Chandigarh Administration and another v. Jagjit Singh and another 3. If fixation of the salary is by way of mistake, it can of course be corrected at a later stage, to be in conformity with the Rules (if it be so) and the only question is with regard to the 'recovery' of the excess payment.
18. Further, regarding the correction of mistake, if any, at a later stage, it has been held by the Apex Court in Union of India and Another v. Narendra Singh4 (paragraph 32), in relation to cancellation of an erroneous promotion, that mistaken decision can always be corrected by following the process of law i.e. by issuing a show-cause notice. It has been further held by the Apex Court in A. Umarani v. Registrar, Cooperative Societies and Others5 (paragraph 35) that there can not be any appointment contrary to the Rules and if so made, it can be corrected. Similarly, in Indian Council of Agricultural Research and Another v. T.K. Suryanarayan and Others6 it has been held that, if erroneous promotion is given by wrongly interpreting the Rules, the 3 AIR 1995 SC 705 4 (2008) 2 SCC 750 5 (2004) 7 SCC 112 6 (1997) 6 SCC 766 14 Employer cannot be prevented from applying the Rules rightly and correcting the mistake, which, though may cause hardship to the Employees, a Court of law cannot ignore the statutory Rules. Similar is the position in Nawabkhan Abbaskhan v. State of Gujarat7 as well. It has been held by the Apex Court in J & K Public Service Commission and Others v. Dr. Narinder Mohan and Others 8 (paragraph 7) that appointment can be effected only as per the Rules and this is reiterated in A. Umarani's case (supra), holding that there cannot be any deviation from the Rules.
19. In respect of the Class-III and Class-IV posts and such other instances, recovery may not be possible in view of the law declared by the Supreme Court in Rafiq Masih's case (supra). Admittedly, the position herein is not coming within that category and hence it stands on a different footing. It has been subsequently clarified by the Apex Court in Jagdev Singh's case (supra) that recovery can be made from the salary, if any 'undertaking' was given at the time of fixation, that if at all any excess payment was resulted, it could be recovered. By virtue of Clause 18 of Annexure-R/4 appointment order and also on the basis of Annexure-P/8 undertaking given in this regard, if there is any excess payment, it is quite possible to have it recovered from the amounts payable to the Respondents herein as well. But the question is whether the attempt made to have re-fixation as per Annexure-P/7 office order dated 14.11.2015 is having any factual basis with reference to the alleged mistake.
7 AIR 1974 SC 1471 8 (1994) 2 SCC 630 15
20. 'Clause 18' of Annexure-R/4 appointment order and 'Annexure-P/8 Undertaking' are extracted below for easy reference :
Clause 18.
"You shall undertake that the pay structure as suggested in the offer of appointment shall be agreeable to you and in no case any reference of any of the pay structure envisaged during the procedure of selection shall be insisted by you during the currency of your service in the grade."
Annexure-P/8 :
"I, Mrs. Binu Mathew W/o Sajan Joseph Mathew, aged 40 years residing at HIG-80, Hudco, Bhilai, Durg Distt., Chhattisgarh, undertake that the pay structure as suggested in the offer of appointment shall be agreeable to me and in no case any reference of any of the pay structure envisaged during the procedure of selection shall be insisted by me during the currency of my service in the grade."
Sd/-
Deponent Binu Mathew
21. It is true that in the case of appointment to a post carrying a specific scale of pay, the basic pay will normally be at the minimum of the scale + such other additions including the Grade Pay, if any and allowances. As per Annexure-P/2 advertisement, the posts notified are higher category posts; such as Professor, Additional Professor, Associate Professor and Assistant Professor. No 'Lecturer in Nursing' is notified in Annexure-P/2. Similarly, the appointment given as per Annexure-R/4 (which is not disputed by the Petitioners) is as "Assistant Professor (Nursing)" and not as 'Lecturer (Nursing)'. There is an attempt from the part of the Petitioners to show, that 'Lecturer in Nursing' is equivalent to 'Assistant Professor (Nursing)' as given in Annexure-P/3 - subsequent 16 advertisement dated 04.04.2013; but on coming to Annexure-P/5 Rules sought to be relied on by the Petitioners, 'Assistant Professor' and 'Lecturer in Nursing' are shown as two different posts at Sl. Nos. 4 and 8 respectively with the same Pay scale of Rs. 15,600 - 39,100, but with different Grade Pays of 8,000/- and 6,600/- respectively. However, when the Annexure-R/4 appointment order specifically says that the Respondent / Applicant was appointed as 'Assistant Professor (Nursing)' in the pay structure as applicable to the employees of the Applicant's status in the AIIMS, New Delhi or as may be decided by the competent authority, the Respondents / Applicants cannot contend that whatever that has been mentioned in the advertisement shall be given to them. So much so, what is the salary paid / payable to the counterparts in the AIIMS, New Delhi, is the point.
22. It is true that recruitments will depend upon the Notification with regard to process of selection, as the norms of selection cannot be varied after the Notification, in view of the law declared by the Supreme Court in K. Manjusree v. State of A.P. & Another 9, holding that Rules of the game cannot be changed after commencement of the game. But here, the question is different i.e., whether there can be a valid advertisement, to have the contents legally enforced, if it is contrary to the Rules issued in this regard ? If any appointment is made contrary to the Rules, it is not liable to be sustained, but the dispute in the instant case is only with regard to the pay packet. As such, if any provision in the Act / Rules / Regulations clearly defines the extent of eligibility, it can be given effect 9 (2008) 3 SCC 512 17 only to that extent. Annexure-R/4 appointment order does not refer to the Pay Scale or the quantum of Grade Pay, but for stating that it will be as payable to the counter part in the AIIMS, New Delhi. This is more so, in view of the specific condition at Condition No.18 of Annexure-R/4 appointment order to give an 'Undertaking' in this regard that no further claim will be made with reference to anything with reference to the process of selection. This includes advertisement as well and such an 'Undertaking' has been virtually given by the Respondents / Applicants as borne by Annexure-P/8 (extracted already). This being the position, the finding rendered by the CAT, Jabalpur Bench, placing reliance on the Co- ordinate Bench of the CAT, Patna that the Applicants are entitled to get the Pay Scale / Grade Pay as notified in Annexure-P/2 advertisement is not correct and is not liable to be sustained.
23. Then, the question is what is the actual extent of salary / pay packet that is offered to be paid to them as per the Annexure-R/4 appointment order ? As mentioned already, it is with reference to the appointment as "Assistant Professor (Nursing)" in the pay structure as applicable to the employees of the status of the appointee in the AIIMS, New Delhi or as may be decided by the competent authority; subject to the terms and conditions mentioned therein. Since this clause is very specific, it is necessary to have a look at the pay-structure, as applicable to the Assistant Professor (Nursing) (employee of the equivalent status in AIIMS, New Delhi). In Annexure-P/5 Rules relied on by the Petitioners in respect of the different posts in the AIIMS, New Delhi, the following Pay Scales and Grade Pay are provided therein :
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"Recruitment Rules and Qualifications for the Faculty and Other posts at the AIIMS, New Delhi.
S.No. Post Name Pay Scale
01 Professor Rs.37400-67000 Grade Pay of
Rs.10500/- (Plus NPA for medically
qualified candidates only)
02 Additional Professor Rs.37400-67000 Grade Pay of
Rs.9500/- (Plus NPA for medically
qualified candidates only)
03 Associate Professor Rs.37400-67000 Grade Pay of
Rs.9000/- (Plus NPA for medically
qualified candidates only)
04 Assistant Professor Rs.15600-39100 Grade Pay of
Rs.8000/- (Plus NPA for medically
qualified candidates only)
05 Medical Rs.37400-67000 Grade Pay of
Superintendent Rs.10500/- (Plus NPA for medically
qualified candidates only)
06 Additional Medical Rs.37400-67000 Grade Pay of
Superintendent Rs.9500/- (Plus NPA for medically
qualified candidates only)
07 Principal, College of Rs.37400-67000 Grade Pay of Rs.
Nursing 8700/-
08 Lecturer in Nursing Rs.15600-39100 Grade Pay of
Rs.6600/-
24. Particulars of each and every post have been given / explained with reference to the qualification, experience and such other traits in Annexure-P/5 itself. In respect of the 'Assistant Professor' at Sl.No. 4, it is to the following effect :
Sl.No. Name of the post Qualification
04 Assistant Professor Essential for medical Candidates
Pay Ban - 3 (wrongly (For General Disciplines)
typed as '34') : 1 to 2 same as for Professor (Medical)
Rs.15600-39100 with
Grade of Rs. 8000 Experience :
(Plus NPA for Three years teaching and / or
medically qualified research experience in recognised
candidates only) Institution in the subject of speciality
with provision to after obtaining the qualifying degree of
move to PB-4 after M.D./M.S. or a qualification
three years (Rs. recognized equivalent thereto.
37400-67000 with Essential for Super speciality
19
Grade Pay of Rs. disciplines :-
8700/-.
1) Same as Professor (Medical)
2) D.M. in the respective discipline /
subject for medical super specialities
and M.Ch. in the respective
discipline / subject for surgical super
specialities (2 years or 3 years or 5
years recognized course) or a
qualification recognized equivalent
thereto.
Experience :-
One year teaching and/or research
experience in a recognized institution
in the subject of speciality after
obtaining the qualifying degree of
D.M./M/Ch. (2 years or 5 years
recognized course and MBBS) or
qualification recognized equivalent
thereto. However, no experience is
necessary for the candidates
possessing three years recognized
degree of D.M./M.Ch. or qualification
recognized equivalent thereto.
Essential for Non-Medical
Candidates :-
1 & 2 are same as for Professor (Non-
Medical)
Experience -
Three years teaching and/or research
experience in the discipline/subject
concerned after obtaining the
doctorate degree. "
From the above, it is clear that the post of 'Assistant Professor' is available in the medical field as well as in the non-medical field, for which separate qualifications / experience have been stipulated.
25. Particulars of the post of "Lecturer (Nursing)" at Sl.No.08 have been given in the following terms :20
Sl.No. Name of the post Qualification
08 Lecture in Nursing Essential :
Pay Band 3 : 1. Master's Degree in Nursing from a Rs.15600-39100 recognized Institution / University. (wrongly typed as 2. Registered Nurse Midwife.
'Pay Band 4 : Rs. 3. Five years experience with a 37400-67000') with minimum of two years teaching Grade Pay of Rs. experience in Nursing 6,600/-
Method of Recruitment - Direct Upper Age Limit - 50 years Though the post of 'Assistant Professor' at Sl.No. 4 and the post of 'Lecturer in Nursing' at Sl.No. 8 of Annexure-P/5 Rules carry the same scale of pay of Rs. 15600-39100, in the Pay Band No. 3, the former post carries a Grade Pay of Rs.8000/-; whereas the latter post carries a Grade Pay of only Rs.6600/-.
26. When Annexure-R/4 offer of appointment clearly says that the pay-
structure shall be that of the counter part in the AIIMS, New Delhi and further when Clause 18 therein clearly says that an 'undertaking' was to be given that the pay structure as suggested in the 'offer of appointment' shall be agreeable and in no case any reference of any of the pay structure envisaged during the procedure of selection shall be insisted during the currency of service in the grade and when such an 'undertaking' was given as per Annexure-P/8, it was very much obligatory for the Respondents/ Applicants in the OA to have made an enquiry as to the position prevailing in the AIIMS, New Delhi, before accepting the offer of appointment and giving the 'undertaking' as above.
27. Is there any post of "Assistant Professor (Nursing)" in the AIIMS, New Delhi, other than the post of 'Lecturer in Nursing' and if yes, how the post of Assistant Professor (Nursing) is filled up and what is the initial total pay 21 in respect of the post of Assistant Professor (Nursing) in AIIMS, New Delhi are facts not revealed from the records produced by the Petitioners, nor is it discernible from the relevant pages of Annexure-P/5 Rules governing the field of recruitment in the AIIMS, New Delhi. The Annexure-P/2 Notification issued and Annexure-R/4 Appointment Order given were never in respect of a post of 'Lecturer in Nursing', but deals with the post of 'Assistant Professor (Nursing)' and as such, the Respondents / Applicants are entitled, as a matter of right, to get the full salary and such other benefits including the Grade Pay, as payable to Assistant Professor (Nursing) in the AIIMS, New Delhi and nothing less.
28. Coming to the credentials of the Respondents/Applicants, the Respondent in WPS No.4667/2019 is a person having Doctorate Degree (Ph.D.). She has rich experience under different capacities starting from Clinical Instructor, promoted as Lecturer and thereafter as Reader in the Post Graduate College of Nursing, Bhilai as evident from Annexure-R/1. Later, she was serving as Principal-cum-Head of the Department in Bethany College of Nursing, from October 2012 to March 2013 and was recommended to the post of Professor cum Principal by the Chhattisgarh Ayush and Health Science University, Raipur in Bethany College of Nursing, Bhilai as borne by Annexure-R/2. Some what similar exposure, by working in different capacities with sufficient experience is demonstrated in the case of the Respondent/Applicant in WPS No. 4899/2019 (who hails from Tamil Nadu) as well. When the appointment order was given to her, she was on the midway of doctoral research and it was after resigning from the post of 'Reader' from Omayal Achi College 22 of Nursing, Chennai that she chose to join the AIIMS, Raipur, based on the appointment as 'Assistant Professor (Nursing)', carrying the Payscale and Grade Pay as mentioned above. In other words, the post notified as per Annexure-P/2 and appointed as per Annexure-R/4 is not an offer to any unemployed job seeker; but to a person of proven calibre for being appointed to a post of higher job requirement / job specification, with higher responsibility, being a post of 'Assistant Professor (Nursing)'.
29. As noted already, no post of 'Lecturer (Nursing)' was notified vide Annexure-P/2, nor was it the post offered for appointment vide Annexure- R/4. As such, the Petitioners cannot equate the Respondents/Applicants to the post of "Lecturer (Nursing)", virtually degrading them from the post of 'Assistant Professor (Nursing)', unless there is no post of Assistant Professor (Nursing) in the AIIMS, New Delhi and that the post notified and appointed are available only with the nomenclature as 'Lecturer (Nursing)' in the AIIMS, New Delhi. Annexure-P/5 Rules produced by the Petitioners themselves classify the posts as 'Assistant Professor' at Sl.No.4 (Medical as well as Non-medical) and also at Sl.No.8 as 'Lecturer in Nursing' with same pay of scale, but different Grade Pays. Hence, it has to be ascertained whether any similar person is working in the capacity of 'Assistant Professor (Nursing)' apart from the post of 'Lecturer in Nursing' in the AIIMS, New Delhi.
30. In Annexure-P/2 Advertisement, in respect of the four different types of posts in the categories of Professor, Additional Professor, Associate Professor and Assistant Professor, while mentioning the pay structure under paragraph XIV, giving the different Payscales and Grade Pays, 23 the minimum pay is mentioned as Rs.51,600/- for Professor, Rs.46,000/- for Additional Professor, Rs.42,800/- for Associate Professor and Rs.30,000/- for Assistant Professor. This was stipulated to attract the candidates of sufficient learning, qualification, skill and experience and if the Respondents have acted upon the same and resigned from the posts they were holding earlier, normally this cannot be altered at a subsequent stage; as it may attract the principle of 'promissory estoppel'. Similarly, it is not known whether the Respondents/ Applicants are being isolated and whether the minimum Pay Band mentioned in respect of Professor, Additional Professor and Associate Professor are still being granted to the persons selected and appointed pursuant to the very same Notification and whether the audit objection is only in respect of the minimum granted in respect of 'Assistant Professor'; are also matters to be looked into. If the offered 'minimum' payment is still maintained in respect of the posts of Professor, Additional Professor and Associate Professor appointed as per Annexure-P/2, there cannot be any differential treatment in the case of the Respondents/Applicants alone, who are appointed as 'Assistant Professors'.
31. As mentioned already, Annexure-P/2 Advertisement by itself cannot give any vested right to the Respondents / Applicants with reference to the size of the pay packet and it has to be with reference to the offer of appointment given as per Annexure-R/4, which has been accepted by the Respondents/Applicants, also giving an 'undertaking' in the form of Annexure-P/8 that their placement shall be in the pay structure as applicable to the employees of similar status in the AIIMS, New Delhi. 24
This is more so, as undertaken by them that the pay structure as suggested in the offer of appointment shall be agreeable and in no case any reference of any of the pay-structure envisaged during the procedure of selection shall be insisted during the currency of service. Since the offer accepted by the Respondents/Applicants was quite specific, the Respondents/Applicants cannot now take a U-turn and contend that whatever is contained in Annexure-P/2 'advertisement' shall prevail. This aspect has not been correctly appreciated by the Tribunal and hence Annexure-P/1 order is not liable to be sustained. It is set aside accordingly.
32. In view of the discussion as to the obscurity with regard to the status of the similar post of 'Assistant Professor (Nursing)' if exists in the AIIMS, New Delhi (to which post the Respondents/Applicants have been appointed as per Annexure-R/4), this Court finds it fit to direct the 1 st Respondent in the T.A. (1st Petitioner herein) to consider the above aspects and pass a 'speaking order' after affording an opportunity of hearing to the Respondents/Applicants. It is ordered accordingly. This shall be done as expeditiously as possible, at any rate, within 'three' months from the date of receipt of a copy of this judgment. The right of recovery of the excess payment, if any, shall be subject to the orders to be passed by the 1st Respondent in the T.A. (1st Petitioner herein), as mentioned above and no coercive steps shall be taken in the meanwhile.
Writ petitions stand disposed of.
Sd/- Sd/-
(P.R. Ramachandra Menon) (Parth Prateem Sahu)
Chief Justice Judge
Chandra