PIL/65/2023 on 7 June, 2024

[Cites 9, Cited by 0]

Gauhati High Court

PIL/65/2023 on 7 June, 2024

HON'BLE THE CHIEF JUSTICE MR. VIJAY BISHNOI HON'BLE MR. JUSTICE SUMAN SHYAM For the Petitioner : Mr. N.N.B. Choudhury, Advocate. For the Respondents : Mr. P.N. Goswami, Standing Counsel, Assam Agricultural University, assisted by Mr. I. Kalita, Advocate for respondent Nos.2, 3, 9 & 10.

: Dr. P. Agarwal, Standing Counsel, UGC for respondent No.4.

: Mr. I. Chowdhury, Senior Advocate, assisted by Mr. S. Biswakarma, Advocate for respondent No.7.

Date of Hearing         : 28.05.2024.
Date of Judgment        : 07.06.2024.
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                              JUDGMENT & ORDER (CAV)
(Vijay Bishnoi, CJ)

Heard Mr. N.N.B. Choudhury, learned counsel for the petitioner. Also heard Mr. P.N. Goswami, learned standing counsel, Assam Agricultural University, assisted by Mr. I. Kalita, learned counsel appearing for the respondent Nos.2, 3, 9 & 10; Dr. P. Agarwal, learned standing counsel, University Grants Commission (UGC) appearing for the respondent No.4 and Mr. I. Chowdhury, learned senior counsel, assisted by Mr. S. Biswakarma, learned counsel for the respondent No.7.

2. By this order, we are deciding the preliminary objection raised by the respondents regarding the maintainability of this PIL petition.

3. This PIL petition is filed by the petitioner praying for the following reliefs:-

"In the premises aforesaid, it is most humbly prayed that this Hon'ble Court may kindly be pleased to admit this petition, call for the records and:

(i) Issue a writ in the nature of certiorari quashing and setting aside the Office Order F. No.5(2)/ 2015-Per-III dated 21.10.2020 (Annexure-10) issued by the Director (Special Duty), ICAR (Respondent No.8);

(ii) Issue a writ in the nature of mandamus directing to the Respondent No.3 to fix the pay and allowances of the Vice-Chancellor of AAU, Jorhat in accordance with the provisions of Section 19(3) of the AAU Act of 1968, the Notification No.FPC. 60/2017/52 dated 4.9.2018 issued by the Finance (Pay Research Unit) Department, Government of Assam, (Annexure-16), the Office Memorandum No.11/1/ 2017-E.II(B) dated 18.7.2017 issued by the Department of Expenditure under the Ministry of Finance, Government of India (Annexure-17), the UGC Regulations, 2018 (Annexure-18) and the notification No.1-7/2015-U.II(1) dated 02.11.2017 of the Department of Higher Education, Ministry of Human Resource Development, Government of India (Annexure-19);

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(iii) Issue a writ in the nature of mandamus directing the Respondent No.3 to recover the excess pay and allowances and the Transfer Travelling Allowance already drawn by the Respondent No.7;

(iv) Issue a writ in the nature of mandamus directing the Respondents 3 & 6 to treat the period from 22,10.2020 to the date of his eventual reversal to the ICAR as dies non as the deputation of service with which he was relieved by the ICAR to join as the Vice-Chancellor of AAU, Jorhat is faulty and irregular and non-est in the eyes of law since he was selected and appointed as the Vice-Chancellor of AAU, Jorhat from amongst the 58 (fifty eight) open market candidates;

(v) Issue a writ in the nature of mandamus directing the Respondent No.3 to cause a detailed enquiry into the alleged illegal drawing of excess pay and allowances by the former Vice-Chancellors of AAU, Jorhat and to initiate penal action against them including recovery of the illegally drawn excess amounts; and/or

(vi) Pass any other writ(s)/order(s)/direction(s) as this Hon'ble Court may deem fit and proper in the interests of justice."

4. Brief facts of the case are that the respondent No.7 was appointed as the Vice-Chancellor of the Assam Agricultural University, Jorhat on 13.10.2020 by the Hon'ble Governor-cum-Chancellor for a period of 5(five) years. Pursuant to that, the respondent No.7 assumed the Office of the Vice-Chancellor w.e.f. 22.10.2020 and the Office of the Registrar issued a Notification to this effect on the very same day.

5. At the time of appointment of the respondent No.7 as Vice-Chancellor of Assam Agricultural University, he was working as Director, Agricultural Technology Application Research Institute, Umiam (Meghalaya) and the respondent No.6, i.e. the Indian Council of Agricultural Research, vide order dated 21.10.2020, accepted it and allowed the respondent No.7, to join as Vice- Chancellor of Assam Agricultural University on deputation.

6. As per the petitioner, the respondent No.7 is drawing a monthly salary of Rs.3,32,436/-, breakup of which is as under:-

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(i) Basic Pay : Rs.2,10,000/-

     (ii)        DA @ 38% of the Basic Pay : Rs.88,200/-

     (iii)      Medical Allowance            : Rs.600/-

     (iv)       Special pay                 : Rs.5000/-

     (v)        Deputation allowance         : Rs.28,636/-

The grievance raised by the petitioner in this petition is that the respondent No.7 is drawing an amount of Rs.28,636/- in excess of the amount to which he is entitled for every month. It is the contention of the petitioner that the withdrawal of the excess amount by the respondent No.7 is contrary to the Regulations of the University Grants Commission and is in violation of the provisions of law.

7. The respondents have raised a preliminary objection that the matter regarding drawing of salary/ remuneration by an employee is a service matter and, as per the settled law, public interest litigation petition in the service matters is not maintainable. In support of the above submission, the respondents are relying on the decision of the Hon'ble Supreme Court rendered in Dr. Duryodhan Sahu & Ors. -Vs- Jitendra Kumar Mishra & Ors. , reported in (1998) 7 SCC 273; Dattaraj Nathuji Thaware -Vs- State of Maharashtra & Ors., reported in (2005) 1 SCC 590; Neetu -Vs- State of Punjab & Ors., reported in (2007) 10 SCC 614 and Ayaaubkhan Noorkhan Pathan -Vs- State of Maharashtra & Ors., reported in (2013) 4 SCC 465.

8. The learned counsel appearing for the petitioner has submitted that the matter regarding drawing of excess salary is strictly not covered in the definition of "service matters" as essentially service matters include recruitment and Page No.# 6/8 promotion and not payment of salary or remuneration.

9. The term "service matter" is defined in Section 3(q) of the Administrative Tribunals Act, 1985, which reads as under:-

"3.(q) 'service matters', in relation to a person, means all matters relating to the conditions of his service in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India, or, as the case may be, of any corporation [or society] owned or controlled by the Government, as respects --

(i) remuneration (including allowances), pension and other retirement benefits;

(ii) tenure including confirmation, seniority, promotion, reversion, premature retirement and superannuation;

(iii) leave of any kind;

(iv) disciplinary matters; or

(v) any other matter whatsoever;"

10. The said term, i.e. "service matters", is also defined in Section 3(o) of the Armed Forces Tribunal Act, 2007, which also reads as under:-

"3(o) 'service matters', in relation to the persons subject to the Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957) and the Air Force Act, 1950 (45 of 1950), mean all matters relating to the conditions of their service and shall include -

(i) remuneration (including allowances), pension and other retirement benefits;

(ii) tenure, including commission, appointment, enrolment, probation, confirmation, seniority, training, promotion, reversion, premature retirement, superannuation, termination of service and penal deductions;

(iii) summary disposal and trials where the punishment of dismissal is awarded;

(iv) any other matter, whatsoever, but shall not include matters relating to -

(i) orders issued under section 18 of the Army Act, 1950 (46 of 1950), sub-

section (1) of section 15 of the Navy Act, 1957 (62 of 1957) and section 18 of the Air Force Act, 1950 (45 of 1950); and

(ii) transfers and postings including the change of place or unit on posting Page No.# 7/8 whether individually or as a part of unit, formation or ship in relation to the persons subject to the Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957) and the Air Force Act, 1950 (45 of 1950);

(iii) leave of any kind;

(iv) summary court martial except where the punishment is of dismissal or imprisonment for more than three months;"

11. The Hon'ble Supreme Court in the case of Secretary, Central Board of Direct Taxes & Ors. -Vs- B. Shyam Sundar , reported in (2001) 9 SCC 87 has interpreted the term "service matters" as under:-

"9. Even on the question of jurisdiction, it seems that the matter was outside the purview of the Tribunal. Under Section 14 of the Administrative Tribunal Act, 1985, the Tribunal has jurisdiction, power and authority in relation to 'service matters'. 'Service matters' include remuneration (including allowances), pension and other retirement benefits. The reward amount was purely ex gratia payment. It is difficult to treat it as a condition of service. Further it is difficult to comprehend how such ex gratia payment can be treated as remuneration of the kind postulated by the Act."

(Emphasis Supplied)

12. As per the respondent University, no excess amount is paid to the respondent No.7, as alleged by the petitioner, and the amount of Rs.28,636/-, paid to the respondent No.7, as "deputation allowance", is in accordance with law.

13. We are of the view that matters regarding payment of any type of allowance including "deputation allowance" to an employee clearly comes under the definition of "service matters", as provided in Section 3(q) of the Administrative Tribunals Act, 1985 and Section 3(o) of the Armed Forces Tribunal Act, 2007 and as per the observations made by the Hon'ble Supreme Court in the case of B. Shyam Sundar (supra). It is well settled that a public interest litigation petition in service matter is not maintainable as held by the Page No.# 8/8 Hon'ble Supreme Court in the cases of Dr. Duryodhan Sahu (supra); Dattaraj Nathuji Thaware (supra); Neetu -Vs- State of Punjab (supra) and Ayaaubkhan Noorkhan Pathan (supra).

14. It is also noticed that prior to filing of this PIL petition, the petitioner has also filed several PIL petitions, i.e. PIL No.1/2023; PIL No.2/2023; PIL No.3/2023 and PIL No.5/2023, questioning the affairs of the Assam Agricultural University including a quo warranto PIL No.36/2023 challenging the appointment of the respondent No.7 as Vice-Chancellor of Assam Agricultural University, Jorhat. However, in the said petitions, there is no whisper about payment of any allowance to the respondent No.7. It is not the case of the petitioner that he came to know about the payment of "deputation allowance"

to the respondent No.7 after filing of this petition. This fact raises serious doubts about the bonafide of the petitioner which leads to the presumption that it is a proxy litigation or the petition is filed with oblique motive. The Hon'ble Supreme Court has deprecated the said practice in various decisions and insisted that such practice should be stopped at the very initial stage without wasting valuable judicial time, which could otherwise be utilized for disposal of genuine cases.

15. In view of the above discussions, we have no hesitation in holding that the present PIL petition filed by the petitioner is not maintainable as it relates to service matter and, therefore, the same is hereby dismissed.

                    JUDGE                                 CHIEF JUSTICE


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