Kerala High Court
Dr. M.K.Ravi Varma vs National Institute Of Technology on 9 October, 2009
IN THE HIGH COURT OF KERALAATERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
WEDNESDAY, THE 17TH DAYOF DECEMBER 2014/26TH AGRAHAYANA,1936
WP(C).No. 9239 of 2012 (D)
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PETITIONER : -
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Dr. M.K.RAVI VARMA,
ASSISTANT PROFESSOR OF PHYSICS,
DEPT. OF PHYSICS,
NATIONAL INSTITUTE OF TECHNOLOGY,
CALICUT-673601.
BY ADVS.SRI.M.RAMESH CHANDER (SR.)
SRI.V.TEKCHAND
SMT.DENNIS VARGHESE
RESPONDENTS : -
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1. NATIONAL INSTITUTE OF TECHNOLOGY,
NIT CAMPUS (P.O), CALICUT-673601.
2. THE REGISTRAR,
NATIONAL INSTITUTE OF TECHNOLOGY,
NIT CAMPUS (P.O), CALICUT-673601.
3. THE DIRECTOR,
NATIONAL INSTITUTE OF TECHNOLOGY,
NIT CAMPUS (P.O), CALICUT-673601.
4. ABDUL NAZEER K.A,
ASSOCIATE PROFESSOR.
DEPARTMENT OF COMPUTER ENGINEERING,
NATIONAL INSTITUTE OF TECHNOLOGY,
NIT CAMPUS(P.O), CALICUT-673601.
ALL. R5 IS IMPLEADED:
R5. THE SECRETARY,
MINISTRY OF HUMAN RESOURCES,
DEPARTMENT OF HIGHER EDUCATION,
TECHNICAL EDUCATION BUREAU,
SASTHRI BHAVAN,NEW DELHI.
(IS IMPLEADED AS PER ORDER DATED19.03.2014 IN I.A. No.4108/14).
R1-3 BY ADV. SRI.MILLU DANDAPANI, SC
R4 BY ADV.SRI.J.KRISHNAKUMAR (ADOOR)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
17-12-2014. THE COURT ON THE SAME DAYDELIVERED THE FOLLOWING:
WP(C).No. 9239 of 2012 (D)
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APPENDIX
PETITIONER'S EXHIBITS :
EXHIBIT P1 : TRUE COPY OF THE APPOINTMENT ORDER DATED12.12.2008
ISSUED BY THE 1st RESPONDENT TO THE PETITIONER.
EXHIBIT P2 : TRUE COPY OF THE PROCEEDINGS 8.7.2011 ISSUED BY 2nd
RESPONDENT TO THE PETITIONER.
EXHIBIT P3 : TRUE COPY OF THE MEMORANDUM DATED 9.10.2009
ACCOMPANIED BY ANNEXURE 1 ISSUED BY THE 3rd RESPONDENT.
EXHIBIT P4 : TRUE COPY OF THE PAYSLIP FOR THE MONTH OF OCTOBER 2009
ISSUED TO THE PETITIONER BY THE 1st RESPONDENT.
EXHIBIT P5 : TRUE COPY OF THE PAYSLIP FOR THE MONTH OF NOVEMBER
2009 ISSUED TO THE PETITIONER BY THE 1st RESPONDENT.
EXHIBIT P6 : TRUE COPY OF THE PAYSLIP FOR THE MONTH OF DECEMBER
2009 ISSUED TO THE PETITIONER BY THE 1st RESPONDENT.
EXHIBIT P7 : TRUE COPY OF THE PAYSLIP FOR THE MONTH OF JANUARY 2010
ISSUED TO THE PETITIONER BY THE 1st RESPONDENT.
EXHIBIT P8 : TRUE COPY OF THE PAYSLIP FOR THE MONTH OF FEBRUARY 2010
ISSUED TO THE PETITIONER BY THE 1st RESPONDENT.
EXHIBIT P9 : TRUE COPY OF THE PAYSLIP FOR THE MONTH OF MARCH 2010
ISSUED TO THE PETITIONER BY THE 1st RESPONDENT.
EXHIBIT P10 : TRUE COPY OF THE PAY SLIP FOR THE MONTH OF APRIL 2010
ISSUED TO THE PETITIONER BY THE 1st RESPONDENT.
EXHIBIT P11 : TRUE COPY OF THE PROCEEDINGS DATED 8.1.2010 OF THE 2nd
RESPONDENT.
EXHIBIT P12 : TRUE COPY OF THE MINUTES OF THE MEETING OF THE BOARD
OF GOVERNORS OF THE NATIONAL INSTITUTE OF TECHNOLOGY,
CALICUT ISSUED TO THE PETITIONER UNDER RIGHT TO
INFORMATION ACT ON 31.1.2012.
EXHIBIT P12(a) : TRUE COPY OF THE DECISION TAKEN BY THE BOARD OF
GOVERNORS OF NATIONAL INSTITUTE OF TECHNOLOGY ISSUED
TO THE PETITIONER ON 31.1.2012.
EXHIBIT P13 : TRUE COPY OF THE PROCEEDINGS DATED 6.12.2006 ISSUED BY
THE 2nd RESPONDENT.
WP(C).No. 9239 of 2012 (D)
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EXHIBIT P14 : TRUE COPY OF THE TABLE CONTAINING THE DETAILS OF THE
PERSONS PROMOTED AS ASSOCIATEPROFESSOR NIT CALICUT,
FURNISHED BY THE 2nd RESPONDENT ON 25.1.2012.
EXHIBIT P15 : TRUE COPY OF THE CLARIFICATORYLETTER DATED10.9.2003
ISSUED BY ALL INDIA COUNCIL FOR TECHNICAL EDUCATION.
EXHIBIT P16 : TRUE COPY OF THE ORDER DATED13.12.2006 ISSUED BY THE
MINISTRY OF HUMAN RESOURCES DEVELOPMENT.
EXHIBIT P17 : TRUE COPY OF DETAILS OF THE FACULTY OF THE NATIONAL
INSTITUTE OF TECHNOLOGY,CALICUT, AS ON 15.7.2010.
EXHIBIT P18 : TRUE COPY OF THE REPRESENTATION DATED 3.2.2010
SUBMITTED BY THE PETITIONER BEFORE THE 3rd RESPONDENT.
EXHIBIT P19 : TRUE COPY OF THE REPRESENTATION DATED 11.3.2010
SUBMITTED BY THE PETITIONER BEFORE THE 3rd RESPONDENT.
EXHIBIT P20 : TRUE COPY OF THE CIRCULAR DATED 9.9.2009 ISSUED BY THE
DIRECTOR OF VISWESHARAYYA, NATIONAL INSTITUTE OF
TECHNOLOGY,NAGPUR.
EXHIBIT P21 : COPY OF THE STANDING ADVERTISEMENT FOR RECRUITMENT
OF FACULTY AT NIT CALICUT.
EXHIBIT P22 : COPY OF THE ORDER DATED 18.08.2009 ISSUED BY THE MINISTRY
OF HUMAN RESOURCES.
EXHIBIT P23 : COPY OF THE 5th CENTRAL PAY COMMISSION ORDER DATED
09.10.1998.
EXHIBIT P24 : COPY OF THE CLARIFICATION ISSUED BY THE MHRD REGARDING
THE PAY FIXATION OF DIRECTLY RECRUITED TEACHERS ON OR
AFTER 1.1.2006 ON THE RECOMMENDATION OF THE 6th CPC
DATED9.3.2010.
EXHIBIT P25 : COPY OF THE COMMUNICATION ISSUED TO ALL DIRECTORS OF
NITs BY THE DIRECTOR OF THE MINISTRY OF HUMAN RESOURCES
DEVELOPMENT (DEPARTMENT OF HIGHER EDUCATION)
COMMUNICATING THE DECISIONS OF THE MHRD.
EXHIBIT P26 : COPY OF THE COMMUNICATION DATED MARCH, 2013 ISSUED TO
ALL DIRECTORS OF NITs BY WHICH THE MINISTRY OF HUMAN
RESOURCES DEVELOPMENT.
EXHIBIT P27 : COPY OF THE MINUTES OF MEETING OF THE COUNSEL OF
NATIONAL INSTITUTE OF TECHNOLOGY DATED 18.11.2011.
WP(C).No. 9239 of 2012 (D)
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RESPONDENTS' EXHIBITS :
EXHIBIT R1(a) : COPY OF UNDERTAKING GIVEN BY THE PETITIONER, DATED
10.9.2009.
EXHIBIT R1(b) : COPY OF COMMUNICATION FROM THE MINISTRY OF HUMAN
RESOURCES DEVELOPMENT, UNIION OF INDIA, TO THE
DIRECTOR, ALL CENTRALLY FUNDED TECHNICAL
INSTITUTIONS, VIDE F. No. 23-1/2008-TS.II DATED18.8.2009.
EXHIBIT R1(c) : COPY OF COMMUNICATION FROM THE DEPUTY SECRETARY TO
THE GOVERNMENT OF INDIA, MINISTRY OF HUMAN RESOURCES
DEVELOPMENT, TO THE SECRETARY, UNIVERSITY GRANTS
COMMISSION, NEW DELHI, VIDE No. 1-32/2006-U.I.(i) DATED
31.12.2008.
EXHIBIT R1(d) : COPY OF COMMUNICATION FROM THE DEPUTY DIRECTOR OF
INCOME TAX (HRD), UNION OF INDIA, MINISTRY OF FINANCE,
NEW DELHI, VIDE F. No. HRD/CM/175/4/2010-11/858 DATED2.11.10.
EXHIBIT R1(e) : COPY OF STATEMENT OF FIXATION OF PAY RELATED TO THE 4th
RESPONDENT, DATED 24.2.2010 VIDE No.F2/14461/2009/6th DPC.
EXHIBIT R1(f) : COPY OF COMMUNICATION FROM THE DEPUTY SECRETARY
(NITs), MINISTRY OF HUMAN RESOURCES DEVELOPMENT
DEPARTMENT OF HIGHER EDUCATION, NEW DELHI, ISSUED TO
THE DIRECTORS OF ALLTHE NATIONAL INSTITUTES OF
TECHNOLOGY,VIDE No.F.33-7/2011-T.S.III DATED14.3.2012.
EXHIBIT R1(g) : COPY OF PROCEEDINGS No. P2/4096/2010 DATED 17.7.2012 OF
THE 1st RESPONDENT.
// TRUE COPY //
P.A.TO JUDGE
DMR/-
DAMA SESHADRI NAIDU, J.
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W.P.(c) No. 9239 of 2012
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Dated this the 17th day of December, 2014
JUDGMENT
The petitioner in this writ petition is an Assistant Professor working in the first respondent organization. He has filed the writ petition impugning the action of the second respondent in redesignating the petitioner's position and refixing his salary.
2. Briefly stated, having been appointed on 12.12.2008 as Assistant Professor (5th Central Pay Commission), the petitioner has continued to discharge his duties in the first respondent organization. In course of time, on 18.08.2009, the Sixth Central Pay Commission recommendations were issued making them effective retrospectively from 01.01.2006. In furtherance of implementing the Sixth Central Pay Commission, the fifth respondent issued Exhibit R1(b) proceedings dated 18.08.2009 addressing them to all the Centrally Funded Technical Institutions, including the first respondent. In terms of the stipulations made therein, the petitioner started getting academic Grade Pay, since the W.P.(c) No. 9239 of 2012 2 benefit has been extended through Exhibit P3 proceedings to all the Assistant Professors, including the petitioner. In fact, in terms of Sixth Central Pay Commission, the petitioner has been re-designated as Associate Professor with Academic Grade Pay of Rs.9000/-.
3. At a later point of time, the second respondent issued Exhibit P11 adding a rider to the entitlement of the petitioner to AGP that he should have put in three years of service as Assistant Professor before getting re-designated as Associate Professor to be entitled to the AGP. The justification has been supplied on the ground that Exhibit R1(b) has a specific reference to R1(c), containing the said precondition, which was addressed by the fifth respondent to UGC to have Sixth Central Pay Commission applied in terms of the stipulations contained therein. On the premise that Exhibit R1(b) is to be read in conjunction with Exhibit R1(c), the second respondent issued Exhibit P11. Implementing Exhibit P11, the first respondent reduced the pay of the petitioner on the ground that he did not complete three years of service as Assistant Professors. It is relevant to observe that in terms of Exhibit P11, the petitioner was re-designated as Assistant Professor till he completed his W.P.(c) No. 9239 of 2012 3 three years' service. Later, when he completed the said period, apart from restoring his designation, the first respondent also restored the petitioner's pay.
4. Having lost the benefit for three years, more particularly without any notice or adjudication on the issue, the petitioner went on representing to the authorities through Exhibits P18 and P19 to restore his benefits, but there was no response. Under those circumstances, the petitioner filed the present writ petition.
5. The learned counsel for the petitioner has strenuously contended that Exhibit R1(c) has nothing to do with Exhibit R1(b) proceedings. She has further contended that in terms of Exhibit P26 clarification issued by the fifth respondent, it is very evident that they are two distinct proceedings having different applications. The learned counsel has also contented that while issuing Exhibit P11, more particularly, while depriving the petitioner of his accrued benefits, which he enjoyed for a while, the second respondent did not issue any notice, leave alone affording an opportunity of hearing to the petitioner. According to her, this is a clear case of infraction of the principles of natural justice going to the root of the matter. W.P.(c) No. 9239 of 2012 4
6. The learned counsel has drawn my attention to a particular safeguard provided in Exhibit P3 to the effect that in the event of any difficulty arising in fixation and the interpretation of rules/norms, the ambiguities and anomalies that require further clarifications along with the points already identified for seeking clarifications shall be referred to the MHRD for necessary directions. According to the learned counsel, no such steps have been taken by the second respondent. In the end, the learned counsel has urged this Court to allow the writ petition directing the respondents to restore the benefits of the petitioner, which he had been deprived of initially.
7. The learned Standing Counsel for respondents 1 to 3 has strenuously opposed the claims and contentions of the petitioner. To begin with, the learned Standing Counsel has contended that Exhibit R1(b) cannot be read distinctive of Exhibit R1(c). According to him, the beneficiaries in both the instances are similarly placed and in fact there is a specific reference in Exhibit R1(b) to the application of the conditions stipulated in Exhibit R1(c) proceedings, though they were addressed to UGC.
W.P.(c) No. 9239 of 2012 5
8. The learned Standing Counsel has also contended that the petitioner has already given an undertaking that in the event of any excess payment having been made to him, the first and second respondents are at liberty to recover them. The learned Standing Counsel has further contended that, indeed, in terms of Exhibit R1(b) if there ought to be any anomalies they are required to be referred to the fifth respondent, but once there is a clear omission, it could not be called an anomaly and that the respondent authorities are well within their powers to take corrective steps in that regard. Accordingly, the learned Standing Counsel has urged this Court to dismiss the writ petition.
9. Heard the learned counsel for the petitioner and the learned Standing Counsel for the respondents, apart from perusing the record.
10. As could be seen, the bone of contention in this writ petition is the interpretation of Exhibit R1(b). In other words, whether the stipulations in Exhibit R1(c) have to be read in isolation, thus applying them exclusively to the Assistant Professor working in fully funded Central Institutions, or whether the stipulations therein have to be read in conjunction W.P.(c) No. 9239 of 2012 6 with the other stipulations laid down in Exhibit R1(c). It is not in dispute that the fifth respondent addressed Exhibit R1(c) to UGC, whereas it addressed Exhibit R1(b) to Centrally Funded Technical Institutions under its control.
11. To resolve this controversy, it is profitable to refer to the fifth respondent's clarification issued in Exhibit P24, which reads as follows:
"Pay of directly recruited Teachers on or after 1.1.2006 may be fixed at the entry level of the revised pay and the AGP as prescribed and as per the provision in the CCS (Revised Pay) Rules 2008".
12. Exhibit P25 issued by the fifth respondent in March 2013 further makes it abundantly clear that Exhibit R1(c) has no application while applying the Sixth Central Pay Commission to all the employees of Centrally Funded Technical Institutions. It is illustrative to extract the directions issued by the fifth respondent in Exhibit P26, which are as follows:
"3. The Hon'ble bench of Rajasthan High Court Jaipur vide order dated 19.05.12 directed MHRD, Government of India to take a proper decision as to whether order dated 31.12.2008 has to be applied to NITs and Technical University throughout India. If it has to be applied, then all those who have taken higher education while in service, W.P.(c) No. 9239 of 2012 7 would be entitled to three non-compounded increments. If benefit as given out in the order dated 31.12.2008 is not applicable to the MNITs and Technical University, then it should be clarified to all concerns, but in that eventuality, benefit already given should not be recovered as it was extended by the NIT at their own level and not due to fraud and misrepresentation by the petitioners. The Hon'ble Court has disposed of the cases with the above direction. In view of the above and keeping in view the Hon'ble High Court's, Jaipur order dated 19.05.12 the matter has been examined afresh and the following is suggested to adhere to it strictly.
i) The letter of UGC dated 31.12.2008 is not applicable to CFTIs including NITs. The letter from the Ministry dated 18.08.2009 was pertaining to CFTIs and NITs.
ii) Para 1 (b) of the letter dated 9th March 2010 stands modified to the extent that advance compounded increments would not apply to all categories of teachers, henceforth.
iii) Since Ph.D is a minimum qualification for entry into the 'regular' faculty cadre in any grade, there shall be no Ph.D increments (for the faculty already holding regular faculty positions with lower qualifications), as already decided by the NIT Council in its 3rd meeting (item no.3.18). As provided in the NIT statues [clause 14(i)] "the BOGs have the power to fix on the recommendations of the Selection Committee the initial pay of an at a stage higher than the W.P.(c) No. 9239 of 2012 8 minimum of the Scale in respect of posts to which the appointments can be made by the Board under the provision of the Act.
iv) The benefits already given would not be recovered from the academic staff of the Institutes as directed by the Hon'ble Court and also as per NIT Councils decision."
13. Thus, going by the clarification issued in Exhibit P24 and the further directions issued in Exhibit P26 by the fifth respondent, there can be no iota of doubt that the directions stipulated, especially with regard to the time frame of three years in Exhibit R1(c), have no application to the petitioner.
14. It is evident that the respondents 1 to 3 filed their counter affidavit, perhaps, oblivious of Exhibit P26, which came to be filed before this Court after the respondents' filing their counter affidavit.
15. At any rate, in the light of Exhibits P24 and P26 clarifications, the issue as to the supposed discrepancy in Exhibit R1(b) does not survive. Consequently, Exhibits P11 and P12(a) cannot be held to be valid. Accordingly, they are set aside. Though there is an issue inter-connected with the applicability of 6th CPC, namely the inter se seniority between W.P.(c) No. 9239 of 2012 9 the petitioner on one hand and the fourth respondent on the other, I do not see any representation for the fourth respondent. At any rate, this issue regarding the relative seniority among these persons shall be determined in the light of the decision being rendered presently that the pre-condition of three years shall not apply to the petitioner and that Exhibit R1(b) cannot be read in conjunction with Exhibit R1(c). As such the determination of the issue of seniority is left for the authorities.
16. In the facts and circumstances, the respondents 1 to 3 are directed to refund the salary earlier recovered as excess from the petitioner, apart from restoring all other benefits to the petitioner from the date of effective re-designation of the petitioner as Associate Professor i.e. from 01.01.2006, or from the date of initial appointment, as the case may be. It is further made clear that in so far as the other issue raised by the petitioner such as the seniority, they shall be determined by the third respondent, independently, based on the representations to be made by the petitioner and other affected persons.
W.P.(c) No. 9239 of 2012 10
In the facts and circumstances, the writ petition is allowed in the manner indicated above. No order as to costs.
DAMA SESHADRI NAIDU JUDGE DMR/-