Kerala High Court
Dr.A.V. Babu vs The Union Of India on 9 October, 2009
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
WEDNESDAY, THE 26TH DAY OF NOVEMBER 2014/5TH AGRAHAYANA, 1936
WP(C).No. 13256 of 2013 (F)
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PETITIONER(S):
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1. DR.A.V. BABU, AGED 41 YEARS,
S/O. RAMAN. V., "SOUPARNIKA", NEAR PMOC,
POOLAKADAV ROAD, MARIKUNNU, CALICUT-673 012.
2. DR.RAMA SUBRAMANYAM KOMARAGIRI, AGED 35 YEARS,
S/O. K.VEERABHADRA RAO, C2A, NIT CAMPUS P.O.,
NIT CALICUT, CALICUT-673 601.
3. DR.G.K. RAJANIKANT AGED 38 YEARS,
S/O. KRISHNAMURTHY G.S.,
NITC FACULTY APARTMENTS - A 106,
NITC CAMPUS, CALICUT-673 601.
4. DR.M.S.SUNITHA, AGED 41 YEARS,
W/O. MR.K. UNNIKRISHNAN, MUTHORAN KUNNUMMEL,
MAPETTA, MANASSERY P.O., KOZHIKODE-673 602.
5. DR.A. SANTHIAGU, AGED 37 YEARS,
S/O. M. AROCKIASAMY, 3/602C, MARY NIVAS,
POOLAKKODE, NARIKUZHI P.O., NIT CALICUT,
CALICUT-673 601.
6. DR.N. SANDHYARANI ,
W/O. DR.S. SURESHKUMAR, VRINDAVANAM,
KANNANKARA, PATHANAPURAM P.O., KOLLAM.
BY SRI.M.RAMESH CHANDER, SENIOR ADVOCATE.
ADVS. SMT.B.BINDU,
SMT.DENNIS VARGHESE.
RESPONDENT(S):
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1. THE UNION OF INDIA,
REPRESENTED BY ITS SECRETARY,
MINISTRY OF HUMAN RESOURCES,
SASTHRI BHAVAN, NEW DELHI.
2. THE NATIONAL INSTITUTE OF TECHNOLOGY,
CALICUT, REPRESENTED BY ITS REGISTRAR,
NATIONAL INSTITUTE OF TECHNOLOGY, CALICUT-673 601.
WP(C).No. 13256 of 2013 (F)
3. THE REGISTRAR,
NATIONAL INSTITUTE OF TECHNOLOGY,
NIT-CAMPUS, CALICUT POST-673 601.
4. THE DIRECTOR,
NATIONAL INSTITUTE OF TECHNOLOGY,
NIT CAMPUS, CALICUT POST, PIN-673 601.
5. ABDUL NAZEER. A.,
ASSOCIATE PROFESSOR,
DEPARTMENT OF COMPUTER SCIENCE & ENGINEERING,
NATIONAL INSTITUTE OF TECHNOLOGY, NIT CAMPUS,
CALICUT-673 601.
R1 BY ADV. SRI.N.NAGARESH, ASSIST. S.G. OF INDIA.
R2 TO R4 BY ADV. SRI.MILLU DANDAPANI.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 26-11-2014, ALONG WITH WP(C).NO.27461 OF 2013 AND
WP(C).NO.4317 OF 2014, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
rs.
WP(C).No. 13256 of 2013 (F)
APPENDIX
PETITIONER'S EXHIBITS:-
P1 : COPY OF THE MEMORANDUM DATED 09.10.2009 AND IN ANNEXURE.
P2 : COPY OF THE PROCEEDINGS DATED 08.01.2010 OF THE
3RD RESPONDENT.
P3 : COPY OF THE APPROVAL OF THE PAY REVISION OF FACULTY
UNDER THE 6TH CENTRAL PAY REVISION SIGNED BY ISSUED BY
THE 3RD RESPONDENT.
P4 : COPY OF THE CIRCULAR DATED 15.04.2013 ISSUED BY THE
3RD RESPONDENT.
P5 : COPY OF THE MINUTES OF THE 3RD MEETING OF THE COUNCIL OF
NATIONAL INSTITUTE OF TECHNOLOGY, DATED 18.11.2011.
P6 SERIES: COPIES OF THE REPRESENTATIONS SUBMITTED BY THE
PETITIONERS 3 AND 4 TO THE 3RD RESPONDENT DATED 20.01.2013,
27.11.2012, AND 18.04.2012 RESPECTIVELY.
P7 SERIES: COPIES OF THE REPRESENTATIONS SUBMITTED BY THE
PETITIONERS 2, 3 AND 5 BEFORE THE 3RD RESPONDENT.
P8 : COPY OF THE A.I.C.T.E. CLARIFICATION ORDER DATED 10.09.2003.
P9 : COPY OF THE NOTIFICATION DATED 13.12.2006.
P10: COPY OF THE STANDING ADVERTISEMENT FOR RECRUITMENT
OF FACULTYAT NIT CALICUT.
P11: COPY OF THE ORDER DATED 18/08/2009 ISSUED BY THE
MINISTRY OF HUMAN RESOURCES.
P12: COPY OF THE 5TH CENTRAL PAY COMMISSION ORDER
DATED 09/10/1998.
P13: COPY OF THE CLARIFICATION ISSUED BY THE MHRD REGARDING
THE PAY FIXATION OF DIRECTLY RECRUITED TEACHERS ON OR
AFTER 01/01/2006 ON THE RECOMMENDATION OF THE
6TH CPC DATED 09/03/2010.
P14: COPY OF THE COMMUNICATION ISSUED TO ALL DIRECTORS OF
NITS BY THE DIRECTOR OF THE MINISTRY OF HUMAN RESOURCES
DEVELOPMENT (DEPARTMENT OF HIGHER EDUCATION)
COMMUNICATION THE DECISIONS OF THE MHRD.
P15: COPY OF THE COMMUNICATION DATED MARCH 2013 ISSUED TO
ALL DIRECTORS OF NITS BY WHICH THE MINISTRY OF HUMAN
RESOURCES DEVELOPMENT.
.........2/-
WP(C).No. 13256 of 2013 (F)
P16: COPY OF THE MINUTES OF MEETING OF THE COUNSEL OF
NATIONAL INSTITUTE OF TECHNOLOGY DATED 18/11/2011.
RESPONDENT'S EXHIBITS:-
EXT.R2A COPY OF THE RELEVANT PORTION OF THE COMMUNICATION
DATED 18/08/2009 ISSUED BY THE 7TH RESPONDENT TO THE
SECRETARY, UNIVERSITY GRANTS COMMISSION, NEW DELHI
VIDE NO.1-32/2006-U.II/U.I(i).
EXT.R2B COPY OF THE COMMUNICATION F. NO.23-1/2008-TS.II
DATED 18/08/2009 OF THE 7TH RESPONDENT ISSUED TO THE
DIRECTOR, ALL CENTRALLY FUNDED TECHNICAL
INSTITUTIONS.
EXT.R2C COPY OF THE RELEVANT EXTRACT OF THE RESOLUTION
BY THE BOARD OF GOVERNORS OF THE 2ND RESPONDENT
INSTITUTE.
EXT.R2D COPY OF THE UNDERTAKING GIVEN BY THE 1ST PETITIONER
ON 11/09/2009.
EXT.R2E COPY OF THE NOTIFICATION DATED 14/03/2012 ISSUED BY THE
1ST RESPONDENT TO THE DIRECTORS OF ALL THE NATIONAL
INSTITUTE OF TECHNOLOGY VIDE NO.F.33-7/2011-TS.III.
//TRUE COPY//
P.A. TO JUDGE
rs.
DAMA SESHADRI NAIDU, J.
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W.P.(c) Nos. 13256 of 2013,
27461 of 2013 & 4317 of 2014
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Dated this the 26th day of November, 2014
JUDGMENT
All the petitioners in these three writ petitions are the Assistant Professors working in the second respondent organization. W.P. (C) No. 13256/2013 was filed by six Assistant Professors; W.P. (C) No. 27461/2013, by three, and W.P. (C) No. 4317/2014, by two Assistant Professors - all of them impugning Exhibits P2, P3 and P4 proceedings of the third respondent. Since all the petitioners are similarly placed, having a common grievance against the same set of respondents, this Court has decided to dispose of all the three writ petitions through a common judgment.
2. Briefly stated, having been appointed on different dates in the years 2007 and 2008 as Assistant Professors (5th Central Pay Commission) the petitioners have continued to discharge their duties in the second respondent organization. In course of time, on 18.08.2009, the Sixth W.P.(c) Nos.13256/13,27461/13 & 4317/14 2 Central Pay Commission recommendations were issued making them effective retrospectively from 01.01.2006. In furtherance of implementing the Sixth Central Pay Commission, the first respondent issued Exhibit R2(b) proceedings dated 18.08.2009 addressing those proceedings to all the Centrally Funded Technical Institutions, including the second respondent. In terms of the stipulations made therein, the petitioners started getting academic Grade Pay, since the benefit has been extended through Exhibit P1 proceedings to all the Assistant Professors, including the petitioners. In fact, in terms of Sixth Central Pay Commission, all the petitioners have been re-designated as Associate Professors with Academic Grade Pay of Rs.9000/-.
3. At a later point of time, the third respondent issued Exhibit P2 adding a rider to the entitlement of the petitioners to AGP that they should have put in three years of service as Assistant Professors before getting re-designated as Associate Professors to be entitled to the AGP. The justification has been supplied on the ground that Exhibit R2(b) has a specific reference to R2(a), containing the said W.P.(c) Nos.13256/13,27461/13 & 4317/14 3 precondition, which was addressed by the first respondent to UGC to have Sixth Central Pay Commission applied in terms of the stipulations contained therein. On the premise that Exhibit R2(b) is to be read in conjunction with Exhibit R2(a), the third respondent issued Exhibit P2. Implementing Exhibit P2, the second respondent reduced the pay of the petitioners on the ground that they did not complete three years of service as Assistant Professors. It is relevant to observe that in terms of Exhibit P2, the petitioners were re-designated as Assistant Professors till they completed their three years' service. Later, when they completed the said period, apart from assigning their designation back, the second respondent restored the petitioner's pay.
4. Having lost the benefit for three years, more particularly without any notice or adjudication on the issue, the petitioners went on representing to the authorities through Exhibits P6, P6(a) and P6(b) to restore their benefits, but there was no response. Under those circumstances, the petitioners filed the present writ petition.
5. The learned counsel for the petitioners has W.P.(c) Nos.13256/13,27461/13 & 4317/14 4 strenuously contended that Exhibit R2(a) has nothing to do with Exhibit R2(b) proceedings. She has further contended that in terms of Exhibit P14 clarification issued by the first respondent, it is very evident that they are two distinct proceedings having different applications. The learned counsel has also contented that while issuing Exhibit P2, more particularly, while depriving the petitioners of their accrued benefits, which they enjoyed for a while, the third respondent did not issue any notice, leave alone affording an opportunity of hearing to the petitioners. According to her, this is a clear case of infraction of the principles of natural justice going to the root of the matter.
6. The learned counsel has drawn my attention to a particular safeguard provided in Exhibit P1 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 third W.P.(c) Nos.13256/13,27461/13 & 4317/14 5 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 petitioners, which they had been deprived of initially.
7. The learned Standing Counsel for respondents 2 to 4 has strenuously opposed the claims and contentions of the petitioners. To begin with, the learned Standing Counsel has contended that Exhibit R2(b) cannot be read distinctive of Exhibit R2(a). According to him, the beneficiaries in both the instances are similarly placed and in fact there is a specific reference in Exhibit R2(b) to the application of the conditions stipulated in Exhibit R2(a) proceedings, though they were addressed to UGC.
8. The learned Standing Counsel has also contended that the petitioners have already given an undertaking that in the event of any excess payment having been made to them, the second and third respondents are at liberty to recover them. The learned Standing Counsel has further contended that, indeed, in terms of Exhibit R2(b) if there ought to be any anomalies they are required to be referred W.P.(c) Nos.13256/13,27461/13 & 4317/14 6 to the first 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.
8. Heard the learned counsel for the petitioners and the learned Standing Counsel for the respondents, apart from perusing the record.
9. As could be seen, the bone of contention in this writ petition is the interpretation of Exhibit R2(b). In other words, whether the stipulations in Exhibit R2(b) have to be read in isolation, thus applying them exclusively to the Assistant Professors working in Fully Funded Central Institutions, or whether the stipulations therein have to be read in conjunction with the other stipulations laid down in Exhibit R2(a). It is not in dispute that the first respondent addressed Exhibit R2(a) to UGC, whereas it addressed Exhibit R2(b) to Centrally Funded Technical Institutions under its control.
10. To resolve this controversy it is profitable to refer W.P.(c) Nos.13256/13,27461/13 & 4317/14 7 to the first respondent's clarification issued in Exhibit P13, which reads as follows:
"Pay of directly recruited Teachers on or after 1.1.2008 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".
11. Exhibit P14 issued by the first respondent in March 2013 further makes it abundantly clear that Exhibit R2(a) 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 first respondent in Exhibit P14, 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, 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 W.P.(c) Nos.13256/13,27461/13 & 4317/14 8 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 minimum of the Scale in respect of posts to which the appointments can be made by the Board under the provision of the Act.
W.P.(c) Nos.13256/13,27461/13 & 4317/14 9
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."
12. Thus, going by the clarification issued in Exhibit P13 and the further directions issued in Exhibit P14 by the first respondent, there can be no iota of doubt that the directions stipulated, especially with regard to the time frame of three years in Exhibit R2(a), have no application to the petitioners.
13. It is evident that the respondents 2 to 4 filed their counter affidavit, perhaps, oblivious of Exhibit P14, which came to be filed before this Court after the respondents' filing their counter affidavit.
14. At any rate, in the light of Exhibits P13 and P14 clarifications, the issue as to the supposed discrepancy in Exhibit R2(b) does not survive. Consequently, Exhibits P2, P3 and P4 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 the petitioners on one hand and the fifth W.P.(c) Nos.13256/13,27461/13 & 4317/14 10 respondent on the other, I do not see any representation for the fifth 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 petitioners and that Exhibit R2(b) cannot be read in conjunction with Exhibit R2(a). As such the determination of the issue of seniority is left for the authorities.
15. In the facts and circumstances, the respondents 2 to 4 are directed to refund the salary earlier recovered as excess from the petitioners, apart from restoring all other benefits to the petitioners from the date of effective re-designation of the petitioners as Associate Professors i.e. from 01.01.2006, or from the date of initial appointment, as the case may be.
In the facts and circumstances, the writ petitions are allowed in the manner indicated above. No order as to costs.
DAMA SESHADRI NAIDU JUDGE DMR/-