Delhi District Court
Dr. Subramanian Swamy vs Director on 6 April, 2019
In the Court of Ms. Vineeta Goyal: Additional District Judge
(South District)03 Saket Court Complex, New Delhi.
Suit No.: 6221/2016
CNR No. :DLST01/000080/2011
Dr. Subramanian Swamy
S/o Late Shri Sitarama Subramanian
R/o A77, Nizamuddin East,
New Delhi
......... Plaintiff
Versus
Director, IIT Delhi
Hauz Khas,
New Delhi ........ Defendant
Appearance : Sh. Tarun Goombar, counsel for plaintiff with plaintiff
Sh. Arjun Mittra, counsel for the defendant.
Judgment
1. The plaintiff has preferred the instant Suit seeking recovery of
salary and allowances in revised grade from 12.12.1972 till 21.05.1991
which comes to Rs.19,50,000/ (Rupees Nineteen Lacs Fifty Thousand only)
along with interest @ 18% per annum, w.e.f. 20.02.1991 till the date of
payment of pension and gratuity to be paid as per today against the
defendant.
2. Brief facts of the case as emerging from the plaint are that the
plaintiff is a citizen of India and is the President of the Janata Party since
1990. The plaintiff has been a Member of Parliament from 1974 till 1999
Suit no. 6221/2016
Dr. Subramanian Swamy Vs. Director, IIT Delhi Page no. 1 of 36
and was a Union Minister for Commerce, Law & Justice during 199091.
The plaintiff was an Assistant Economics Affairs Officer in the United
Nations in 1963. For more than a decade, he taught Economics at the
Harvard University, USA, from which he had also received his Degree of
Ph.D. In December 1969, the plaintiff, (then Asstt. Professor, Department
of Economics, Harvard University), had an informal interview with the
Director, IIT, (defendant herein) offered the plaintiff to start work as
Professor in the institute.
2.1. It is further averred that on 22.04.1970, an Office Memo bearing No.
IITD/Estt1/1970/948, dated 22.04.1970 appointing plaintiff as Visiting
Staff Member w.e.f. 1970 up to 30.06.1970 was issued and it was extended
from time to time till 30.11.1971. The Extension Memo stated that the
plaintiff, (who proceeded abroad on 23.06.1971) was expected to return by
02.09.1971, the period of his absence was to be treated as leave of the type
due for which notification will be issued after his title to leave is
determined. It is claimed in the plaint that the plaintiff was appointed as
Professor of Economics w.e.f. 01.10.1972 on the unanimous
recommendation of a nine member Selection Committee headed by Dr.
Manmohan Singh who held the office of Prime Minister. In this regard an
Office Memo bearing No. IITD/Estt1/1970/6052, dated 09.10.1971 was
issued appointing plaintiff as Professor w.e.f. 01.10.1971 to be on probation
for one year up to 30.09.1972. However, the plaintiff objected to one year's
probation on the ground that he had already been working for 21 months.
The Board of Governors of the defendant Institute on 20.06.1972 informed
the plaintiff its refusal to waive probation period stating that confirmation
will be considered in the normal manner after completion of the
probationary period satisfactorily. It is averred that the probation was
Suit no. 6221/2016
Dr. Subramanian Swamy Vs. Director, IIT Delhi Page no. 2 of 36
extendable under Section 13 (3), only "if found necessary"). Thereafter by
Office Memo bearing no. IITD/Estt1/1970/362, dated 20.09.1972 the
period of probation of the plaintiff was extended by three months w.e.f.
01.10.1972. It is further averred that by an Office Memo bearing No.
IITD/Estt1/1970/950, dated 11.12.1972, the plaintiff's appointment was
illegally, arbitrarily with malafide motive terminated with effect from
11.12.1972.
2.2. It is further averred by the plaintiff that thereafter, on 19.12.1972, a
Writ Petition was filed before Hon'ble Delhi High Court (C.W.P. No. 1267
of 1972) for quashing orders of extension of probation and termination. The
Hon'ble High Court vide order dated 18.01.1973 dismissed the above said
petition as withdrawn. The defendant sent a notice of eviction form
premises on 09.02.1973. On 06.03.1973, the plaintiff filed a suit being Civil
Suit No. 140 of 1973 before the District Court, Delhi praying for
declaration that he continues to be in the service of the defendant and
seeking an injunction from dispossession of premises. On 11.02.1976, Ld.
Sub Judge, Delhi dismissed the suit on preliminary issues. Thereafter, on
20.05.1976, the plaintiff filed an appeal which was renumbered as M.C.A.
10 of 1979 which was dismissed by the Ld. Additional District Judge, Delhi
vide order dated 17.09.1982. On 17.09.1982 the plaintiff filed a Revision
Petition being C.R.P. No. 163 of 1982 in the Hon'ble Delhi High Court
against the order dated 17.09.1982 which was subsequently allowed by the
Hon'ble High Court vide order dated 13.08.1985 setting aside the judgment
of the Ld. SubJudge for decision on merits. In this suit, renumbered as
Suit No. 264/85, the Ld. Sub Judge, Delhi vide order dated 20.02.1991
declared the termination order dated 11.12.1972 as null and void and gave
a declaration that the plaintiff was entitled to be treated as continued in
Suit no. 6221/2016
Dr. Subramanian Swamy Vs. Director, IIT Delhi Page no. 3 of 36
the service of the Defendant Institute without interruption as Professor in
Economics.
2.3. It is further averred by the plaintiff that thereafter by his legal
notice dated 02.03.1991, the plaintiff required the defendant Institute to
comply forthwith the aforesaid judgment dated 20.02.1991 passed in Suit
No. 264/85. Mr. Nigam the then Director IIT, vide letter No. IITD/D/VII
26/172, dated 18.03.1991, wrote to the plaintiff to inquire if he would like to
serve the IIT as a fulltime Professor. Further, the Director, IIT thereafter,
by letter No. IITD/D/VII26/187, dated 22.03.1991 asked the plaintiff to
report immediately to the Institute. This was duly accepted by the plaintiff
vide letter dated 27.03.1991 but on the same day plaintiff wrote another
letter to the defendant requesting that he be permitted to demit office as
Professor at IIT. It is further averred that by its letter No. IITD/EI/B575,
dated 21.05.1991 the plaintiff was informed about the acceptance of his
resignation. The letter stated that he was allowed to draw regular
increment due to him as on 01.10.1972 and also that he will be paid arrears
as admissible under the rules of the Institute. On 18.03.1992 the plaintiff
wrote to the defendant Institute enclosing the detailed accounts of the
amounts due to him for the period 11.12.1972 to 27.03.1991. On 05.05.1992
the plaintiff replied to the defendant proving him interalia with his
income and expenditure statement, also stating that he would opt for
revised pay scale under the III and IV pay scale. And also plaintiff opted
for compensatory scheme. On 05.01.1993, the plaintiff served on the
defendant, a legal notice claiming all his aforesaid dues. The defendant
replied to the legal notice sent by the plaintiff vide Letter No. IITD/D/VII
26/50 dated 28.01.1993 stating that the proceedings have been initiated
regarding the settlement of plaintiff's claim and also asked for the details
Suit no. 6221/2016
Dr. Subramanian Swamy Vs. Director, IIT Delhi Page no. 4 of 36
of emoluments earned by the plaintiff during his employment at Harvard
University.
2.4. It is further averred that on 09.02.1993, the plaintiff wrote to the
defendant Institute applying to avail of leave under Rules 18 and 19 of the
IIT Delhi Schedule D Leave Provisions. On 24.03.1993 by letter No.
IITD/D/VII26/173, the Director, IIT Delhi replied to the plaintiff.
Thereafter, on 24.09.1993, the plaintiff replied thereto. Thereafter, on
30.09.1993, by letter No. IITD/D/VII26/1571, The Director IIT Delhi wrote
to the plaintiff that the issues raised were being examined. On 26.10.1993,
by his Letter No. IITD/D/E1/U!/5956,the Director IIT Delhi wrote to the
plaintiff denying the plaintiff's claims to retrospective leave sanction etc.
The plaintiff sent another notice of demand dated 17.12.1993 regarding
settlement of arrears and also retrospective sanction of leave for the period
of July 19, 1973 to August 19, 1973 and July 19, 1985 to September 19,
1986. In reply to this notice, the then Registrar Amarjit Singh by letter No.
IITD/E1/10095, dated 30.03.1994 informed the Plaintiff that his request
regarding retrospective sanction of leave without pay and of pension had
not been accepted but that of house rent allowance has been approved.
2.5. It is further averred that on 05.07.1994, the plaintiff wrote to Dr.
P.J. Kurien, Chairman, Board of Governors requesting him to treat illegal
termination order as null and void and clear the emoluments due to him as
Professor. Furthermore, the plaintiff wrote to the then Union Minister for
Human Resource Development Mr. Madhavrao Sciendia to intervene in the
matter. On 12.04.1997, the plaintiff requested Mr. Ramakant Khalap, the
then Minister of Law and Justice to look into the matter and advise the
defendant regarding the clearing of dues. On 28.01.2000, on not receiving
Suit no. 6221/2016
Dr. Subramanian Swamy Vs. Director, IIT Delhi Page no. 5 of 36
any further communication from the defendant, the plaintiff filed a Writ
Petition in the Hon'ble Delhi High Court being C.W.P. No. 563 of 2000
praying therein that the defendant pay to the plaintiff without any further
delay the salary and allowances in revised grade from 12.12.1972 till
21.05.1991. By its order dated 01.02.2000, the Hon'ble High Court rejected
the above said petition stating, inter alia, that it cannot be subject matter
of writ under Article 226 of the Constitution and if at all the remedy is
available to the plaintiff, it is by way of a civil suit.
2.6. It is further averred that on 15.06.2000, the plaintiff wrote a letter to
the Chairman, Board of Governors, IIT, regarding settlement of dues. On
16.01.2001, the plaintiff wrote a letter to the Registrar, IIT, Delhi
regarding settlement of dues and under which section of the Statute and
Rules, the defendant is proposing to deduct his earnings at Harvard. On
12.02.2001, Sh.A.S. Malhotra, Registrar, IIT wrote to the plaintiff letter
No. IITD/E1/U2/571 requesting him to submit details of his earning
during the employment at Harvard. The Registrar wrote to Mr. P.M. Nair,
the then Secretary to the President of India vide letter No. IITD/E1/U
14256, dated 18.11.2002 stating that the period spent by the plaintiff at
Harvard University cannot be treated as Extra Ordinary Leave.
Thereafter, on 14.07.2003 Professor R.S. Sirohi, Director, IIT was sent a
requisition from Mr. Mukul Ratra (Dep. Sec.) for taking necessary steps for
making payment of the dues to the plaintiff. On 07.03.2008, the plaintiff
wrote to the Prime Minister requesting his intervention in the matter of
payment of dues. Furthermore, on 11.04.2008, the Director IIT was
requested to furnish the facts of the case to Mr. Yatendra Kumar, Under
Secretary to the Government of India, Ministry of Human Resources and
Development. Finally, on 25.02.2010 the Minister of Human Resource and
Suit no. 6221/2016
Dr. Subramanian Swamy Vs. Director, IIT Delhi Page no. 6 of 36
Development, Mr. Kapil Sibal by his letter No. D.O. No. F.391/2008TSI
(PE) wrote to the plaintiff stating that Fundamental Rule 54 requires
Government of India to adjust the amount received as gainful employment.
In this letter, the plaintiff's request to exclude the period of gainful
employment at Harvard by granting extraordinary leave retrospectively
was not acceded to. Accordingly, the Hon'ble Minister decided that "the
matter is now decided at our end"; and that the plaintiff might avail of any
remedy that he might have in law. The plaintiff has written back to the
Hon'ble Minister disagreeing with his view. In view of the letter of the
Hon'ble Minister, it has become necessary to approach the courts for
resolution thereon.
2.7. About the cause of action, in the plaint, the plaintiff averred that the
cause of action initially arose on 11.12.1972, when the plaintiff was
illegally terminated from the post of Professor at IIT, Delhi. The cause of
action again arose in December, 1972 when the plaintiff filed in the Delhi
High Court the Writ petition C.W.P. No. 1267/1972 challenging his
termination. The cause of action again arose on 06.03.1973 when the
plaintiff files a Suit No. 140 of 1973 in the Court of Senior Sub Judge,
Delhi. The cause of action further arose on 11.02.1976 when the suit got
dismissed on preliminary issues. The cause of action again arose on
20.05.1976 when the plaintiff filed an appeal M.C.A. No. 10 of 1979 before
the District Judge, Delhi. The cause of action again arose on 17.09.1982
when the appeal got dismissed. The cause of action further arose on
13.08.1985 when the plaintiff's revision petition No. C.R.P., No. 163 of 1982
was allowed by the Hon'ble Delhi High Court. The cause of action further
arose in favour of the plaintiff and against the defendant on 20.02.1991
when the termination order of the plaintiff was termed as null and void
Suit no. 6221/2016
Dr. Subramanian Swamy Vs. Director, IIT Delhi Page no. 7 of 36
and that the plaintiff was entitled to be treated as continued in service.
The cause of action again arose on 22.03.1991 when the defendant inquired
whether plaintiff would like to serve as full time Professor. The cause of
action further arose on 21.05.1991 when plaintiff's resignation was
accepted by the defendant and that plaintiff is allowed to draw regular
increments due to him as on 01.10.1972. The cause of action further arose
on 28.04.1992 when the plaintiff was asked by the defendant to opt for
revised pay scales and GPF cum Pension Scheme. The cause of action
further arose in favour of the plaintiff on 28.01.1993 when defendant
stated that the proceedings have been initiated in regard to the settlement
of plaintiff's claim. The cause of action again arose on 17.12.1993 when the
Plaintiff sent a final notice for settlement of arrears. The cause of action
further arose on 05.07.1994 when the plaintiff wrote to P.J. Kurien,
Chairman, Board of Governors of the defendant Institute to clear the
emoluments due to him. The cause of action again arose on 09.08.1995
when the plaintiff wrote to Mr. Madhavrao Sciendia, Minister of Human
Resources and Development to intervene in the matter. The cause of action
again arose on 10.02.1996 when the Plaintiff received requisition from Km.
Shelja, Minister of State in the Ministry of Human Resources and
Development to submit complete details of his earnings at Harvard
University and period of accommodation provided by Government of India.
The cause of action further arose on 12.04.1997 when the plaintiff
requested the Minister of State for Law and Justice to look into the matter.
The cause of action again arose on 28.01.2000 when the plaintiff filed a
Writ Petition No. 563 of 2000. Furthermore, the cause of action arose on
01.02.2000 when the Hon'ble Delhi High Court rejected the aforesaid Writ
Petition without a speaking order. The cause of action again arose on
16.01.2001 when the plaintiff wrote a letter to the Registrar, IIT regarding
Suit no. 6221/2016
Dr. Subramanian Swamy Vs. Director, IIT Delhi Page no. 8 of 36
settlement of dues. The cause of action further arose on 12.02.2001 when
the defendant requested the plaintiff to submit details of earnings during
his employment at Harvard. The cause of action again arose on 18.11.2002
when the Registrar wrote a letter to Mr. P.M. Nair, Secretary to the
President of India stating that the time spent by the plaintiff at Harvard
cannot be treated as Extraordinary Leave. The cause of action further
arose in favour of the plaintiff and against the defendant when Prof. Sirohi
received requisition to take necessary steps for making payment of the
dues of the plaintiff. The cause of action further arose on 11.04.2008 when
the Director, IIT was requested to furnish the facts of the case to the Under
Secretary to the Government of India, Ministry of Human Resources and
Development. The cause of action finally arose on 25.02.2010 when Mr.
Kapil Sibal, Minister of Human Resource Development, Government of
India wrote a letter to the plaintiff by rejecting the claims of the plaintiff.
Hence, the suit is within time.
2.8. In respect of the jurisdiction, the plaintiff averred that the entire
cause of action arose in favour of the plaintiff and against the defendant at
Delhi. As such this Hon'ble Court has got territorial and pecuniary
jurisdiction to try and entertain this suit.
2.9. On these grounds, a prayer was made that a decree for recovery of
salary and allowances in revised grade from 12.12.1972 till 21.05.1991
which comes to Rs.19.50 lacs along with interest @ 18% w.e.f. 20.02.1991
till the date of payment of gratuity and pension to be paid as per today in
favour of plaintiff and against the defendant;
Suit no. 6221/2016
Dr. Subramanian Swamy Vs. Director, IIT Delhi Page no. 9 of 36
3. Pursuant to notice issued, the defendant filed the written statement
interalia raising various preliminary objections that the suit filed by the
plaintiff is barred by limitation and deserves to be dismissed. It is
submitted that the plaintiff is seeking to recover the amounts allegedly due
to him, for the period 11.12.1972 to 21.05.1993 by virtue of the present suit
which has been instituted sometime in June 2011, therefore, the suit is
hopelessly barred by limitation. Even as evident from reading of the plaint,
the claims of the plaintiff have been consistently denied by the defendant
and as stated in paragraph 19 of the plaint, the plaintiff sent a "final notice
of demand" dated 17.12.1993 to the defendant, regarding settlement of
arrears and also retrospective sanction of leave. This notice was also
replied to by the defendant vide letter dated 30.03.1994 whereby the claims
of the plaintiff for retrospective sanction of leave were denied. Thereafter,
the plaintiff even approached the Hon'ble Delhi High Court on 28.01.2000
seeking directions to the defendant herein to pay to him the salary and
allowances in revised grade form 12.12.1972 till 21.05.1991. The following
observations of the Hon'ble High Court in the Judgment and order dated
01.02.2000 in the Civil Writ Petition No. 563/2000 are relevant which are
reproduced as under:
"...I am not inclined to entertain this writ petition FIRSTLY for the
reason that after 20.02.1991 the Petitioner continued the
correspondence for nearly 10 years without taking any action in the
court of law for the enforcement/recovery of his entitlement pursuant
to the relief granted in the aforesaid civil suit. It need hardly be said
that delay defeats equity and equity helps those who are vigilant and
not indolent. The Petitioner has whiled away almost a decade and
SECONDLY that looking into the nature of the relief claimed,
otherwise also the same cannot be the subject matter of a writ petition
since the remedy would be by way of a civil suit if at all the same is
now available to the petitioner."
Suit no. 6221/2016
Dr. Subramanian Swamy Vs. Director, IIT Delhi Page no. 10 of 36
The aforesaid judgment clearly took note of the conduct of the
plaintiff whereby he had not taken any action for enforcement of his
perceived claims despite almost ten years having lapsed. After 11 years of
passing of this judgment also, the plaintiff has chosen to approach this
Court for the same relief of recovery. The institute has not once admitted
any claim of the plaintiff and to the contrary has consistently denied his
claims right from 28.01.1993, 30.03.1994, 12.02.2001, 18.11.2002 and
25.02.2010. It is further submitted that the clever drafting to be seen in
paragraph 32 of the plaint is of no consequence insofar as limitation is
concerned, since there has been no acknowledgement or admission of any
claim of the plaintiff during the period of limitation, which at best (and
without prejudice) may have started on 21.05.1991. The suit is barred by
law of limitation and since these facts arise from a reading of the plaint
itself, the plaint is liable to be rejected.
3.1. The defendant further submitted that the suit filed by the plaintiff
has not been properly valued for the purposes of court fee and jurisdiction
and the appropriate court fee has not been paid. The claim of the plaintiff
is for recovery of Rs. 19.50 lakhs, alongwith interest @ 18% w.e.f.
20.02.1991 till date of payment. It is submitted that even assuming that
the plaintiff has paid the advalorem court fees on the said amount of
Rs.19.50 lakhs, the principal amount inclusive of interest being claimed is
really Rs.70,20,000/ as of February, 2011. It is further submitted that suit
is without any cause of action, having no right to sue, is not entitled to any
relief whatsoever. It is further submitted that from the letters dated
28.01.1993, 30.03.1994, 12.02.2001, 18.11.2002 and 25.02.2010, it clearly
emerges that the claims of the plaintiff have been consistently denied on
account of his failure to provide the details of the amounts earned from his
Suit no. 6221/2016
Dr. Subramanian Swamy Vs. Director, IIT Delhi Page no. 11 of 36
employment for the period between 11.12.1972 till 27.03.1991 in terms of
Fundamental Rule 54 and the fact that his absence from the institute
during this period was not treated as Extraordinary leave. Moreover, as
per the rules of the defendant, the plaintiff is not entitled to any pension or
gratuity since he resigned w.e.f. 27.03.1991.
3.2. On merits, it is averred that the plaintiff was appointed as a visiting
staff member in the Department of Humanities and Social Sciences of the
defendant from 23.01.1970 till June 1970 and was subsequently appointed
as a Professor on probation for a period for one year w.e.f. 01.10.1971 and
his services were terminated by the Board of Governors of the defendant
w.e.f. 11.12.1972. The plaintiff challenged the aforesaid termination order
before the Court of Ld. Sub Judge, Delhi which was dismissed and the said
order was upheld by the Ld. Appellate Court. However, the Hon'ble High
Court in revision has remanded the case for a fresh decision. Thereafter,
vide order dated 02.03.1991, Ld. Sub Judge decreed the suit in favour of
plaintiff holding the order of termination to be illegal. Thereafter, Board of
Governors of defendant decided on 22.03.1991 that plaintiff be advised to
report to the institute immediately, if he decided to serve the defendant.
The plaintiff reported the defendant on 27.03.1991 and on the same day,
opted not to continue as a Professor and requested to be allowed to demit
office with immediate effect and also requested for all amounts due to him
to be settled in accordance with rules. The request of the plaintiff was
considered and it was decided to accept the resignation and allow him to
demit charge from 27.03.1991. For the arrears of pay and retirement
benefits, the Board of Governors of the defendant constituted a committee
wherein it was decided that request of retrospective sanction of EOL
without pay during his employment at Harvard University could not be
Suit no. 6221/2016
Dr. Subramanian Swamy Vs. Director, IIT Delhi Page no. 12 of 36
agreed to in view of provisions of Fundamental Rule 54 (A) and that the
payment to be made to the plaintiff would require the complete details of
the plaintiff's earnings during his service at Harvard University. Moreover,
since the plaintiff had resigned from the institute w.e.f. 27.03.1991, he was
not eligible for any pension or gratuity as per the institute rules. However,
the plaintiff has not submitted the requisite details, instead sought to put
pressure on the defendant by getting letters written from political figures.
The plaintiff has failed to disclose his entitlement to any amount as
claimed.
3.3. It is further submitted that the plaintiff has himself admitted that
he taught Economics at Harvard University, USA for more than 10 years
and also worked there for total 17 months during the intervening period of
July, 1973 to August 1973 and July 1985 to September, 1986 during which
the plaintiff was in gainful employment as envisaged by Fundamental Rule
54. Other contentions of the plaintiff were denied. It is prayed that the suit
deserves dismissal.
4. The plaintiff filed replication to the written statement, reiterating
and reaffirming the contents of the plaint and denying the averments made
in the written statement. It is submitted that the instant suit is for
payment of dues owing to the plaintiff by the defendant, for the period
11.12.1972 to 21.05.1991. During this period, in terms of judgment and
order dated 19.02.1991 passed in suit no. 264/1985 by the Court of Ld. Sub
Judge, First Class, Delhi, the plaintiff is to be treated as continued in
service without interruption in the defendant institute. Therefore, for this
period the plaintiff is entitled to salary, provident fund and extra ordinary
leave without pay. There is presently no dispute regarding salary, gratuity
Suit no. 6221/2016
Dr. Subramanian Swamy Vs. Director, IIT Delhi Page no. 13 of 36
and provident fund. The dispute is only regarding the plaintiff's
entitlement to Extra Ordinary Leave without pay. The defendant has never
refused to make these payments, on the contrary the defendant has all
along till the date of filing of replication has acknowledged to the Ministry
of Human Resources Development, Department of Higher Education stated
that it is ready and willing to so pay once the plaintiff informs the
defendant of the amount earned by him by teaching at Harvard University
for two discrete period in July 1973 to August 1973 and July 1985 to
September 1996. It is further stated that the plaintiff is not bound to
disclose the amount earned at Harvard University during the periods July
1973 to August 1973 and July 1985 to September 1986 because in terms of
Judgment dated 20.02.1991 and the IIT Statutes and Rules, he was
entitled to grant of Extraordinary leave without pay and so was entitled to
earn without let or hindrance at Harvard University during these periods
of EOL. So this amount so earned at Harvard University is irrelevant as
well as IIT is concerned. It is further submitted that in any event, after the
defendant persisted in demanding this information the plaintiff had gone
in detail through his account for the relevant years whereafter he
informed the defendant that taking into account the cost of living he had to
bear by staying at United States as well as costs incurred in travel and in
setting up residence during his stay period infact nothing would be deemed
to have been so earned. It is further submitted that the dispute was finally
settled only on 22.02.2010 when the Chairman of IIT Council, the Ministry
of Human Resources and Development, Government of India passed an
order stating that the plaintiff is not entitled to EOL without pay. It is also
stated that the present suit is within the period of limitation as deemed
extended by the defendant's own acknowledgment in writing. The plaintiff
further submitted that in year 2002 by his office letter DO No. 15
Suit no. 6221/2016
Dr. Subramanian Swamy Vs. Director, IIT Delhi Page no. 14 of 36
Secy/2002 dated 31.10.2002, the Hon'ble President of India in his capacity
as visitor to the defendant institute, wrote to the defendant institute
requiring to know about the settlement of plaintiff's due. By its letter
number IITD/EI/U2/4856 dated 18.11.2002 the defendant wrote to the
President office giving false reason/ interpretation about refusing the
plaintiff application for EOL viz. the request for terminal benefit be
calculated by treating the period of 20 years as EOL cannot be acceded to
as per clause 24 of Schedule D of the Act and statues which states that a
member of staff ceases to be in service of institute if he is continuously
absent from duty for five years, whether with or without leave, unless such
absence is absence on foreign service in India. This information is false
information because the plaintiff had never asked that a period of 20 years
be treated as EOL but he has only sought two discrete period July 1973 to
August 1973 and July 1985 to September 1986 as EOL. It is also averred
that this information was not even conveyed to the plaintiff at the time in
1994 and when he was informed after rejection of his application of EOL
without pay and it is only in 2009 through an application under Right to
Information Act, the plaintiff came to know about the fraud by which his
right to sue for EOL came to his knowledge. For this reason too, in terms of
Section 17 (1) (b) of Limitation Act, the suit is not barred by limitation. It is
further submitted that plaintiff can hardly be bound by his final notice of
demand dated 17.12.1993, as even thereafter the defendant continued to
correspond with him putting forth queries to be answer before granting /
not granting, plaintiff's demand; but never actually quantified what they
were prepared to pay, but always promising to do so, once the plaintiff had
given them the figures of what he has earned at Harvard University. It is
also averred that Fundamental Rule 54 is concerned, it is not applicable to
the plaintiff.
Suit no. 6221/2016
Dr. Subramanian Swamy Vs. Director, IIT Delhi Page no. 15 of 36
5. From the pleadings of the parties, following issues were framed by
Ld. Predecessor on 24.02.2012 for trial, namely:
1 Whether the suit is filed within limitation? OPP
2 Whether this Court has pecuniary jurisdiction to try the
suit?OPP
3. Whether the plaintiff is entitled for recovery of salary and
allowance in revised grade from 11.12.1972 to 21.05.1991?
OPP
4. Whether the plaintiff is entitled for interest, if any, at what
rate?OPP
5. Relief.
6. Both the parties have lead their respective evidence in support of
their case.
6.1 The plaintiff in order to establish its case tendered his evidence by
way of affidavit dated 07.05.2016 Ex.PW1/X and made statement in
consonance with the averments made in the plaint and relied upon the
following documents :
1. Office memo No. IITD/Estt/I/1970/362 dated 28.09.1972 Ex. PW1/1.
2. Office memo no. IITD/Estt/I/1970/950 dated 11.12.1972 Ex. PW1/2.
3. Photocopy of certified copy of judgment & decree dated 20.02.1991
Ex.PW1/3.
4. Letter no. IITD/D/VII26/255 dated 28.04.1992 Ex. PW1/4.
5. Reply of IIT dated 28.01.1993 vide letter no. IITD/D/VII26/50 to
Suit no. 6221/2016
Dr. Subramanian Swamy Vs. Director, IIT Delhi Page no. 16 of 36
legal notice dated Ex. PW1/5.
6. Office memo no. IITD/EI/U2/308 dated 19.01.1993 Ex. PW1/6.
7. Letter dated 24.03.1993 bearing no. IITD/D/VII26/173 Ex. PW1/7.
8. Letter dated 30.09.1993 vide letter no. IITD/D/VII/26/1571 Ex.
PW1/8.
9. Letter no. IITD/D/EI/UI/5956 dated 26.10.1993 Ex. PW1/9.
10. Letter dated 06.01.1994 Ex. PW1/10.
11. Copy of plaintiff's reminder to IIT Mark 'W' (Ex. PW1/11 stands de
exhibited)
12. Letter no. IITD/D/EI/10095 dated 30.03.1994 Ex. PW1/12.
13. Letter no. IITD/D/EI/U2/571 dated 12.02.2001 Ex.PW1/13.
14. Letter no. IITD/E/EI/U2/4256 dated 18.11.2002 Mark 'X' (Ex. PW1/14
stands deexhibited)
15. Letter dated 08.08.2009 Ex. PW1/15 (colly).
16. Letter dated 14.07.2003 Mark 'Y' (Ex. PW1/16 stands deexhibited)
17. Letter dated 11.04.2008 Mark 'Z' (Ex. PW1/17 stands de exhibited)
18. Letter D.O. No. F39I/2008TS.I. (PE) Ex. PW1/18.
19. Plaint is Ex. PW1/19.
20. Fundamental Rule 54 (A) Ex. PW1/20.
21. O.M. no. IITD/EsttI/1970/6052 dated 09.10.1971 Ex. PW1/21 (however,
written as Mark A).
22. Copy of order dt. 11.02.1976 passed in Civil Suit no. 140/1973 Mark 'B'.
23. Order dated 17.09.1982 in MCA no. 10/1979 Mark 'C'.
24. Order dated 13.08.1985 in CRP no. 163/1982 Mark 'D'.
25. Copy of judgment dated 20.02.1991 in suit no. 264/85 Mark 'E'
26. Copy of letter no. IITD/D/VII26/172 dated 18.03.1991 Mark 'F'
27. Reply to letter dated March 1991 Mark 'G'.
28. Copy of letter no. IITD/D/VII26/187 dated 23.03.1991 Mark 'H'
Suit no. 6221/2016
Dr. Subramanian Swamy Vs. Director, IIT Delhi Page no. 17 of 36
29. Copy of letter dated 27.03.1991 Mark 'I'
30. Letter dated 27.03.1991 by plaintiff to defendant Mark 'J'.
31. Copy of letter no. IITD/EI/D/575 dated 21.05.1991 Mark 'K'
32. Copy of letter dated 18.03.1992 Mark 'L'.
33. Letter dated 05.05.1992 Mark 'M'
34. Legal notice dated 05.05.1992 Ex. PW1/22 (however, written as Mark
'N').
35. Letter dated 09.02.1993 Mark 'O'.
36. Letter by plaintiff to defendant dated 24.09.1993 Ex. PW1/23 (however,
written as Mark 'P').
37. Final notice of demand dated 17.12.1993 by plaintiff to defendant Ex.
PW1/24 (however, written as Mark 'Q').
38. Letter dated 12.04.1997 Mark 'R'.
39. Order dated 01.02.2000 in petition no. CWP No. 563/2000 Mark
'S'.
40. Letter dated 15.06.2000 Mark 'T'.
41. Letter dated 16.01.2001 by plaintiff to defendant Mark 'U'.
42. Reply dated 07.06.2010 Mark 'V'
6.2 The defendant examined Sh. N. Bhaskar, Assistant Registrar (Legal)
as DW1 who tendered his evidence by way affidavit which is Ex. DW1/A
and made statement in accordance with the defence taken by the defendant
and relied upon documents as follows:
1. Office Memorandum dated 22.04.1970 is Ex. DW1/1(OSR).
2. Office Memorandum dated 09.10.1972 is Ex. DW1/2 (OSR).
3. Office Memorandum dated 11.12.1972 is Ex. DW1/3(OSR).
Suit no. 6221/2016
Dr. Subramanian Swamy Vs. Director, IIT Delhi Page no. 18 of 36
4. Office Memorandum dated 16.04.1993 is Ex. DW1/4(OSR).
5. Resolution of the Board of Governors of the Defendant, dated
26.05.1994 is Ex. DW1/5(OSR).
6. Office copy of letter dated 31.07.2009 is Ex. DW1/6(OSR).
7. I have heard arguments advanced by Ld. Counsels for the parties
and gone through material available on record including written
submissions filed by Ld. Counsel for parties and my issuewise findings are
as under:
Issue no. 1
7.1 The onus to prove this issue was upon the plaintiff. The plaintiff has
submitted that the present suit is within the period of limitation. The
cause of action finally arose on 25.02.2010 when Sh. Kapil Sibal, Minister
of Human Resource Development, Government of India, wrote a letter DO
no. F. 39I/2008/ TS. I (PE) (Ex. PW1/18) to the plaintiff rejecting the claim
of the plaintiff and asking the plaintiff to take appropriate action in law. It
is further contended that the plaintiff has approached different courts in
the form of writs, appeals and revision and had also written various letters
to the defendant and the responsible authorities. The acknowledgment of
the right of the plaintiff for the dues was affirmed by the defendant
institute in response to various communications with different authorities.
It is further argued that cause of action is still continuing as
acknowledgment/ correspondence still continues where Ministry HRD is
informing Registrar, IIT that Chairman, Council of IITs has decided that
IITD may settle the case without reference to FR54 since these are 1992
Rules whereas case relates to 1991. It is further argued that Hon'ble High
Suit no. 6221/2016
Dr. Subramanian Swamy Vs. Director, IIT Delhi Page no. 19 of 36
Court of Delhi in C.R.P/58/2012 and CM No. 7881/2012, in para no. 12 has
observed:
"However, he was not able to give the answer to the query raised by the
Court as to whether there is any averment made in the application or
in the plaint which shows that respondent's claim was rejected by the
petitioner for the payment of dues prior to the period of three years on the date of filing of suit which may establish from reading of the plaint that the suit was barred by limitation. There was no positive response, except it was argued that the claims are barred by limitation and there is no valid cause of action for filing the suit."
7.2. It is argued by the plaintiff that the application moved by defendant under Order VII Rule 11 CPC for rejection of the plaint being time barred was rejected and revision preferred by the defendant against the said order was too rejected by Hon'ble High Court of Delhi. It is further argued that the suit is very well within the period of limitation.
7.3. Per contra, it is argued by Ld. Counsel for defendant that the present suit was instituted by the plaintiff in year 2011 in which the relief of recovery of salary and allowances in revised grade from 12.12.1972 till 21.05.1991 along with interest w.e.f. 20.02.1991 till the date of payment of gratuity and pension has been claimed. The plaintiff has approached before Hon'ble High Court in Writ Petition seeking the same relief which was summarily rejected 0n 01/02/2000 with the observation as follows:
"I am not inclined to entertain this writ petition firstly for the reason that after 20.02.1991, the petitioner continued the correspondence for nearly 10 years without taking any action in court of law for enforcement/ recovery of his entitlement pursuant to relief granted in the aforesaid civil suit. It need hardly be said that delay defeats equity and equity helps those who are vigilant and not indolent. The petitioner has whiled away almost a decade and secondly that looking into the nature of relief claimed, otherwise also, same cannot be subject matter of writ petition since the remedy could be by way of civil suit, if Suit no. 6221/2016 Dr. Subramanian Swamy Vs. Director, IIT Delhi Page no. 20 of 36 at all the same is now available to the petitioner."
7.4. Ld. Counsel for the defendant argued that after the aforementioned observation of Hon'ble High Court, the plaintiff again continued the correspondence for another 11 years before approaching this Court by way of present suit. The suit ought to have been filed within three years of 26.05.1994 i.e. the date on which the decision of Board of Governors was passed. Even if counted from the date of petition in the Writ Petition, the suit is time barred. It is further argued that plaintiff has also issued two legal notices one dated 03.01.1993 Ex. PW1/22 and second dated 17.12.1993 Ex. PW1/24 claiming his dues, even from these dates, the suit filed in year 2011 cannot be said to be within limitation. Ld. Counsel for defendant further argued that the only manner in which the plaintiff seeks to overcome the bar of limitation is on account of letter dated 25.02.2010 issued by Sh. Kapil Sibal, the then Hon'ble Minister for Human Resource Development in which the concluding part states that the matter is now decided at our end, this letter does not overcome the bar of limitation as this letter simply reiterates the decision already taken by Board of Governors way back in year 1994. The another plea which has been taken by the plaintiff to overcome the bar of limitation alleging that alleged fraud has been played by the defendant, no such plea has been taken by the plaintiff in the plaint and the plea has been taken for the very first time in the replication. Letter dated 18.11.2002 mark 'X' does not constitute any fraud and moreover has no bearing on the decision making process of the defendant while the decision itself was taken on 26.05.1994. It is further argued that it has come up from crossexamination of plaintiff that apart from writing letters no other action was taken by the plaintiff for his alleged dues. It is further argued that the arguments of the plaintiff on the Suit no. 6221/2016 Dr. Subramanian Swamy Vs. Director, IIT Delhi Page no. 21 of 36 basis of judgment passed by Hon'ble High Court in CRP No. 58/2012 the issue of the limitation has been answered in his favour, however the fact remained that Hon'ble High Court in para no. 12 has categorically reflected intention that decision on the issue raised have to be considered on merits, uninfluenced by the observation in the judgment.
7.5. I have given careful consideration to the rival contentions regarding period of limitation and bar to the filing of the suit. In brief, the subject matter is that the plaintiff was initially appointed as Visiting Staff in April 1970 but subsequently he was appointed as Prof of Economics in October 1971 with the condition that he would remain on probation until September 1972. The plaintiff did not agree to the same and finally his services were terminated with effect from 11.12.1972. After litigation, his termination was declared null and void by the Court of Law vide judgment dated 20.02.1991 Ex. PW1/3 which means that the plaintiff was treated to be in services continuously from 11.12.1972. He was offered to join back the defendant organization but the plaintiff decided to assume and demit the office with effect from 27.03.1991. In the circumstances, the issue of payment of his arrears of salary between the period 11.12.1972 (date of termination) and 27.03.1991 (date of resignation) became bone of contention.
7.6 It is also matter of record that between the aforesaid periods for which dues are being claimed the plaintiff has served University of Harvard between July 1973 to August 1973 and then July 1985 to August 1986. The plaintiff was also between these periods was Member of Parliament for Lok Sabha and Rajaya Sabha. The defendant Institute under the circumstances did not pay the arrears for the reason that it Suit no. 6221/2016 Dr. Subramanian Swamy Vs. Director, IIT Delhi Page no. 22 of 36 wanted to deduct the salary drawn by the plaintiff from the above employment with the University as well as other emoluments/perquisites availed being the Member of Parliament. The defendant Institute was attempting to make this deduction based on a rule which is known as FRSR 54 (Financial Rules and Supplementary rules provided by Government of India). The defendant institute made request to the plaintiff to provide the above information but the plaintiff continuously held a view that provisions of FR 54 do not apply to the employees of the defendant Institute.
7.7. The difference in opinion on the applicability of the aforesaid rule resulted into series of communication and litigation between the parties. It is to be noted here that the plaintiff was claiming arrears of salary of about 18 years (from 1972 to 1991) whereas the dispute of applicability of FR 54 was for broken period of 14 months only. Even though the plaintiff did not provide the information of earnings of plaintiff to the defendant Institute for these 14 months but yet at the same time the defendant Institute never decided the claim of the plaintiff by any communication. In case the defendant institute was of the considered opinion that the claim of the plaintiff for period of 14 months was erroneous then it was duly incumbent upon the Institute to formally reject the claim and allow the arrears of salary for the balance period of 16 years which was not covered by the period during which the plaintiff was serving University of Harvard. The defendant institute was competent to withhold the arrears of salary for the period July 1973 to August 1973 and July 1985 to August 1986 for the reason that the information for application of Rule FR 54 was not being provided. However, for the remaining period (16 years) no decision was taken by the defendant Institute. By not doing so, the defendant institute Suit no. 6221/2016 Dr. Subramanian Swamy Vs. Director, IIT Delhi Page no. 23 of 36 kept the matter alive and unascertained over number of years.
7.8. On the other hand, the plaintiff has placed on record series of communications with the defendant institute and other organizations of the Government to show that he was earnestly making an effort to get the matter resolved in accordance with the rules.
7.9. In D.N. Kaul v. State of Himachal Pradesh, (AIR 1985 HP 39), it has been held that the arrears could not be regarded as having accrued due to the petitioner before a formal order awaiting selection grade was made known to him.
7.10. After making efforts with various authorities, the plaintiff received a final word of denial the form of letter dated 25.02.2010 from the Minister of Human Resource Development who is Exofficio Chairman of the defendant institute conveying the decision that FRSR 54 would be applicable in the case of the plaintiff. In this letter the plaintiff has been specifically advised to take appropriate action if so desired in the court of law. After receiving the final word as above, the present suit has been filed within the period of limitation.
7.11. Based on the discussion above and facts of the case the period of limitation cannot be said to have commenced on any of the earlier occasion particularly for the reason that at no point of time defendant institute prior to 25.02.2010 specifically rejected the claim of the plaintiff. The argument of the defendant that the claim was rejected by the decision of BOG dated 26.05.1994 Ex. DW1/5 is not acceptable because in the said decision the claim of the plaintiff was rejected in respect of two period i.e. July 1973 to Suit no. 6221/2016 Dr. Subramanian Swamy Vs. Director, IIT Delhi Page no. 24 of 36 August 1973 and July 1985 to August 1986 whereas the plaintiff was claiming arrears for much larger period of about 18 years. In case, the decision of BOG dated 26.05.1994 was a final decision and rejection of claim of the plaintiff then it should have been acted upon by the defendant by making the balance outstanding as per its own calculation. The defendant kept the matter alive even after 26.05.1994 by even admitting in subsequent correspondences that the plaintiff was entitled to his claim but subject to application of FR 54. The cause of action for not making payment of arrears of salary would arise only and exclusively when the claim is specifically rejected. The documentation filed along with the evidence shows that the claim of the plaintiff was always under consideration of the either side it would not raise any assumption that the claim of the plaintiff was rejected. The rejection has to be in clear and in uncertain terms which would make it an actionable claim. The claim of the plaintiff by applying FR 54 was rejected on 25.02.2010 as under:
Dear Dr. Swamy I have now been able to ascertain the facts regarding your case, which has indeed been pending for a long time.
You claim that you are entitled to the payment of full salary as Professor of Economics in IIT Delhi from December 11, 1972 to March 27, 1991, since the order dated 11 th November, 1972 removing you from service, was set aside on March 2, 1991.
Unfortunately Fundamental Rule 54 requires the Government to adjust the amounts you might have received, as earnings from gainful employment during this intervening period. You have so far chosen not to disclose such earnings.
Your request that the time you were in gainful employment, at Harvard, be excluded by granting extraordinary leave (EOL) retrospectively cannot be acceded to. Such a dispensation would, to my mind, be viewed with suspicion. Apart from that, legal benefit would be violation of a mandatory requirement. I might add that the object of FR 54 is salutary. It seeks to compensate those who in the intervening period could not get any gainful employment but not Suit no. 6221/2016 Dr. Subramanian Swamy Vs. Director, IIT Delhi Page no. 25 of 36 for those who perhaps earned more than they would have, had they continued in service.
The matter is now decided at our end. You may please, in the context of this response, avail of any remedy that you might have in law.
With warm regards, Yours sincerely, (Kapil Sibal) In the letter above the ExOfficio Chairman of the Institute admitted the pendency of claim of the plaintiff for a long time and after giving reasoning has finally decided the matter in concluding part of the letter. The final word of denial through this letter in respect of grant of EOL as well assertion of applicability of FR made it actionable and thus the period of limitation would commence from the date of letter.
7.12. The entire chain of events can also be looked from the prospective that the plaintiff/ employee was terminated from the services and then reinstated by the court annulling the order of termination. The arrears of salary were demanded from the defendant/ employer which were admitted but the dispute was on two accounts:
a) Whether the plaintiff was entitled to sanction of Extra Ordinary Leave (EOL) for two periods (July 1973 to August 1973 and July 1985 to August 1986) during which he was serving with Harvard University? In case his this request was acceded to then the defendant institute would have treated as this period of absence as the period for which the plaintiff was not entitled to arrears and for the remaining period the Suit no. 6221/2016 Dr. Subramanian Swamy Vs. Director, IIT Delhi Page no. 26 of 36 amount due would have been paid. However, this claim of EOL was not accepted without citing any reason.
b) The second issue which then arose was that whether provisions of FRSR 54 are applicable on the plaintiff and if these are applicable when were these enforced as per the employment contract with the plaintiff. Now this question assumed greater significance for the reason that it involved interpretation of the Statute and powers of various authorities created under the Statute.
The plaintiff has been consistently agitating the matter not only with the defendant institute but also with its Governing Council which is headed by the Minister in charge of Higher Education with the Government of India. It has been argued by the defendant that the plaintiff has been attempting to put pressure by approaching various government authorities but the contention is unfounded because under the defendant institute was created by Institute of Technology Act 1961 and Institute of Technology (Amendment) Act 1963 (hereinafter referred to as the Parent Acts). These Statutes created and empowered Board of Governors (BOG) to frame the governing rules for its employees. The Chairman of the BOG is appointed by the Visitor (the President of India). It need to be appreciated that this appointment would be issued in the name of the President on advice of Council of Ministers. Further, Section 33 of the Parent Statute provides for constitution of "the Council" for variety of functions as defined which also includes Rules laying down condition of service of employees. The Chairman of the Council as mentioned above is the Minister in charge of Higher Education (exofficio). In this background the role of various functionaries of the Govt. of India assumes significance. The plaintiff was Suit no. 6221/2016 Dr. Subramanian Swamy Vs. Director, IIT Delhi Page no. 27 of 36 continuously availing alternative remedy with various authorities and such an effort even if it spans for two decades cannot be faulted with an argument that he should have agitated the matter in court of law. This becomes more conspicuous when it is seen in the background that the claim of the plaintiff was never formally rejected. Hon'ble Delhi High Court also in C.R.P/58/2012 and C.M. No. 7881/2012 in para no. 12, as discussed above, observed that claim of the plaintiff was not rejected prior to the period of three years on the date of filing of suit.
7.13. In view of the discussion above, the issue no. 1 is decided in the favour of the plaintiff and against the defendant.
Issue no. 2 7.14. It is a matter of record that this Court has pecuniary jurisdiction to entertain the present suit. The parties during the suit proceedings did not dispute the pecuniary jurisdiction of this Court, hence this issue is decided accordingly.
Issue no(s). 3 and 4.
7.15. These issues are taken together because these are interlinked and connected. The onus to prove these issues was upon the plaintiff. The plaintiff has alleged that plaintiff after his termination was set aside by the court of law was entitled for recovery of salary and allowances in revised grade from 11.12.1972 to 21.05.1991 along with interest on average inflation rate basis. It is pertinent to mention that the defendant has not resisted the claim of the plaintiff regarding above said arrears but the only objection put forth by the defendant was that provisions of FRSR 54 would apply in this case.
Suit no. 6221/2016Dr. Subramanian Swamy Vs. Director, IIT Delhi Page no. 28 of 36 FRSR 54 is a provision which provides that in case an employee is reinstated by an order of the court of law and the question of arrears of salary arises then the earnings of the employee during the period of termination would be reduced from the claimed arrears. The plaintiff of the present suit contends that FRSR54 was not applicable in his case as it was enforced subsequently. The plaintiff also argued that he has received a letter dated 05.07.2018 from the Chairman of IIT Council that this provision does not apply to his case and the relevant portion of said letter is reproduced as under: "The Chairman IIT Council, Ministry of Human Resources, Development, after due examination of provision of law, has already come to a conclusion that the claim of the Dr. Swamy has to be settled with reference to clause 13 (14) (ii) of the Statues of IIT Delhi only and any attempt to apply provision of FR 54 is incorrect. The Ministry has advised for implementation of above Director since the legal position is beyond any doubt. The matter has complicated because IITDelhi tried to impose a rule which is not legally tenable and therefore, the matter is looked up in the Courts of Law. Repeated advise of Ministry in the matter has gone unheaded by IIT Delhi
4. It is therefore, requested that advise of Ministry dated 11.06.2018 is implemented at the earliest as there is no perhaps no further need to constitute another special empowered committee in the matter."
7.16. It is argued by the plaintiff that the contents of the letter clearly demolished the case of the defendant and it is necessary to take into consideration the decision of the Chairman. It is further argued that even from the evidence adduced by the defendant it has come up that FR54 was enforced in IITs much after accepting the resignation of plaintiff thus same cannot be applied retrospectively. Lastly, it is argued that his employment Suit no. 6221/2016 Dr. Subramanian Swamy Vs. Director, IIT Delhi Page no. 29 of 36 at Harvard University resulted in to nil gains because the cost of living abroad was very high thus nil has to be deducted from the claimed arrears.
7.17. Per contra, it is argued by Ld. Counsel for the defendant that there is no pleading or prayer by the plaintiff for declaration that FR54 does not apply and the letter / directives issued by the Government of India in no way binding upon the Courts. There is sufficient evidence on record to show that FR54A was enforced in terms of resolution of Board of Governors in year 1965, 1989 and thereafter on 23.07.1992. The notification in this behalf Ex.DW1/4 being notification dated 16.04.1993 which stands proved. It is further argued that as per the said notification, the provisions of CCS(Conduct) Rules, 1964, CCS (CCA) Rules 1965, Fundamental and Supplementary Rules, FR and SR, Medical Attendance Rules and General Finance Rules of Government of India were applicable. It is also provided in the said rule that in the event of any question relating to the interpretation or relevancy of rules, the decision of Board of Governor would be final. It is further argued that plea of plaintiff that FR could not be made applicable retrospectively to his case was without any basis since the Rules were already enforced from the year 1965. It is further submitted that as per the proviso of the Statutes, the payment of allowance under clause (ii) and (iii) shall be subject to all other condition under which such allowances are admissible.
7.18. Ld. Counsel for the defendant further argued that as a matter of fact the plaintiff has himself complied with the requirements of the provision as contained in the Statutes as it suited to him. The plaintiff was asked vide letter dated 21.05.1991 Mark 'K' to submit information regarding his income and emoluments and other sources during the period 11.12.1972 to Suit no. 6221/2016 Dr. Subramanian Swamy Vs. Director, IIT Delhi Page no. 30 of 36 27.03.1991. The plaintiff in letter dated 18.03.1992 Mark L although did not specifically referred FR 54A but in substance complied with the same and disclosed his service as a Member of Parliament and also that he was gainfully employed as visiting professor in Harvard University. It was only through this compliance and disclosure by the plaintiff that the defendant came to know of said gainful employment. However, it did not suit the plaintiff to disclose the amount of emoluments earned by him at Harvard University and same has still not been informed even though every other source of income earned by him with details to house rent and other perks have been informed. It is further argued that during the cross examination of the plaintiff duly recorded on 03.02.2018 the stand of the defendant was virtually admitted by the plaintiff by answering that yes the Government of India has in writing communicated to the IIT after consulting both department of personal and Ministry of Law that FR54 does not apply to the IIT.
7.19. It is further argued that plaintiff has sought to place on record letter written by Government of India to the defendant that provisions of FR does not apply however in response to this letter the Chairman, Board of Governor has suggested that case is subjudice and that if required a committee may be constituted to examine the issue. It is further submitted that the said letter do not advance the case of the plaintiff in the present suit because the view of the government contained in the letter was not binding upon the Courts moreover no admission and acceptance thereof has been contained in any of the correspondence.
7.20. At the outset it is noted that the aforesaid FR54A is part of the Rules enacted by the Government of India known as Fundamental Rules and Suit no. 6221/2016 Dr. Subramanian Swamy Vs. Director, IIT Delhi Page no. 31 of 36 Supplementary Rules (FRSR) to regulate the issues of service conditions of employees. These rules have been adopted by various states and other organizations.
In the present case, the issue has to be seen from the historical perspective that defendant institute was created by Institute of Technology Act 1961 and Institute of Technology (Amendment) Act 1963 (hereinafter referred to as the Parent Acts). These Statutes empowered Board of Governors (BOG) to frame the governing rules for its employees. However, immediately after raising of the Institute the BOG in the meeting held on 13.03.1965 adopted resolution number 34/65 as under:
"Resolved that the recommendation of the Council that wherever no rules had been framed by the Institute to deal with a particular matter, the Central Government Rules would become applicable, be accepted."
7.21. Thereafter, BOG reconsidered the above in the meeting held on 13.01.1989 and the following resolution no. 32/89 was adopted:
"Resolved that, pending amendment of the Statutes, such government of India orders which are considered more beneficial to the employees than the existing provisions in the Statutes and which are adopted by the board of governors, be implemented in the Institute."
7.22. The defendant Institute was still facing certain problems and therefore Agenda note was prepared on 23.07.1992 specifically mentioning the above two resolutions i.e. 34/65 and 32/89 and in paragraph 2 of the agenda note, following was mentioned: Suit no. 6221/2016 Dr. Subramanian Swamy Vs. Director, IIT Delhi Page no. 32 of 36 "2. As a result of automatic application of Government of India Rules whereas no rules have been framed by the Institute in terms of the Board of Governors resolution no. 34/65, a number of complications are likely to arise. To obviate such complications, it is proposed that resolution numbers 34/65 and 32/89 may be superseded and a new resolution be passed."
7.23. The above agenda note was accepted in the meeting of BOG held on 23rd July, 1992 and resolution no. 141/1992 was passed and adopted as under: "Resolved that in supersession of resolution no. 34/65 and 32/89, if on a particular matter no rules are provided in the Statutes of the Institute, the Government of India Rules on the subject may be applied if and after they are adopted by the Board. However, in cases where the Institute feels that the Government of India Rules on the subject need modification in view of Institute's conditions, the institute may frame its own rules with the approval of the Board of Governors.
Resolved further that pending amendment to the Statutes such Government of India orders which are considered more appropriate than the existing provisions in the Statutes and which are adopted by the Board of Governors, be implemented in the Institute."
7.24. After the resolution 141/1992 above having adopted on 23.07.1992, the Institute issued an Office Memorandum dated 16.04.1993 specifically adopted certain Government of India Rules which also included the Fundamental and Supplementary Rules popularly known as FRSR.
7.25. It transpires from the above that the Parent Statute has vested the entire power in the body constituted under the Act and named as the Board of Governors (BOG) as provided under Section 13 of the Act. The rule making/ Statute powers have been specifically vested in the Board and thus the rules would get implemented only if these are specifically adopted Suit no. 6221/2016 Dr. Subramanian Swamy Vs. Director, IIT Delhi Page no. 33 of 36 by the Board of Governors. In all the resolutions above, a specific emphasis has been placed on the fact that the rules have to be approved and adopted by the Board of Governors. In this background, it is obvious that none of the resolutions (i.e. 34/65 and 32/89) was acted upon by the Institute because there is no document to show that even if these resolutions allowed and permitted Government of India Rules but yet none of the rules was specifically approved by the Board of Governors for implementation. The Parent Act specifically empowers and also cast an obligation upon the institute to obtain specific approval of Board of Governors of any rule before its implementation. There is no document which could show that Board of Governors has specifically approved application of FRSR on the employees of the institute. It was only when the aforesaid Office Memorandum dated 16.04.1993 was issued exhibiting that the defendant institute adopting the due procedure laid out in the Parent act obtaining the approval of Board of Governors for adopting specific Government of India Rules for its employees. Until and unless the procedures contained in the Parent Act are followed, no rules and regulations would get the shape of implementable rules. It is the concept of delegated legislation that nothing beyond the Parent Act can sustain on its legs. The Parent Act provides that the defendant institute to notify its own service rules but the Board of Governors has vested power to frame such rules, therefore and unless the rules are specifically framed or adopted, it cannot be assumed to have been adopted. Even the Board of Governors does not carry power to make an omnibus statement/ resolution that each and every sundry rule of Government of India is adopted unless and until each one is specifically considered and adopted by the Resolution of the Board. The Parent Act has clearly laid down boundary within which the Board of Governors is empowered to make rules for the effective running of the institute. This Suit no. 6221/2016 Dr. Subramanian Swamy Vs. Director, IIT Delhi Page no. 34 of 36 power is not unbridled but governed by the policy framework of the institute and objectives laid down in the Parent Act.
7.26. It is therefore certain that until and unless by virtue of resolution 141/1992 the Board of Governors were empowered to consider the rules to be adopted and thereafter applying its mind on each category of rule such as CCS Rules, CCS (CCA) Rules, FRSR, Medical Attendance Rules and GFR that these were adopted. The Memorandum shows that the Board of Governors applied its mind on each such rule and thereafter came to a conclusion that in consideration of powers vested in Board of Governors by the Parent Act, these are the rules which can be notified for application on the employees of the institute. These rules cannot be implemented prior to 16.04.1993 merely by virtue of resolutions as contended by the defendant because there is no specific adoption and approval by the Board of Governors on each category of rules.
7.27. The plaintiff is entitled to arrears of salary as admissible to him without making reference to Rule 54A of FR. This view has also been endorsed by number of communications sent to the defendant institute by the Government of India after making reference to the Department of Personnel and Training as well as Ministry of Law & Justice.
7.28. After having decided the issue that Rule 54A is not applicable in this case, the claim the plaintiff has been examined which has been submitted in the form of "Due statement" making a claim of Rs. 8,58,585/ being the amount due as arrears. The plaintiff has claimed that he was entitled to charge rate of inflation on this amount from the date due till the filing of suit. In this regard, it may be mentioned that the matter has been kept in Suit no. 6221/2016 Dr. Subramanian Swamy Vs. Director, IIT Delhi Page no. 35 of 36 abeyance not at the instance of either defendant or plaintiff exclusively and in such event the defendant cannot be saddened with liability of inflation. The calculation made by the plaintiff has not been controverted and the plaintiff is entitled to decree of the same without benefit of inflation. The issue no. 2 is decided in favour of the plaintiff as per the discussion above. The plaintiff would be entitled to interest @ 8% per annum on such sum from the date of filing of suit till its realization. There would be no interest paid for the period before the filing of suit because the plaintiff at his own volition was pursuing the matter with employer and other higher authorities.
7.29. In view of the discussion above, issue no(s) 3 and 4 are partly decided accordingly in favour of plaintiff.
Relief
8. In view of findings given in issue no(s) 1, 3 and 4, the suit of the plaintiff is partly decreed to the extent that plaintiff is entitled for recovery of Rs.8,58,585/ towards arrears of salary and allowances in revised grade from 12.12.1972 till 21.05.1991 alongwith interest @ 8% per annum from date of filing of suit till its realization and cost. Decreesheet be prepared accordingly.
File be consigned to record room.
Digitally signedVINEETA by VINEETA GOYAL Pronounced in open Court GOYAL Date: 2019.04.09 14:07:41 +0530 on 06.04.2019 (Vineeta Goyal) Additional District Judge03, South/Saket/New Delhi Suit no. 6221/2016 Dr. Subramanian Swamy Vs. Director, IIT Delhi Page no. 36 of 36