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2023 DIGILAW 528 (JK)

Om Parkash Bhola v. University of Jammu

2023-09-20

PUNEET GUPTA, SANJEEV KUMAR

body2023
JUDGMENT : Sanjeev Kumar, J. 1. This intra-Court appeal by the appellant is directed against judgment dated 25.10.2017 passed by a learned Single Judge of this Court [“the Writ Court”] in SWP No. 1749/2013 titled Om Parkash vs. University of Jammu and others, whereby the writ petition filed by the appellant herein seeking quashment of order No. Estab/13/3240 dated 24.05.2013 issued by the respondent-University has been dismissed. 2. Before we advert to the grounds of challenge urged by learned counsel appearing for the appellant, we deem it appropriate to set out few facts germane to the disposal of controversy raised in this appeal. 3. The appellant claimably joined the services of the respondent-University as Junior Engineer on 26.09.1965 and was promoted as Assistant Engineer in 1972 and thereafter, as Executive Engineer on 01.04.1986. After rendering more than 15 years service as Executive Engineer in the Engineering Department of respondent-University, the appellant retired on superannuation on 30.11.2001. At the time of his retirement, the appellant was holding the pay scale of Rs.12000-420-18300 (pre-revised). The case set up by the appellant before the Writ Court was that on 15.06.2012, he filed an application for rationalization and re-fixation of his pension contending therein that he was entitled to get minimum pension of 50% of the basic pay scale in the revised pay scale of Rs.37400-67000 with grade pay of Rs.87000 on a par with the other pre-2006 University retirees i.e. Readers/Lecturers (selection grade)/Deputy Librarian/Assistant Librarian(selection grade) and Deputy Registrar etc. The respondent-University did not consider the application of the appellant. 4. The appellant filed SWP No. 2265/2011 which came to be disposed of by the learned Single Judge of this Court vide order dated 08.04.2013 by directing the respondent-University to accord consideration to the case of the appellant in terms of Government of India, Ministry of Human Resource Development (Department of Higher Education) orders dated 04.06.2009 and 15.12.2009 read with condition No.V of office Memo dated 31.07.2009 within a period of two months provided the appellant was eligible. 5. In compliance to the aforesaid directions passed by the learned Single Judge, the respondent-University considered the grievance of the appellant and passed a consideration order dated 24.05.2013. The claim put forth by the appellant for re-fixation of his salary on a par with other University retirees i.e Readers/Lecturers and Deputy Registrars etc. was rejected. 5. In compliance to the aforesaid directions passed by the learned Single Judge, the respondent-University considered the grievance of the appellant and passed a consideration order dated 24.05.2013. The claim put forth by the appellant for re-fixation of his salary on a par with other University retirees i.e Readers/Lecturers and Deputy Registrars etc. was rejected. This rejection of his claim brought the appellant once again to this Court by way of SWP No. 1749/2013. 6. In the aforesaid writ petition which was disposed of by the Writ Court vide judgment impugned, the appellant, apart from challenging the consideration order dated 24.05.2013, also prayed for a writ of mandamus directing the respondent-University to revise and fix the pension of the appellant in the pay band 4 of Rs.37400-67000 with AGP 8700 w.e.f. 01.01.2006 in terms of University Council decision dated 06.10.1989 read with decision dated 25.08..1987 and Government of India, Ministry of Human Resource Development order/decision dated 04.04.2009 and 15.12.2009 read with condition No. V of office Memorandum dated 31.07.20909. 7. The claim for revision of pension was predicated by the appellant on the ground that he was placed in the UGC grades from time to time and was always treated on a par with the Deputy Registrar and equivalent of the respondent-University and, therefore, in the matter of giving the benefit of 6th Pay Commission recommendations to the employees of the University including the University retirees of the period prior to 01.01.2006, the appellant could not have been discriminated vis-à-vis his counterparts in the teaching and administrative wings of the University. The writ petition was opposed by the respondent University. In the reply affidavit filed by the respondent-University, it was pleaded before the Writ Court that the appellant retired from the respondent-University as an Executive Engineer on 30.11.2001, and at the time of his retirement, the post of Executive Engineer was carrying the pay scale of Rs.12000-420-18300. The posts of Deputy Registrar, Deputy Finance Officer and the Deputy Controller of Examination were also carrying the same pay scale. However, as per the letter of Ministry of Human Resource Development (Department of Higher Education) dated 15.12.2009, the pre-2006 pensioners of Universities were put in three categories i.e. A, B and C. The Deputy Registrar, Deputy Finance Officer and the Deputy Controller of Examination were indicated in category "C". However, as per the letter of Ministry of Human Resource Development (Department of Higher Education) dated 15.12.2009, the pre-2006 pensioners of Universities were put in three categories i.e. A, B and C. The Deputy Registrar, Deputy Finance Officer and the Deputy Controller of Examination were indicated in category "C". They were put in the revised pay scale of Rs.37400-67000 with grade pay of Rs.8700 for the purpose of determining their pension subject to the condition that the pensioners under the aforesaid category would be entitled to the aforesaid revised pay scale only if they had completed five years service in the pre-revised pay scale of Rs.1200-420-18300 at the time of their retirement. This benefit of higher pay revision, it is contended by the University, was not available to the retiree-officers other than those mentioned in categories A, B and C. 8. The respondent-University in its reply affidavit justified the consideration order dated 10.04.2017 by stating that the pay of the appellant stood already revised to the corresponding scale of pay in the revised structure as per condition V of office memorandum dated 31.07.2009 and his pension, accordingly, revised. 9. The Writ Court considered the entire issue in the light of rival contentions of the parties and material on record and came to the conclusion that the post of Executive Engineer was not mentioned in any of the categories i.e A, B and C indicated in the communication dated 15.12.2009 and, therefore, the benefit of higher revised pay scale which was given to the officers in the categories A,B and C of the communication dated 15.12.2009 was not available to the appellant. The Writ Court declined to interfere with the order of consideration passed by the respondent-University in the exercise of its discretionary power vested in it as an administrative authority and, resultantly dismissed the writ petition. 10. Having heard learned counsel for the parties and perused the material on record, we are of the considered opinion that the judgment passed by the Writ Court is correct both on facts and in law and, therefore, does not call for any interference by us in this appeal. 11. It is not in dispute that the appellant having retired on 30.11.2001 is a pre-2006 pensioner of the respondent-University. 11. It is not in dispute that the appellant having retired on 30.11.2001 is a pre-2006 pensioner of the respondent-University. It is also not disputed before us that at the time of his retirement, the appellant was holding the post of Executive Engineer which was carrying pay scale of Rs.12000-420-18300 (un-revised). It is this pay scale which some other posts in the University like Readers/Lecturers (selection grade)/Deputy Librarian/Assistant Librarian (selection grade), Deputy Director of Physical Education/Assistant Director of Physical Education (selection grade), College Director of Physical Education(selection grade), Deputy Registrar, Deputy Finance Officer, Deputy Controller of Examination were also carrying. 12. Admittedly, the Government of India, Ministry of Personnel, Public Grievances and Pensions, vide office Memorandum dated 01.09.2008 laid down the detailed procedure and guidelines for implementation of Government's decision on the recommendations of Sixth Central Pay Commission in respect of revision of pension of pre-2006 pensioners/family pensioners. As per clause 4.1 of the Office Memorandum, it was clearly provided that the pension of existing pre-2006 pensioners will be consolidated with effect from 01.01.2006 by adding together; (i) the existing pension; (ii)Dearness pension where applicable;(iii) Dearness relief upto AICPI (IW) average index 536 (Base year 1982+100). Clause 4.2 of the office memo, however, provided that fixation of pension of pre-2006 retirees shall be subject to the condition that the revised pension in no case shall be less than 50% of the minimum of the pay in the pay band plus the grade pay corresponding to the pre-revised pay scale form which the pensioner had retired. Needless to say that the Sixth Pay Commission Recommendations were also implemented in respect of Teachers and other equivalent cadres in the University and Colleges and also for the post of Registrar/Deputy Registrar etc. 13. From a reading of communication dated 04.06.2009 issued by the Government of India, Ministry of Human Resource Development (Department of Higher Education), the Fitment Table (Tables No. 1 to 9) for fixation of pay of the existing incumbents who were in position as on 01.01.2006 in various categories or posts as indicated in the Table was forwarded by the Deputy Secretary to the Government of India, Ministry of Human Resource Development (Department of Higher Education) for appropriate action at the end of latter. 14. 14. As is evident from the Fitment Table No.9, the pre-revised pay scale of Rs.12000-420-18300 in respect of the incumbents Deputy Registrar/Deputy Finance Officer/Deputy Controller of Examination with 5 years service in the Universities or deemed to be Universities only was revised to Rs.37400-67000 plus Grade Pay 8700. However, in respect of other cadres/posts in the University, the pre-revised pay scale of Rs.12000-420-18300 was revised to 15600-39100 plus GP 7600. Undoubtedly, the appellant, at the time of his retirement was not holding the post of Deputy Registrar/Deputy Finance Officer/Deputy Controller of Examination and, therefore, the special benefit of higher revised pay scale of Rs.37400-67000 with GP of Rs.8700 envisaged for the Deputy Registrars/Deputy Finance Officer and Deputy Controller of Examination with 5 years of service was not per se applicable to the appellant. The appellant, however, places reliance upon the communication of the Government of India, Ministry of Human Resource Development (Department of Higher Education) dated 15.12.2009 to contend that the benefit of higher pay scale envisaged for Deputy Registrars/Deputy Finance Officer and Deputy Controller of Examination was also available to other equivalent posts in the University for which the Ministry of Human Resource Development or UGC had not made special dispensation. 15. We have carefully examined this contention of learned counsel for the appellant and having gone through the contents of communication dated 15.12.2009, we clearly find that the Readers and Lecturers, who were also carrying the pre-revised pay scale, which was equivalent to the pay scale of Executive Engineer held by the appellant at the time of his retirement were put in the higher pay scale of Rs.37400-67000 with Academic Grade Pay of Rs.9000 subject to the condition that such incumbents/retirees had completed 3 years service in the pre-revised pay scale. Similarly, the officers put in category "C" i.e. Deputy Registrars/Deputy Finance Officer and Deputy Controller of Examination were also held entitled to higher revised pay scale of Rs.37400-67000 with Grade Pay of Rs.8700, but this was also subject to the condition that these incumbents/retirees had completed 5 years of service in the pre-revised pay scale. The communication dated 15.123.2099, as is apparent from its bare reading, has created three categories of officers i.e. A, B and C and does not envisage any other post equivalent to such posts placed in the aforesaid categories. The communication dated 15.123.2099, as is apparent from its bare reading, has created three categories of officers i.e. A, B and C and does not envisage any other post equivalent to such posts placed in the aforesaid categories. In any case, the post of Executive Engineer is not one of the posts mentioned in the communication dated 15.12.2009. 16. The plea of the appellant that he was all along treated on a par with Deputy Registrar of the University in the matter of pay scale and revision of pay scale, as such, the respondent University could not have subjected the appellant to hostile discrimination by not revising the pay scale of Executive Engineer on the analogy of the Deputy Registrar with 5 years service in the pre-revised pay scale, is perhaps a plea which can trace its basis to Article 14 of the Constitution of India. We cannot examine this aspect of the matter raised by learned counsel for the appellant, for the reason that no such case was ever set up by the appellant before the Writ Court nor the communication dated 15.12.2009 issued by the Government of India (Ministry of HRD) was assailed by the appellant. The respondent University, thus, committed no illegality or impropriety in giving effect to the communication dated 15.12.2009 in letter and spirit.. It is not the grievance of the appellant that the pay scale attached to the post of Executive Engineer at the time of his retirement has not been revised. 17. As we have mentioned by reference to Fitment Tables, the pay scale of Rs.1200-420-18300 has been revised to Rs.15600-39100 plus GP 7600 and the benefit of such revision has been given to the appellant by effecting his pay revision in terms of Office Memorandum dated 01.09.2008 issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions(clause 4.1 and clause 4.2). 18. The grievance of the appellant that in the matter of revision of pension in his case, the University has acted even in violation to the Office Memorandum issued by the Financial Advisor to the Universities i.e Commissioner Secretary to the Government, Department of Finance bearing No. 4/78(88)-II dated 31.07.2009 is also misconceived and deserves to be considered only for rejection. The grievance of the appellant that in the matter of revision of pension in his case, the University has acted even in violation to the Office Memorandum issued by the Financial Advisor to the Universities i.e Commissioner Secretary to the Government, Department of Finance bearing No. 4/78(88)-II dated 31.07.2009 is also misconceived and deserves to be considered only for rejection. There is no dispute with regard to the fact that in terms of clause (v), the existing pay scales of the posts not specifically identified in the package of revision of UGC scales, but carrying UGC pay scales presently in the two Universities will also be revised to the corresponding scales of pay in the revised pay structure. There is also no dispute with regard to the fact that the UGC pay scale of Rs.12000-420-18300 which the post of Executive Engineer carried at the time of retirement of the appellant was also entitled to be revised to the corresponding scale of pay in the revised pay structure. 19. As is evident from the Fitment tables and the communications on record, the pay scale of Rs.12000-420-18300 was revised to two pay-scales Pre-revised Revised (i) Rs.12000-420-18300 (a) 15600-39100 plus GP 7600 (b) 37400-67000 plus GP 8700 (c) 37400-67000 plus GP 9000 20. The revised pay scale indicated as "b" above was only in respect of Deputy Registrar/Deputy Finance Officer/Deputy Controller of Examination having five years service in pre-revised pay scale of Rs.12000-420-18300. Similarly, pay scale indicated as "c" was only in respect of Lecturers/Readers having three years service in pre-revised pay scale of Rs.12000-420-183000. It was pay scale indicated at (a) above which was revised pay scale for Deputy Registrar/Deputy Finance Officer/Deputy Controller of Examination having less than five years service and other equivalent isolated cadre. The appellant being in the isolated cadre of University was, thus, entitled to pay scale of Rs.15600-39100 plus GP 7600 which was also the revised pay scale of pre-revised pay scale of Rs.12000-420-18300. 21. It is as per the aforesaid revised pay scale and also having regard to clause 4.1 and 4.2 of the office memo dated 01.09.2008, the pension of the appellant was also revised. 22. In the face of clear admitted position emerging from reading of various communications referred to hereinabove, the claim of the appellant for higher pay scale of Rs.37400-67000 plus GP 8700 is not tenable in law. 22. In the face of clear admitted position emerging from reading of various communications referred to hereinabove, the claim of the appellant for higher pay scale of Rs.37400-67000 plus GP 8700 is not tenable in law. The appellant, if he was aggrieved by the classification of officers made in terms of communication dated 15.012.2009 issued by the Government of India, Ministry of HRD (Department of Higher Education), should have challenged the aforesaid communication alleging discrimination vis-à-vis his counterparts who had served and retired prior to 01.01.2006 in other wrings/Departments of the University. He, however, chose not to take that course and instead predicated his claim upon his own interpretation of the office memo dated 15.12.2009 and office memo of the Financial Advisor of Universities dated 31.07.2009. 23. Be that as it may, the consequence is that the appellant has failed to make out a case for interference by us with the judgment impugned passed by the Writ Court or for issuance of any direction to the respondent University to treat him on a par with Deputy Registrar/Deputy Finance Officer/Deputy Controller of Examination who as per the appellant stood retired from the University like the appellant prior to 01.01.2006 in the pre-revised pay scale of Rs.12000-420-18300. 24. For the foregoing reasons, we find no merit in this appeal and the same is, accordingly, dismissed.