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2024 DIGILAW 845 (JHR)

Arun Kumar Paswan v. Union of India

2024-10-01

S.N.PATHAK

body2024
JUDGMENT : S.N. PATHAK, J. 1. Heard the learned counsel for the parties. 2. The petitioner has challenged the decision contained in letter dated 3.7.2020 (Annexure-18), by which the respondent-IIT(ISM), Dhanbad has rejected the claim of the petitioner for grant of pay revision in the scale of Rs. 2000-3500/- with effect from September, 1990 in view of UGC guidelines. Upon quashment of the said order, the petitioner has prayed for the arrears of salary as well as other consequential benefit etc. from the date of issuance of UGC guidelines with effect from September, 1990. Further prayer has been made to allow him the benefit of 1st ACP with effect from 29.09.2005 instead of 23.08.1998 and 2nd MACP with effect from 29.09.2013 instead of 23.08.2008, as also 3rd MACP from due date. The Facts 3. The facts as demarcated in the writ petition are that an advertisement was published by the Indian School of Mines, Dhanbad on 22.09.1987 inviting applications for appointment on various posts including the post of Computer Operator. The eligibility qualification for the post of Computer Operator was that a candidate must have the degree of Bachelor in Science with training in Computer Operation. There were two pay scales prescribed for the post of Computer Operators in the pay scale of 1640-2900 (Sr. Grade) and Rs. 1400-2300 (Jr. Grade). The petitioner having the degree of B.Sc and diploma in Computer Programming applied for such appointment and finally he was appointed as Computer Operator in the Jr. Grade scale of Rs. 1400-2300 vide appointment letter dated 23.08.1988. Meanwhile, the pay scale of Senior Technical Assistants (STA)/Senior Scientific Assistants (SSA) has been enhanced by the respondent-ISM to Rs. 2000-3500/- with effect from 01.02.1988. Thereafter, the pay of the petitioner was also revised along with others in the Senior Grade pay scale of Rs. 1640-2900/- with effect from 1.9.1989. It is the main case of the petitioner that in the month of September, 1990, the UGC directed the Universities regarding the revised pay scale & staffing pattern and for this purpose, the educational qualification and experience required for the purpose of recruitment has been enhanced and as per this, the qualification of Computer Operators was enhanced to be B.Sc. with DCA. When the representation of the petitioner was not considered for enhanced pay scale, he approached this Court in W.P. (S) No. 1965 of 2008. with DCA. When the representation of the petitioner was not considered for enhanced pay scale, he approached this Court in W.P. (S) No. 1965 of 2008. However, the same was dismissed on the ground that the petitioner did not hold the required qualifications as per UGC guidelines and recommendation of UGC has not been adopted by the respondent-ISM. Feeling aggrieved, the petitioner though filed letters patent appeal, being L.P.A. No. 290 of 2012, but the same was withdrawn by the petitioner as a Pay Anomaly Committee was constituted for redressal of his grievance. The Pay Anomaly Committee, however, rejected the claim of the petitioner vide its order dated 22.11.2013 on the ground that since the petitioner applied for the post of Computer Operator in the Jr. Grade scale, he was not entitled for grant of Sr. Grade scale. Again the petitioner represented before the competent authority of the respondent-ISM ventilating his grievances for years together and finally an Expert Committee was constituted for establishing the equivalence degree of the petitioner and vide order dated 29.01.2020, the Committee took a decision that the petitioner was entitled for revised pay scale of Rs. 2000-3500/- with effect from the date when the respondent-ISM adopted the UGC guidelines from 29.09.1993, which was published in the month of September, 1990 and effective from 10.01.1991. Meanwhile, the petitioner retired on 31.10.2019. The grievance of the petitioner for extending the revised pay scale with effect from 10.01.1991 has not been redressed till date, though he is frequently making representation before the respondents, on one hand and on the other hand, the respondent-ISM has adopted pick and choose policy in granting the revised pay scale to others with effect from the date of UGC guidelines dated 10.01.1991. The representation of the petitioner was ultimately rejected by order dated 3.7.2020. Hence, the petitioner being aggrieved by the impugned rejection order and non-extending the benefit of 3rd MACP, which the petitioner is entitled on completion of 30 years of service in 2018, has approached this Court. Submissions of Petitioner 4. Mr. Ajit Kumar, learned senior counsel assisted by Ms. The representation of the petitioner was ultimately rejected by order dated 3.7.2020. Hence, the petitioner being aggrieved by the impugned rejection order and non-extending the benefit of 3rd MACP, which the petitioner is entitled on completion of 30 years of service in 2018, has approached this Court. Submissions of Petitioner 4. Mr. Ajit Kumar, learned senior counsel assisted by Ms. Aprajita Bhardwaj, learned counsel appearing for the petitioner submits that the petitioner was appointed on the post of Computer Operator though in Junior Grade in the pay scale of 1400-2300, but after upgradation in the senior scale by office order dated 21.11.1989 to the post of Senior Technical Assistant, the petitioner is entitled for revised pay scale of Rs. 2000-3500/- as per the UGC guidelines which was effective from September, 1990. As per UGC guidelines, the post of Computer Operator having the senior technical grade post had to carry the pay scale of 2000-3500 with certain qualifications. Learned senior counsel further submits that since the petitioner had the requisite educational qualification as per UGC guidelines dated 1st September, 1990, he was already extended the revised pay scale with effect from 29.09.1993 as per UGC guidelines. Learned senior counsel further points out that it is equally not a correct fact that the UGC guidelines has been adopted by the respondent-UGC only with effect from 29.09.1993, inasmuch as, several persons named in paragraph no. 38 of the writ petition had been appointed as per the UGC guidelines dated September, 1990 and they have been granted the revised pay scale of Rs. 2000-3500/-. Learned senior counsel further empathically argues that once the petitioner’s service was recognised in the senior grade computer operator by office order dated 01.02.1988 and the same was also affirmed by the UGC, the petitioner became entitled to the pay scale admissible to the post of Senior Technical Assistant i.e. the pay scale of Rs. 2000-3500/- while working as Computer Operator. Placing the aforesaid facts, learned senior counsel submits that the petitioner is very much entitled for the revised pay scale of Rs. 2000-3500/- with effect from the date of issuance of UGC guidelines on September, 1990 along with arrears and other consequential benefits. Learned senior counsel also submits that the petitioner was also entitled for 3rd MACP on completion of 30 years of service in the year 2018, as the petitioner was appointed on 23.08.1988. 2000-3500/- with effect from the date of issuance of UGC guidelines on September, 1990 along with arrears and other consequential benefits. Learned senior counsel also submits that the petitioner was also entitled for 3rd MACP on completion of 30 years of service in the year 2018, as the petitioner was appointed on 23.08.1988. He further points out that the petitioner was erroneously given the benefit of 1st ACP with effect from 29.9.2005, though he was entitled for the same in the year 2000 itself on completion of 12 years of service and likewise, he was entitled for 2nd MACP in the year 2008 itself, but he was wrongly given such benefit with effect from 29.09.2013. Submissions of Respondent-IIT-ISM 5. Controverting the entire arguments put forward by learned senior counsel for the petitioner, Mr. Ratnesh Kumar, learned counsel appearing for the respondent-ISM, at the very outset submits that writ petition is not maintainable on the principle of estoppel of res judicata. He submits that the petitioner had earlier moved this Court by filing W.P. (S) No. 1695 of 2008 seeking the same relief for granting the revised pay scale of Rs. 2000-3500/- with effect from September, 1990, which was already dismissed. However, learned counsel fairly submits that thereafter on the representation of the petitioner, an Expert Committee was constituted to examine the degree of the petitioner regarding equivalence. On the recommendation of the Expert Committee, it was decided in the minutes of 12th Meeting of the Board of Governors of the respondent-IIT(ISM) held on 20.12.2019 that the degree obtained by the petitioner of Diploma in Computer Programming is equivalent to the degree of Diploma in Computer Application and the petitioner is entitled for the pay scale of Rs. 2000-3500/- with effect from 29.09.1993 when the post of Computer Operator in the said pay scale was approved by the Establishment & Finance Committee of the respondent-IIT(ISM). Thereafter, the petitioner was given the revised pay scale with effect from 29.09.1993 along with the arrears of salary etc. Learned counsel empathically argues that since the UGC guidelines vide D.O. No. F-1-1/87(T-II) dated September, 1990 was approved by the respondent-IIT(ISM), Dhanbad with effect from 29.09.1993, there was no occasion to grant such benefit to the petitioner with retrospective effect i.e. from the date of UGC guidelines dated September, 1990. Learned counsel empathically argues that since the UGC guidelines vide D.O. No. F-1-1/87(T-II) dated September, 1990 was approved by the respondent-IIT(ISM), Dhanbad with effect from 29.09.1993, there was no occasion to grant such benefit to the petitioner with retrospective effect i.e. from the date of UGC guidelines dated September, 1990. So far as the case of Gunadhar Das (respondent No. 4), to which the petitioner is distinguishing his case, is concerned, learned counsel submits that his case was reconsidered and the excess amount so paid to him was ordered to be recovered from him. Learned counsel lastly submits that the petitioner was not entitled for revised pay scale with effect from the date of UGC guidelines vide DoP dated September, 1990, as the same was not approved at that point of time and when it was approved with effect from 29.9.1993, the petitioner was duly granted such benefit along with arrears etc. Findings of the Court 6. Before delving deep into the matter of the case, the issue of maintainability is required to be deliberated. It is no doubt true that the petitioner had earlier moved this Court in W.P. (S) No. 1695 of 2008 claiming the similar relief for grant of pay scale of Rs. 2000-3500 with effect from September, 1990 and the same was dismissed on the ground that the petitioner did not have the requisite qualification as per UGC guidelines. Thereafter, the degree obtained by the petitioner was considered equivalent to diploma in Computer Application as per UGC guidelines by the Expert Committee and he was thereafter granted the enhanced pay scale of Rs. 2000-3500 with effect from 29.09.1993. Now, the petitioner is aggrieved with the rejection order dated 03.07.2020 whereby his claim for enhanced pay scale of Rs.2000-3500/- with effect from September, 1990 has been rejected. As such, the present writ petition is very much maintainable, as the petitioner has now fresh cause of action ventilating his grievance. 7. The undisputed facts are that the petitioner was appointed on 26.07.1988 in the pay scale of Rs. 1400-2300 for the post of Computer Operator, Jr. Grade, after following the selection process floated by the Indian School of Mines, Dhanbad vide Advertisement No. 22.09.1987. It is also an undoubted fact that in the year 1989, the pay scale of Technical Assistant and Sr. Technical Assistant was upgraded from 1400-2300 to Rs. 1640-2900 and from 1640-2900 to Rs. 1400-2300 for the post of Computer Operator, Jr. Grade, after following the selection process floated by the Indian School of Mines, Dhanbad vide Advertisement No. 22.09.1987. It is also an undoubted fact that in the year 1989, the pay scale of Technical Assistant and Sr. Technical Assistant was upgraded from 1400-2300 to Rs. 1640-2900 and from 1640-2900 to Rs. 2000-3500 respectively. This benefit of up-gradation was also made applicable to the post of Computer Operators, to which post the petitioner was appointed. It is also no doubt true that in the month of September, 1990, the UGC issued guidelines for creation of various posts in computer centre in the revised pay scales and staffing pattern along with educational qualification and experience. As per which, two posts in computer centre were created, i.e. Computer Operator in the pay scale of Rs. 2000-3500/- equivalent to Sr. Technical Assistant and Data Entry Operator in the pay scale of Rs. 1640-2900, equivalent to Technical Assistant. 8. The fact further remains that the petitioner being appointed as Computer Operator and further upgraded to Sr. Technical Assistant claims for extending the revised pay scale as per UGC guidelines with effect from September, 1990 in the pay scale of Rs. 2000-3500/-. The respondent-IIT-(ISM) has completely denied such benefit on the whole and sole ground that since the Establishment & Finance Committee of the respondent-IIT(ISM) has implemented the UGC guidelines vide DoP dated September 1990, with effect from 29.9.1993, the petitioner cannot be extended the revised pay scale as per UGC guidelines with retrospective date. Negating this stand taken by the respondent-IIT (ISM), learned senior counsel brought on record Annexure-19 and 19/1, which are the replies sought for under the Right to Information Act. A minutes of meeting held by the respondent-IIT(ISM) dated 09.01.1991, which is at page-87 of the writ petition, would go to show that as per the UGC guidelines circulated vide D.O. Letter No. F.1-1/87 (T-II) dated September 1990, four persons were appointed to the post of Computer Operator / Data Entry Operator under the respondent-IIT-ISM, Dhanbad. 9. From plain reading of the minutes dated 9.1.1991 held by the respondent-IIT(ISM), Dhanbad, duly signed by the Director and other members including Registrar, it appears that the UGC guidelines dated September, 1990 was made effective in the respondent-IIT(ISM), Dhanbad either from the date of issuance of September, 1990 or at least with effect from 09.01.1991. 9. From plain reading of the minutes dated 9.1.1991 held by the respondent-IIT(ISM), Dhanbad, duly signed by the Director and other members including Registrar, it appears that the UGC guidelines dated September, 1990 was made effective in the respondent-IIT(ISM), Dhanbad either from the date of issuance of September, 1990 or at least with effect from 09.01.1991. The respondents have also not denied this fact specifically either in the counter affidavit or in the supplementary counter affidavit. In the counter affidavit, the respondents have only stated that the petitioner is making irrelevant comparison to others. Pursuant to direction of this Court by order dated 02.05.2024, the respondents have filed supplementary counter affidavit, wherein also, they have taken stand that these persons were appointed as Assistant Computer Operator or Data Entry Operator in the pay scale of 1200-2040. However, the respondents have not stated that as to whether these persons were appointed as per UGC guidelines or not. Hence, the stand of the respondents that the UGC guidelines was made effective from 29.9.1993 only and the petitioner is entitled for the revised pay scale with that date only is not sustainable. 10. From the aforesaid discussions, it can comfortably be said that the UGC guidelines vide DoP dated September, 1990 is effective in the respondent-IIT-ISM, Dhanbad and as per said Guidelines, several persons were appointed with effect from 09.01.1991. Hence, the petitioner is also entitled for revised pay scale of Rs. 2000-3500/- either with effect from September, 1990 when the UGC guidelines was issued or with effect from 09.01.1991 when several persons were appointed for the first time with effect from 09.01.1991 as per the UGC guidelines vide DoP dated September, 1990. 11. As a cumulative effect, the impugned order dated 03.07.2020 is hereby quashed. The petitioner is entitled for revised pay scale of Rs. 2000-3500/- at least from the date when several other persons were appointed with effect from 09.01.1991. The respondent- IIT-ISM, Dhanbad is directed to extend the said benefit within a period of twelve weeks from the date of receipt of a copy of this order. 12. The petitioner is entitled for revised pay scale of Rs. 2000-3500/- at least from the date when several other persons were appointed with effect from 09.01.1991. The respondent- IIT-ISM, Dhanbad is directed to extend the said benefit within a period of twelve weeks from the date of receipt of a copy of this order. 12. So far as the benefit of ACP/MACP is concerned, the petitioner is directed to represent before the concerned respondent, who in turn shall look into the matter afresh after giving adequate opportunity to the petitioner and pass a reasoned order thereon within a period of eight weeks from the date of receipt of such representation. If it is found that the petitioner is entitled for the benefits, as prayed for, the admissible difference of amount shall be paid to the petitioner within a further period of four weeks thereafter. 13. With the aforesaid observations and directions, this writ petition stands allowed.