IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.11.2008 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.Nos.4551 and 4552 of 2001 and W.P.No.8809 of 1998 W.P.Nos.4551 and 4552 of 2001 George Mathew ...Petitioner in W.P.No.4551 of 2001 T.A.Sivaraman ...Petitioner in W.P.No.4552 of 2001 -vs- 1.The Chairman Board of Governors IIT Madras 600 036. 2.The Director IIT Madras. 3.The Registrar IIT Madras 36. 4.The Assistant Registrar, Admn III IIT, Madras 36. ...Respondents in
both writ petitions
Prayer in W.P.No.4551 of 2001
Petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorarified mandamus, calling for the records pertaining to the order passed by the fourth respondent in reference No.F.Admn.III/P3/2000/O.O No.358 dated 17.02.2000 and consequential order passed by the fourth respondent in reference No.F.Admn.III/P3/2000/1377 dated 11.08.2000 and passed by the fourth respondent in Order No.F.Admn.iii/P3/2001/29 dated 09.01.2001, quash the same and consequently direct the respondents to pay all the arrears of salary accrued by virtue of the benefit extended in office order No.120/2521 dated 09.06.1995 and in letter No.F.Admn.II/96/No.181/5366 dated 03.09.1996 passed by the fourth respondent.
(Prayer amended as per order dated 01.12.2004 in W.M.P.No.40447 of 2004
Prayer in W.P.No.4552 of 2001
Petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorarified mandamus, calling for the records pertaining to the order passed by the fourth respondent in reference No.F.Admn.III/P3/2000/O.O.No.294 dated 14.02.2000 and consequential orders passed by the fourth respondent in reference No.F.Admn.III/P3/2000/1378 dated 11.08.2000 and passed by the fourth respondent in Order No.F.Admn.III/P3/2001/30 dated 09.01.2001, quash the same and consequently direct the respondents to pay all arrears of salary accrued by virtue of the benefit extended in office order No.120/2521 dated 09.06.1995 and in letter No.F.Admn.II/96/No.181/5366 dated 03.09.1996 passed by the Assistant Registrar (Admn.II).
(Prayer amended as per order dated 01.12.2004 in W.M.P.No.40448 of 2004 W.P.No.8809 of 1998 B.Pattabiraman ...Petitioner v. 1.The Director, I.I.T, Chennai 36. 2.The Chairman, The Board of Governors, I.I.T, Chennai 36. 3.The Deputy Registrar (Admn) I.I.T, Chennai 36. 4.R.Appadurai 5.S.Chellaiah 6.C.Vedantham 7.K.N.Govindan 8.A.K.Munuswamy 9.N.Ramalingam 10.K.Viswam 11.C.S.Subramanian 12.G.Nallaperumal Pillai 13.S.Antony Doss 14.S.Joseph Antony 15.M.Sebastin 16.S.Jothiramalingam 17.K.Natarajan 18.P.Seetharaman 19.G.Durairaju 20.S.Nagamani 21.K.Sathyanarayanan 22.D.Krishnan 23.T.A.Sivaraman 24.George Mathew 25.V.Viswanathan 26.G.Venkataramudu 27.V.Chandrasekaran ...Respondents
Petition filed under Article 226 of the Constitution of India praying for a Writ of mandamus, directing the respondents 1 to 3 to extend all the benefits under Office Order No.120/2521 dated 09.06.1995 to the petitioner.
For Petitioners : Mr.M.Venkatachalapathy, Senior Counsel
for Mr.G.Bharadwaj (W.P.8809/1998)
Mr.Ajay Khose for Mr.A.Rahul
(W.P.Nos.4551 and 4552/2001)
For Respondents : Mr.Vijay Narayan, Senior Counsel
for Mr.R.Parthiban for R1 to R3
Mr.A.Pitchaikanai R16, 23, 26 and 27
C O M M O N O R D E R
The petitioners in W.P.Nos.4551 and 4552 of 2001, are retired employees of the respondent Indian Institute of Technology (for short I.I.T.) They were working as Supervisors, Selection Grade at the time of their retirement. Infact, both the writ petitions are filed only after their retirement. The writ petitions are admitted on 12.03.2001. Subsequently, when the matter came up on 12.08.2003, the petitioners’ request for interim prayer was rejected in these two writ petitions. On notice from this Court, the respondents have filed counter affidavits dated 03.11.2003 and additional counter affidavit dated 09.09.2008.
2. Mr.Ajay Khose, learned counsel appearing for these two petitioners submitted that the petitioners were given five additional increments by an order dated 09.06.1995. It was stated in the said order passed by the respondent I.I.T. that the posts in Mechanical -B/ Senior Mechanic / Workshop Supervisor will be regulated notionally with financial benefits arising out of notional fixation from 01.03.1993. It is also stated that they will also be assessed under the Career Development Scheme as per their eligibility with fixation at five stages, above the pay that they normally get as a result of assessment under the Career Development Scheme. It is further stated that there will be a parity of pay in the higher scale of pay of Rs.2000-3200/-. In Paragraph No.3 under the condition imposed, it was clearly stated that this fixation was personal to their pay. Accordingly, the two petitioners were given the benefit of additional increments.
3. Subsequently, the petitioners were informed by an office order dated 29.06.1996 stating that RCDS (Recruitment and Career Development Scheme) was approved by the competent authority and they have been brought under the Scale of Rs.2000-60-2300-EB-75-3200 with effect from 01.04.1994 with financial benefits from 01.04.1994. When the 4th Central pay Commission pay scales were introduced, the consequent pay fixation was also done in respect of the petitioners. The petitioners were fixed on 01.04.1993 at the starting scale of Rs.2300/-, on 01.04.1994 at Rs.2375/-, on 01.04.1995 at Rs.2450/- and on 01.04.1996 at Rs.2525/-. Consequent upon the introduction of RCD Scheme which was implemented with effect from 13.09.1986 or from the date of eligibility, a partial modification was done in the earlier order passed by the respondents and consequently, the petitioners pay underwent change.
4. The grievance of the petitioners is that the earlier 5 additional increments given to them cannot be readjusted in the garb of absorbing it against the refixation done pursuant to the 4th Central Pay commission. Therefore, the petitioners should be given the original additional increments which was in effect a pay given in lieu of promotion and thereafter the 4th Central Pay Commission scales should be given in their favour. The petitioners’ requests were rejected by the respondents. It was indicated that this pay will be restricted to Rs.2300 as on 01.04.1993 irrespective of the scale of Rs.3200/- given to them. The petitioners have filed the present writ petitions challenging the refixation and the order denying to consider their request favourably.
5. In the counter affidavits filed by the respondents in paragraph No.6, it is stated that though they were assured of 5 additional increments over and above the normal fixation, since the new scale had been introduced had replaced the old scale and on the introduction of RCD scheme which was advanced to the date of 26.09.1990 was not contemplated by the IIT at the relevant time and therefore, they were given on the basis of the then order in extant. Subsequently, when it is brought to their notice that the RCD scheme was introduced retrospectively and the necessary pay fixation has been done in terms of the Scheme which is more advantageous to the petitioner. If it had not been done in the manner indicated by the respondents, the petitioners will be receiving lesser pay. It is also stated in Paragraph No.10, that there is no question of any promissory estoppel in the matter of pay fixation and whatever that has been done is only in the interest of all the employees because the new RCD scheme is more beneficial and it has taken into account the 4th Central Pay Commission scales.
6. An additional counter affidavit has also been filed by the respondents. In the additional counter affidavit in paragraph Nos.4 and 5, it has been averred as follows:
“Para 4. It is further submitted that the writ petitioner was working as Supervisor in the Scale of Pay of Rs.1400-2600 alongwith 23 other such persons. All of them have now retired. The petitioner herein retired in 2002. The next higher promotion was the post of Supervisor (Selection Grade) in the Scale of Pay of Rs.2000-3200. Since there was a big disparity in the pay scales of the lower post and higher post, the Management of I.I.T took a decision on humanitarian ground and promised them fixation of pay with 5 additional increments over and above the normal fixation vide order No.120/2521 dated 09.06.1995. However, before this order could be implemented, the Pay Scale of Rs.1400-2600 was replaced with the Scale of Pay of Rs.1640-2900 and as per the Vth Pay Commission recommendations they were given the benefit of replacement scale and fixation was done accordingly. Further the effect of implementation of Recruitment and Career Development Scheme (RCDS) was pre-poned from 01.04.1993 to 26.09.1990 and in view of this the pay fixation was regulated in the replacement Scale of Pay of Rs.1640-2900 with effect from 01.01.1986 and again fixed at Rs.2300/- with effect from 01.04.1993 in the Scale of Pay of Rs.2000-3000, vide Office Order dated 27.05.1998. On advancement of RCDS, the pay has also been advanced and re-fixed with effect from 226.09.1990 vide office order dated 14.10.1999 and 17.02.2000.
Para 5. In view of these developments the humanitarian grounds for grant of 5 additional increments no longer existed and consequently the question of extending 5 additional increments was not taken up since it as felt that the grant of 5 additional increments would result in allowing unintended benefit and may further result in anomalies, thereby inviting fresh claims from other staff members. In fact the original decision taken to grant 5 additional increments is not based on any rule or regulation but was purely on humanitarian grounds and this would not give any right to the petitioner.”
7. Though Mr.Ajay Khose, learned counsel for the petitioners urges that the respondents in the absence of withdrawing the earlier order cannot absorb the 5 additional increments which were paid in lieu of promotion and the fixation done subsequently after introduction of the RCD scheme cannot absorb the earlier pay granted to the petitioners. This argument conveniently forgets the condition No.3 on the pay fixation wherein, it is clearly stated that the pay granted is only personal to them. When a pay is granted as personal pay and if there is any subsequent pay revision, it is axiomatic that the personal pay will also be counted for pay fixation. In normal circumstances, the personal pay gets absorbed when new scales are introduced. Therefore, in the light of the above, both the writ petitions are misconceived and accordingly will stand dismissed.
8. The grievance of the petitioner in W.P.No.8809 of 1998 was that the petitioner had earlier filed a writ petition being W.P.No.5048 of 1990. This Court by order dated 18.08.1998 allowed the writ petition and in the operative portion of the order, it was observed as follows:
“The learned counsel for the petitioner argued that since the above said Office Order No.14/294 dated 21.1.1993 has been passed in supersession of all earlier orders, the petitioner is also entitled for the same, but as the present writ petition is pending, he was not given that benefit. As the Office Order No.14/294, dated 21.1.1993 has been passed in supersession of all earlier orders and the Office Order No.63, dated 10.3.1988 is also supersessed , it could be said that the grievance of the petitioner was met by the respondent. Therefore, this writ petition is allowed.”
9. Therefore, it was contended by Mr.M.Venkatachalapathy, learned Senior Counsel appearing for the petitioner that it was pursuant to this order, he has been given pay fixation and subsequently when the respondents issued the order dated 09.06.1995, it would not be open to them to modify the benefit already given, which benefit is available to all the contesting respondents. It is also stated that since he is a senior to all the contesting respondents, in terms of Fundamental Rules Rule 22(c) he is eligible to get his pay stepped up to the level of his juniors. It was only in that view of the matter, the petitioner was given a higher pay and by the impugned order the said benefit conferred cannot be withdrawn.
10. The contention that the petitioner was senior to the contesting respondents is stoutly denied by Mr.Vijay Narayan, learned Senior Counsel for IIT. It has also been averred in the counter affidavit. In any event as soon as the impugned order dated 09.06.1995 is issued to the petitioner, the petitioner did not approach this Court but was only indulging in correspondence with the respondents. Thereafter, the writ petition was filed challenging the pay fixation and this Court by an order dated 29.07.1999 in W.M.P. No.13410 of 1998 in W.P.No.8809 of 1998 passed the following order:
“Heard Mr.G.Desappan for the petitioner. Taking into consideration of the entire facts, experience and qualifications, there will be an interim direction directing the respondents to extend the benefits as has been extended to respondents 4 to 27 prospectively from today and place the petitioner at the minimum scale in which the said respondents have been placed with effect from 1st of September and disburse the consequential benefits pending disposal of the writ petition.”
11. It is stated that the petitioner in the writ petition had received the monetary benefits pursuant to the interim direction. The said direction has also been made absolute by this Court on 28.08.2003. It is also stated that the petitioner had reached the age of superannuation.
12. The legal grounds urged by the petitioner has been negatived in the other two writ petitions, the petitioner cannot succeed in terms of law in this writ petition. There is nothing wrong in the refixation done by the respondent IIT. Whether the petitioner is senior to the contesting respondents or the contesting respondents are juniors to him is purely a question of fact. The respondent IIT has denied that the contesting respondents are juniors to the petitioner. In any event, the issue has become academic as the petitioner already got the benefit by virtue of an interim order and also got retired from service. Hence, this writ petition is also dismissed.
13. However, the respondent IIT is restrained from recovering any amount paid pursuant to the interim order passed by this Court.
14. In the result, all the three writ petitions will stand dismissed. No costs.
svki
To
1.The Chairman
Board of Governors
IIT Madras 600 036.
2.The Director
IIT Madras.
3.The Registrar
IIT Madras 36.
4.The Assistant Registrar,
Admn III, IIT,
Madras 36