Bombay High Court
Akhilesh Kumar Sankhwar vs Tata Institute Of Social Sciences on 1 October, 2021
Bench: R.D. Dhanuka, Abhay Ahuja
NIKITA
YOGESH
GADGIL
Digitally signed by
NIKITA YOGESH
1 Judgment-WP 1277-21.odt
GADGIL
Date: 2021.10.01
15:44:09 +0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1277 OF 2021
Akhilesh Kumar Sankhwar,
Son of Sipahi Ram Sankhwar,
Age 41 years, Working as
Information Scientist,
Tata Institute of Social Sciences,
Residing at Flat No. A-104, Plot No. 22 & 23,
Krishna Park CHS, Sector 15, Kalamboli,
Navi Mumbai-410 218. ... Petitioner
Vs.
1) Tata Institute of Social Sciences,
A Deemed University under Section 3 of the
University Grants Commission Act 1956,
Post Box No. 8313, Deonar, Mumbai-400 088.
2) The Registrar,
Tata Institute of Social Sciences,
Post Box No. 8313, Deonar, Mumbai-400 088.
3) University Grants Commission,
Bahadur Shah Zafar Marg,
New Delhi-110 002. ... Respondents
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Mr. Sandeep Vishnupant Marne, Advocate for Petitioner.
Mr. Arsh Misra i/b M/s. M. V. Kini and Co., Advocate for
Respondents No. 1 and 2.
Mr. Rui A. Rodrigues, Advocate for Respondent No.3.
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CORAM : R.D. DHANUKA &
ABHAY AHUJA, JJ.
RESERVED FOR ORDER ON : 23RD SEPTEMBER 2021
PRONOUNCED ON : 1ST OCTOBER 2021
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JUDGMENT:- (PER ABHAY AHUJA, J)
1. Rule. Rule made returnable forthwith. Learned counsel for the
parties waive service. By consent of the counsel for the parties,
petition is heard finally.
2. By this petition filed under Article 226 of the Constitution of
India, the Petitioner is challenging the decision of Respondent No.1
Institute by which Petitioner's academic Grade Pay of Rs.6000/- has
been replaced by Grade Pay of Rs.5400/- with effect from the date of
his appointment.
3. It is the case of Petitioner that pursuant to advertisement
issued in the year 2013 for various posts including that of
"Information Scientist" carrying a Pay Band of Rs. 15600 - 39100 +
academic grade pay of Rs.6000, the Petitioner was selected for
being appointed on the said post and was issued offer of
appointment, vide letter dated 18th May 2013 upon the terms and
conditions contained therein including the same Pay Band of
Rs.15600 - 39100 + academic grade pay of Rs. 6000. This offer was
accepted by Petitioner by his letter dated 24 th May 2013, specifically
referring to the pay scale of Rs.15600 - 39100 + academic grade pay
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of Rs. 6000 at Tata Institute of Social Sciences, Sir Dorabji Tata
Memorial (SDTM) Library, Mumbai. Petitioner joined the post on
25th July 2013 and office order dated 23rd August 2013 was issued
by the first Respondent fixing Petitioner's pay at Rs.19680/- in the
Pay Band of Rs. 15600 - 39100 + academic grad pay of Rs. 6000
with effect from 25th July 2013, also stating that the date of the next
increment would be 1st July 2014. After completion of his probation,
Petitioner was confirmed vide letter dated 10th/11th November 2015.
4. It is submitted on behalf of Petitioner that after joining as
Information Scientist, Petitioner was involved in teaching students
of MLISC and PGDLIM program run by the Centre for Library and
Information Management Studies (Clins), SDTM Library, TISS,
Mumbai and in pursuance thereof wanted to participate in the
Career Advancement Scheme (CAS) for the academic staff of
universities.
5. Petitioner therefore applied for admission to refresher course
for the same but was denied permission to the said course vide
letter dated 9th May 2016. Petitioner thereafter made several
representations for grant of benefits under CAS. It is submitted on
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behalf of Petitioner that in reply to one of such representation, vide
letter dated 13th September 2017 it was communicated that
Information Scientist would be in the Pay Band of Rs.15600 -
39100 + grad pay of Rs.5400 and pay scale would be that applicable
to the administrative cadre. It was further stated that as a
corrective measure, it was decided to fix Petitioner's pay scale as
per UGC norms in accordance with the revised Pay Band and Grade
Pay from the date of appointment with first Respondent and that
the differences in pay due to revised fixation would be granted as
personal pay to be absorbed in future increment.
6. Petitioner was therefore constrained to make representation
dated 28th September 2017 against letter dated 13th September 2017,
but despite the said representation, Petitioner was issued another
letter dated 26th April 2018 reiterating that the revised Pay Band
and the manner in which the said difference would be absorbed
from future increment. Thereafter Petitioner made representations
dated 1st May 2018, 3rd May 2018, 25th June 2018, 24th September
2018, 2nd January 2019, 13th February 2019, 20th May 2019, 13th
February 2020 and 14th February 2020 ending with the decision of
Respondent No.3 rejecting Petitioner's representations which was
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communicated to Petitioner by letter dated 1 st January 2021.
Petitioner submits that even though the said communication was
dated 13th September 2017, the Respondent continued to pay
Petitioner, Grade Pay of Rs.6000/-. Petitioner submits that he drew
the AGP of Rs. 6000/- till March 2018, however, while paying salary
from April 2018 onwards, his Grade Pay has been replaced with Rs.
5400/-. Petitioner submits that the difference from 1 st January
2016 till March 2018 has been illegally adjusted while paying the 7 th
Pay Commission arrears to Petitioner.
7. Learned counsel for the Petitioner, Mr. Sandeep Marne,
submits that no notice of revised fixation of Grade Pay nor any
notice for the adjustment till March 2018 was ever given to
Petitioner and the first Respondent has unilaterally and in gross
violation of the principles of natural justice conducted itself while
issuing the impugned communications as well as making the
adjustments. He submits that neither the terms of Petitioner's
appointment letter nor any communication from Respondent No.1
authorises revision of Grade Pay or the impugned adjustment. He
submits that the Respondents are estopped from revoking the AGP
of Rs.6000/- and replacing it with Grade Pay of Rs.5400/-
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retrospectively from the date of his initial appointment to the
disadvantage of Petitioner, 6-7 years after his appointment. He,
therefore, urges this Court to intervene in the matter.
8. On the other hand, learned counsel for Respondents No. 1 and
2 opposes the petition on two counts. Learned counsel Mr. Misra,
firstly submits that this petition should be rejected on the ground of
delay and laches as despite the impugned order being dated 13 th
August 2017, the petition has come to be filed only on 27 th January
2021. He relies upon the decision of the Hon'ble Supreme Court in
the case of Naresh Kumar Vs. Departmentof Atomic Energy and Ors.
Reported in (2020) 7 SCC 525, in support of his contentions.
Secondly, he draws the attention of this Court to the Paragraph 2 of
the General Conditions of the advertisement to submit that there is
nothing illegal in the action of Respondents in as much as the
General Conditions reserves the right of the Respondents to
modify / withdraw / cancel any communication made to the
candidate in case of any inadvertent mistake.
9. It is submitted that the Grade Pay in respect of Petitioner as
per the UGC norms ought to be Rs.5400/- as the position of
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Information Scientist is "non vacation academic" being
administrative cadre and as per UGC norms the Grade Pay for
Information Scientist is fixed at Rs.5400/- from the date of
appointment. He submits that therefore the adjustment made is not
illegal. He also relies upon decision of the Hon'ble Supreme Court in
the case of U.T. Chandigarh and others Vs. Gurucharan Singh and
Another in Civil Appeal No. 9873 of 2013.
10. Learned counsel for Petitioner opposes the submissions made
by the Respondent's counsel and submits that Petition ought to be
allowed on the ground of breach of principles of natural justice.
11. We have learned counsel Shri Sandeep Marne for Petitioner
and Shri Misra, learned counsel for Respondents No.1 and 2.
12. It is undisputed that the Respondent-Institute has not given
any notice of refixation of Petitioner's Academic Grade Pay from Rs.
6000/- to Grade Pay of Rs. 5400/- nor afforded any opportunity of
hearing before the said modification/refixation to Petitioner nor any
show cause notice was given to Petitioner before effecting the
adjustments purported to be done. Therefore, without even going
into the merits or contentions of the parties, we deem it appropriate
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to intervene in this matter as Petitioner was at no point of time
given notice of the proposed modification/refixation nor offered an
opportunity of being heard nor any show cause notice before
effecting the impugned adjustment nor any details were provided to
Petitioner. In our view, this is a gross case where the principles of
natural justice have been given a complete go by. The Respondents
could not have unilaterally without notice and without affording an
opportunity of hearing to Petitioner altered/modified/re-fixed the
Grade Pay.
13. In this view of the matter, we set aside the impugned
communications and remand the matter for denovo consideration
by the Respondent No.1 after giving an opportunity of hearing to
Petitioner by following the principles of natural justice and after
furnishing Petitioner with all the necessary information and
documents leading upto the issuance of the impugned
communications as well as the impugned adjustments.
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14. Accordingly, Respondent No.1 is directed to furnish the
documents, correspondence and details in respect of the impugned
communications as well as the impugned adjustment to Petitioner
within a period of two weeks from today. Petitioner to submit his
representation to Respondent No.1 within a period of two weeks
thereafter. Respondent No. 1 to complete the process of hearing and
decision making and pass a reasoned and speaking order within a
period of eight weeks from today. In the event the decision is
adverse to Petitioner, the decision shall not be implemented for a
further period of two weeks and Petitioner is at liberty to take out
appropriate proceedings. Till the communication of the decision to
Petitioner and two weeks thereafter, Respondents are directed not
to make any further adjustments on account of the impugned
revised grade pay.
15. All contentions of the parties are left open.
16. Petition is accordingly disposed in the above terms. However,
there shall be no order as to costs.
17. Parties to act on an authenticated copy of this order.
(ABHAY AHUJA, J.) (R.D. DHANUKA, J.)
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