Govt. Of Nct Of Delhi vs Sh.Gyan Chand & Ors.
2011 Latest Caselaw 2314 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                          Reserved on: 18th April, 2011

                                           Date of decision: April 29, 2011


+     W.P.(C) No.4895/2002


      Govt. of NCT of Delhi                                ...     Petitioner
                       Through             Mrs. Avnish Ahlawat, Advocate

                            Versus


      Sh.Gyan Chand & Ors.                                       ...      Respondents

                      Through              None


      CORAM:
      HON'BLE THE CHIEF JUSTICE
      HON'BLE MR. JUSTICE SANJIV KHANNA

1.    Whether reporters of the local papers be allowed to see the judgment?   YES
2.    To be referred to the Reporter or not?                                  YES
3     Whether the judgment should be reported in the Digest?                  YES



DIPAK MISRA, CJ

In this petition preferred under Article 226 and 227 of the Constitution

of India, the petitioner- Government of NCT of Delhi, has called in question

the legal substantiality and sustainability of the order dated 9th April, 2002

passed by the Central Administrative Tribunal, Principal Bench, New Delhi

(for short, „the tribunal‟) in O.A. 647/2001.

2. The facts which are essential to be unfolded are that the respondent-

employee Sh.Gyan Chand approached the tribunal under Section 19 of the

Administrative Tribunal Act, 1985, assailing the order dated 18th July, 2000

whereby the proposal for upgradation of the post of Workshop

Superintendent was rejected. It was contended before the tribunal that the

upgradation of the post was imperative to be done on the basis of various

recommendations and also keeping in view the job profile of the Workshop

Superintendent. Various other assertions were made claiming equivalent

pay-scale to the post of Head of the Department.

3. The stand put forth by the respondent-employee was resisted by the

present appellant and its functionaries contending, inter alia, that there is a

gulf of difference between the qualifications prescribed for the post of

Workshop Superintendent and the Head of the Department. The applicant-

employee is not eligible for the post of Head of the Department as he does

not fulfill the qualifications recommended for the said post and, therefore,

the claim for the pay-scale of Rs.3700-5700 is not allowable. It was also

urged that the duties and responsibilities for the post of Workshop

Superintendent and Head of the Department are different. Reliance was

placed on the decision of the Principal Bench of the tribunal in O.A.

No.1311/1988 wherein the claim was dismissed on the ground that the same

falls within the domain of a policy decision.

4. The tribunal referred to the recommendations of the AICTE dated

20.9.1989 regarding revision of pay-scales of teachers of technical

institutions (Polytechnics). The tribunal observed that the counsel for the

respondent was not able to state whether the recommendations had been

accepted by the Government. It further proceeded to hold that the order

dated 5th August, 1998 in O.A. No.1311/1988 was not a binding precedent,

the same having been dismissed in limine. It relied on the decision in

O.A.No.412/1994 by the Calcutta Bench of the tribunal decided on 23rd

March, 1998 holding that the same is applicable to the case at hand.

5. Following the said decision, the tribunal directed to extend the benefit

of pay-scale of Rs.3700-5700 (revised Rs.12000-18000) to the applicant

from the same date as given to the rank of Head of Department along with

arrears provided he fulfills the essential qualifications prescribed for the post

of Head of the Department (Lecturer and Selection grade) as prescribed by

the letter-circular dated September 20, 1989.

7. We have heard Mrs.Avnish Ahlawat, learned counsel for the

petitioner. There has been no appearance on behalf of the respondents.

8. It is urged by Mrs.Avnish Ahlawat, learned counsel for the petitioner,

that the AICTE is silent about the salary structure of Workshop

Superintendent, qualifications for the post of Head of the Department which

is higher than the post of Workshop Superintendent and the

recommendations of Madan Committee and the AICTE are not mandatory.

It is her further submission that the Government/Union territories are to

decide the pay-scale taking into consideration the local conditions, the post

of senior lecturer is not equivalent to the Head of the Department inasmuch

as the post of senior lecturer is in the pay-scale of Rs.10000-15200 whereas,

the post of Head of the Department is in the pay-scale of Rs.12000-18000,

the Diploma holder working in the post of Workshop Superintendent cannot

be placed in the pay-scale of Head of the Department and the Foreman

instructor is not a feeder post of Work Superintendent and that Jamia Millia

Polytechnics had the post of Workshop Superintendent already in the pay-

scale of Rs.3000-4500 (prior to revised scale of pay) and qualifications

prescribed were also higher. Learned counsel for the petitioner has

produced a comparative chart of pay-scale from the paper book and learned

counsel has also invited our attention to the recruitment rules that post of

Foreman-Instructor is not a feeder post and in any case the petitioner does

not possess the qualifications to hold the post of Head of the Department as

the pre-requisite to hold the said post is a Master‟s Degree in Engineering

and he does not hold the same.

9. At this juncture, we may refer to Annexure „A‟ which deals with the

recommendations of All India Council of Technical Education regarding the

revision of pay-scales of technicians and technical institutions.

10. The requisite qualification for Head of the Department is as follows:

"REQUIRED QUALIFICATIONS:

Head of Department:

Essential : 1) First class Master‟s degree in engineering/technology/technician education or Ph.D Degree in appropriate branch for teaching posts in humanities and sciences

ii) 5 yrs experience in teaching industry and research of appropriate levels

Note: Candidates from industry/ profession with recognized professional work equivalent to master‟s Degree or Ph.D degree as the case may be will also be eligible.

             Desirable: i) Ph.D degree in             engineering
             /technology/ technician education

             Or

Post -Doctoral work in the case of teaching posts in humanities and sciences.

Work Superintendent

Essential: I) degree in Mech. Engg. of a recognized University or equivalent.

             i)          About 1 year experience in large
             mechanical Engineering workshop.
             OR

             i)          Diploma in mechanical Engg. of a
             recognized institute or equivalent.

             ii)        About 5 years experience in a large
             Mechanical Engineering Workshop."

11. On a perusal of the facet of qualifications, it is clear that the aspirant

must hold a first class Master‟s Degree in Engineering. It is also worth

noting that the Principal Bench of the tribunal in O.A. No.1311/1998 in the

case of N.K.Sarsoonia v. Govt. of National Capital Territory of Delhi,

dealt with the prayer of the applicant therein for issue of directions to the

respondent to upgrade the post of Workshop Superintendent as per

recommendations of the Madan Committee as well as that of the AICTE

with respect to the post of Workshop Superintendent and to confer the

benefit of pay-scale of Rs.3700-5700 w.e.f. 1.1.1996. Be it noted, the said

pay-scale was revised later on. The tribunal in that context expressed the

view as follows:

" We have heard the counsel for the applicant. The case of the applicant is that the respondents had set up a Committee in 1974 headed by Prof.P.J.Madan Pro-vice Chancellor in the University of Baroda which had given its recommendations in 1978. One of these recommendations was that Workshops in the Engineering Colleges and Polytechnics should be under the overall charge of a Workshop of Superintendent in the rank of a Senior Lecturer. While the other recommendations including the upgradation of Demonstrators, instructors and Technical Assistant were accepted, the respondents did not implement the recommendation in regard to Workshop Superintendents. Subsequently, in 1989 the All India Council for Technical Education also made certain recommendations about the Staff Cadre structure of Polytechnics and suggested categorization of the Workshop Superintendents with Head of the Department/ Lecturer selection Grade. This recommendation was also ignored by the respondents. The applicant says that he has given a number of representations for the implementation of the recommendation of Madan Committee and the All India Council of Technical Education in respect of

the post of Workshop superintendent but to no avail.

3. We have carefully considered the aforesaid pleadings and the submissions made by the learned counsel. The Directions sought for by the applicant fall in the domain of a policy decision. The State cannot be compelled to accept all or any of the recommendations of an Expert Body constituted by it. No directions can also be given to upgrade a post which could result in a monetory implication. Since the relief sought for by the applicant cannot be granted we find no reason to proceed further with this O.A. which is accordingly dismissed at the admission stage itself."

12. The aforesaid decision rendered by the Principal Bench has been

distinguished from the impugned order on the ground that it was dismissed

in limine and, hence, is not a binding precedent. To express such a view, the

tribunal has not ascribed any reason. In our considered opinion, the view

expressed by the tribunal in this regard is incorrect. We have said so as the

tribunal on earlier occasion while dismissing the matter in limine had

expressed its view by ascribing reasons. Once there is an expression of view

which contains a point of law, it is a binding precedent. The tribunal is not

correct in holding that it is not so solely on the ground that it has been

dismissed in limine. As noticed earlier, the tribunal has followed the

directions issued in the case of Mohammed Mansoor v. Union of India, OA

No.412/94 decided by the Calcutta Bench of the tribunal. As is manifest, the

tribunal has not really addressed to the statutory rules to show how the right

has been fructified. Learned counsel for the petitioner would submit that

there are statutory rules that deal with difference in the educational

qualification in respect of the posts in question and, hence, treating the posts

equivalent is not tenable. It is also her submission that the recommendations

given by various committees were not accepted and the said aspect was dealt

with in the earlier decision but the same have not been distinguished by the

tribunal.

13. Regard being had to the submissions put forth and taking note of the

fact that there was an earlier decision, we are of the considered opinion that

it was obligatory on the part of the tribunal to address to the distinguishing

features, not to treat the earlier decision as a binding precedent and follow

the decision in Mohammed Mansoor (supra). That apart, the lis between

the two cases has really not been stated by the tribunal. A bald opinion has

been expressed that the earlier decision is not a binding precedent which is

not correct in law and thereafter abruptly the decision rendered in

Mohammed Mansoor (supra) has been followed. Keeping in view the

factual matrix, the rule position, the issue whether the recommendations

would have been treated to be binding or at any point of time had been

accepted by the Government or Union Territory, we may dispose to think

that the order passed by the tribunal deserves to be set aside and the matter

has to be remitted to the tribunal for fresh adjudication keeping in view all

the aspects and also dealing with how the decision in N.K.Sarsoonia (supra)

is distinguishable on the facts of the case.

14. In the result, the writ petition is allowed. The order passed by the

tribunal is set aside and the matter is remitted to the tribunal for a fresh

hearing after issuing notice to the parties. There shall be no order as to

costs.

CHIEF JUSTICE

SANJIV KHANNA, J APRIL 29, 2011 sv/dk