Dr. Vivekanand Jha And Ors. vs The Indian Council Of Historical ...
2013 Latest Caselaw 2721 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+                         W.P.(C) No.3635/1997
%                                                            2nd July, 2013

DR. VIVEKANAND JHA AND ORS.                              ..... Petitioners
                 Through: None.

                          versus

THE INDIAN COUNCIL OF HISTORICAL RESEARCH THROUGH ITS
CHAIRMAN AND ANR.                      ..... Respondents

Through: Ms. Geeta Sharma, Advocate with Ms. Mithu Jain, Advocate.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J. MEHTA

To be referred to the Reporter or not?        YES


VALMIKI J. MEHTA, J (ORAL)

1. It is 2.55 P.M. In spite of waiting for the petitioners for over

half an hour no one appears. This case is effective item No.2 on the Regular

Board. I have therefore heard the counsel for the respondent No.2 and

perused the record. I am accordingly proceeding to dispose of the appeal.

2. By this writ petition, the petitioners seek appropriate writs or

directions for quashing of the office order No.237 dated 24.4.1997 revising

downwards the pay scales and pensionary benefits of the petitioners.

Petitioners also pray for implementation of the Fifth Pay Commission

Report and seek equality with staff of the University.

3. The facts of the case are that the petitioners have been working

with the respondent No.1/Indian Council of Historical Research on posts of

Directors or Deputy Directors. The respondent No.1 is stated to have passed

a resolution dated 2.4.1992 revising upward the pay scales of the petitioners.

The scales of pay of Directors were increased from `3700-5000/- to `4,500-

150-5700/- and the scales of Deputy Directors were increased from `3,000-

4500/- to ` 3700-125-4700-250-5000/-. The respondent No.1 however

subsequently withdrew the increase of the pay scales by its order dated

31.3.1997 and which action is impugned in the present writ petition.

Petitioners claim that they were promised higher pay scales and therefore

rejection of the representation for continuation of the pay scales granted vide

order dated 2.4.1992 of the respondent No.1 by the order dated 31.3.1997 is

illegal and bound to be quashed. Respondent No.1 thereafter proceeded to

recover the amounts which were given to the petitioners in terms of the

original order dated 2.4.1992. At that stage, the petitioners approached the

Court with the present writ petition. Interim orders were granted in favour

of the petitioners and which were confirmed till the disposal of the petition.

4. On behalf of the respondents, the defence raised is that there

cannot take place increase of pay scales where posts have salaries of more

than `2,000/- per month because increase of salary would amount to

creation of posts because like in creation of posts, so too in pay scale

enhancements, there is a huge financial outgo. Reliance for this purpose is

placed upon Regulation 25(b)(iii) proviso of the regulations of respondent

No.1 and the same reads as under:-

"25(b)(iii) the procedure, terms and tenure of appointments, emoluments, allowances, rules of discipline and other conditions of service of the officers and staff of the Council. Provided that the prior approval of the Government of India shall be obtained for the creation of all posts with a salary of `2,000 per month or more and for making appointments to such posts;"

5. Reliance is also placed by the respondents upon the

memorandum dated 16.9.1991 issued by the Government of India, Ministry

of Finance which states that upgradation of posts in fact amounts to creation

of higher posts and this memorandum reads as under:-

"Copy of Government of India, Ministry of Finance, O.M. No.F.7(18)-E. (Co.ord.)/71, dated 16.9.1991. Subject:- Upgradation of posts-prior approval of competent authority-regarding.

A case has come to the notice of this Ministry where an officer had been appointed to a higher post on promotion first by the Administrative Ministry and thereafter proposal was sent to this Ministry for upgradation of the post irregular and objectionable. Upgradation of a post in effect amounts to creation of a higher post. Hence, it is necessary that in all such cases of upgradation, the same procedure as is prescribed for creation of posts is observed.

2. The undersigned is directed to impress upon all Ministries/Departments, etc., that necessary approval of the Competent Authority to the upgradation of the post(s), in accordance with the prescribed procedure, must be invariably obtained before any approval for filling it up is taken up in hand."

6. It is argued that the petitioners who were holding high posts in

the respondent No.1 as Directors or Deputy Directors misused their position

and violated the relevant Regulation 25(b)(iii) read with circular of the

Ministry of Finance dated 16.9.1991 to take undue financial benefits

because the enhancement of pay scales was done without obtaining the prior

requisite approvals of the parent Ministry. It is contended that respondent

No.1 is fully funded by the Union of India through the concerned Ministry

and without permission of the Union of India in terms of the aforesaid

Regulation 25(b)(iii) there cannot be enhancement of pay scales which will

amount to unnecessary financial burden upon the Union of India. It is

argued that limit above of Rs.2,000/- per month is kept by the proviso to

Regulation 25(b)(iii) as in the higher pay scale the financial outgo is higher

and hence the requirement of prior approval.

7. In my opinion, the stand of the respondents needs to be

accepted. Though there may be some sort of doubt on the language of the

Regulation 25(b)(iii), however, the sum and substance of the Regulation

basically is that whenever there is a financial outgo for a post drawing a

salary of more than `2,000/- per month then concurrence has to be taken

from the parent Ministry. The logic is also correct because if finances have

to flow to the respondent No.1 from the concerned Ministry of the Union of

India, surely higher officials of the respondent No.1 such as the petitioners

cannot on their own decide to increase their scales of pay. In any case, there

cannot be any doubt because before the resolution was passed by the

respondent No.1 on 2.4.1992 granting enhancement of pay scales, the

circular of the Ministry of Finance dated 16.9.1991 was in operation and

which in categorical terms stated that upgradation of a post in effect

amounts to creation of a higher post and for such upgradation the same

procedure prescribed for creation of post is to be observed. The petitioners

therefore cannot take advantage of an illegal act. In fact, taking of illegal

financial benefits would amount to in fact breach of trust or fraud by the

petitioners who are occupying higher posts in respondent No.1 and they are

more or less in the overall control and charge of the management of the

respondent No.1. I may note that the Supreme Court now has in a catena of

cases held that the pay scale of an employee of an organization has

necessarily to be decided by the concerned authority and Courts cannot

interfere to decide what should be the pay scale of an employee of an

organization. Supreme Court has said that Courts should be careful to not

step over the dividing line since an organization best knows its financial

conditions for the scales of pay to be fixed. This was held by the Supreme

Court in the judgment of Indian Drugs & Pharmaceuticals Ltd. Vs.

Workmen, Indian Drugs & Pharmaceuticals Ltd. (2007) 1 SCC 408.

8. In view of the above, petitioners cannot take benefit of the

illegal act of the passing of resolution of the respondent No.1 dated 2.4.1992

because the same quite clearly violates Regulation 25(b)(iii) and the

Ministry of Finance's circular dated 16.9.1991. If the petitioners have taken

illegal financial benefits there is no law that such illegal financial benefits

can be retained by the petitioners and surely the illegal financial benefits can

be sought to be recovered by the respondents as petitioners have to restitute

the respondents. There cannot be estoppel prayed for recovery of amounts

because after all public funds are in issue. Useful reference in this behalf

can be made to the observations in the recent judgment of the Supreme

Court in the case of Chandi Prasad Uniyal & Ors. Vs. State of

Uttarakhand & Ors. (2012) 8 SCC 417. Para 14 of the said judgment is

relevant and the same reads as under:-

"14. We are concerned with the excess payment of public money which is often described as "tax payers money" which belongs neither to the officers who have effected over-payment nor to the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. The question to be asked is whether excess money has been paid or not may be due to a bona fide mistake. Possibly, effecting excess payment of public money by the Government officers, may be due to various reasons like negligence, carelessness, collusion, favouritism etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment."

9. In view of the above, there is no merit in the petition and the

same is therefore dismissed, leaving the parties to bear their own costs.

VALMIKI J. MEHTA, J JULY 02, 2013 Ne