Delhi High Court
Dr. Kanti Prasad vs Indian Institute Of Technology & ... on 16 March, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 5598/2011
% 16th March, 2017
DR. KANTI PRASAD ..... Petitioner
Through: Mr. M.K. Bhardwaj and Mr. M.D.
Jangra, Advocates.
versus
INDIAN INSTITUTE OF TECHNOLOGY & ANR. ..... Respondents
Through: Mr. T. Singh Dev and Ms.
Baikthansangi, Advocates for R-1.
Mr. Anurag Ahluwalia, CGSC with
Ms. Nisha Sharma, Advocate for R-2.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. By this writ petition under Article 226 of the Constitution
of India, the petitioner seeks the relief of quashing of the order/letter
dated 27.12.2010 of the Ministry of Human Resource Development,
Department of Higher Education, by which the Ministry informed the
petitioner that as regards the petitioner's services with the respondent
no. 1/Indian Institute of Technology (IIT) there was no pending claim
of the petitioner.
2. The facts of the case are that the petitioner was given a
contractual appointment for one year in terms of the letter dated
17.5.2007 of the respondent no. 1 on a consolidated salary of
Rs.20,865/-. Petitioner was thereafter given two extensions and which
extensions ended on 31.3.2010. Respondent no. 1 thereafter on failure
of the petitioner to join the services terminated the services of the
petitioner, inasmuch as, petitioner was already on leave without pay
from 1.12.2009 and which absence continued even after the date of
sanctioned leave of 31.3.2010. Petitioner by this writ petition seeks the
higher scale of pay than that given to the petitioner and accepted by
him in terms of the contractual appointment letter and extensions
thereof. The petitioner claims higher pay-scale on the basis of certain
government guidelines which petitioner claims applies to the
petitioner.
3. The fact of the matter is that the present writ petition is
totally misconceived, inasmuch as, petitioner's appointment with the
respondent no. 1 was a contractual appointment at a consolidated
salary of Rs.20,865/- in terms of offer of appointment letter dated
17.5.2007. If the petitioner did not want the contractually fixed salary
then petitioner need not have joined at all the services of respondent
no. 1. Petitioner not only joined the services of respondent no. 1,
continued his services with the respondent no. 1 for the original period
of one year, in fact got two extensions thereafter till 31.3.2010, and
therefore petitioner cannot claim that inspite of petitioner acting as per
the contract and also the respondent no. 1 as per the contract by paying
the contractually fixed salary, yet the petitioner should be paid a higher
salary than the contractually fixed salary. A contractual appointee can
only be paid a contractual salary unless and until the contractual salary
is a higher figure as provided by any statutory provision or mandatory
guidelines of the competent authority including the parent Ministry of
the respondent no. 1, and which is not so in the facts of the present
case. Therefore, petitioner has no valid basis to claim any higher
monetary emoluments than that as were contractually due to the
petitioner and which must have already been paid to the petitioner.
4. (i) Learned counsel for the petitioner argued that in the
selection committee which appointed the petitioner, petitioner was
recommended a consolidated salary of Rs.27,500/- but petitioner has
not been paid this consolidated salary of Rs.27,500/- and instead was
paid only Rs.20,865/- and therefore petitioner is at least entitled to the
higher salary at Rs.27,500/- from the first date of appointment. In
support of this argument, counsel for the petitioner places reliance
upon Annexure P-1 to the additional affidavit of the petitioner dated
23.1.2013.
(ii) This argument of the petitioner is misconceived because a
reference to Annexure P-1 of the additional affidavit of the petitioner
shows that petitioner was only recommended for a salary of
Rs.27,500/- but as per the same note he was to be paid as per the rules
the salary of Rs.20,865/-. There is a difference between a
recommendation and a contract with respect to payment of a particular
amount. Therefore, once there is no contract and there was only a
recommendation for payment at Rs.27,500/-, and which
recommendation was not accepted by respondent no. 1, petitioner
therefore cannot get the higher salary of Rs.27,500/- instead of the
contractually fixed salary of Rs.20,865/-.
(iii) There is another reason for the disentitlement of the petitioner to
the higher salary of Rs.27,500/-, as stated above and which is that if the
petitioner did not want to work at a consolidated salary of Rs.20,865/-
but wanted a salary of Rs.27,500/-, then petitioner should have rejected
the job offer and not have accepted the job offer and worked for the job
offered with further extensions at fixed salary amounts. This argument
of the petitioner, therefore, is rejected.
5. (i) Another argument urged on behalf of the petitioner was
that since the office memorandum dated 31.5.2007 of the respondent
no. 1 directed that petitioner's salary will be Rs.20,865/- per month but
services of the petitioner will be governed by the Terms and
Conditions mentioned in the letter dated 17.5.2007, and the letter dated
17.5.2007 allows petitioner in addition to salary, DA, HRA, PF
benefits, Insurance premium, etc., hence, petitioner should be granted
additional allowance towards HRA, PF benefits, Insurance premium,
etc. Petitioner has placed reliance on para 2 of the Terms and
Conditions governing the post and the said para 2 reads as under:-
"2. PAY AND ALLOWANCES: Consolidated salary offered for the
project post include: Basic pay and DA, HRA, PF benefits and Insurance
premium to cover against medical and hospitalization for self and dependent
family members and accident insurance for self. Further, the candidate is
required to deposit one month's salary as security (in a maximum of two
installments within two months) in cash counter with intimation to IRD
Accounts."
(ii) Once again this argument urged on behalf of the petitioner is
misconceived because this aforesaid para 2 of the Terms and
Conditions is clear that the consolidated salary offered to the petitioner
includes all aspects of basic pay, DA, HRA, PF benefits, Insurance
premium, etc, and therefore once the salary package is a fixed salary
amount which includes DA, HRA, PF benefits, Insurance premium,
surely therefore there is nothing in the language of para 2 to support
the contention of the petitioner for being granted higher amounts in
addition to the fixed salary amount in terms of the appointment letter.
6. (i) Finally, counsel for the petitioner argued by placing
reliance upon the recommendations of the committee constituted by the
respondent no. 1 for salary fixation of professionals who
superannuated from government services and were hired by respondent
no. 1, and which committee report dated 7.10.2010 provided in para 6
that consolidated amounts given should be revised after every two
years as per DA recommendations, and therefore it is argued that
petitioner in addition to the fixed salary amount should get higher DA
component whenever higher DA payments were made by the Central
Government to its employees.
(ii) Once again this argument is misconceived because petitioner did
not continue in service with the respondent no. 1 after 31.3.2010, and
this report relied upon is of a later date i.e 7.10.2010, and consequently
this report dated 7.10.2010 can only have prospective application and
not retrospective application.
7. Dismissed.
MARCH 16, 2017 VALMIKI J. MEHTA, J
AK
