K. Asokan vs Nuclear Science Centre & Ors.
2017 Latest Caselaw 1635 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No.1813/2003

%                                                    28th March, 2017

K. ASOKAN                                               ..... Petitioner
                          Through:       Mr. Krishna Kumar, Advocate
                          versus

NUCLEAR SCIENCE CENTRE & ORS.           ..... Respondents

Through: Ms. Malvika Trivedi, Advocate for R-1.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. Petitioner, by this writ petition under Article 226 of the

Constitution of India, seeks the relief of grant of higher pay grade in

the scale of Rs.3000-4500/- as payable to a Scientist-D instead of the

pay grade of Rs.2200-4000/- at which the petitioner was appointed as

Scientist-C/Scientist Coordinator.

2. The facts of the case are that the respondent no.1 issued an

advertisement in December, 1993 for various posts including the post

of Scientist Coordinator. As per the subject advertisement, the pay

grade/scale for the post in question was specifically advertised at

Rs.2200-4000/-. Petitioner was selected and petitioner was appointed

in terms of the Selection Committee report dated 24.2.1994. As per the

recommendations of the Selection Committee petitioner though was

granted a pay-scale of Rs.2200-4000/- yet, the petitioner began this

pay-scale with four increments from the first date of appointment itself.

This benefit the petitioner has got because of petitioner having the

qualification of Ph.D in Physics without experience instead of the

alternative eligibility criteria of appointment being M.Sc in Physics

with experience. The petitioner had accepted this appointment but

petitioner thereafter filed repeated representations for grant of pay-

scale of Rs. 3000-4500/- instead of the pay-scale of Rs. 2200-4000/-

with inbuilt four annual increments from the date of appointment, and

as was granted to the petitioner when he was appointed with the

respondent no. 1.

3. Petitioner claims that in view of the representations of the

petitioner, a Grievance Committee was constituted and this Grievance

Committee in its report observed that the grievance of the petitioner is

genuine. As per the respondent no.1 the Grievance Committee however

did not recommend grant of the higher pay grade but only

recommended that petitioner be given the next promotion immediately

on the same becoming due, and accordingly, petitioner was granted the

promotion to the next higher pay-scale of Rs. 3000-4500/- w.e.f.

1.10.1998.

4. It may be noted that after the Board of the respondent no.

1 did not accept the recommendations of the Grievance Committee the

petitioner had preferred a review but that review preferred by the

petitioner before the Board was also rejected and so informed to the

petitioner vide inter office memo dated 2.12.2002.

5. Petitioner further pleads in the writ petition that petitioner

has been discriminated against because certain other persons who had

Ph.D qualifications were granted higher pay grade but same benefit

was not extended to the petitioner. This aspect of discrimination

against the petitioner is by the petitioner comparing himself with six

other persons as mentioned in para 14 of the writ petition.

6. The writ petition is a completely frivolous writ petition

and is wholly misconceived. The writ petition is basically an endeavor

to speculate by litigation. The writ petition is therefore liable to be

dismissed on various counts which are stated hereunder.

7. (i) The first reason for dismissal of the writ petition is that

the petitioner is estopped from claiming a higher pay grade of Rs.

3000-4500/- inasmuch as the subject advertisement which was issued

and under which the petitioner applied and was appointed prescribed

the pay grade specifically and only as Rs.2200-4000/-. Petitioner

therefore with open eyes applied under an advertisement in which a

specific pay grade was mentioned and petitioner accepted that pay

grade not only by applying as per the advertisement but taking

employment/appointment in the pay grade of Rs. 2200-4000/-. Thus

the petitioner has acted upon the advertisement as also the appointment

letter, got such benefit of employment, and thus the petitioner is

accordingly estopped from claiming a higher grade pay.

(ii) Another reason for the petitioner being estopped from claiming

the higher pay grade is that petitioner though had been granted the pay

grade of Rs.2200-4000/-, but this was with the benevolent modification

in that petitioner was to start his first pay with four increments being

already granted to the petitioner right from the first date of

appointment. If the respondent no.1 would have strictly gone by the

advertisement the petitioner would not have got the higher pay of built-

in four annual increments. Therefore, petitioner had already got the

benefit of higher pay from the beginning, and which was a pay higher

than the pay-scale beginning as was prescribed in the advertisement.

Petitioner therefore having got an addition benefit of having the higher

eligibility criteria of Ph.D (Physics) instead of M.Sc. (Physics) with

experience and which was otherwise not due, hence petitioner is

estopped from claiming still further benefit. In fact, the claim of the

petitioner to higher pay-scale if it is granted, there would result

discrimination against the other candidates who had Ph.D

qualifications and who would not have applied because the pay grade

as per the advertisement because the pay-scale fixed was only Rs.

2200-4000/-. If other candidates knew that they could get a higher pay

grade of Rs.3000-4500/- instead of Rs.2200-4000/- as per the

advertisement then such other persons would also have applied as per

the advertisement and sought the higher pay grade after the

appointment with the respondent no. 1. Petitioner therefore cannot be

granted the higher pay grade because this would amount to

discrimination against those other candidates who had Ph.D

qualification and who did not apply pursuant to the subject

advertisement in spite of they having the eligibility criteria of Ph.D in

Physics.

(iii) Therefore, petitioner having applied under the advertisement

with a specific pay grade, petitioner took appointment under the

specific pay grade, petitioner in fact got an initial higher pay-scale with

four annual increments already granted on his date of the appointment,

grant of higher pay-scale to the petitioner would amount to

discrimination against other candidates who did not apply pursuant to

the advertisement although they had qualification of Ph.D in Physics,

and therefore, petitioner is estopped from claiming the higher pay

grade of Rs. 3000-4500/-.

(iv) I cannot agree with the argument urged on behalf of the counsel

for the petitioner who has argued that since as per the subject

advertisement on the basis of which petitioner was appointed provided

for start of higher salary/grade in case candidate had suitable

experience and qualification hence the petitioner should get the higher

pay grade as prayed, inasmuch, as per this relevant portion of the

advertisement of a higher salary/grade being granted, it is noted that

petitioner was in fact granted a higher commencement of salary with

four annual increments already being granted right from the first date

of the appointment of the petitioner. Also, the relevant line relied upon

on behalf of the petitioner uses the expression "may" and this

expression has to be literally interpreted, otherwise, "may" will have to

be read as "shall" that a candidate shall get higher salary/grade. In any

case, and as stated above, petitioner already got benefit of four annual

increments right from the first date of his appointment with the

respondent no. 1, and therefore I reject the argument urged on behalf of

the petitioner of the petitioner being entitled to higher pay grade on

account of the subject advertisement providing for grant of higher

starting salary/grade with respect to candidates having suitable

experience and qualifications.

8. (i) Another reason for dismissing of the writ petition is that

the writ petition is hopelessly barred by delay and laches. Though the

Limitation Act, 1963 does not apply strictly to a writ petition, the

principles of the Limitation Act apply and writ petitions which are filed

after the limitation period have to be dismissed by applying the

doctrine of delay and laches as held by the Supreme Court in the case

of State of Orissa & Another Vs. Mamata Mohanty, (2011) 3 SCC

436. The relevant paras 52 to 54 of Mamata Mohanty's case (supra)

read as under:-

"52. In the very first appeal, the respondent filed writ petition on 11.11.2005 claiming relief under the Notification dated 6.10.1989 w.e.f. 1.1.1986 without furnishing any explanation for such inordinate delay and on laches on her part. Section 3 of the Limitation Act 1963, makes it obligatory on the part of the court to dismiss the Suit or appeal if made after the prescribed period even though the limitation is not set up as a defence and there is no plea to raise the issue of limitation even at appellate stage because in some of the cases it may go to the root of the matter.

53. Needless to say that Limitation Act 1963 does not apply in writ jurisdiction. However, the doctrine of limitation being based on public policy, the principles enshrined therein are applicable and writ petitions are dismissed at initial stage on the ground of delay and laches. In a case like at hand, getting a particular pay scale may give rise to a recurring cause of action. In such an eventuality, the petition may be dismissed on the ground of delay and laches and the court may refuse to grant relief for the initial period in case of an unexplained and inordinate delay. In the instant case, the Respondent claimed the relief from 1.1.1986 by filing a petition on 11.11.2005 but the High Court for some unexplained

reason granted the relief w.e.f. 1.6.1984, though even the Notification dated 6.10.1989 makes it applicable w.e.f. 1.1.1986.

54. This Court has consistently rejected the contention that a petition should be considered ignoring the delay and laches in case the petitioner approaches the Court after coming to know of the relief granted by the Court in a similar case as the same cannot furnish a proper explanation for delay and laches. A litigant cannot wake up from deep slumber and claim impetus from the judgment in cases where some diligent person had approached the Court within a reasonable time."

(ii) It is seen that this writ petition is filed in the year 2003 whereas

the petitioner got appointment on 24.2.1994. If the petitioner wanted

to challenge the appointment terms dated 24.2.1994 of the denial of

grant of higher pay grade of Rs. 3000-4500/- and instead the petitioner

being granted pay grade of Rs.2200-4000/- with four annual

increments built-in on the first salary of the petitioner, then petitioner

had to within three years of 24.2.1994 file judicial proceedings to

challenge the denial of grant of higher pay-scale. This writ petition

however, as already stated above, has been filed on 5.3.2003 and hence

the same is hopelessly barred by time as the writ petition had to be

filed at the maximum by 24.2.1997.

(iii) I reject the contention urged on behalf of the petitioner that since

petitioner has been filing repeated representations hence there is no

delay inasmuch as filing of the representations will not increase the

limitation period unless the limitation period can be extended on the

principles of the Limitation Act amounting to acknowledgement under

Sections 18 and 19 of the Limitation Act i.e it must be shown that the

employer had informed the petitioner that his representations were

pending favorable consideration. However, there is no communication

of the respondent no. 1 that the case of the petitioner was being

favorably considered, and hence mere filing of the representations will

not extend the limitation period. The writ petition is therefore barred

by the doctrine of delay and laches by applying the principle of

limitation, and accordingly for this second reason the writ petition is

bound to be and is dismissed.

9. (i) Learned counsel for the petitioner argued by placing

reliance upon the service rules of the respondent no.1 that

qualifications required for the subject post had to be only M.Sc plus

one year experience or B.E. plus one year experience and there was no

requirement of Ph.D qualification, and which Ph.D qualification was

only required for the next higher post of Scientist-D, and therefore, the

higher salary of Scientist-D should be granted to the petitioner. The

chart of the pay-scales of the respondent no.1 relied upon by the

petitioner containing the relevant requirement and the pay-scales of

Scientist-C and Scientist-D are as under:-

PAY SCALES FOR SCIENTIFIC & TECHNICAL STAFF

Designation Pay Scales Minimum Qualification for recruitment

Tech.C/ 1200-30-1440-EB-30- ITI Cert.

  Tech.D/                 1320-30-1560.EB-40-       ITI+3 Yrs.

  Tech. E/JE-A            1400-40-1800-EB-50-       (ITI+6 Yrs.)

  Tech.F/ JE-B            1400-40-1600-50-2300-     Diploma or B.Sc.
                          EB-60-2600
  Tech.G/JE-C             1640-60-2600-EB-75-       (Dip+ 4 Yrs)

  Tech.H/JE-D             2000-60-2300-EB-75-
                          3200-100-3500
  Tech.J/JE-E/E-C/SC      2200-75-2800-EB-100-      (M.Sc+1 Yr.)or
                          4000                      (B.E+1 Yr.)
  Tech. K/JE-F/E-D/SD     3000-100-3500-125-4500    Ph.D or (B.E+%
                                                    Yrs.)
                                                    (M.Tech + 2 Yr.) or
                                                    Ph.D.
        /EE/SE            3700-125-4700-150-5000    (Ph.D+4 Yrs.) or
                                                    (B.E.+ 9 Yrs.) or
                                                    (M.Tech+5 Yrs.)
          /EF/SF              4500-150-5700
          /EG/SC              5100-150-5700-200-6300
            SH                5900-200-7300
           Prof.              4500-7300

The Governing Body may as an exceptional measure offer Professorships to distinguished scientist with suitable salary.

JE-A Junior Engineer Grade A:E.C: Engineer Grade C: SC: Scientist Grade C"

(ii) I cannot agree with this argument urged on behalf of the

petitioner inasmuch as this very chart in its heading states that the

qualifications are only the minimum qualifications for recruitment.

Therefore, if the qualifications prescribed in the chart are only

minimum qualifications then surely employer at his discretion can

require higher qualifications for a particular post, and in doing so the

respondent no.1 has hence committed no illegality, and consequently

there does not arise a cause of action in favour of the petitioner to

claim higher pay grade of the higher post on account of petitioner

having a qualification of Ph.D which is required for the appointment to

the higher post of Scientist-D. In fact, and as already stated above, the

respondent no.1 has been more than considerate to the petitioner

because petitioner started his salary with four annual increments being

in-built from day one of appointment of the petitioner. I therefore

reject the argument urged on behalf of the petitioner by relying upon

the chart containing the pay-scales of different posts with the

respondent no.1. Also, and as already stated in detail above, petitioner

is estopped from claiming a higher pay grade instead of the pay grade

of Rs.2200-4000/- in terms of the subject advertisement under which

petitioner applied and was appointed.

10. Counsel for the petitioner argued discrimination against

the petitioner and in this regard the relevant averments are made in

para 14 of the writ petition, and which para reads as under:-

"14. The petitioner made repeated requests in this regard to the respondents and made a representation even before joining that he should be given a higher grade. The Grievance Committee which consists of Retired Judge of the High Court and two external experts examined the representation of the petitioner and came to the conclusion that the prima facie, the grievance of the petitioner appears to be genuine and the petitioner should be put in the grade at par with other Scientists possessing Ph.D placed in the scale of 3000-4500. The report of the Grievance Committee which was in favour of the petitioner was never provided to the petitioner and the report has not been accepted by the Governing Body of the respondents and there have been no reasons assigned for not accepting the recommendations made by the Grievance Committee. It is submitted that this is a clear case of violation of Article 14 of the Constitution of India as the petitioner having Ph.D is offered a lower grade whereas the persons with Ph.D are placed in

the scale of Rs.3000-4500 and in fact, the other six Scientists working with the respondents with the Ph.D are being given the higher grade as per the bye laws and it is only in the case of the petitioner alone that the bye laws are not being followed for some ulterior motive of harassing the petitioner. The other six Scientists having the Ph.D who are getting the higher grade are as under:-

1. Dr. A.K.Avasthi

2. Dr. D.Kanjilal

3. Dr. A.Mondal

4. Dr. S.Mookerjee

5. Dr. Ravi Kumar

6. Dr.T.Nandi It is relevant to note that out of the above scientists joined with the respondents, Dr. A.Mondal was given the grade of Scientist-D while he was doing Ph.D which is given for a candidate having qualification of Ph.D as per the Bye-laws of the Respondents. Incidentally, Dr. S.Mookerjee and the Petitioner obtained their doctoral degree from Department of Physics, University of Rajasthan, Jaipur and joined the Respondent based on Ph.D qualification but placed in different grades, while the Petitioner was placed as Scientist-C and Dr. S.Mookerjee in Scientist/Engineer-D."

11. (i) In response to this stand of the petitioner, respondent no.1

as per its counter-affidavit (para 14) has denied the equality of the

petitioner with six persons mentioned in para 14 of the writ petition by

pleading as under:-

"14. In reply, it is submitted that necessary averments with respect to the report and recommendations of the Grievance Committee has been made in detail in the foregoing paragraphs and need not be reiterated here for the sake of brevity. The petitioner was aware about the report of the Grievance Committee and averments contrary to the same are denied. The reliance on the report of the Grievance Committee is completely misplaced inasmuch as it is the Governing Body, which is the deciding authority, where the report of the Grievance Committee are only recommendatory in nature. It iswrong to suggest that the report of the Grievance Committee was in any manner favourable to the Petitioner. The Petitioner has failed to make out any case of violation of Article 14 of the Constitution inasmuch as the instances of the six Scientists given by the Petitioner, who are getting higher pay scale, had applied against the post advertised in the higher grade. The rest of the contentions made in the paragraph under reply are not true and denied. Out of the list given by the Petitioner, the first three persons were appointed during the initial stage in the development of the Centre, prior to the formulation of the Bye-laws. Their primary responsibility was installation and commissioning of different scientific facilities required by the Centre.

Similarly, the remaining three persons mentioned in the list were given responsibilities in the development of various research and computational facilities of the Centre. All those six persons had several years of post doctoral/managing experience before joining the Centre. It would be improper to equate their qualification/experience with the petitioner, who did not have any post doctoral/research/teaching/managerial experience at the time of joining the Centre. Also, the job description of the Scientist Co- ordinator is completely different and does not require any development activity related to the Centre."

(ii) It may be noted that petitioner was admittedly appointed as a

Scientist Coordinator i.e Scientist-C. In para 14 of the writ petition

when the petitioner compares himself with six other persons alleging

discrimination against him, the petitioner has not pleaded that six other

persons were appointed as Scientists-C or Scientist Coordinators.

Accordingly, petitioner cannot successfully plead a case of

discrimination because it is not pleaded or established that six other

persons with whom the petitioner claims equality were appointed as

Scientist Coordinator/Scientist-C in the respondent no.1 at a higher pay

grade of Rs.3000-4500/-. Also, the respondent no.1 in its counter-

affidavit in para 14 has stated valid facts as to how petitioner cannot

claim equality with such six persons inasmuch as three out of the six

persons were appointed before formulation of the bye-laws of the

respondent no.1 and the other three persons had much more

qualifications than the petitioner including of post doctoral experience

before joining the respondent no.1, and petitioner admittedly had no

experience post obtaining the Ph.D qualification.

12. Learned counsel for the petitioner then argued by placing

reliance upon a document filed with the rejoinder being the letter dated

24.9.1985 addressed by the Director of the respondent no.1 to one Mr.

G. Samudra, however, it is seen that this letter in no way states that Mr.

G. Samudara was appointed as a Scientist Coordinator or Scientist- C

(letter only says „Scientist‟) and since he had a Ph.D qualification he

was hence granted the pay grade of Rs.3000-4500/- inspite of being

only appointed as a Scientist-Coordinator. Even assuming that Mr. G.

Samudra was appointed as Scientist-C at grade pay of Rs.3000-4500/-,

even then till it is known as to what personnel position existed in 1985

and whether they were identical in 1993, petitioner cannot claim

equality with Mr. G. Samudra. The letter dated 24.9.1985 is therefore

reproduced and which will show as baseless the stand of the petitioner

that Mr. G.Samudra was a Scientist Coordinator and yet got the higher

pay-scale of Rs.3000-4500/- and simply because Mr. G. Samudra had a

Ph.D in Physics. This letter reads as under:-

"Prof. A.P.Patro Director September 24, 1985.

Mr. G.Samudra Department of Physics Purdue University WEST LAFAYETTE In.47906 U.S.A Dear Mr. Samudra, You have been in touch with Prof. Mehta. We recently had a selection committee meeting and considered your bio-data. We are pleased to offer you the position of a ""Scientist" in our Centre in the grade Rs.700-1300

which will be Rs.1100-1600 After you get your Ph.D degree. In addition to the basic pay you will be entitled to the allowance as permissible to Central Govt. employees in Delhi. The total emoluments, at the minimum basic salary of Rs.1100, will come to Rs.2715. We will provide accommodation to come to Rs. 2715. We will provides accommodation to our scientists as per Govt. rules. If you are interested in our offer please let us know the date by which you can join. We are looking forward to hearing from you.

Yours faithfully, Sd/-

(Prof. A.Patro) Director"

13. Learned counsel for the petitioner has placed reliance

upon three judgments of the Supreme Court in support of his

arguments. The first judgment is in the case of Laljee Dubey Vs.

Union of India AIR 1974 SC 252. The second is the judgment in the

case of D.S. Nakara Vs. Union of India AIR 1983 SC 130 and the

third judgment in the case of State of Bihar and Others Vs. Bihar

State 'Plus-2' Lecturers Associations and Others (2008) 7 SCC 231.

14. None of the judgments relied upon by the petitioner are in

any manner relevant to determine the matters in controversy and are

completely distinguishable on the facts of those cases with the facts of

the present case.

15. So far as the judgment in the case of Laljee Dubey

(supra) is concerned, learned counsel for the petitioner has relied upon

the same to argue that in case of employees belonging to the same

group, discriminatory treatment is prohibited, however, in the present

case petitioner has failed to show any discrimination between the same

group of employees i.e similarly placed employees which show that

respondent no.1 has discriminated by granting different and higher pay

grades to other Scientist Coordinators/Scientists-C who were appointed

by respondent no.1.

16. The judgment of the Supreme Court in the case of D.S.

Nakara (supra) once again relied upon for not treating equally placed

persons differently simply because they belong to different

departments, however this judgment of D.S. Nakara (supra) also has

no application because in D.S. Nakara's case (supra) the issue was of

grant of increase of pension even to retired employees. In the case of

D.S. Nakara (supra) on account of inflationary inputs etc, it was held

that retired employees were also to get benefit of increase of pension in

case the pay-scales of existing or subsequent employees who retired

after the retired employees was increased and which entitled such

subsequent employees who retired subsequently to receive higher

pension. Also, I may state that the observations which are made in the

judgment cannot be conveniently read to support the petitioner because

observations in a judgment have to be read in the context of the facts of

that particular case. An observation cannot be torn out of context and

which is sought to be done on behalf of the petitioner by placing

reliance upon the observations in D.S. Nakara's case (supra) that

persons holding identical posts should not be treated differently.

17. The third judgment of the Supreme Court in the case of

State of Bihar (supra) is relied upon as per its paras 11, 23 and 33 to

argue that discrimination is not possible among similarly placed

employees, and to which proposition of law there is no dispute but

there is no discrimination against the petitioner in the present case, and

as already been discussed in detailed above.

18. The aforesaid discussion shows that the petitioner in spite

of applying under a specific advertisement for a specific pay grade, and

getting appointment under that pay grade and that too with four annual

increments built-in from the first date, yet the petitioner wants to go

back on his terms and conditions of employment without any basis. It

was perfectly possible for the petitioner, in case the petitioner was not

satisfied with the pay grade/scale he was getting at the time of his

appointment, not to take the appointment with the respondent no.1, but

petitioner did take his appointment at the specific pay-scales and with

four annual increments already built-in. Petitioner therefore cannot act

incongruously with the terms of his appointment simply because

petitioner wants to claim more monetary emoluments than actually due

to the petitioner. Also, petitioner‟s case was put up before the

Grievance Committee and the Grievance Committee did not accept the

representations of the petitioner for grant of higher pay grade and the

committee only recommended grant of first promotion to the scale of

Rs.3000-4500/- when it first became due to the petitioner and which

was granted to the petitioner on 1.10.1998. Relief claimed is also

barred by the doctrine of delay and laches. Clearly therefore the writ

petition is an endeavor to speculate in litigation and which should be

put down with heavy hands. The petitioner has no sympathy from this

Court inasmuch as petitioner is trying to be clever by half by accepting

appointment at the specific pay-scale, representations of the petitioner

being rejected by the Grievance Committee as also the Board of the

respondent no.1, and that there is no discrimination against the

petitioner, yet petitioner still wants to unnecessarily keep on pursing

unjustified relief by filing judicial proceedings.

19. In view of the above, this writ petition is dismissed with

costs of Rs.30,000/-. Half of the costs will be paid to the respondent

no.1 and half of the costs will be deposited with the Friendicoes, No.

271 & 273, Defence Colony, Flyover Market, Jangpura Side, New

Delhi-110024 within a period of six weeks.

MARCH 28, 2017                                 VALMIKI J. MEHTA, J
Godara/ib/Ne