Delhi High Court
K.L. Khera & Ors. vs Uoi & Ors. on 1 July, 2019
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (C) 7653/2000
K.L. KHERA & ORS. ..... Petitioner
Through Ms. Jyoti Singh, Sr.Adv. with
Ms. Niyati Patwardhan, Mr. Padma Kumar
and Mr. Himanshu Gautam, Advs.
versus
UOI & ORS. ..... Respondent
Through Mr. Rajesh K. Gogna, CGSC
with Mr. Rijul Singh Uppal and Mr.
Akhilesh Sagar, Advs. for R-1.
Mr.Amitesh Kumar, Ms. Priti Kumari and
Ms. Binisa Mohanty, Advs. for R-2.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
% JUDGMENT
01.07.2019
1. The petitioners are working as Assistant Directors, Deputy
Directors and Directors in the Indian Council of Social Science
Research (ICSSR). Some of them are designated as Documentation
Officers (in Library). They have been appointed on different dates.
Their pay scales were, initially, upgraded, vide order dated 29th June,
2000, by granting them the pay scales prescribed by the University
Grants Commission (UGC), in respect of lecturers, readers/Assistant
Professors and Professors employed in universities. Later, however,
vide individual Office Orders issued to them on 30th November, 2000,
the said upgraded scales were withdrawn with retrospective effect.
Aggrieved thereby, the petitioners have moved this Court by means of
the present writ petition.
The facts, as stated in the Writ Petition
2. The writ petition avers, on the very outset, that, as per the Rules
governing the ICSSR, which was established by Resolution dated 12 th
December, 1968 of the Ministry of Education and Youth Services, and
started functioning as an autonomous organisation w.e.f. 1 st August,
1969, the power to appoint all categories of officers and staff, for
conducting its affairs, and to fix their remunerations and define their
duties, vested in the ICSSR itself. It is further averred that the ICSSR
decided, in its own interest, to recruit, as Directors, Deputy Directors
and Assistant Directors, personnel having qualifications analogous to
those held by faculty members in Universities, i.e. lecturers, Assistant
Professors and Professors. This, it is also averred, was intended at
attracting academicians into the ICSSR. In order to operationalise this
objective, three categories of professional staff, i.e. Assistant
Directors, Deputy Directors and Directors were created, with
qualifications, as per their Recruitment Rules (hereinafter referred to
as ―RRs‖) being similar/identical to those which were prescribed by
the UGC in respect of lecturers, readers and Professors. Some features
of the said RRs, in respect of the aforementioned three categories of
posts, i.e. the posts of Assistant Director, Deputy Director and
Director, may be extracted thus:
―(i) Assistant Director:
Scale of pay: ₹ 700-40-900-EB-40-1100-15-1300
Educational and Other Qualifications for Direct
recruitment: Masters degree with 50% marks in any of
the social sciences with 2 years teaching or research
experience, or a doctorate degree in any of the social
sciences
Whether age and educational qualifications
prescribed for direct recruitment will apply in the case of
promotion: Age limit may be relaxed
Method of recruitment: 50% Direct Recruitment,
50% by promotion
Whether selection post, or non-selection post, if
recruitment is for promotion: Selection
In case of recruitment by
promotion/deputation/transfer, grades from which
promotion/deputation/transfer to be made: Persons with
requisite qualifications and at least 5 years service as
Research Assistant Grade II
(ii) Deputy Director:
Scale of pay: ₹ 1100-1600
Educational and other qualifications required for
direct recruitment: Doctorate degree in any of the social
science of at least 5 years experience in teaching or
research (for direct recruitment)
Whether age and educational qualifications
prescribed for direct recruitment will apply in the case of
promotion? No.
Method of recruitment: 75% by direct
recruitment/deputation and 25% by promotion
Whether selection post or non-selection post, if
recruitment is by promotion: Promotion on the basis of
seniority subject to rejection of the unfit.
In case of recruitment by
promotion/deputation/transfer grades from which
promotion/deputation/transfer to be made: As Assistant
Director with the minimum service of 5 years will be
eligible.
(iii) Director (Research):
Scale of pay: ₹ 1500-60-1800-100-2000
Educational and other qualifications required for
direct recruitment: PhD degree in 1 of the social sciences,
at least 7 years experience in teaching or guiding research
Whether age and educational qualifications
prescribed for direct recruitment will apply in the case of
promotion: -
Method of recruitment (Whether by direct recruitment or
by promotion or by deputation and percentage of vacancies to
be filled by various methods): Direct (by advertisement of
personal contact) or deputation‖
3. The writ petition avers that ―these posts correspond to the posts
of Professors, readers and lecturers in the University system‖ and that
―as per the Recruitment Rules in vogue in the Council, the
qualifications of the post of Directors, Deputy Directors and Assistant
Directors are similar and identical to that of qualifications prescribed
by the UGC for Professors, readers and lecturers‖. Equivalently, it is
averred that, on the establishment of the ICSSR, the ―professional staff
were given the pay scales as applicable to the teaching staff of the
Central Universities as prescribed by the UGC‖, and that this position
continued till 1st January, 1973. W.e.f. 1st January, 1973, the writ
petitioner avers that the professional staff of the ICSSR were given
scales pursuant to the recommendations of the 3 rd Central Pay
Commission (hereinafter referred to as ―Pay Commission‖), as
recommended for Central Government employees and that, even
though the said Pay Commission revised the scales of pay of
university faculty members, on the basis of recommendations made by
the review committee of the UGC, these scales were not made
applicable to the petitioners. Resultantly, it is averred, the pay scales
of the petitioners became lower than the pay scales of the teaching
staff of the Central Universities, as fixed by the UGC.
4. This resulted in a communication, dated 21 st September, 1974,
from the ICSSR to the Ministry of Education and Social Welfare
(hereinafter referred to as ―the Ministry‖), pointing out that, in its 19th
meeting held on 3rd August, 1974, the Administrative Committee of
the ICSSR had conveyed its approval to the adoption, in the ICSSR, of
the following scales of pay, in respect of its professional staff, based
on the recommendations of the UGC in respect of teaching posts in the
University:
S. No. Designation of Existing Scale Proposed
post (₹) Scale (₹)
1 Director 1100-50-1300- 1500-60-1800-
(Research) 60-1600-100- 100-2000-
1800 125/2-2500
2 Deputy Director 700-50-1250 1200-50-1300-
60-1900
3 Assistant 400-40-800-EB- 700-40-1100-
Director 50-950 50-1600
The letter also conveyed the desire, of the Administrative Committee
of the ICSSR, that the revised pay scales be cleared by the
Government of India, before the adoption thereof. It was also
observed, in the said letter, that the RRs of the above-mentioned three
posts in the ICSSR, i.e. the posts of Assistant Director, Deputy
Director and Director (Research) ―compared favourably with those
generally prescribed by Universities in respect of the posts of
Lecturer, Reader and Professor‖.
5. Consequent upon, and pursuant to, the recommendations of the
4th Central Pay Commission, the writ petition avers that the 3rd Review
Committee of the ICSSR was set up which, in its report, again
highlighted the necessity of equating the petitioners which the
teaching staff of the University system. Para 6.45 of the report of the
said Review Committee, which is specifically relied upon, in the writ
petition, reads thus:
―The council's ability to attract and retain academic staff
depends not only on providing challenging job
opportunities but also on salaries and working conditions
that are comparable with those available at research
Institutes and Universities. The present salaries and
working conditions should be revised to enhance the
advantage of working with the Council.‖
This recommendation, apparently, was approved by the ICSSR and
sent, to the Ministry, for approval, but no response was received
thereto.
6. On 29th September, 1987, the Deputy Secretary in the Ministry
wrote to the Director, as under:
― DO No. F-30-/87-US (Pt.)
Gurbax Singh, Ministry of Human
Deputy Secretary (U), Resource Development,
Tele: 389375 Department of
Education,
Government of India,
New Delhi-110001
29 September 1987
Dear Dr. Sareen,
As you are aware, the pay scale of teachers in
University and Colleges have recently been revised. A
copy of this Ministry letter No F.1-2/87-U.I.dated 17th
June, 1987, revising the pay scales of teachers in
universities and colleges and letter dated 7th September
1987 in with certain modifications to the above scheme
were made, is enclosed.
It has been brought to our notice that the revised
pay scales of some of the academic staff in the
specialised research councils, i.e. ICSSR, ICHR, ICPA
and IIAs would be lower than the revised pay scales of
Lecturer (Senior scale) and Reader. The academic staff in
these Councils expected to provide high level of scrutiny
of research proposals which more often than not are
received from the academics at the level of readers and
Professors. They are also required to play a leading role
in contributing to the academic and research activities. It
has, therefore, been felt that it may not be possible to
attract academic staff of requisite calibre and
qualifications in these organisations. You may, therefore,
consider reviewing the pay scales of the academic staff of
your organisation and place the matter before the
competent authorities in the light of the revision of pay
scales of teachers and universities and colleges keeping in
view the qualifications prescribed in the job requirements
of the academic staff in the Council vis-à-vis in the
colleges and universities. Proposals for the revision of
pay scales based on the recommendations of the
competent authorities together with detailed justification
in support thereof may please be sent to this Ministry for
further consideration of the matter.
With regards,
Yours sincerely,
Sd-
(Gurbax Singh)
Shri T. R. Sareen,
Director,
5, Ferozeshah Road,
New Delhi-110001‖
7. The request contained in the above-extracted communication
dated 29th September, 1987, from the Ministry - which, needless to
say, was welcome, insofar as the ICSSR was concerned - resulted in
the constitution, in the ICSSR, of a Committee of two Members of the
Governing Council, to suggest replacement scales for the petitioners.
This Committee submitted its recommendations in August, 1988,
which were considered by the Governing Council in its 58 th meeting
held on 17th December, 1988 resulting in the following resolution:
―The report submitted by Dr A. K. Jain Committee for
adoption of pay scales for professional staff of the
Council was discussed at length. The Council desired that
the conclusions at Sl. No. 9 may be modified so that the
pay scales of Assistant Directors, Deputy Directors and
Directors are equated with the revised pay scales for
lecturers, readers and Professors in the Central
Universities. It was also decided that the pay scales of the
Member Secretary in the Council shall correspond to that
of Vice Chancellor of the Central Universities. It was
decided that with these modifications the report may be
sent to the Department of Education for their approval.‖
8. No response was received, from the Ministry, to this proposal
either, resulting in placement of the proposal, yet again, before the
Governing Council in its meeting held on 12th July, 1992, in which the
proposal was reiterated. It was once again sent to the Ministry for
approval, but, yet again, to no avail. The petitioner has, in the writ
petition, asserted that there was no justification for the ICSSR to
repeatedly send the proposal for enhancement of pay scales to the
Ministry, as, under the Rules governing the ICSSR, the power to fix
pay scales of officers and staff, employed by it, vested in the ICSSR
itself, and no approval, of the Ministry, was required at any stage. At
the same time, the writ petition also asserts, in a somewhat contrary
vein, that the Ministry was bound to consider the recommendations
made by the Governing Council of the ICSSR and ―if approved,
restore the pay scales as applicable to the Teaching Staff in the
Central Universities‖. There is, therefore, a certain degree of
ambivalence, in the stand of the petitioner, as set out in the writ
petition.
9. The above exercise was repeated in 1995. Yet another
Committee, under the chairmanship of the former Education Secretary
of the Government of India, was set up, to look into, inter alia, the
pay scales of the petitioners and other staff of the ICSSR. The
Committee endorsed and reiterated the recommendations of the earlier
Committee, for adoption of the same pay scales as were being granted
to lecturers, Assistant Professors and Professors of Universities, as
fixed by the UGC. This was approved and accepted by the Governing
Council, in its meeting dated 31st October, 1996. As on previous
occasions, the recommendations were sent to the Ministry for
approval, to no response. Yet another Committee, under the
Chairmanship of Prof. A. Vaidyanathan, was set up, to suggest
modalities for implementation of the recommendations of the earlier
Committee. The said Committee again recommended the need for
implementation of University scales to the petitioners, and forwarded
the recommendations to the Ministry for approval. Predictably, there
was no response to this either.
10. Drawing attention to the recommendations of all these
Committees, the Member-Secretary of the ICSSR wrote, on 11th
November, 1998 and on 10th February, 1999, to the Ministry, setting
out the historical background of the case and requesting that approval
be conveyed, forthwith, for parity of the pay scales to be paid to the
professional staff in the ICSSR, with the teaching staff in the
Universities.
11. As the Ministry continued to maintain a stoic - and, I am
constrained to say, stubborn - silence, regarding the above
communications, from the ICSSR, to it, with respect to the
enhancement of pay scales of the personnel employed in the ICSSR,
making them equivalent to teaching staff in the Universities, the
Chairman of the Governing Council of the ICSSR took the decision
that, w.e.f. 29th June, 2000, the Assistant Directors, Deputy Directors
and Directors in the ICSSR would be placed in the pay scales
applicable to lecturers, Assistant Professors and Professors in
Universities, as fixed by the UGC, on a personal basis. Following this,
individual Office Orders were issued, to the petitioners, placing them
in the pay scale of lecturers, Assistant Professors and Professors, as
fixed by the UGC, on a personal basis, as a one-time measure, w.e.f.
29th June, 2000. One such Office Order may be reproduced, thus, as
an example:
―Consequent upon careful consideration and approval by
the Chairman, ICSSR Smt. Abida Vajahat, Deputy
Director is placed in the pay scale of ₹ 12,000-375-
18,000 w.e.f. 29.06.2000 (forenoon). This grade is
personal to Smt. Vajahat as a one-time measure, without
setting a precedent.‖
12. As a result, the pay scale of Directors was revised from
₹ 12,000-18,000 to ₹ 14,000-22,400, the pay scale of Deputy
Directors was revised from ₹ 10,000-15,200 to ₹ 12,000-18,000 and
the pay scale of Assistant Directors was revised to ₹ 10,000-15,200.
These scales, the writ petition points out, was still lower than the pay
scales prescribed by the UGC for teaching staff in the Universities,
and was given as a one-time measure pending decision of the
Ministry, on the proposals for revision submitted by the ICSSR.
13. The petitioners continue to draw the above scales, as granted to
them w.e.f. 29th June, 2000, till 30th November, 2000, when the
ICSSR abruptly withdrew the said scales with retrospective effect,
purportedly in accordance with directives issued by the Ministry on
13th October, 2000. The withdrawal is stated to have been effected
with the approval of the Chairman. A sample Office Order of
withdrawal may be reproduced thus:
―This is in continuation of earlier office order No
PS/CH/ICSSR/99-2000 dated 29.06.2000 regarding
upgradation of Dr. Prahlad Singh, Assistant Director
from pay scale of ₹ 8000-275-13,500 to ₹ 10,000-325-
15,200, the upgraded scale is hereby withdrawn with
retrospective effect under the directive of the Ministry's
letters No D.O.F. 10-32/97-U.5 dated 13.10.2000 and No
F.8-6/2000-U-5 dated 22.10.2000, and approved by the
Chairman.‖
14. Asserting that there was no justification for withdrawing the
higher pay scales granted, to them, on 29th June, 2000, the petitioners
have moved this Court by means of the present writ petition. The writ
petition asserts that the right to fix pay scales vested in the ICSSR and
that, therefore, it could not be controlled by any directives issued by
the Ministry, whose approval, too, was not required for such fixation.
That apart, it has pointed out the fact that the Ministry had itself, vide
letter dated 29th September, 1987 supra, directed the ICSSR to
enhance their pay scales to be at par with the teaching staff in the
Universities. This decision was also approved by various High Power
Committees constituted by the ICSSR. The retrospective revocation,
by the ICSSR, of its earlier decision to grant enhanced pay scales to
the petitioners is, therefore, characterised as completely unfair and
illegal.
Counter-Affidavits and Rejoinder thereto
15. In its counter-affidavit, the Union of India has emphasised the
fact that the ICSSR is fully funded by the Government of India by
way of grants in aid from the Ministry and is, therefore, bound to
abide by the guidelines issued by the Ministry of Finance from time to
time. Reference has been made to Office Memorandum (OM) No. 9
(4)-E. (Coord)/84, dated 15th October, 1984, which reads thus:
―No. 9 (4)-E(Coord)/84
Government of India
Ministry of Finance
Department of Expenditure
New Delhi, the 15th October, 1984
OFFICE MEMORANDUM
Subject: Financial powers of autonomous bodies-
restrictions regarding.
The Rules and Bye-laws of autonomous bodies
which are fully or partly funded by the Government of
India should invariably incorporate restrictive clauses
relating to the power of the Governing Bodies of such
organization in matters of creation of posts, revision of
pay and allowances of their staff and similar
establishment expenditure and provide for prior approval
of the Central Government in specific cases. It has come
to the notice that this has not been done in a number of
cases resulting the Governing Bodies of some
Autonomous Organisation taking decisions on the above
matters which do not conform to the general pattern of
the Central Government.
2. With a view to ensuring that the provisions relating
to the powers of the Governing Bodies in such matters
having financial implications are properly exercised,
Ministries/ Departments are requested to take following
action:-
(i) A clause may be incorporated in the relevant
Rules/Bye-laws/Regulations of the autonomous
bodies that proposals relating to emoluments
structure i.e. adoption of pay scales, allowance and
revision thereof and creation of posts above a
specified pay level would need the prior approval
of the Govt. of India in consultation with the
Ministry of Finance, Department of Expenditure;
(ii) In the case of larger autonomous bodies a
suitable clause may be incorporated in the relevant
Rules/Bye-Laws/Regulations that a representative
of the Ministry of Finance/Integrated Finance
Division of the Ministry concerned should be
nominated to the Executive Council of the
Autonomous Organisation. The choice of the
nominee would be made in consultation with the
Ministry of Finance; and
(iii) In the autonomous organizations referred to
in (ii) above, a provision would also be made in the
Rules/Bye-laws/Regulations that in the event of
disagreement between representatives of the
Ministry of Finance and the Chairman of the
Governing Body of the Autonomous Organisation
on the financial matter beyond the delegated
powers of the Ministry/Department of the Govt. of
India the matter may be referred to the Minister of
the Administrative Ministry concerned and the
Finance Minister for a decision.
3. Ministries/Departments are requested to take
immediate action to incorporate the necessary
amendments suggested in the preceding para in the
Rules/Bye-laws/Regulations of the Autonomous
Organisations under their administrative control under
intimation to this Ministry. They are also requested to
ensure that before a new autonomous body is formed, the
Rules/Bye-laws/Regulations concerning financial matters
are finalized in consultation with this Ministry.
Hindi version will follow.
Sd/-
(S.C. Mahalik)
Jt. Secretary to the Govt. of India
To,
All ministries/Departments
(By name to an officer of the rank of Jt. Secretary).
Copy to all Financial Advisers
Implementation of this O.M. may please be watched by
them carefully and reported to this Ministry from time to
time.
Sd/-
(S.C. Mahalik)
Jt. Secretary to the Govt. of India‖
It is sought to be contended that, by virtue of the afore-extracted OM
dated 15th October, 1984, the ICSSR, being, though an autonomous
body, wholly funded by the Government of India, had necessarily to
obtain approval of the Government of India before enhancing its pay
scales. The counter-affidavit also draws attention to the fact that,
while revising the pay scales of the posts of Assistant Director,
Deputy Director and Director in the ICSSR, the Ministry, in its letter
dated 26th March, 1998 (consequent on the recommendations of the 5th
Pay Commission), specifically stipulated that the ICSSR would not
alter/modify the emoluments, structure, terms and conditions of
service and scales of pay, without prior approval of the government.
The said communication, too, merits reproduction, thus:
― No. F: 10-32/97-U.5
Government of India
Ministry of Human Resource Development
(DEPARTMENT OF EDUCATION)
New Delhi, the 26th March 1998.
To
The Member Secretary
Indian Council of Social Science Research
Aruna Asaf Ali Marg
New Delhi - 110 067.
Subject: I.C.S.S.R., New Delhi - Pay revision of
employees of autonomous organisation, etc.
pursuant to the Recommendations of the
Fifth Central Pay Commission
Sir,
I am directed to refer to Ministry of Finance,
(Department of Expenditure)'s O.M. No. F7(34)E.III-
A/97 dated 2nd December, 1997 on the subject mentioned
above and to convey that the Government of India have
no objection to the revision of scales of pay of the Officer
and employees of Indian Council of Social Science
Research, New Delhi as per the details given in the
Annexure (I). This approval is subject to the following
conditions:-
i) Revision of scales will be in accordance with
the provisions of O.M. of Ministry of Finance cited
above. The revised scales of pay as incorporated in
Part A of the First Schedule to the Central Civil
Services (Revised Pay) Rules, 1997 will only be
admissible. Payment of the arrears will be
regulated in accordance with Para 3 thereof.
ii) The revision of scales of pay is subject to the
condition that the I.C.S.S.R will undertake to
amend its rules relating to medical facilities to the
staff to bring them in line with the CS(MA) Rules.
iii) 10% of the additionality on account of pay
revision will be met by the Council through saving
under various Heads and another 10% by
generation of additional resources. Government's
liability would therefore only be 80%;
iv) The revised scales would be admissible to
those employees who opt for these in accordance
with the rules. Deduction on account of Provident
Fund and Contributory Provident Fund, as the case
may be, will have to be made on the basis of the
revised pay with effect from the date the
employees opt to elect the revised pay scales;
v) The pattern of emoluments structure and
conditions of service will be exactly similar to
those of the Central Government employees;
vi) Benefit of any ‗Personal Promotion' or
‗Career Growth Scheme', if any, extended to the
employee, without the approval of the Government
of India will not be available for the purposes of
the revision. In other words, the pre-revised scales
for which replacement scales will be given will be
only such as were approved by the Government
and not those resulting from any such schemes;
vii) Revision of pay scales would be in respect of
such posts which have been created/upgraded only
after obtaining Government of India's approval;
viii) I.C.S.S.R., shall not alter/modify the
emoluments structure, terms & conditions of
service and scales of pay of the posts without the
prior approval of the Government; and
ix) The orders above are subject to corrections
in respect of any omission or commission of errors
that may have occurred.
Yours faithfully,
(R.S. DUA )
Under Secretary to the Govt. of India‖
16. In this context, the Union of India also relies on Articles 6(a)
and 8 of the Memorandum of Association and Rules of the ICSSR,
which read thus:
―6.(a) The income and property of the Council, however
derived, shall be applied towards the promotion of the
objects thereof as set forth in the Memorandum of
Association, subject, nevertheless, in respect of the
expenditure of grants made by the Government of India
to such limitations as the government of India may, from
time to time, impose.
8. (a) the Government of India may give directives to the
Council in respect of its policies and programmes.
(b) If at any time a difficulty arises in the functioning
of the Council because of any lacunae in the
Memorandum of Association or the Rules, or the failure
of any of the provisions to operate, the Government of
India shall have powers to give directives to resolve the
difficulty and such directives shall be binding on the
officers of the authorities of the Council.‖
17. The Union of India seeks to defend its decision, to direct the
ICSSR to reverse the upgradation of the pay scales of the petitioners,
on the ground that the said upgradation had been effected without
obtaining the prior approval of the Ministry, as required by clause viii
in the above-extracted communication dated 26th March, 1998. The
decision to reverse the upgradation of the scales, therefore, it is
asserted, ―set right the wrong action of ICSSR‖ and obviated similar
demands being raised by other organisations.
18. On merits, the counter-affidavit of the Union of India asserts
that, as per Governmental policy, UGC scales were admissible only to
posts where teaching or research work was actually being done.
Inasmuch as Directors, Deputy Directors and Assistant Directors in
the ICSSR did not perform any teaching or research activities, no pay
scales, as fixed by the UGC for teaching faculty in Universities was, it
is submitted, applicable to them. The counter-affidavit further points
out that faculty members, in research institutes supported by the
ICSSR were already enjoying the pay scales fixed by the UGC.
Assistant Directors, Deputy Directors and Directors, it is sought to be
submitted, were merely administrative staff, not involving research
work, and could not be entitled, therefore, to the pay scales fixed by
the UGC for teaching faculty. The counter-affidavit points out that
such administrative staff were, in fact, being granted the pay scales
applicable to similar positions in sister organisations such as the ICHR
and the ICPR.
19. The counter-affidavit of the Union of India also contests the
stand, canvassed by the petitioner, that the qualifications prescribed
for recruitment to the posts of Assistant Director, Deputy Director and
Director in the ICSSR were comparable or similar to those of
lecturers, Assistant Professors and Professors in central Universities.
This is sought to be demonstrated by means of the following tabular
statement:
S. Name of Educational qualification Revised Pay
No. Posts as per RR Scales
1 Asstt. A master degree with 50% 8000-13500
Director marks in any of the social
sciences subject with two
years teaching experience
or research work or a
doctorate degree in any of
the social sciences.
Lecturer Good Academic record 8000-13500
with at least 55% marks or
equivalent grade at
Master's degree level and
the candidate should have
cleared the eligibility tests
(NET) conducted by the
UGC, CSIR or similar tests
accredited by the UGC.
2. Dy. A doctorate degree in any 10000-15200
Director of the social sciences with
at least 5 years experience
in teaching or research.
Reader (1) should have completed 12000 -18300
5 years of service as senior
lecturer, (2) should have
obtained a Ph.D degree or
equivalent.
3. Director Ph.D. degree in one of the 12000 -16500
social sciences with at
least 7 years experience in
teaching or guiding
research
Professor An eminent scholar with 16400 -22400
10 years of experience in
post graduate teaching/
experience in research at
the University /National
level institution.
20. The counter-affidavit also alleges that the petitioners had not
been selected in accordance with the RRs, but were promoted on
ad hoc basis even in the absence of sanctioned posts, without fulfilling
the requisite qualifications. As such, the petitioners' claim to pay
parity with lecturers readers and Professors is, it is asserted, ―totally
illogical and unwarranted‖.
21. The Union of India has, in its counter-affidavit, also pointed out
that the recommendations of the Committees, which had
recommended grant, to the petitioners and other like officers, of the
―University‖ pay scales, were subjected to scrutiny, by it, by
constituting a High Powered Committee under the Chairmanship of
V. S. Malimath, J. (hereinafter referred to as ―the Malimath
Committee‖). The Malimath Committee, it is pointed out, opined that
the petitioners' appointments, to the post of Assistant Director,
Deputy Director and Director, in the ICSSR, were made in violation
of the RRs, inasmuch as they were ad hoc appointments made in
excess of sanctioned posts. Though the recommendations of the
Malimath Committee were communicated to the ICSSR, Respondent
No. 1 complains that no action was taken by the ICSSR in accordance
therewith and that, therefore, it would be improper for the ICSSR to
implement the recommendations of the said Committee.
22. It is further sought to be contended, in the counter-affidavit of
Respondent No.1, that, by enhancing the pay scales of Assistant
Directors, Deputy Directors and Directors, the ICSSR had effectively
upgraded the said posts. Reliance has been placed, for this purpose, on
OM No. F-7 (18E) (Co. ord.)/71, dated 16th September, 1991, issued
by the Ministry of Finance. The said OM does not, however, lay down
any such proposition, and merely states that upgradation of the post
amounts to creation of a higher post. Respondent No.1 has also
referred to certain instructions, issued by the Ministry of Finance,
regarding creation/filling up of posts in autonomous bodies. It cannot
be said that, by issuing the Office Orders enhancing the pay scales of
the petitioners' w.e.f. 29th June, 2000, the ICSSR had, in any manner,
created posts. As such, it is not necessary to refer to the said
instructions, either.
23. A separate counter-affidavit has been filed by the ICSSR. The
preliminary objection, to the amenability of the ICSSR to the
jurisdiction of this Court under Article 226 of the Constitution of
India, on the ground that the ICSSR is not ―state‖, as defined in
Article 12, has been taken; however, the said objection has advisedly
not been pressed during the course of hearing and, in any event, can
hardly be sustained, the law having developed to a point where it is,
by now, clear that Article 226 is not limited, in its applicability, to
authorities which are, stricto sensu, ―state‖. (One may, if required,
refer, with advantage, in this connection, to the judgment of A. K.
Sikri, J., in K.K. Saxena v. International Committee on Irrigation &
Drainage, (2015) 4 SCC 670.). The ICSSR has also concurred with
the stand, of Respondent No. 1, to the effect that it is bound to follow
all reasonable directions issued by Respondent No. 1, by virtue of sub-
clauses (a) and (b) of its Memorandum of Association. On merits, the
ICSSR has merely sought to contend that, as its decision to enhance
the pay scales of the petitioners was not approved by Respondent No.
1, it had no option but to withdraw the said decision.
24. The petitioner has filed separate rejoinders, to the counter-
affidavits of the Union of India and of the ICSSR. It is not necessary
to refer to the rejoinder, of the petitioner, to the counter-affidavit of
the ICSSR, given the limited nature of submissions contained in the
said counter-affidavit.
25. In response to the counter-affidavit of the Union of India, the
petitioners have emphatically disputed the assertion, therein, that they
were performing only administrative functions. It has been reiterated
that the qualifications required for appointment of the petitioners were
equivalent to those of teaching staff of the University. Apropos the
nature of duties, it is averred that the petitioners coordinated research
activities, released grants, organised seminars and workshops, which
were also done by academic staff in any University. It is pointed out,
in this connection, that there were instances in which persons,
working in different Universities, in academic capacities, were posted
in the ICSSR, as Assistant Directors, Deputy Directors and Directors.
26. The petitioners have also contested the stand, of the Union of
India, that the fixation of scales of their scales of pay was subject to
approval by the Ministry. It is pointed out that the Governing Body of
the ICSSR was competent to revise the pay scales of its employees
and that, once that had been done, there was no reason for non-
implementation thereof, in favour of the petitioners. It is categorically
averred that ―there is no necessity to take approval of the Government
of India before implementing upgraded pay scales‖. The allegation
that the upgraded pay scales had been implemented in violation of the
prescribed procedure has also, consequently, been denied. It is also
asserted that, in the ICSSR, apart from administrative staff, there were
also professional staff, and the petitioners claim to belong to the said
category, which is altogether different from the category of
administrative staff. It is also asserted that the claim of the petitioners
was not for grant of pay scales as fixed by the Pay Commission, but as
fixed by the UGC in respect of teaching staff in Central Universities.
The fixation of their pay scales, on the basis of the recommendations
of the 5th Pay Commission is, therefore, alleged to be illegal and such
illegality, it is asserted, could not be allowed to be perpetuated.
27. Apropos the similarity in RRs, it is pointed out that an
incumbent in the ICSSR had also to possess teaching experience, or
experience in research work, apart from a postgraduate degree or a
Ph.D., before he could be considered for appointment professionally
in the ICSSR. The allegation that the petitioners had not been selected
in terms of the RRs is also denied, emphatically asserting that they
fulfilled the requisite qualifications for the post, at the time of their
appointments thereto.
28. While the petitioners do not deny the fact that the ICSSR is
fully funded by the Government of India, it is reiterated, in rejoinder,
that the grant of pay scales to its employees was within the exclusive
province of the Governing Council of the ICSSR, and that the
Government of India had no say therein. It is further contended that
Articles 6 (a) and 8 of the Memorandum of Association did not
empower the Government to tinker in the matter of extension of pay
scales of the employees of the ICSSR, or deny, to them, the pay scales
fixed by the Governing Council of the ICSSR. It is also asserted that
revision of pay scales of employees of the ICSSR did not require prior
concurrence of the Ministry of Finance, and did not involve any
upgradation of the post. No creation of posts had, either, it is asserted,
been undertaken by the Governing Council of the ICSSR, while
granting enhanced pay scales to the petitioners. It is also asserted that
the duties performed by the petitioners were the same as those
performed by academic staff in the University.
29. During the passage of this writ petition through the annals of
this Court, on 28th September, 2015, a contention, to the effect that
certain similarly situated persons, who had moved this Court by way
of WP (C) 5533/2000, WP (C) 7490/2000 and WP (C) 975/2001 and
had, consequent to their withdrawing their writ petitions, been
granted, by the respondents, relief identical to those sought by the
present petitioners, was sought to be advanced by learned counsel
appearing for the petitioners. The ICSSR was, therefore, directed to
file an additional affidavit on this aspect.
30. Pursuant thereto, the ICSSR has filed an additional affidavit, on
2nd March, 2016. In the said affidavit, it is contended thus:
(i) Rule 23(a) of the ICSSR Rules empowered the ICSSR to,
with the previous approval of Respondent No. 1, and in a
manner not inconsistent with the Memorandum of Association,
frame Regulations for the administration and management of its
affairs. Further, Rule 24 of the ICSSR Rules empowered the
ICSSR to, inter alia, ―appoint all categories of officers and staff
before conducting the affairs of the Council, to fix the amount
of their remuneration, subject to the budget provision, and to
define their duties.‖ These provisions, the affidavit seeks to
submit, ―made it clear that the Council cannot frame or amend
its Regulations (1) in a manner inconsistent with the
Memorandum of Association and Rules and (2) without prior
approval of the Government of India.‖
(ii) In exercise of the powers so conferred, the ICSSR, with
the prior approval of the Government of India, framed the
ICSSR Service Regulations, 1970 (hereinafter referred to as
―the Service Regulations‖). Regulations 4 and 20, thereof, read
as under:
―SR 4. Grades in Categories of posts
(1) The posts under the Council shall be divided
according to the pay scales into 6 groups specified
in the 1st schedule.
(2) The Council may direct
(i) The creation of any new grade or
category of posts,
(ii) The abolishing of any grade or
category of posts; or
(iii) The division of the pay scale of any
post except that of Member Secretary and
posts carrying a of ₹ 2500 and above.
and thereupon the first Schedule shall stand
amended in accordance with such direction.‖
―SR 20. Scales of Pay
The scales of pay for the posts under the Council
shall be as specified in the first Schedule, as
amended from time to time.‖
(iii) In view of the above, upgradation of the pay scale, of any
employee in the ICSSR, or modification thereof, required
amendment of the First Schedule to the Service Regulations
which, in turn, required prior approval of the Government of
India. At the same time, mere revision of the existing pay scale
could be effected by adopting the recommendations of the Pay
Commission, as approved by the Government of India from
time to time.
(iv) The ICSSR Rules were amended, with the prior approval
of the Government of India, in 2014. The amended Rule did not
empower the ICSSR to fix the pay of its employees. Where
Rule 24(a) of the unamended ICSSR Rules specifically
empowered the ICSSR to ―appoint all categories of officers and
staff for conducting the affairs of the Council, to fix the amount
of their remuneration, subject to the budget provision, and to
define their duties‖, Rule 25(a) of the amended ICSSR Rules,
conspicuously, empowered the ICSSR only ―to appoint all
categories of officers and staff for conducting the affairs of the
Council, subject to the budget provisions, and to define their
duties‖. It is clear, at first glance, that the specific power, to fix
the pay of the officers and staff of the ICSSR, was specifically
divested in the amended Rules.
Submissions at the Bar
31. The petitioners were represented by Ms. Jyoti Singh, learned
Senior Counsel, and the respondents were represented by Mr. Amitesh
Kumar and Mr. Rajesh Gogna, arguing for the ICSSR and the Union
of India, respectively.
32. Having raised a preliminary objection to the ICSSR opposing
the cause of the petitioners, having earlier espoused it, in its
communications to the Ministry, Ms. Jyoti Singh, learned Senior
Counsel voiced, as her first submission, the contention that
Respondent No. 1 had no role to play, insofar as fixation of scales of
the petitioner was concerned. She invited my attention, in this context,
to Service Regulation (SR) 4 and SR 20 of the Service Regulations,
which read thus:
―SR 4 . Grades and Categories of posts
(1) The posts under the Council shall be divided
according to the pay scales into 6 groups specified
in the 1st schedule.
(2) The Council may direct
(i) The creation of any new grade or
category of posts;
(ii) The abolishing of any grade or
category of posts; or
(iii) The revision of the pay scale of any
post except that of Member Secretary
and posts carrying a pay of ₹ 2500
and above.
and thereupon the first Schedule shall stand
amended in accordance with such direction.‖
―SR 20. Scales of pay
The scales of pay for the posts under the Council
shall be as specified in the first Schedule, as
amended from time to time.‖
Asserting that SR 4 continues to retain its above form till date, Ms.
Jyoti Singh submits that, in view thereof, the ICSSR exercised
absolute autonomy and authority, in respect of creation of posts,
abolition of posts as well as revision of pay scales of any post, to the
extent that, on a direction being issued by the ICSSR revising the pay
scales of any post, or creating or abolishing any post, the First
Schedule to the Service Regulations would, ipso facto, stand amended
in accordance with the said decision.
33. In this context, Ms. Jyoti Singh also drew attention to SR 5 in
the Service Regulations, which reads thus:
―SR 5 . Number and Duties of Posts
The Sanctioning Authority in relation to any
category of posts shall, subject to the direction of
any higher authority, have the power
(i) to determine the number of posts in that
category;
(ii) to create or abolish any post in that category;
(iii) to determine whether any post created in
that category shall be temporary or permanent;
(iv) to specify the period for which a temporary
post is created; and
(v) to determine the duties attached to any post
in that category,
provided that the creation of abolishing of any post
in Group VI shall be made with the prior approval
of Government.‖
Seeking to capitalise on the requirement of ―prior approval of
Government‖, as envisioned in SR 5 supra, Ms. Singh would seek to
contend that it was only in the said circumstances, specifically
contemplated by the Regulations, i.e. the circumstance of creation of
abolition of a post in Group VI, that the prior approval of the
Government was mandatory. In this context, Ms. Singh also points out
that, under the First Schedule to the Service Regulations, the posts of
Assistant Director, Deputy Director and Director are all in Group V,
Group VI being limited to the post of Member-Secretary. In line with
the aforementioned stipulation contained in SR 5, Ms. Singh draws
attention to SR 6, too, which reads thus:
―SR 6 . Appointing Authorities
Appointment to a post under the Council shall be
made -
(i) in the case of a post in Groups I and II, by
the Administrative Officer;
(ii) in the case of a post in Groups III and IV, by
the Member-Secretary; and
(iii) in the case of a post in Groups V and VI, by
the Chairman, provided that appointments to a post
in Group VI shall be made with the approval of
Government.‖
Ms. Jyoti Singh also points out that ―sanctioning authority‖ is defined,
in clause (m) of SR 3 as meaning
―(i) in relation to posts in Groups I to IV, the Member-
Secretary,
(ii) in relation to posts in Group V, the Administrative
Committee of the Council; and
(iii) in relation to posts in Group VI, the Council.‖
―Council‖, it may also be noted in this context, is defined, in clause
(g) of SR 3 as meaning the ICSSR.
34. The upshot of a combined reading of these provisions, Ms. Jyoti
Singh would plead, is that, once the Administrative Committee of the
ICSSR took a decision to enhance the pay scales of the posts of
Assistant Director, Deputy Director and Director of the ICSSR, the
matter ended there, and there could be no question of any prior, or
later, Governmental clearance or sanction being necessary to validate
such enhancement. The raison d' etre for reversing the said
enhancement, by issuance of the impugned Office Orders - being the
non-approval of the said enhancement by Respondent No. 1 and the
direction, of Respondent No. 1, to reverse the same - was, therefore,
Ms. Jyoti Singh would seek to submit, completely misguided, and the
decision to reverse the said enhancement of pay scales also stood,
consequently, vitiated in its entirety.
35. Ms. Jyoti Singh places reliance, in this context, on an order,
dated 9th September, 2009, passed by a learned Single Judge of this
Court, disposing of WP (C) 5533/2000 (N. K. Talwar v. I.C.S.S.R.).
The said order reads as under:
―#R-109,110 & 112
% 09.09.2009
Present: Mr. A.P.S. Gambhir, Advocate for
petitioners with petitioners in person.
Dr. K.D. Prasad with Mr. Vishal Prasad and
Mr. D.K. Sinha, Advocates for respondent-
Indian Council of Social Science Research
+ W.P (C) Nos. 5533/2000, 7490/2000 and 975/2001
Today, learned counsel for respondent no. 1 has
handed over in Court a supplementary affidavit dated 9
September, 2009. The relevant portion of the said
affidavit reads as under:-
―2. That the then Member Secretary of Indian
Council of Social Science Research (Respondent
No. 1 herein) Mr. Bhaskar Chattejee in his D.O.
letter bearing No.F-15-12/2001 dated 15th June,
2001 addressed to Sri Champak Chatterjee the then
Joint Secretary, Department of Secondary and
Higher Education, Ministry of HRD, Shastri
Bhawan. New Delhi has taken the following stand
on behalf of ICSSR-
―You would no doubt kindly appreciate that
the position as it now obtains is that the ICSSR can
create, abolish or revise the pay scales of its
employees (except that of Member Secretary) as
per the ICSSR Service Rules 1970.‖
A copy of said letter is annexed and marked
as Annexure R-1 to this affidavit.
3. The deponent has accordingly through its
letter No. 5-38/2000-2001 dated 7.9.2009
instructed Dr. .K. D. Prasad, Advocate who is also
the Legal Adviser of Indian Council of Social
Science Research to do the needful in view of
aforesaid stand of the then Member Secretary of
Indian Council of Social Science Research, Mr.
Bhaskar Chatterjee which may be treated as the
stand of Indian Council of Social Science
Research, Respondent No.1.
In view of the aforesaid stand of respondent no. 1,
learned counsel for petitioners, Mr. A.P.S. Gambhir, upon
instructions of petitioners, does not wish to press the
present writ petitions. Accordingly, present writ petitions
are dismissed as having become infructuous.‖
36. Ms. Jyoti Singh would further seek to submit that, even on
merits, the petitioners were entitled to pay scales at par with those
granted to faculty in the universities, by the UGC. She submits that
her clients are professional officers in the ICSSR. She draws attention
to the fact that all expert committees, from 1987 to 1995,
recommended parity of pay scales, of Assistant directors, Deputy
directors and Directors, in the ICSSR, with academic staff in the
universities. The Ministry, she would seek to submit, had no reason to
differ with the recommendations of the said expert committees.
Highlighting the rationale for recommending parity, in pay scales, of
the Assistant Directors, Deputy Directors and Directors, in the ICSSR,
with the UGC scales granted to lecturers, readers/Assistant Professors
and Senior readers/Professors in Central Universities that had adopted
the said scales, Ms. Jyoti Singh drew especial attention to Item 6.3 of
the Minutes of the 67th Meeting of the ICSSR, held on 10th August,
1992, which reads as under:
― The Council approved the revised pay scales of the
professional staff viz. Assistant Director, Deputy
Directors and Directors to bring them at par with the pay
scales of lecturers, readers and professors of the central
universities.
The Council also approved that the pay scales of
the Member-Secretary of the ICSSR should correspond
with that of the Vice-Chancellor of the central
Universities.
It was decided that the revised pay scales should be
made applicable w.e.f. 1.4.1992. It was, however, desired
that an exercise should be undertaken to lay down certain
norms and procedures for internal assessment of each
staff member to be covered in the new grades.‖
37. Ms. Jyoti Singh also took me through the communication, dated
10th February, 1999 supra, from the ICSSR to the Department of
Education, Ministry of Human Resource Development, and the
rationale provided, in the said communication, for enhancement of the
pay scales of Assistant Directors, Deputy Directors and Directors in
the ICSSR.
38. Ms. Jyoti Singh also relied on the counter-affidavit of the Union
of India, filed in response to the writ petition, in which teaching or
research experience is a mandatory requirement for recruitment to the
posts of Assistant Director, Deputy Director and Director in the
ICSSR.
39. For all these reasons, Ms. Jyoti Singh would seek to submit, the
decision, of the ICSSR, to reverse the enhancement of the pay scales
of Assistant Director, Deputy Director and Director of the ICSSR, as
effected vide the Office Order is, which took effect from 29th June,
2000, could not sustain the scrutiny of law.
40. In response to the submissions of Ms. Jyoti Singh, Mr. Amitesh
Kumar, arguing on behalf of the ICSSR, would seek to submit that SR
4 only empowered the ICSSR to revise the pay scale of a post. Mr.
Amitesh Kumar would seek to submit that the ICSSR had, on its own
volition, granted, to the petitioners, all revisions of pay scales to
which they were entitled. What the petitioners were seeking, Mr.
Amitesh Kumar submits, is enhancement of pay scales, in excess of
the revised pay scales already being drawn by them. Such
enhancement, he would submit, could only be with Governmental
approval. In this context, Mr. Kumar emphasises the fact that, under
the General Financial Rules, all finances of the ICSSR came from the
Central Government.
41. Mr. Kumar also submits that, as per the Memorandum of
Association (MOA) of the ICSSR, amendment of the Service
Regulations could only be with the prior sanction of the Government.
He seeks to place reliance on the judgment, of a Division Bench of
this Court, in U.O.I. v. U.G. C. Class-I Officers Association, 2006
(87) DRT 783 (DB).
42. No exception could, therefore, Mr. Kumar would seek to
submit, be taken to the decision of the ICSSR to withdraw the
decision to grant higher pay scales to the petitioners.
43. Mr. Rajesh Gogna, arguing on behalf of Respondent No. 1,
draws my attention to a communication, dated 13th October, 2000,
from Respondent No. 1 to the ICSSR, which opines that the ICSSR,
―being an organisation fully funded by the Government of India, is not
authorised to alter/modify the emolument structure, terms and
conditions of service and scales of pay of the posts without the prior
approval of the Government of India.‖ The communication goes on to
state that, as per instructions of the Government of India, ―upgradation
of a post effect amounts to creation of a higher post‖, so that it was
―necessary that in all such cases of upgradation, the same procedure as
prescribed for creation of posts is observed‖. Pointing out that, vide its
letters dated 26th March, 1998 and 30th March, 1998, Respondent No.1
had approved only grant of 5th Pay Commission scales to the officers
and staff of the ICSSR, the communication directed that the said
approved scales alone should continue, and the orders issued for
revision/upgradation of the pay scales of ICSSR employees was
required to be withdrawn forthwith, along with consequent recovery
of the excess pay granted to the officials as a consequence thereof.
44. Mr. Gogna also draws attention to Office Memorandum (OM),
dated 15th October, 1984, issued by the Department of Expenditure,
Ministry of Finance, which reads thus:
― No. 9 (4)-E(Coord)/84
Government of India
Ministry of Finance
Department of Expenditure
New Delhi, the 15th October, 1984
OFFICE MEMORANDUM
Subject: Financial powers of autonomous bodies-
restrictions regarding.
The Rules and Bye-laws of autonomous bodies
which are fully or partly funded by the Government of
India should invariably incorporate restrictive clauses
relating to the power of the Governing Bodies of such
organization in matters of creation of posts, revision of
pay and allowances of their staff and similar
establishment expenditure and provide for prior approval
of the Central Government in specific cases. It has come
to the notice that this has not been done in a number of
cases resulting the Governing Bodies of some
Autonomous Organisation taking decisions on the above
matters which do not conform to the general pattern of
the Central Government.
2. With a view to ensuring that the provisions relating
to the powers of the Governing Bodies in such matters
having financial implications are properly exercised,
Ministries/ Departments are requested to take following
action:-
(i) A clause may be incorporated in the relevant
Rules/Bye-laws/Regulations of the autonomous
bodies that proposals relating to emoluments
structure i.e. adoption of pay scales, allowance and
revision thereof and creation of posts above a
specified pay level would need the prior approval
of the Govt. of India in consultation with the
Ministry of Finance, Department of Expenditure;
(ii) In the case of larger autonomous bodies a
suitable clause may be incorporated in the relevant
Rules/Bye-Laws/Regulations that a representative
of the Ministry of Finance/Integrated Finance
Division of the Ministry concerned should be
nominated to the Executive Council of the
Autonomous Organisation. The choice of the
nominee would be made in consultation with the
Ministry of Finance; and
(iii) In the autonomous organizations referred to
in (ii) above, a provisions would also be made in
the Rules/Bye-laws/Regulations that in the event of
disagreement between representatives of the
Ministry of Finance and the Chairman of the
Governing Body of the Autonomous Organisation
on the financial matter beyond the delegated
powers of the Ministry/Department of the Govt. of
India the matter may be referred to the Minister of
the Administrative Ministry concerned and the
Finance Minister for a decision.
3. Ministries/Departments are requested to take
immediate action to incorporate the necessary
amendments suggested in the preceding para in the
Rules/Bye-laws/Regulations of the Autonomous
Organisations under their administrative control under
intimation to this Ministry. They are also requested to
ensure that before a new autonomous body is formed, the
Rules/Bye-laws/Regulations concerning financial matters
are finalized in consultation with this Ministry.
Hindi version will follow.
Sd/-
(S.C. Mahalik)
Jt. Secretary to the Govt. of India
To,
All ministries/Departments
(By name to an officer of the rank of Jt. Secretary).
Copy to all Financial Advisers
Implementation of this O.M. may please be watched by
them carefully and reported to this Ministry from time to
time.
Sd/-
(S.C. Mahalik)
Jt. Secretary to the Govt. of India‖
45. To emphasise the extent of Governmental control, over the
affairs of the ICSSR, Mr. Gogna relies upon Clauses 6, 7 and 8 of the
Memorandum of Association of the ICSSR, which read as under:
―6. (a) The income and property of the Council, however
derived, shall be applied towards the promotion of the
objects thereof as set forth in the Memorandum of
Association, subject, nevertheless, in respect of the
expenditure of grants made by the Government of India,
to such limitations as the Government of India may, from
time to time, impose.
(b) No portion of the income and property of the
Council shall be paid or transferred, directly or indirectly,
by way of dividends, bonus or otherwise howsoever by
way of profit, to the persons who are or at any time have
been members of the Council or to any of them or to any
person claiming through them:
Provided that nothing herein contained shall prevent the
payment, in good faith, or remuneration to any member
or any other persons in return for any services rendered to
the Council or for travelling allowances, halting, or other
similar charges.‖
7. The Government of India may appoint one or more
persons to review the work and progress of the Council
and to hold enquiries into the affairs thereof and to report
thereon, in such manner as the Government of India may
stipulate; and upon receipt of any such report, the
Government of India may take such action and issue such
directions as it may consider necessary in respect of any
of the matters dealt with in the report and the Council
shall be bound to comply with such directions.
8. (a) The Government of India may give directives to
the Council in respect of its policies and programmes.
(b) If at any time a difficulty arises in the functioning of
the Council because of any lacunae in the Memorandum
of Association or in the Rules, or the failure of any of
their provisions to operate, the Government of India shall
have powers to give directives to resolve the difficulty
and such directives shall be binding on the officers and
authorities of the Council.‖
46. Mr. Gogna also highlights Rule 22, the proviso to clause (iii) in
Rule 23(b), and clause (a) of Rule 24 of the Rules of the ICSSR,
which may be reproduced thus:
―22. The Member-Secretary shall keep a record of the
proceedings of the meetings of the council and a copy
thereof shall be sent to the Government of India.
23. Regulations:
(b) Without prejudice to the generality of the
foregoing provision, such regulations may provide for
the following matters:
(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 Rs.2,500 per month or more and for making
appointments to such posts;
24. Subject to the Memorandum of Association, Rules
and Regulations, the Council shall have the power:
(a) to appoint all categories of officers and staff for
conducting the affairs of the Council, to fix the amount
of their remuneration, subject to the budget provision,
and to define their duties;‖
47. Insofar as equivalence of the requirements for recruitment as
Assistant Director, Deputy Director and Director, in the ICSSR, with
the conditions governing recruitment to the posts of Lecturer, Reader
and Professor in Central Universities, was concerned, Mr. Gogna
points out that clearance of the National Eligibility Test (NET),
conducted by the Government, was a mandatory pre-requisite for
recruitment to the latter posts. Even otherwise, he would seek to
submit, there is no equivalence between the RRs, governing
recruitment to the posts of Lecturer, Reader and Professor in Central
Universities, vis-à-vis recruitment to the posts of Assistant Director,
Deputy Director and Director in the ICSSR.
48. Mr. Gogna seeks to contend, in fine, that the reliance, by Ms.
Jyoti Singh, on the recommendations made by various Committees,
for enhancement of the pay scales of Assistant Director, Deputy
Director and Director in the ICSSR, to bring them at par with the
UGC pay scales of Lecturer, Reader and Professor in Central
Universities, cannot help the petitioner any further, as the said
Committees were all constituted by the ICSSR itself.
49. Advancing submissions in rejoinder, Ms. Jyoti Singh would
contend, in response to the reliance, by Mr. Gogna, on the
communication, dated 13th October, 2000, from Respondent No. 1 to
the ICSSR, that the said communication provides no reason for not
granting, to her clients, the scales of pay being granted to lecturers,
readers and Professors in Central Universities. Regarding the issue of
equivalence in qualifications and conditions for recruitment, Ms. Jyoti
Singh would submit that the reliance, by Mr. Gogna, on the fulfilment
of the NET as a condition for recruitment to the posts of Lecturer,
Reader and Professor in Central Universities, is misguided, as the
NET is only an eligibility test, and cannot be a basis for discrimination
in pay scales.
50. Apropos the judgment of this Court in U.G.C. Class I Officers
Association (supra), on which Mr. Amitesh Kumar places reliance,
Ms. Jyoti Singh would submit that the said decision does not lay down
any inflexible proposition of law, or any such legal principle as could
constitute a valid precedent. Neither, she would submit, can the said
judgment militate against the mandate of SR 4.
51. Ms. Jyoti Singh would further seek to rebut the submission, of
Mr. Amitesh Kumar, on the question of ―revision‖ of pay scales, and
the scope of ―revision‖, by contending that ―revision‖ included any
change in the existing state of affairs. She submits that grant of
replacement pay scales does not, in any event, require prior approval
of the Government, or recourse, by the ICSSR, to SR 4. SR 4, Ms.
Singh would seek to submit, applies only where higher scales are
being granted to officials of the ICSSR.
52. Written submissions were also filed by learned counsel for both
the parties. While the written submissions of the petitioners essentially
reiterate the submissions advanced by Ms. Jyoti Singh, learned Senior
Counsel, in court, the written submissions filed by Mr. Amitesh
Kumar were more elaborate, in content, as compared to the
submissions advanced by Mr. Kumar in court. The main contentions
advanced, in the written submissions filed by Mr. Amitesh Kumar
may broadly be enumerated thus:
(i) Rule 24 of the Rules of the ICSSR permitted the ICSSR
to fix the remuneration of its officers and staff, subject to the
budget provision, which is dependent and controlled by the
grant and funding to be made by Respondent No. 1.
(ii) ―Revision‖ and ―upgradation‖ of the work are,
jurisprudentially, different concepts. Reliance has been placed,
in this context, on the following definition of ―revision of pay
scale‖, as contained in State of Kerala v. P. V. Neelakandan
Nair, (2005) 5 SCC 561:
―...On the other hand, in case of revision, the pay
scale is revised which may incidentally result into
increment. Rule 60(c) does not refer to pay
revision which is conceptually different from
annual increments within prescribed pay scale.‖
As against this, it is contended that upgradation of pay scale
may involve conferment of financial benefits by providing
higher pay scale, which may not be the actual replacement of
the pre-existing pre-revised pay scale, which the employee was
enjoying.
(iii) The core pay scales, for various posts in the ICSSR, was
prescribed in the First Schedule to the Service Regulations. The
employees of the ICSSR were being extended the said pay
scales. As and when Respondent No. 1 revised any particular
pay scale or grade, in terms of the recommendations of the Pay
Commission, revised pay scale was adopted by the ICSSR and,
in terms of Regulation 4(2)(3) of the Service Regulations, the
ICSSR directed grant of such revised pay scale, vis-à-vis the
pre-revised pay scale referral to the core pay scale contained in
the First Schedule to the Service Regulations. In such cases, no
amendment of the Regulation was required, as the First
Schedule stood automatically amended in terms of the
directions of the ICSSR.
(iv) Rule 209(6)(iv)(a) of the General Financial Rules made
by Respondent No. 1, which bound Respondent No. 1 as well as
the ICSSR, as an institution which was entirely funded by
grants given by Respondent No. 1, read thus:
―All grantee institutions or organisations which
receive more than 50% of the recurring
expenditure in the form of grants-in-need, should
ordinarily formulate terms and conditions of
service of their employees which are, by and large,
not higher than those applicable to similar
categories of employees in Central Government. In
exceptional cases relaxation may be made in
consultation with the Ministry of Finance.‖
In this context, the written submissions filed by the respondent
again rely on the judgment of this Court in U.G.C. Class I
Officers Association (supra).
(v) On merits, too, the petitioners could not be said to have
made out a case for parity of pay with lecturers,
readers/Assistant Professors and Professors in Central
Universities.
For all these reasons, avers the written submissions of the ICSSR, the
writ petition deserves to be dismissed.
Analysis
53. The controversy in issue, seen in the backdrop of the rival
stances taken before me, throws up, essentially, two questions for
determination; firstly, whether the impugned Office Orders, dated 30th
November, 2000, issued to the petitioners by the ICSSR, revoking,
with retrospective effect, the upgraded pay scales granted to them vide
the earlier Office Order dated 29th June, 2000 supra, could sustain in
law; secondly, in case the answer to the first question is in the
affirmative, whether the petitioners would, independently, be entitled
to parity of pay with lecturers, readers/Assistant Professors and
Professors in Central Universities, as fixed by the UGC. In case this
Court finds that the impugned Office Orders, withdrawing the
enhanced pay, granted to the petitioners, were unsustainable, for want
of jurisdiction for any other reason, the inevitable sequitur would be
that the said Office Orders would require to be set aside, the
consequence being that the petitioners would become entitled to the
enhanced/upgraded pay scales, as earlier granted to them vide Office
Order dated 29th June, 2000 supra of the ICSSR. In that event, the
necessity of examining, independently, whether Assistant Directors,
Deputy Directors and Directors, in the ICSSR, would be entitled to
parity of pay with lecturers, readers and Professors in the Central
Universities, would stand obviated.
54. The determination of the first question, as set out herein above,
would require an analysis of the merits of the primary contention
advanced by Ms. Jyoti Singh, learned Senior Counsel appearing for
the petitioners, to the effect that the ICSSR enjoyed absolute
autonomy in the matter of fixation of pay scales of its officials,
including enhancement and upgradation thereof and that, therefore,
neither could Respondent No. 1 direct reversal of the said upgraded
pay scales, nor could the ICSSR reverse the upgraded pay scales, in
obedience to such directive of Respondent No. 1.
55. For this, it would be necessary to examine the MoA, as well as
the Rules and Regulations governing the ICSSR, especially regarding
the power to enhance/upgraded the pay scales of its officials. In this
connection, this Court deems it appropriate to clarify, even at this
juncture, that the determination of this question could not depend on
the order, dated 9th September, 2009 supra, passed by this Court in N.
K. Talwar (supra), irrespective of the emphasis placed, on the said
order, by Ms. Jyoti Singh. The issue is essentially one of law, to be
determined by reference to the relevant provisions, and this Court
cannot shirk from its responsibility in examining the issue, by merely
placing reliance on the affidavit filed by the ICSSR before this Court
in the said case. It is trite that there can be no concession on a point of
law, and that any such concession, even if granted, cannot act as a
precedent for future cases.
56. The ICSSR is a Society, registered under the Societies
Registration Act, 1860, and is governed by its MoA and Rules, which
constitute an integrated document, bearing the title ―Memorandum of
Association and Rules‖. Sub-clause (a) of Clause 6 of the MoA,
governing the ICSSR, stipulates thus:
―6(a). The income and property of the Council, however
derived, shall be applied towards the promotion of the
objects thereof as set forth in the Memorandum of
Association, subject, nevertheless, in respect of the
expenditure of grants made by the Government of India,
to such limitations as the Government of India may, from
time to time, impose.‖
It is open, therefore, for the Government of India, i.e. for Respondent
No. 1, to impose limitations, in respect of expenditure of grants made
by it to the ICSSR.
57. Clause 8 of the MoA, additionally, stipulates thus:
―8.(a) The Government of India may give directives to
the Council in respect of its policies and programmes.
(b) If at any time difficulty arises in the functioning of
the Council because of any lacunae in the Memorandum
of Association order and the Rules, or the failure of any
of their provisions to operate, the Government of India
shall have powers to give directives to resolve the
difficulty and such directive shall be binding on the
officers and authorities of the Council.‖
58. Read in conjunction, therefore, Clauses 6(a) and 8 of the MoA,
governing the ICSSR, empower Respondent No. 1 to (i) impose
limitations in respect of expenditure of grants made by it to the
ICSSR, (ii) give directives to the ICSSR in respect of its policies and
programmes and (iii) give directives, to the ICSSR, to resolve any
difficulty which may arise in the functioning of the ICSSR because of
any lacunae in the MoA or the Rules, or the failure of any of their
provisions to operate, in which event such directives would be binding
on the ICSSR.
59. Clause 10 of the MoA of the ICSSR states that ―a copy of the
Rules of the Council, certified to be a correct copy by 3 members of
the Administrative Committee, is filed along with the Memorandum
of Association‖. Though this Clause is none too happily worded, the
intention behind it is, apparently, to treat the Rules as part of the
MoA, and as equally binding on the ICSSR and it's functioning.
60. The Service Regulations expressly recite that they were
―approved by the Government of India vide Ministry of Education and
Social Welfare letter No. 12-34/76 PLG II, 6 December 1976‖.
61. There is, unquestionably, substance in the submission, of Ms.
Jyoti Singh, that SR 4 empowers the ICSSR to direct ―revision of the
pay scale of any post except that of Member-Secretary and posts
carrying up a of ₹ 2000/- and above‖, and further ordains that, upon
such direction being issued, ―the First Schedule (to the Service
Regulations) shall stand amended in accordance with such direction‖.
One may, in juxtaposition with this Regulation, also refer to SR 20,
which deals with ―Scales of pay‖ and reads thus:
―SR 20. Scales of Pay
The scales of pay for the posts under the Council
shall be as specified in the first Schedule, as
amended from time to time.‖
A conjoint reading of SR 4 and SR 20 would, therefore, seem to invite
the inescapable inference that, once the ICSSR directs division of the
pay scale of any post (except that of Member-Secretary - the only
post, in the scale of ₹ 2000/-, or above, as it existed on the date of
framing of the Service Regulations being that of Member-Secretary),
the First Schedule to the Service Regulations would stand accordingly
amended, and the holder/holders of such post/posts would, ipso facto,
become entitled to such ―revised‖ pay.
62. Mr. Amitesh Kumar has sought to contend that there is a
distinction between upgradation of the pay scale of a post and revision
thereof. To my mind, in the facts of the present case, this is a
distinction without a difference. The extremely limited manner in
which Mr. Kumar would seek to interpret the expression ―admission‖,
in my view, would fly in the face of SR 4(2) of the Service
Regulations, and reduce the said Regulation to a redundancy, as has
rightly been submitted by Ms. Jyoti Singh, learned Senior Counsel.
Grant of replacement scales merely follows from recommendations of
Pay Commissions, and does not involve any conscious exercise of
―revision‖ of pay scales. I am also unable to see how the definition of
―revision of pay scale‖, as conceptualised by the Supreme Court in its
judgment in P. V. Neelakandan Nair (supra), aids the respondent.
The said definition, which stands reproduced in para 52 ibid, is of no
assistance, whatsoever, in interpreting the expression ―revision‖, as
used in SR 4(2)(iii) of the Service Regulations.
63. The ambit of the expression ―revision‖, used in the context of
wages, came up for consideration before the Supreme Court in
Workmen of Indian Turpentine & Rosin Co. v. Indian Turpentine &
Rosin Co. Ltd, AIR 1961 SC 1365. The appeal before the Supreme
Court in that case, arose from an award, made by the Industrial
Tribunal, the term of reference, with respect to which, was worded
thus:
―Whether the existing rates of basic wages given to one
skilled, semiskilled, skilled and highly skilled workmen
employed in this concern need any revision? If so, with
what details and from which date?‖
The appellant-workmen before the Supreme Court claimed that,
adjudicating the afore-extracted term of reference, the Industrial
Tribunal was empowered to fix the scales and grades of different
categories of workers. The Industrial Tribunal, however, opined that
the reference, as made, did not authorise it to fix any scales of rates of
wages but only related to increase over the existing minimum wages.
Before the Supreme Court, the workman contended, inter alia, that the
Tribunal was wrong in thinking that the reference, as made, did not
authorise it to fix timescales of wages. (Other issues, raised before the
Supreme Court, are not relevant for the purposes of the present case,
and reference thereto is, therefore, eschewed.) The Supreme Court,
adjudicating the controversy, first relied on its earlier decision in
Express Newspapers Ltd v. U.O.I., (1959) SCR 12, which included,
within the ambit of the expression ―rates of wages‖, scales of wages as
well. Paras 6 and 7 of the report read thus:
―6. In our opinion, there is no substance in this
argument. If the dispute was only on the question
whether the present rates should be increased it would
not have been necessary to use the word "revision"
and it will be more proper to say whether the existing
rates need to be raised. There were the existing
rates of basic wages. Assuming they were not time scale
wages there is no reason to think that the dispute could
only be whether these present rates of wages should
be raised. The dispute could very well be whether the
existing rates should be substituted by time scale rates.
The word "revision" used in the reference aptly includes
this question. Whether in the peculiar facts and
circumstances of the case, a time scale should be
introduced or not is for the Tribunal to decide; but there
is no warrant for saying that the words used in the
reference ... "whether the existing rates of basic wages
... need any revision ..." do not authorise the Tribunal to
consider the question at all.
7. Besides, it is conceded that under the present
system of wages workmen in the same categories draw
different wages and that this disparity is due partly to
their respective lengths of service. It is true that the
increments in wages due to the length of service is at
present at the sweet will and pleasure of the respondent;
but even so there is a scale of wages with increments in
operation at present. Its revision would mean putting the
said wage scale on a rational basis, and that is what the
appellants demand. In our opinion, such a demand is
clearly included in the terms of reference.‖
(Emphasis supplied)
64. Applying the principles enunciated by the Supreme Court in the
afore-extracted passages from Workmen of Indian Turpentine &
Rosin Co. (supra), it is clear that the expression ―revision‖, as
contained in SR 4(2)(iii) cannot be interpreted in as narrow a manner
as that canvassed by Mr. Amitesh Kumar. Fixing new scales of pay,
in respect of officers and staff employed in the ICSSR would, in the
opinion of this Court, therefore, legitimately come within the ambit of
the expression ―revision‖, as employed in the said clause.
65. If one were, therefore, to read the Service Regulations in
isolation, it would certainly appear that Respondent No. 1 has no role
to play in the matter of fixation of pay scales of officers and staff of
the ICSSR, or in the amendment of the First Schedule to the Service
Regulations, which sets out the various posts in the ICSSR, and the
scales applicable thereto. All that is required, as per SR 4, would be a
decision by the ICSSR to revise the pay scales of its officers/staff, and
the pay scales would, thereby, stand revised.
66. The chromosomal identity of the Service Regulations is,
however, to be found in Rule 23 of the Rules of the ICSSR. For ready
reference, clauses (a) and (b), with sub- clause (iii) of the latter clause,
of Rule 23, may be reproduced thus:
"23. Regulations:
(a) With the previous approval of the
Government of India, the Council shall have power
to frame amendment Regulations, not inconsistent
with the Memorandum of Association and these
Rules, for the administration and management of
its affairs.
(b) Without prejudice to the generality of the
foregoing provision, such regulations may provide
for the following matters:
(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 the salary of ₹
2500 per month or more and for making
appointments to such posts;‖
67. Reference may also be invited, in this context, to clause (a) of
Rule 24, which reads as under:
―24. Subject to the Memorandum of Association, Rules
and Regulations, the Council shall have the power:
(a) to appoint all categories of officers and staff
for conducting the affairs of the Council, to fix the
amount of their remuneration, subject to the budget
provision, and to define their duties;‖
68. It is clear, ex facie, that the Rules do not confer, on the ICSSR,
any unbridled power to tinker with the pay scales, emoluments, or
remuneration, of its officers and staff. Sub-rule (a) of Rule 23 clearly
stipulates that the power to frame or amend the Regulations, for the
administration and management of its affairs, vests in the ICSSR, but
has to be exercised (i) which the previous approval of Respondent No.
1 and (ii) in a manner not inconsistent with the MoA and the Rules.
The expression ―affairs‖ is comprehensive and all-encompassing, and
would, in the opinion of this Court, certainly include disbursement of
pay to the officials and staff of the ICSSR. Equivalently and per
corollary, the expression ―administration and management of his
affairs‖ would include fixation of pay scales and emoluments of the
officers and the staff of the ICSSR. SR 4 itself stipulates that, on
direction being made, by the ICSSR, for revision of the pay scale of
any of its posts, the First Schedule shall start amended in accordance
with such direction. This stipulation directly invites the application of
Rule 23, which permits amendment of the Service Regulations only
which the previous approval of Respondent No. 1. It is, therefore, in
the opinion of this Court, not permissible to read SR 4, or even SR 20,
of the Service Regulations, in isolation. Being creatures of Rule 23 of
the Rules, these Service Regulations have, in their application, to
abide, and be bound, by the constrictions contained in Rule 23. If any
need for further clarification on this issue were required, it is to be
found in clause (iii) of sub- rule (b) of Rule 23, which makes specific
reference to ―emoluments ... of the officers and staff of the Council‖,
as well as in Rule 24, which empowers the ICSSR to, inter alia, ―fix
the amount of... remuneration‖ of ―all categories of officers and
staff‖, subject, however, to the MoA, Rules and Regulations.
69. In view of the above position which, in the opinion of this
Court, unambiguously flows from a conjoint reading of the Rules and
the Service Regulations, the necessity of referring to the other
provisions of the Rules, to which Mr. Amitesh Kumar sought to invite
attention, stands obviated.
70. Mr. Amitesh Kumar also sought to place reliance on the
judgment of the Division Bench of this Court, speaking through
Markandeya Katju, C.J. (as he then was) in U.G.C. Class-I Officers
Association (supra). The situation that obtained, in the said case,
bears striking similarities to that which obtains in the present. In the
said case, the UGC had taken a decision, on 12th December, 1995, to
revise the pay scales of its Joint Secretary and Additional Secretary,
from ₹ 4500-5700/- to ₹ 5100-6300/-, and from ₹ 5100-5700/- to
₹ 5900-6700/-, respectively. Subsequently, however, the UGC refused
to give effect to the said order on the ground that approval of
Respondent No. 1 had not been obtained,. This provoked the
respondent-Association (before the Division Bench) to move this
Court, under Article 226 of the Constitution of India, for issuance of a
direction, to the UGC, to implement its decision dated 12th December,
1995 supra. The learned Single Judge allowed the writ petition,
whereagainst the Union of India moved the Division Bench by way of
LPA, which stands decided by the aforesaid judgment.
71. The contentions of the respondent-Association (before the
Division Bench), as recorded in the following passages from the
judgment, merit reproduction:
―10. The respondents have relied on Section 10 of the
UGC Act which states:
―Staff of the Commission.--Subject to such rules
as may be made by the Central Government in this
behalf, the Commission may appoint a Secretary
and such other employees as it may think necessary
for the efficient performance of its functions under
this Act and the terms and conditions of service of
the employees shall be such as may be determined
by the Commission.‖
11. It is alleged in the petition that the Central
Government has framed rules in 1958 and 1983 but none
of these rules prescribe that the matter regarding revision
of pay scales has to be referred to the government for its
approval.
12. The petitioner has also relied on Section 26(1)(c)
of the UGC Act which empowers the Commission to
make regulations specifying the terms and conditions of
the employees appointed by the commission.
13. The respondent (petitioner) contended that it is for
the Commission to decide the terms and conditions of
service including pay scales. The Commission being an
autonomous body its decision dated 12-12-1995 has to be
implemented. In para 7 of the petition it is alleged that
the Commission before taking the decision had duly
taken note of the fact that the pay scale of the Secretary
and Financial Advisor of the Commission has been
revised from 1-1-1986, as also other factors highlighted
by the petitioner from time to time. In fact it was thought
appropriate to agree to the demand of the petitioner for
higher pay scale to its officers and this does not call for
any interference.‖
(Emphasis supplied)
72. As against this, the appellant, before the Division Bench,
contended thus:
―15. A counter affidavit was filed by the Central
Government, Union of India in the writ petition. In para 1
of the preliminary objections therein it was stated that the
UGC, although an autonomous body constituted under
the UGC Act, 1956 has no authority to make or change
the service conditions of its employees on its own without
the prior approval of the government. The respondents
have relied on Section 26 (2) of the UGC Act which
states:
―No regulation shall be made under clause (a) or clause
(b) or clause (c) or clause (d) or clause (h) or clause (i) or
clause (j) of sub-section (1) except with the previous
approval of the Central Government.‖
16. Thus it is alleged that the Commission has no
authority either to frame regulations specifying the terms
and conditions of its employees or to change the pay
scales without prior approval of the Central Government.
This is particularly so because UGC is entirely financed
by the Central Government.
17. There is no dispute that the UGC did not obtain
prior approval of the Central Government before revising
the pay scales by its order dated 12-12-1995.
18. The Central Government has also relied on Section
25 of the Act which states:
―(i) The Central Government may, by
notification in the Official Gazette, make rules to
carry out the purposes of this Act.
(ii) In particular, and without prejudice to the
generality of the foregoing power, such rules may
provide for all or any of the following matters,
namely:
(a) the terms and conditions of service of
employees appointed by the commission."
19. Thus it is contended by learned counsel for the
Central Government that both Sections 25 and 26 make it
clear that the Central Government alone can make rules
specifying the terms and conditions of service of its
employees, or at least its approval has to be obtained by
the Commission.
20. The Commission has no independent source of
income and all its expenditure is borne by the Central
Government. Hence also it is alleged that the approval of
the Central Government has to be taken before incurring
any financial liability.
21. It is also alleged that the terms and conditions of
service of the Central Government employees cannot be
looked into for claiming parity for employees of the
University or Commission as they are all performing
different kinds of duties. The members of the association
are not performing duties of lecturers/readers/Assistant
Professors or professors but they are performing
administrative duties. Hence, they cannot claim parity
with the professors/readers/Assistant Professors/lecturers
or scientists in the universities.
22. The members of the association are getting pay
scales as per the recommendations of 4th Central Pay
Commission which was approved for them by the Central
Government. Until the Central Government approves
payment of pay scales of the 5th Central Pay Commission
for them they cannot get those pay scales. The decision of
the commission is not binding on the Central
Government.‖
(Emphasis supplied)
73. It is obvious, requiring no unnecessary elaboration, that a
reading of the above passages from the judgment of this Court in
U.G.C. Class-I Officers Association (supra) serves to effectively
underscore the similarity, not only between the controversy in that
case, vis-à-vis that which arises in the present matter, but also in the
rival submissions made before this Court in that case, as compared to
this.
74. Cogitating on the said submissions, the Division Bench of this
Court proceeded to hold as under:
―23. On the facts of the case we are of the opinion that
this appeal has to be allowed.
24. There is no dispute that the UGC did not take the
approval of the Central Government for its decision dated
12.12.1995.
25. A perusal of the various provisions of the UGC Act
which have been referred to above clearly show that it is
the Central Government which frames the terms and
conditions of the service of employees of the Commission
vide Section 25(1)(2)(d) or at least its approval is
required vide section 26(2) particularly when there are
financial implications.
26. It may be noted that the entire funds of the UGC
come from the Central Government. Hence it is only
logical that before taking any decision which has
financial implications the approval of the Central
Government has to be taken by the UGC. If we take a
different interpretation then it will follow that the UGC
can raise the salaries and allowances of its members and
employees even to exorbitant levels which the Central
Government may not be in a financial position to bear.
Clearly such an interpretation which results in absurdity
is to be eschewed.
27. Hence we are in agreement with the counsel for the
Central Government that the decision of the UGC dated
12.12.1995 would remain ineffective until it has been
approved by the Central Government, and no direction
can be issued by the Court to the Central Government to
approve the aforesaid decision. It is entirely in the
discretion of the Central Government to approve the
decision of the Commission dated 12.12.1995 or not to do
so, and no mandamus can be issued by the court as it is
purely a discretionary matter.
28. It may be noted that the Central Government had
made rules known as UGC (Terms and Conditions of
Service of Employees) 1983 in which various posts were
mentioned along with their pay scales. Hence it follows
that if the pay scale is to be revised by the Commission it
has to take approval of the Central Government as the
same is subject to the general financial limit of the budget
expected by the Government of India for UGC. It follows
that any decision of the UGC relating to pay scales which
has an effect on the grant made by the Central
Government must have prior approval/sanction of the
Central Government. It may be noted that the functions
and duties of the Additional Secretaries and Joint
Secretaries of UGC are not similar to those of Additional
Secretary and Joint Secretary in the Central Government.
They are also not similar to teaching posts in the
universities. Hence there can be no question of parity in
the pay scales.
*****
31. We fully agree with the submission of the learned
counsel of the Central Government that the UGC has no
power to take a unilateral decision regarding pay scales
of its officers as such view would mean that the
Commission need not even bother about the financial
capacity of the Central Government to pay a higher pay
scale. After all the funds have to come from the Central
Government and hence an interpretation should be taken
of the Act and Rules which is practical.‖
(Emphasis supplied)
75. While considering the applicability of the above decision of the
Division Bench of this Court in U.G.C. Class-I Officers Association
(supra), to the facts of the present case, the three submissions,
advanced by learned Senior Counsel Ms. Jyoti Singh, in response to
the reliance, by Mr. Amitesh Kumar on the said decision, deserved to
be noted.
76. The first submission, of Ms. Jyoti Singh, was that the aforesaid
decision of this Court in U.G.C. Class-I Officers Association (supra)
cannot be said to be laying down any definitive legal principle, as
would serve as a precedent for future cases. This submission is,
apparently, founded on the caveat, contained in para 23 of the said
decision, to the effect that it was being rendered ―on the facts of this
case‖. I am of the opinion that this fact, by itself, cannot divest the
judgment, rendered by a Division Bench of this Court and, therefore,
binding on me, of its precedential value. Every case is decided on its
facts, and no Court can decide the matter de hors the facts before it. A
mere mention, in the judgment, to the effect that it was being passed
on the facts before the Court is, therefore, merely stating the obvious,
and does not, in any manner, diminish, far less denude, the judgment
of its value as a precedent for future cases especially where the facts
are, as stated in paras 70 and 73 (supra), ―strikingly similar‖. No
doubt, if the Court, while rendering the judgment, were to specify that
the judgment was being rendered keeping in mind the peculiar facts
before the Court, or were to enter an unequivocal disclaimer, to the
effect that the judgment would not be treated as a precedent for future
cases, the legal position may be different. No such mention, or
disclaimer, finds place in the judgment of this Court in U.G.C. Class-I
Officers Association (supra). The judgment is reasoned, and
proceeds on certain fundamental principles. It cannot, therefore, be
said to be lacking in precedential value.
77. The second submission of Ms. Jyoti Singh, apropos the
judgment of this Court in U.G.C. Class-I Officers Association
(supra), was that it could not efface the effect of SR 4. I have already
held, hereinabove, that SR 4 cannot be read in isolation, but has to be
read in the light of Rules 23 and 24 of the Rules governing the ICSSR.
Though the judgment of this Court in U.G.C. Class-I Officers
Association (supra) does not expressly reproduce all the provisions
that apply to the said case, a reading of the passages, from the said
decision, as extracted hereinabove, would leave no manner of doubt
that, in the said case, too, the respondent-Association specifically
urged that the applicable provisions, which empowered the UGC to
revise the pay scales of its officers, did not contemplate obtaining of
any approval, by the Government of India, prior thereto. The
provisions of the UGC Act, which stand reproduced in the said
decision, too, do so indicate. The statutory scenario available before
this Court in U.G.C. Class-I Officers Association (supra) was,
therefore, to all intents and purposes, similar to that which obtains in
the present case, in the form of Rules 23 and 24 of the Rules of the
ICSSR, vis-à-vis SR 4 and SR 20 of the Service Regulations. For this
reason, too, the existence of SR 4, in the present case, cannot be used
as a ground to wish away the applicability of the judgment of this
Court in U.G.C. Class-I Officers Association (supra).
78. Ms. Jyoti Singh chose, thirdly, to draw the attention of this
Court to Rule 39 of the Rules of the ICSSR, according to which the
funds of the ICSSR consist of (a) grants made by Respondent No. 1,
(b) contributions from other sources, (c) income from the assets of the
ICSSR and (d) receipts of the ICSSR from other sources. In view of
this Rule, the assertion, in the written submissions of the ICSSR, to
the effect that the ICSSR was entirely funded by grants from
Respondent No. 1, does not appear to be correct. This single
distinction, however, in my view, cannot erode, to any substantial
degree, the applicability, to the present case, of the principles
enunciated in U.G.C. Class-I Officers Association (supra). Annexed,
to the counter-affidavit of Respondent No. 1, is a letter, dated 26th
March, 1998, from Respondent No. 1 to the ICSSR, in which it is
categorically stated thus:
―10% of the additionality on account of pay revision will
be met by the council through saving under various
Heads and another 10% by generation of additional
resources. Government's liability would therefore only be
80%.‖
Even if, therefore, arguendo, one were to assume that the ICSSR is
not entirely funded by Government grants, a substantial portion of its
revenue resource comes from Respondent No. 1. Applying the
reasoning contained in the judgment of the Division Bench of this
Court in U.G.C. Class-I Officers Association (supra), therefore, any
enhancement of the pay scales of officers and staff of the ICSSR,
before implementation, would necessarily require the approval of
Respondent No. 1.
79. As has already been observed hereinabove, even de hors the
decision in U.G.C. Class-I Officers Association (supra), this legal
position clearly emanates from a reading of Rules 23 and 24 of the
Rules of the ICSSR, in conjunction with SR 4(2)(b).
80. The first submission of the petitioner, to the effect that the
withdrawal, by the ICSSR, of its earlier orders, enhancing the pay
scale of the petitioners, by the impugned Office Orders dated 30th
November, 2000, was unjustified, as the ICSSR at the absolute
authority to increase/enhance the pay scales of its officers and staff,
and did not require the approval of Respondent No. 1 therefor has,
consequently, to be rejected.
81. On merits, too, I am of the opinion that the petitioners have not
been able to make out any case for grant, to them, of the pay scales
granted by the UGC to lecturers, readers/Assistant Professors and
Professors in Central Universities. Seeking to equate the petitioners,
with these officers, would be equating chalk with cheese. The mere
fact that the petitioners may, at one point of time, have been drawing
scales equivalent to those drawn by lecturers, readers/Assistant
Professors and Professors in Central Universities, cannot create a
right, in the petitioners' favour, to draw the said scales in perpetuity.
Fixation of pay scales is an issue which, ordinarily, has to be left to the
discretion of the executive, and courts are ill-equipped to rule thereon.
It is hardly necessary for this Court to expound on the differences
between Assistant Directors, Deputy Directors and Directors in the
ICSSR, as compared to lecturers, readers/Assistant Professors and
Professors in Central Universities. The onus was on the petitioners, if
they so chose, to establish, with adequate evidence and material,
fulfilment of all the requisite conditions which would entitle them to
claim parity with lecturers, readers/Assistant Professors and Professors
in Central Universities. No such effort has been made in the writ
petition. That apart, even at a plain glance, the nature of duties
performed by the petitioners can hardly be equated with the duties of
lecturers, readers/Assistant Professors or Professors in Central
Universities, the duties of the officials in the ICSSR being essentially
executive and administrative in nature, whereas the duties rendered by
lecturers, readers/Assistant Professors and Professors in Central
Universities are fundamentally academic. Even if, arguendo, one were
to assume that there was some degree of overlap between the duties
rendered by the two sets of officers, they cannot be said to be
discharging ―equal work‖, so as to invoke the ―equal pay for equal
work‖ doctrine. A glance at the qualifications and eligibility required
for recruitment to Assistant Directors, Deputy Directors and Directors
in the ICSSR, vis-à-vis those required for recruitment as lecturers,
readers/Assistant Professors and Professors in Central Universities,
also discloses that they are different. Neither in the matter of nature of
duties, nor on the issue of essential qualifications for recruitment,
therefore, can any equivalence be said to exist, between the officials in
the ICSSR and the officials of the Central Universities. So far as the
law is concerned, there is wealth of authority on the issue of parity of
pay, and one need refer only to the following passages from the recent
judgment of the Supreme Court in Punjab State Electricity Board v.
Thana Singh, (2019) 4 SCC 113, to drive home the point:
―10. It is fairly well settled that equation of pay scales
must be left to the Government and on the decision of the
experts and the Court should not interfere with it.
Observing that equation of pay scales of posts must be
left to the Government and the experts, in SAIL v.
Dibyendu Bhattacharya, (2011) 11 SCC 122 : (2011) 2
SCC (L&S) 192 , this Court held as under: (SCC p. 133,
para 26)
―26. In Union of India v. S.L. Dutta, (1991) 1
SCC 505 : 1991 SCC (L&S) 406, Union of India
v. N.Y. Apte, (1998) 6 SCC 741 : 1998 SCC (L&S)
1673, State of U.P. v. J.P. Chaurasia, (1989) 1
SCC 121 : 1989 SCC (L&S) 71 and Kshetriya
Kisan Gramin Bank v. D.B. Sharma, (2001) 1
SCC 353 : 2001 SCC (L&S) 1000, this Court held
that the determination that two posts are equal or
not, is a job of the Expert Committee and the court
should not interfere with it unless the decision of
the Committee is found to be unreasonable or
arbitrary or made on extraneous considerations.
More so, it is an executive function to fix the
service conditions, etc. and lies within the
exclusive domain of the rule-making authority.
(See also T. Venkateswarulu v. Tirumala
Tirupathi Devasthanams, (2009) 1 SCC 546 :
(2009) 1 SCC (L&S) 202.)‖
11. In S.C. Chandra v. State of Jharkhand, (2007) 8
SCC 279 : (2007) 2 SCC (L&S) 897, observing that the
grant of pay scales is a purely executive function and the
court should not interfere with the same, this Court held
as under: (SCC pp. 292-94, paras 33 & 35)
―33. It may be mentioned that granting pay scales
is a purely executive function and hence the court
should not interfere with the same. It may have a
cascading effect creating all kinds of problems for
the Government and authorities. Hence, the court
should exercise judicial restraint and not interfere
in such executive function vide Indian Drugs &
Pharmaceuticals Ltd. v. Workmen, (2007) 1 SCC
408 : (2007) 1 SCC (L&S) 270 .
***
35. In our opinion fixing pay scales by courts by
applying the principle of equal pay for equal work
upsets the high constitutional principle of
separation of powers between the three organs of
the State. Realising this, this Court has in recent
years avoided applying the principle of equal pay
for equal work, unless there is complete and
wholesale identity between the two groups (and
there too the matter should be sent for examination
by an Expert Committee appointed by the
Government instead of the court itself granting
higher pay).‖
(emphasis in original)
12. Observing that granting parity in pay scales
depends upon the comparative evaluation of job and
equation of posts, this Court, in SAIL v. Dibyendu
Bhattacharya, (2011) 11 SCC 122 : (2011) 2 SCC (L&S)
192, held as under: (SCC pp. 133-34, para 30)
―30. ... the law on the issue can be summarised to
the effect that parity of pay can be claimed by
invoking the provisions of Articles 14 and 39(d) of
the Constitution of India by establishing that the
eligibility, mode of selection/recruitment, nature
and quality of work and duties and effort,
reliability, confidentiality, dexterity, functional
need and responsibilities and status of both the
posts are identical. The functions may be the same
but the skills and responsibilities may be really and
substantially different. The other post may not
require any higher qualification, seniority or other
like factors. Granting parity in pay scales depends
upon the comparative evaluation of job and
equation of posts. The person claiming parity must
plead necessary averments and prove that all things
are equal between the posts concerned. Such a
complex issue cannot be adjudicated by evaluating
the affidavits filed by the parties.‖
*****
15. For considering the equation of posts, the
following factors had been held to be determinative:
1. The nature and duties of a post;
2. The responsibilities and powers exercised by
the officer holding a post, the extent of territorial or
other charge held or responsibilities discharged;
3. The minimum qualifications, if any,
prescribed for recruitment to the post; and
4. The salary of the post (vide Union of India
v. P.K. Roy, AIR 1968 SC 850).
16. After referring to P. K. Roy case [Union of
India v. P. K. Roy, AIR 1968 SC 850], this Court,
in SAIL, held as under: (SAIL v. Dibyendu
Bhattacharya, (2011) 11 SCC 122 : (2011) 2 SCC (L&S)
192] , SCC p. 132, para 25)
―25. In State of Maharashtra v. Chandrakant
Anant Kulkarni, (1981) 4 SCC 130 : 1981 SCC
(L&S) 562 and L.N. Mithila University v.
Dayanand Jha, (1986) 3 SCC 7 : 1986 SCC
(L&S) 378, a similar view has been reiterated
observing that equal status and nature and
responsibilities of the duties attached to the two
posts have to be taken into consideration for
equivalence of the post. Similar view has been
reiterated in E.P. Royappa v. State of T.N., (1974)
4 SCC 3 : 1974 SCC (L&S) 165 and Rooplal v.
Lt. Governor, (2000) 1 SCC 644 : 2000 SCC
(L&S) 213, wherein this Court following the
earlier judgment in Union of India v. P.K. Roy,
AIR 1968 SC 850 held that the salary of the post
alone may not be a determining factor, the other
three criteria should also be fulfilled.‖
*****
19. The person claiming parity must produce material
before the court to prove that the nature of duties and
functions are similar and that they are entitled to parity of
pay scales. After referring to a number of judgments and
observing that it is the duty of an employee seeking parity
of pay to prove and establish that he had been
discriminated against, this Court, in SAIL, held as under:
(SCC p. 131, para 22)
―22. It is the duty of an employee seeking parity
of pay under Article 39(d) of the Constitution of
India to prove and establish that he had been
discriminated against, as the question of parity has
to be decided on consideration of various facts and
statutory rules, etc. The doctrine of ‗equal pay for
equal work' as enshrined under Article 39(d) of the
Constitution read with Article 14 thereof, cannot be
applied in a vacuum. The constitutional scheme
postulates equal pay for equal work for those who
are equally placed in all respects. The court must
consider the factors like the source and mode of
recruitment/appointment, the qualifications, the
nature of work, the value thereof, responsibilities,
reliability, experience, confidentiality, functional
need, etc. In other words, the equality clause can be
invoked in the matter of pay scales only when there
is wholesome/wholesale identity between the
holders of two posts. The burden of establishing
right and parity in employment is only on the
person claiming such right. (Vide U.P. State Sugar
Corpn. Ltd. v. Sant Raj Singh, (2006) 9 SCC 82 :
2006 SCC (L&S) 1610, Union of India v.
Mahajabeen Akhtar, (2008) 1 SCC 368 : (2008) 1
SCC (L&S) 183, Union of India v. Dineshan
K.K., (2008) 1 SCC 586 : (2008) 1 SCC (L&S)
248] , Union of India v. Hiranmoy Sen, (2008) 1
SCC 630 : (2008) 1 SCC (L&S) 271, Official
Liquidator v. Dayanand, (2008) 10 SCC 1 : (2009)
1 SCC (L&S) 943, U.P. SEB v. Aziz Ahmad,
(2009) 2 SCC 606 : (2009) 1 SCC (L&S) 418 and
State of M.P. v. Ramesh Chandra Bajpai, (2009)
13 SCC 635 : (2010) 1 SCC (L&S) 287.)‖
(emphasis in original)
20. Burden of establishing parity in pay scale and
employment is on the person claiming such right. There
were neither pleadings nor any material produced by the
respondents to prove that the nature of work performed
by the Sub Fire Officers is similar with that of the Head
Clerks and the Internal Auditors to claim parity of pay
scale. As pointed out earlier, the burden lies upon the
party who claims parity of pay scale to prove similarity in
duties and responsibilities. In the writ petition, the
respondents have only claimed parity of pay scale with
those of the employees working under the Punjab
Government which was not accepted by the learned
Single Judge. Determination of parity or disparity in
duties and responsibilities is a complex issue and the
same should be left to the expert body. When the expert
body considered revision of pay for various posts, it did
not revise the pay scale of Sub Fire Officers. When the
expert body has taken such a view, it is not for the courts
to substitute its views and interfere with the same and
take a different view.
21. As pointed out earlier, though the Head Clerks,
Head Clerk-cum-Divisional Accountants and Internal
Auditors were earlier placed in the same group viz.
Group XII; but educational qualifications requisite for
these posts and mode of recruitment are different.
Likewise, there is no similarity in the work performed by
the employees on those posts. Only in cases of complete
similarity in the nature of work, duties, responsibilities
and promotional channels, parity of pay scale can be
claimed. Merely on the ground that Sub Fire Officers are
categorised in Group XII along with Head Clerks, Head
Clerk-cum-Divisional Accountants and Internal Auditors
cannot be a ground for seeking parity of pay scale. As
submitted by the learned Senior Counsel for the appellant
Board, the nature of work, duties, responsibilities and
initial qualification for recruitment of each post are
entirely different as all these posts belong to different
cadre.
*****
26. The respondents have not produced any material to
show that there is any similarity/identity between the
posts of Sub Fire Officers and the Head Clerks, Head
Clerk-cum-Divisional Accountants and Internal Auditors
in terms of the nature of duties, responsibilities,
qualifications and mode of recruitment, etc. to apply the
principle of parity of pay scale. The learned Single Judge
did not keep in view that the nature of duties and
responsibilities performed by the Sub Fire Officers are
different and parity cannot be claimed merely on the
ground that they are categorised in one group. The
judgment [Thana Singh v. Punjab SEB, 2010 SCC
OnLine P&H 877] of the learned Single Judge and the
impugned judgment [Punjab SEB v. Thana Singh, 2010
SCC OnLine P&H 9060] of the Division Bench cannot
be sustained and are liable to be set aside.‖
(Underscoring supplied)
82. It is also trite that the mere fact that, in the past, the two sets of
posts may have been drawing the same pay, or in the same scale, does
not create a right, in favour of the holders/holders of either of the
posts, to claim parity of pay in perpetuity for the future. (Refer Delhi
Transport Corporation Security Staff Union v. D.T.C., (2018) 16
SCC 619)
83. On merits, too, therefore, it cannot be said that the petitioners
have a legally enforceable right to claim the scales fixed by the UGC
for lecturers, readers/Assistant Professors or Professors in Central
Universities.
Conclusion
84. In view of the above discussion, it cannot be said that, in
reversing the decision to enhance the pay scales of Assistant Directors,
Deputy Directors and Directors in its organisation, the ICSSR
committed any illegality, as would merit interference, by this Court, in
exercise of the extraordinary jurisdiction vested in it by Article 226 of
the Constitution of India. Equally, it cannot be said that the petitioners
have made out a case for parity of pay with lecturers, readers/Assistant
Professors or Professors in Central Universities, or for grant, to them,
of the pay scales fixed by the UGC in respect of such officers.
85. Resultantly, the writ petition has necessarily to fail. It is
accordingly dismissed, with no orders as to costs.
C. HARI SHANKAR, J
JULY 01, 2019/HJ
