V.P. Mittal vs Dantiwada Agricultural Uni. Thr' ...
2021 Latest Caselaw 805 Guj

      C/SCA/14880/2005                              JUDGMENT




    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


    R/SPECIAL CIVIL APPLICATION NO. 14880 of 2005


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

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1   Whether Reporters of Local Papers may be
    allowed to see the judgment ?

2   To be referred to the Reporter or not ?

3   Whether their Lordships wish to see the fair
    copy of the judgment ?

4   Whether this case involves a substantial
    question of law as to the interpretation of the
    Constitution of India or any order made
    thereunder ?

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                        V.P. MITTAL
                           Versus
DANTIWADA AGRICULTURAL UNI. THR' REGISTRAR & 1 other(s)
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Appearance:
DECEASED LITIGANT(100) for the Petitioner(s) No. 1,1.4
MR GM JOSHI(370) for the Petitioner(s) No. 1.2,1.3,1.4.1,1.4.2
VYOM H SHAH(9387) for the Petitioner(s) No. 1.1
MR DG CHAUHAN(218) for the Respondent(s) No. 2
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CORAM: HONOURABLE MR. JUSTICE UMESH A. TRIVEDI


                         Date : 20/01/2021

                         ORAL JUDGMENT

         C/SCA/14880/2005                                         JUDGMENT



[1.0]         By way of this petition the petitioner prayed for

quashing and setting aside the letter dated 20.05.2005 whereby the petitioner was informed that his request for advance increments in the revised pay-scale of Rs.1200-1900 on the date of his appointment in the University came to be rejected.

[1.1] The petitioner, seeking such revision of pay, requested to apply the principle as was applied in the case of Dr. B.M. Gupta serving in the very same University. The petitioner was appointed vide order dated 08.07.1976 as Entomologist in All India Coordinate Research Project on Sorghum Improvement, Navsari with the starting pay of Rs.1050/- per month in the pay-scale of Rs.700-1250 plus usual allowances as per the University Rules with effect from the date of taking over the charge of the said post. Pursuant to the said order the petitioner joined the services on 11.10.1976. It is the case of the petitioner that the pay-scale of Rs.700-1250 came to be revised to Rs.1200 - 1900 with effect from 01.01.1973. Pursuant to the revision of pay, the pay of the petitioner was fixed by proforma fixation, which is at page 12 of the petition. By the said pay fixation, pay of the petitioner was fixed at Rs.1200 in the revised pay scale as revised by University Grants Commission. The said pay fixed was minimum of the pay-scale denying weightage of advance seven increments to the petitioner in the revised pay-scale. The said proforma pay fixation was performed pursuant to the option exercised by him to go for revised pay-scale. The petitioner had signed the said form of option on 11.05.1977, and therefore, proforma pay fixation was undertaken.

         C/SCA/14880/2005                                            JUDGMENT



[1.2]         It is the case of the petitioner that the said pay

fixation, in the revised pay-scale, was objected to by him vide communication dated 29.01.1980 addressed to the Registrar, Gujarat Agricultural University, Dantiwada claiming that he should have been granted seven advance increments in the minimum scale of pay, being Rs.1200. According to the petitioner, while revising the pay of the petitioner, he was fixed at minimum of the pay-scale ignoring seven advance increments granted by the respondent - University in pre- revised scale on the basis of his qualification, experience and salary drawn by him in previous service at Uadaipur.

[1.3] It is further the case of the petitioner that he was appointed as Professor of Entomology in the College of Agriculture, Gujarat Agricultural University, Junagadh and joined the post on 20.03.1982 where his pay was fixed at Rs.1560/- in the pay-scale of Rs.1500-2500 vide office order dated 20.06.1983. The history of further pay revision in that cadre is not of much relevance for the purpose of determination of the issue raised in this petition as the petitioner claims that on the first revision of pay he should have been granted seven advance increments by fixing his pay at minimum in the revised pay-scale adding seven advance increments as was done while he was first appointed. The impugned communication dated 20.05.2005, which is now challenged by way of present petition, contains a recital that he was once again informed that he was already granted advance increments in the pay-scale (Unrevised) of the post offered at the time of appointment protecting the pay of the petitioner. Thus, it appears that prior thereto he was communicated on earlier occasion about non acceptance of his

C/SCA/14880/2005 JUDGMENT

request with regard to revision of pay from the date of his appointment in the revised pay-scale as claimed.

[2.0] Shri Gautam Joshi, Senior Advocate, learned Counsel appearing with Shri Vyom Shah, learned advocate for the petitioner, submitted that though revision of pay was made effective from 01.01.1973, according to his submission, as he was granted seven advance increments at the time of appointment in an unrevised pay-scale, revision of which is effective prior to his appointment, he should be granted minimum of pay-scale i.e. Rs.1200 plus seven increments thereon while revising his pay under the revision of pay rules. He has further submitted that the recommendation of pay commission was adopted by the University Grant Commission and Indian Council for Agriculture Research (ICAR) with effect from 01.01.1973. Pursuant to the said recommendation instead of revising his pay to Rs.1200 + Rs.350 (50x7) i.e. seven advance increments = Rs.1550 plus admissible allowances his pay has been fixed at Rs.1200/-, which is minimum pay-scale in the revised pay-scale.

[2.1] He has further submitted that the petitioner was entitled to seven advance increments in a minimum of revised pay-scale or at least one increment to be added in the minimum revised pay-scale as per Note 3(a) found in the revision of pay rules applicable to the petitioner, which is extracted in his representation dated 29.01.1980 as government servants drawing from the 6th up to 10th stage in the existing pay-scale by one increment. According to him, since he was granted seven advance increments, he was entitled to one more increment in the minimum pay i.e.

C/SCA/14880/2005 JUDGMENT

Rs.1200/- in the revised pay-scale. He has submitted that while revising his pay-scale, no such increment, as provided in Note 3(a), is granted to him, and therefore, the petition is required to be allowed with all consequential benefits. According to his submission, non grant of such increment has effected subsequent pay revision also and ultimately reflected upon the pension.

[2.2] He has further submitted that the case of Dr. B.M. Gupta rendered by this Court in Special Civil Application No.3064 of 1990, the copy of the judgment is annexed with the petition at page 35, would apply in the case of the petitioner also. Relying on the said decision, it is submitted that he was also Professor of Plant Pathology with Gujarat Agricultural University where the petitioner was also working. While allowing the petition partly, the Court has fixed the pay of the petitioner in revised pay-scale of Rs.1995/- instead of Rs.1740/- calculated by the respondent - University. His pay was revised in the pay-scale of Rs.1500-2500. As per the comparative chart prepared and annexed with the petition, drawing analogy from the pay fixation in the case of Dr. B.M. Gupta as done by this Court, according to the submission of the petitioner his pay should be fixed at Rs.1542 in the revised pay-scale of Rs.1200-1900, and therefore, the ultimate prayer is to fix his pay revision to Rs.1050 + 210 (20% Basic Pay + 25) (DA as on 11.10.1976) + 25 (Interim relief as on 11.10.1976) = 1542 in the revised pay-scale.

[2.3] In the rejoinder to the contention raised on behalf of respondent with regard to delay in filing the petition, it is submitted that there is no delay in the claim of the petitioner

C/SCA/14880/2005 JUDGMENT

as it has been refused on the first revision of pay by communication dated 20.05.2005, and therefore, this petition has been filed in the month of July, 2005. At any rate, according to his submission, he would still be entitled to the benefit as it is a case of continuing wrong and arrears can be restricted to three years prior to filing of the petition as per the judgment of the Supreme Court in the case of Union of India and Others Vs. Tarsem Singh reported in (2008) 8 SCC

648.

[2.4] In short, according to the submission of learned Counsel for the petitioner, the petition is required to be allowed and his pay should be revised at Rs.1500/- in the pay- scale of Rs.1200-1900 plus admissible allowances with other benefits.

[3.0] As against that, Shri D.G. Chauhan, learned Advocate for the respondent - University, has vehemently submitted that the petition is hopelessly barred by delay and latches. He has submitted that the pay fixation in the revised pay-scale done in the year 1979, at the option exercised by the petitioner, cannot be challenged in the year 2005 nearly after 25 years therefrom and at least 11 years after he retired from his service. He has further submitted that the benefit of pay revision granted by this Court in the case of Dr. B.M. Gupta, reliance on which is placed by the petitioner was rendered in the year 1991. If at all the said decision can be applied in the case of the petitioner, as such it is not applicable at all, as this petition has come to be filed at least after 14 years of the said decision is barred by delay and latches. On the ground of delay and latches, he has relied on the following decisions;

C/SCA/14880/2005 JUDGMENT

i. U.P. Jal Nigam Vs. Jashwantsingh, (2006) 11 SCC 464 (paras 6,12 & 13);

ii. Tukaram Kanaram Joshi Vs. M.I.D.C & Ors, (2013) 1 SCC 353 (paras 12 to 15);

iii. State of Orrisa Vs. Mamata Mohanty, (2011) 3 SCC 436 (pg.52 to 54);

iv.Chennai Metropolitan Water Supply & Sewerage Board Vs. T.T. Murali Babu, (2014) 4 SCC 108 (para

16);

v. State of Jammu and Kashmir Vs. R.K. Zalpuri & Others, (2016) 1 GLH 114 (SC) - (2015) 15 SCC 602 (paras - 20 to 28).

[3.1] He has further submitted that the petitioner has no legal, much less fundamental or statutory enforceable right to claim the pay-scale of Rs.1200-1900 on the basis of seven advance increments. Therefore, he has submitted that the petition is liable to be rejected. He has further submitted that the petitioner has failed to establish legal right in his favour and corresponding legal duty of the respondent to grant that right and he has relied on the following decisions in support of his submission;

i. Dr. Rai Shivendra Bahadur Vs. Governing Body of the Nalanda College, Bihar Sharif, AIR 1962 SC 1210;

ii. Food Corporation of India and Ors. Vs. Ashis Kumar Ganguly and Ors., (2009) 7 scc 734;

  iii. State         of     Kerala      and         Others     Vs.       Kandath
        Distilleries, (2013) 6 SCC 573.




         C/SCA/14880/2005                                     JUDGMENT




[3.2]         He has further submitted that while accepting the

appointment vide order dated 08.07.1976 he has not insisted for any pre-condition or reserving his right to claim seven advance increments in the next revised pay-scale and continue the same. The first pay-scale of the petitioner was revised to Rs.1200-1900 with effect from 11.10.1976. It is further submitted that thereafter the petitioner was appointed as Professor in the pay-scale of Rs.1500-2500 and again granted revised pay-scale of Rs.4500-7300 with effect from 01.01.1986. According to his submission, the petitioner had waived his right to claim seven advance increments at any subsequent revision of his pay-scale.

[3.3] He has further submitted that revised pay-scales are to be granted in accordance with the revision of pay rules. The pay rules do not provide grant of any advance increments while revising the existing pay-scale in future.

[3.4] So far as reliance placed on the decision in the case of Dr. B.M. Gupta, it is submitted that it is not applicable in the facts and circumstances of the present case. It is further submitted that the facts of the case of Dr. B.M. Gupta was totally different. It is further submitted that it is settled law that little difference in facts or additional facts may lead to a different conclusion. For the same, reliance is placed in the case of Union of India Vs. Chajju Ram reported in (2003) 5 SCC 568, more particularly, paragraph 23 thereof. He has further submitted that the relief claimed in the petition, even

C/SCA/14880/2005 JUDGMENT

based on the judgment in the case of Dr B.M. Gupta, is not tenable in law as there is gross delay in approaching the Court even if presuming it to be similar in each and every respects. Though it is disputed that it is not the same in each and every respect, however, since the petitioner is not vigilant of his rights and acquiesces, same relief that is granted to Dr. B.M. Gupta by this Court should not be granted to the petitioner in view of the decision of the Supreme Court in the case of U.P. Jal Nigam Vs. Jashwantsingh reported in (2006) 11 SCC 464, more particularly, paragraph nos.6 and 13 thereof.

[3.5] According to his submission, there are no Pay Rules, Regulations and /or Circulars to grant seven advance increments to the petitioner, and therefore, the claim is not legal.

[4.0] Having heard learned Counsel for the appearing parties and deeper scrutiny of the record annexed with the petition as also the reply, rejoinder is required to be considered in light of the submissions made by them. The petitioner came to be appointed as Entomologist, All India Coordinate Research Project on Sorghum Improvement, Navsari by an order dated 08.07.1976 with the starting pay of Rs.1050/- per month in the pay-scale of Rs.700-50-1250 plus usual allowances as per the University Rules with effect from the date of taking over the charge of the said post. The said appointment order is at page 10 to the petition. It is very specifically mentioned in the said order that the appointment of Dr. V.P. Mittal i.e. the petitioner will be under written contract. Pursuant to the said appointment order the petitioner joined the services on 11.10.1976. Though no written contract entered into between

C/SCA/14880/2005 JUDGMENT

the parties is brought on record either by the petitioner or by the learned Advocate for the respondent, fact remains that the appointment order does not speak of seven advance increments, as claimed by the learned Senior Advocate for the petitioner. Coincidently starting pay of Rs.1050/- would be arrived at by adding seven increments. As provided in the said order, appointment cannot be termed as minimum of pay-scale plus seven advance increments with usual allowance to be paid to the petitioner. It speaks about starting pay of Rs.1050/- per month in the pay-scale of Rs.700-50-1250. If the appointment of the petitioner was not on condition that wherever there is revision of pay he would be provided with seven advance increments in the revised pay-scale, the petitioner is not entitled to claim so in absence of any written contract. However, in the present case, the appointment order clearly mentions about the starting pay only. Though employer can agree to any terms in the payment of pay to the employee at the time of appointment, however, subsequent revision of pay, in absence of any contract to the contrary, would be governed under the revision of pay rules as applicable to the employment, and therefore, there is no merit in the contention raised on behalf of the petitioner that in the revised pay-scale, he is entitled to seven advance increments to the minimum of pay in the revised pay-scale.

[4.1] There is also no merit in the contention that since the pay-scale are revised retrospectively from 01.01.1973 the petitioner should be granted starting pay of that pay-scale adding seven advance increments to the minimum of pay- scale. The said contention is again misconceived. For calculating the same, revised pay rules made for the same are

C/SCA/14880/2005 JUDGMENT

to be followed. The pay of the petitioner was fixed in revised pay-scale at Rs.1200/-, and therefore, it is contended that his pay is protected and not his scale. However, the said contention is also merit-less. The proforma - statement of pay fixation, which is at page 12 of the compilation, reflects the calculation while fixing his pay in the revised pay-scale. Since he was ordered to be paid starting pay of Rs.1050/- per month, while calculating the revised pay it has been taken as basic pay plus DA as on 01.12.1972 at Rs.25/- of unrevised pay plus interim relief at Rs.10/- totaling to Rs.1085/-. Over and above that, Rs.50/- is added, Rs.25/- of unrevised pay plus interim relief at Rs.10/- totaling to Rs.1085/-. Over and above that Rs.50/- is added to that total of Rs.1085/- bringing it to Rs.1135/- as his pay in the unrevised pay-scale. As such, the said calculation is in accordance with Rule 7 of the revision of pay rules. The extract of which is produced at page 43 by the petitioner himself. So while calculating unrevised pay Rs.50/- is added to the existing emoluments at the rate of 5% of the basic pay subject to minimum of Rs.15/- and maximum of Rs.50/- in accordance with Rule 7(A)(a) of the Rules, and therefore, his unrevised pay, adding the amount as per Rule 7(A)(a) of the Rules comes to Rs.1135/-, which is less than Rs.1200/- i.e. minimum of revised pay-scale. In view of Rule 7(A)(b)(i), the amount so computed if it is less than the minimum of revised scale, the pay shall be fixed at the minimum of that scale, and therefore, the revised pay-scale of the petitioner would come to Rs.1200/- only and that has been done and paid to him in accordance with the revision of pay rules.

[4.2]          The reliance placed on the decision in the case of




         C/SCA/14880/2005                                  JUDGMENT

Dr. B.M. Gupta is again misconceived as Dr. B.M. Gupta was appointed vide order dated 02.07.1976 and he was ordered to be paid the maximum pay-scale at Rs.1600 in the pay-scale of Rs.1100-1600 as a special case. However, while revising his pay, the Court has followed the principles regarding fixation of pay-scale in accordance with revision of pay rules and thereby determined his revised pay at Rs.1995/- rejecting his claim to determine it at the maximum of the revised pay-scale. The instance relied on by the petitioner in the case of Dr. B.M. Gupta is not at all applicable while revising the pay of the petitioner in a revised pay-scale.

[4.3] At the same time, it has not been shown by the petitioner that in a contract it has been agreed that at every revision of pay the petitioner would be paid seven advance increments, as claimed by him in this petition. Normally the initial pay may be agreed between the employee and the employer, however, the subsequent revision in pay, in absence of specific agreement, that too in writing, would be governed under the revision of pay rules. The pay of the petitioner is fixed in a revised pay-scale in accordance with the pay rules on which the petitioner relies and produced alongwith the petition, and therefore, the prayer made in this petition to revise his pay in the pay-scale of Rs.1200-1900 on the basis of seven advance increments by applying the same principle as applied in the case of Dr. B.M. Gupta cannot be granted.

[4.4] Since on merit this petition is not required to be entertained, the contentions raised with regard to delay and latches need not be gone into so also the precedents relied on. In view of the aforesaid discussion, the petition deserves to be

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rejected and it is hereby rejected. Rule is discharged. Ad- interim relief granted earlier, if any, stands vacated.

(UMESH A. TRIVEDI, J.)

siji