High Court of Meghalaya

Smti Amanda B. Basaiawmoit 1.State Of ... vs . on 6 March, 2024

Author: H.S. Thangkhiew

Bench: H.S. Thangkhiew

 Serial No. 01
 Supplementary List

                  HIGH COURT OF MEGHALAYA
                       AT SHILLONG
WP (C) No. 246 of 2022
                                Date of Decision:06.03.2024

 1. Smti Amanda B. Basaiawmoit         1.State of Meghalaya
    D/o (L) James P. Suting              Represented by
    R/o Lower Nongrim Hills,             Commissioner &
    Shillong, East Khasi Hills           Secretary to the Govt. of
    District, Meghalaya.                 Meghalaya, Education
 2. Shri Batskhem Myrboh,                Department, Shillong.
    S/o Shri Khin Lyngdoh              2.The Principal Secretary
    R/o Thangsning,                      to the Govt. of
    East Khasi Hills District,           Meghalaya, Education
                                   Vs.
    Meghalaya.                           Department, Shillong
 3. Shri Kerlihok Lyngdoh Buam         3.The Joint Secretary to the
    S/o Shri Ehbok Rynjah                Govt. of Meghalaya,
    R/o Central Nongrim Hills            Education Department
    (House No. c/o-014),                 Shillong
    East Khasi Hills District,         4.Director of Higher and
    Meghalaya                            Technical Education,
                                         State of Meghalaya,
                                         Shillong.
                                       5.Joint Director of Higher
                                         and Technical Education
                                         State of Meghalaya,
                                         Shillong.
                                       6.The Director, Directorate
                                         of Local Fund Audit,
                                         State of Meghalaya,
                                         Shillong.


Coram:
              Hon'ble Mr. Justice H.S. Thangkhiew, Judge.




WP(C) No. 246 of 2022                                  Page 1 of 15
 ________________________________________________________
Appearance:
For the Petitioner(s)             : Mr. Mr. S. Sen, Adv. with
                                    Ms. S. Shallam, Adv.
                                    Mr. S.K. Roy, Adv.

For the Respondent(s)             : Mr. K.P. Bhattacharjee, GA

i)      Whether approved for reporting in                 Yes/No
        Law journals etc:

ii)     Whether approved for publication                  Yes/No
        in press:
                   JUDGMENT AND ORDER

1. The petitioners are Teachers in Deficit Colleges with the

writ petitioner No. 1, serving as an Associate Professor in Shillong

College, and the writ petitioners 2 and 3, as Assistant Professors in

Synod College. The writ petitioners have preferred the instant writ

petition jointly pleading a common cause of action that, though they

have been placed at a higher stage of Academic Grade Pay, they have

been denied the increments to which they are entitled to under the law.

It has been therefore prayed that the respondents be directed to extend

additional increments to the writ petitioners, fix their pay in the

appropriate stage and further to grant consequential benefits including

arrears.

2. The brief background facts are that the Ministry of Human

Resource Development on 31.12.2008, had formulated a Scheme

providing for two Pay Bands for Teachers of Universities and Colleges

at Rs. 15600-39100 and Rs. 37400-67000 with appropriate Grade Pay

and that each Pay Band shall have different stages of Academic Grade

Pay providing opportunities to Teachers for Upward movement. The

said Scheme at Para-8 thereof, with regard to increment, provided that

the pay fixation formula recommended by the Sixth Central Pay

Commission as accepted by the Central Government be adopted for

teachers and equivalent positions in the Library and Physical Education

cadre. The Government of Meghalaya then adopted the aforesaid

Scheme dated 31.12.2008, for implementation of the UGC norms by

letter dated 23.03.2010. Thereafter, the petitioner No. 1 on 01.08.2011,

was placed from Stage 1 to Stage 2 (Rs. 6000 to 7000 AGP) and the

writ petitioners Nos. 2 and 3, on 16.04.2013 and 01.06.2014,

respectively. The matter it appears rested at that and it was only after

the writ petitioners had represented with regard to the pay anomaly

arising out of pay fixation of teachers drawing UGC Scale of pay that

the issue came alive. The Joint Director Higher Technical Education,

then by a communication dated 24.08.2020, pursuant to the

representations filed by the petitioners, requested the government, to

extend the promotional increment while promoting the teachers of both

Government Colleges, as well as Deficit Grant-in-Aid colleges from

one stage to a higher stage as per UGC Regulations, 2010.

3. Mr. S. Sen, learned counsel for the petitioners has

submitted that by operation of the Scheme at the relevant point of time,

80% of the liability of the pay of such teachers was to be borne by the

Central Government and 20% was borne by the State Government, for

the period 01.01.2006 to 31.03.2010, and in pursuance thereof, an

amount of over Rs. 45 Crores was released to the State Government.

This it is submitted, is substantiated by a communication dated

16.12.2016. He argues that as the UGC Regulations have been adopted,

its recommendations are binding on the State respondents as has been

held in Gambhirdhan K. Gadhvi vs. State of Gujarat reported in

(2022) 5 SCC 179. In further support of his submissions, the learned

counsel has also placed reliance on the case of Dr. J. Vijayan & Ors.

vs. State of Kerala & Ors. reported in 2022 SCC Online SC 958 and B.

Bharat Kumar & Ors. vs. Osmania University & Ors. reported in

(2007) 11 SCC 58. On the question as to the delay in approaching the

Court, it is submitted by the learned counsel that none has occurred,

inasmuch as, by letter dated 24.08.2020, the Joint Director of Higher &

Technical Education, had acknowledged the entitlement of the writ

petitioners for increment on placement on a higher Academic Grade

Pay (AGP), and as no action was taken on the letter, the instant writ

petition was filed on 2022. It has been lastly argued that the entitlement

of increment being a statutory right, the same cannot be barred by lapse

of time, and the non-granting of the increment is a continuous wrong.

4. Mr. K.P. Bhattacharjee, learned GA at the outset has

submitted that the writ petition suffers from delay and laches, inasmuch

as, the petitioners have approached this Court after a delay of 12 years.

In this regard the learned counsel has placed reliance on the cases of

Bichitrananda Behera vs. State of Orissa & Ors. reported in 2023

SCC Online SC 1307 and C. Jacob vs. Director of Geology and

Mining & Anr. reported in (2008) 10 SCC 115. It is submitted that the

writ petitioners have filed the writ petition solely on the basis of the

letter of the Joint Director dated 24.08.2020, and no other ground has

been made out to explain the delay. It has been strongly argued that the

contents of the aforesaid letter, is only an opinion expressed by the

person concerned and that the same does not create any legally

enforceable right in favour of the petitioners. It has also been

contended that the petitioners by filing the instant case are merely

taking a chance, that too, after 2 years since the issuance of the letter

dated 24.08.2020, and that in the intervening period, the writ

petitioners never raised their grievance at any point of time. The

learned counsel submits that whatever rights the petitioners possessed,

stand extinguished as on date, due to the laches and also the fact that

they have continued accepting their remuneration thereafter, without

any protest.

5. On the question of the applicability of the UGC

Regulations 2010, and its extent thereof, it has been submitted that the

objective of the Regulations is to declare the minimum qualification for

appointment of teachers and other Academic staff, and for maintenance

of standards in Higher education in the Universities and Colleges, and

that the grant of Central assistance for implementing the Scheme was

subject to fulfillment of regulations and guidelines. The binding nature

of the Regulations he contends, is only to the extent that central

financial assistance would be refused, if the said Scheme was not

followed in its totality. He submits that in the instant case the Central

funds having been released and received without any observations to

the contrary by the Central Government and the State having spent

close of 57 Crores, for implementation of the Scheme of Pay Revision

for Colleges Teachers, there has been no deprivation as alleged. The

learned counsel, has also relied on the affidavit filed by the State and

has submitted that for the said period in question i.e. 01.01.2006 to

31.03.2010, the Ministry of HRD, Department of Higher Education had

released financial assistance to meet 80% of the additional expenditure

and the remaining 20% was borne by the State. This amount, he

submits being only for that period the aforesaid funds as sanctioned had

already stood utilized and settled much prior to the filing of the writ

petition, and the issue of promotional increment stands closed. Further

he submits, nowhere have the writ petitioners indicated or quantified

the amounts which they claim are due, or declared the amount which

was received by them at the relevant point of time. The writ petition

being vague and hit by delay and laches, he argues does not deserve

any consideration and is liable to be dismissed.

6. Having heard the learned counsel for the parties, in spite of

the lengthy submissions that have been advanced, the core question as

can be understood, is limited only to the claims of promotional

increments, on the petitioners being placed on a higher stage of

Academic Grade Pay. This is seen was as per the Ministry of Human

Resource Development (Department of Higher Education), Scheme of

revision of pay of teachers etc., on the recommendations of the 6 th

Central Pay Commission dated 31.12.2008, which was adopted by the

UGC, in its Regulations of 2010. Undeniably, the petitioners had been

placed in the higher stage of AGP i.e. from stage I to stage II (6000-

7000), at the relevant point of time, which would have cloaked them

with a vested right to the promotional increment, as provided by the

scheme and supported by the Central Government to the extent of 80%

of additional expenditure involved in the implementation of the scheme

for the period from 01.01.2006 to 31.03.2010.

7. As the facts indicate, the Central Government had released

an amount of Rs. 45,57,41,316/- (Rupees Forty-Five Crores Fifty-

Seven Lakhs Forty-One Thousand Three Hundred and Sixteen) only,

which amounted to 80% of the total expenditure, on account of

implementation of the scheme in the State. A communication dated

16.12.2016, from the Ministry of Human Resource Development,

addressed to the Principal Accounts Officer, MHRD, with regard to the

release of financial assistance to meet 80% of additional expenditure

for implementation of the revision of pay scale of University and

College Teachers in the State of Meghalaya, which has been brought

on record subsequently, testifies to this fact. The central assistance in

implementing the scheme, as can be seen from the communication was

also subject to the condition that the entire scheme of revision of pay

scales, together with the conditions as laid down were to be followed

and implemented by the State Government.

8. The entire chapter regarding the implementation of the

scheme dated 31.12.2008, which was w.e.f. 01.01.2006 to 31.03.2010,

as also the extension of revised UGC scale of pay on the basis of the 6th

Pay Commission Recommendation, then came to a close with the

release of an amount of Rs. 56,96,76,645/- (Rupees Fifty-Six Crores

Ninety-Six Lakhs Seventy-Six Thousand Six Hundred and Forty-Five)

only, in total inclusive of 80% central share, and 20% state share, to

meet all the stated requirements such as arrears, UGC scale of pay,

D.A, placements, increments, etc. Thereafter, as placed by the

respondents, with the coming into force of the 7th Central Pay

Commission Recommendations, revised UGC scales were then fixed

on the basis of the said recommendations, and as per the State

respondents, the Government of Meghalaya had released an amount of

Rs. 76,98,72,180/- (Rupees Seventy-Six Crores Ninety-Eight Lakhs

Seventy-Two Thousand One Hundred and Eighty) only, for which 50%

thereof, being the central share, is yet to be reimbursed to the State.

The claim of the petitioners therefore is confined to the window, when

the scheme was alive. It is to be noted further that, as per the

communication dated 16.12.2016, the MHRD had made the release of

central assistance, subject to the scheme of the revision of pay and

other conditions to be laid down by the UGC, being implemented. This

chapter, with the release of the entire funds being closed, this Court has

only to examine, as to whether this closed chapter, in spite of the delay

and the events that have transpired thereafter, can be re-opened, or

whether, it can be held that the writ petitioners by their conduct, have

by their delay and laches in seeking any remedy, waived their rights to

any entitlement under the Scheme, which has since lapsed.

9. As observed earlier, the entitlement of the petitioners being

confined only to a certain period, the same cannot constitute a

continuing right or entitlement, inasmuch as, they are now governed

under a new regime of pay revision and admissible scales as per the 7 th

Central Pay Commission Recommendations. This Court cannot lose

sight of the fact that, the writ petitioners have slept over their rights, on

their being placed on a higher stage of Academic Grade Pay, and there

is nothing on record to show that they had ever agitated for such

entitlement till the year 2020, and thereafter, on the basis of the letter of

the Joint Director of Higher and Technical Education, Meghalaya dated

24.08.2020, requesting for consideration, then approached this Court

only in the year 2022. The long delay has neither been explained, nor is

there any other reason that can be ascribed to excuse or condone the

conduct of the petitioners. Furthermore, it is observed, apart from

referring to the Pay Fixation Formula of the Central Civil Service

(Revised Pay), Rules 2008, for calculation of the additional increments,

the writ petitioners have not calculated or given a tangible amount,

except to pray for direction for grant of additional increments on the

placement on the higher stage of Academic Grade Pay, in the post of

Assistant Professor and for fixation of pay at appropriate stage and

grant of arrears and consequential benefits. The vague nature of their

prayer is also indicative of their uncertainty of the additional

increments, the amounts thereof, that they claim to be entitled to. Be

that as it may, the main concern being the delay taking into account the

fact that, the amounts of pay revision etc., due under the

recommendation of the 6th Pay Commission, have since been released,

without any objection being raised from the MHRD, as to the correct

and full implementation of the scheme dated 31.12.2008, in the

considered view of this Court, therefore any rights that had accrued to

the writ petition under the scheme by their conduct itself, has since

been extinguished.

10. The Supreme Court in the judgment cited by the counsel for

the respondents, namely Bichitrananda Behera vs. State of Orissa &

Ors. reported in 2023 SCC OnLine SC 1307, has dealt with the

question of delay and laches, and acquiescence, and has also analyzed

and quoted extensively other Supreme Court judgments on this aspect,

it has been held in Para -21 as follows.

"21. Profitably, we may reproduce relevant passages from certain decisions of this Court:

(A) Union of India v Tarsem Singh, (2008) 8 SCC 648:

"To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For

example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition."

(Emphasis supplied) (B) Union of India v N Murugesan, (2022) 2 SCC 25:

"Delay, laches and acquiescence

20. The principles governing delay, laches, and acquiescence are overlapping and interconnected on many occasions. However, they have their distinct characters and distinct elements. One can say that delay is the genus to which laches and acquiescence are species. Similarly, laches might be called a genus to a species by name acquiescence. However, there may be a case where acquiescence is involved, but not laches. These principles are common law principles, and perhaps one could identify that these principles find place in various statutes which restrict the period of limitation and create non-consideration of condonation in certain circumstances. They are bound to be applied by way of practice requiring prudence of the court than of a strict application of law. The underlying principle governing these concepts would be one of estoppel. The question of prejudice is also an important issue to be taken note of by the court.

Laches

21. The word "laches" is derived from the French language meaning "remissness and slackness". It thus involves unreasonable delay or negligence in pursuing a claim involving an equitable relief while causing prejudice to the other party. It is neglect on the part of a party to do an act which law requires while asserting a right, and therefore, must stand in the way of the party getting relief or remedy."

11. Acquiescence is writ large in the instant case, coupled with

the fact that, the non-grant of the additional increment is not a

continuing wrong, with the coming into force of fresh Pay Revision, by

way of subsequent recommendations under the 7th Central Pay

Commission. Further, as noted earlier with the release of the required

amounts by the MHRD, and the chapter having been closed,

reconsideration of the claims of the petitioners will necessarily entail

an exercise involving the fresh release of amounts under a lapsed

scheme on a claim, which should have been brought before the Court,

at least 12 years ago. The fault being squarely on the shoulders of the

writ petitioners, the reliefs as prayed therefore, in the considered view

of this Court, cannot be granted at this late stage.