Punjab-Haryana High Court
National Brain Research Center Nh-8 ... vs Mahender Kumar Singh & Ors on 21 January, 2025
Author: Sanjeev Prakash Sharma
Bench: Sanjeev Prakash Sharma, Meenakshi I. Mehta
Neutral Citation No:=2025:PHHC:008540-DB
LPA-1579-2015
2015 (O&M)
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
LPA-1579-2015 (O&M)
Reserved on: 15.01.2025
.01.2025
Date of Pronouncement: 21.01.2025
2025
NATIONAL BRAIN RESEARCH CENTER,
CENTER, NH-8, MANESAR
GURGAON & ANR.
ANR
. . . . Appellantss
Vs.
MAHENDER KUMAR SINGH & ORS
. . . . Respondentss
****
CORAM: HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
HON'BLE MRS.MR JUSTICE MEENAKSHI I. MEHTA
****
Present: Mr. R.K. Malik, Sr. Advocate with
Mr. Varun Veer Chauhan,
Chauhan, Advocate
for the appellants.
appellant
Dr. Mahender Kumar Singh, respondent No.1 in person.
****
SANJEEV PRAKASH SHARMA, J.
1. The appellants assail the order dated 27.08.2015 passed by the learned
Single Judge whereby the Single Judge has allowed the writ petition
and directed the respondent No.1/writ petitioner to be treated to have
been appointed in the pay scale of Rs.15,600
Rs.15,600-39100
39100 with the grade pay
of Rs.6600/-,
Rs.6600/ , and further consequential arrears to be paid to him within
a period of three months with interest @ 8% per annum
annum.
2. Brief facts which need to be noticed for adjudication of this case are
that an advertisement was issued by the National Brain Research
Centre (for short 'NBRC'), Institute of Biotechnology, Government of
India for conducting research in Neuroscience and undertaking basic
research towards understanding brain structure and function in health
and disease. The post of Information Scientist was advertised with pay
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scale of Rs.10000-15200
Rs.10000 15200 with essential qualification ooff post graduation
with 5 years experience in System/Networking Administration, or Ph.D
in any branch of Science/Computer Science with 4 years experience in
System/Net Working Administration. It was further desired to have a
candidate having a proven background
background in concepts and applications of
organizing information/data retrieval from online systems, database
administration, Local Area Network (LAN), Server maintenance and
troubleshooting for LAN/WAN and networking issued was to be given
preference, Structural
Structural Biology, analysis, experience in lab, website
management and development, exposure to Bio informatics application.
As per clause 5 of the general conditions of the advertisement, the
candidates may be considered for higher/lower grade depending on
their profiles.
profile
3. The writ petitioner, who was an in-service
in service candidate, applied and was
selected and was offered the post of Information Scientist in NBRC in
the pay scale of Rs.15600-39100
Rs.15600 39100 with a grade pay of Rs.5400/
Rs.5400/- plus
other allowances vide their letter dated
dated 23.04.2010. The appointment
was stated to be on contract for 5 years with a probationary period of
one year from the date of joining. The minutes of the Selection
Committee were also conveyed which reflected that the petitioner had
been selected by the Selection Committee held on 24.11.2009.
However, while 5 other persons were appointed in the revised pay
scale of Rs.15600-39100
Rs.15600 39100 with a grade pay of Rs.6600
Rs.6600, so far as the
petitioner is concerned, it was stated that after going through the bio
data and performance of the candidate in the interview, the Committee
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recommended petitioner's appointment as Information Scientist by
downgrading above scale of pay to Rs.
Rs.15600-39100
39100 with a grade pay
of Rs.5400/-.
Rs.5400/
4. The petitioner preferred the writ petition after making a representation
challenging the grant of lower grade pay to the ppetitioner
etitioner in the same
pay scale as to the other candidates.
5. Learned Senior counsel for the
the appellants has submitted that the
general conditions of the advertisement provided under clause 5 that
the candidates may be considered for higher/lower grade depending on
their profiles
profile was one of the condition for appointment. In view of the
said condition of advertisement, the writ petition
petitioner was placed in the
pay scale of Rs.15600-39100
39100 with a grade pay of Rs.5400/
Rs.5400/-,, based on
his biodata and performance in the interview. Thus, his profile was
found to be of the level where he should be placed in the lower grade.
6. Learned counsel for the appellants has further taken this Court to the
proceedings of the meeting of the Committee constituted to look into
the complaint about appointment of the rrespondent No.1/writ
/writ petitioner
as Information Scientist. The Committee was of the opinion that the
petitioner had served as Project Assistant at consolidated emoluments
of Rs.5000/-
Rs.5000/ in Bioinformatics Centre, Institute of Microbial
Technology, Chandigarh and
and thereafter worked as Computer Operator,
Programmer and a Junior Information Scientist in NBRC. No
experience certificate was attached, and therefore it submitted an
opinion that the experience as Project Assistant was not in the required
field of System/Networking
System/Networking Administration whereas experience in the
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NBRC may be considered as requisite experience, and therefore his
experience with effect from joining in NBRC can only be considered
as qualifiable experience for the post of Information Scientist. This
report
eport submitted by the Committee dated 29.10.2014
29.10.2014, therefore,,
reflects that Selection Committee had found his profile fit to plac
place him
in the lower grade.
7. It has been stated that this Court while admitting the appeal had
noticed that the appellants cannot be heard to question the petitioner's
entitlement of higher grade pay from the date of his appointment on
regular basis, and the stay order was modified accordingly. He
therefore submits that the Division Bench had, while admitting the
appeal, allowed entitlement
entitlement of higher grade pay from the date of
regularization, and the order passed by the learned Single Judge of
granting higher grade pay from the date of initial appointment ought to
be set aside.
8. Learned Senior counsel therefore submits that the appeal deserves to
be allowed. He submits that as the relief has been granted by an interim
order to the respondent No.1/writ
/writ petitioner granting him regular pay
from the date of regular appointment, the same may be made absolute.
9. Per contra,
contra respondent No.1/writ
it petitioner submits that the NBRC
does not have the power and authority to downgrade the pay scale of
the sanctioned post of Information Scientist below the minimum
prescribed for the post. Once the petitioner is found suitable for
selection for the post of Information Scientist, he could not have been
placed in a lower pay scale to that of Information Scientist. The revise
revised
d
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pay scale of Information Scientist was Rs.15600
Rs.15600-39100
39100 with a grade
pay of Rs.6600. While the petitioner's appointment was shown to bbee
on contractual basis, it was a regular appointment made in accordance
with the provisions contained under the NII Recruitment Rules,, 1996
(for short 'the Rules') which provided for filling up direct recruitment
post by way of appointing selected candidat
candidatee on contract initially for a
maximum period of 5 years, whereafter he was to be offered regular
appointment on completion of 5 years of contract service. It was
further provided as per clause 7 under the Rules that a departmental
candidate who is selected for appointment shall be deemed to have
filled the post by direct recruitment. The respondent No.1/petitioner
therefore supports the order passed by the learned Single Judge.
He has further stated that he had been a whistle
whistle-blower
blower in the
department and had raised several questions relating to the functioning
of the officers in the department. Resultantly, when he participated in
the selection process, one of the members of the Selection Body who
was holding a post lower than the post for which the selection was
being conducted, deliberately and malafidely placed the petitioner on a
lower pay scale. The exercise was conducted with a deliberate intent to
harm the petitioner. He submits
submits that there is no power available in the
Rules to appoint on a post in a lower pay scale or grade pay than the
prescribed for the post. He has also taken this Court to the judgment of
the Single Bench to submit that the Single Judge has observed that
"the power of upgradation or downgrading of the existing sanctioned
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core posts vests with the Department of Biotechnology, Government of
India"..
10. He also submits that the appellants have prepared a false ex
ex-parte
parte
opinion on the basis of an anonymous compla
complaint
int prepared against him.
The said opinion has been made as a basis to support the order of
lowering down the pay scale of the petitioner. He alleges that the said
ex-parte
parte opinion report has been granted without giving any
opportunity of hearing to the petitioner,
petitioner, and the same ought not be
taken into consideration.
11. The respondent No.1/writ petitioner has further submitted that the
interim order passed by this Court protecting his grade pay of
Rs.6600/ from the date of regularization has resulted in causi
Rs.6600/- causing
ng
further loss to him, as he being placed in the grade pay of Rs. 5400/
5400/- in
the same pay scale of Rs.15600-39100
Rs.15600 39100 had earned increments in the
grade pay of Rs.5400/-
Rs.5400/ for 5 years which resulted in his salary higher
than his salary treating him being a fresh appointee from the date he
was regularized. The appellants treated him as a fresh appointee from
the date of regularization i.e. 26.04.2015 and placed him in the grade
pay of Rs.6600/-
Rs.6600/ resulting in lowering down his salary. His entire 5
years of service were
were put to an end, and the benefit of 5 years'
increments has been lost, while the other persons who were appointed
along with him on contract basis have continued to draw 5 years'
increments, and are much above him in the pay scale.
12. We have considered the submissions.
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13. From the perusal of the record, we find that the writ petition was
preferred by the petitioner in 2012,
2012 wherein he had prayed as under:
"[a]
[a] call the record of the case;
[b] issue a writ in the nature of certiorari thereby
quashing the action of the respondents in down grading the
pay scale of the petitioner for the post of Information
Scientist in the lower scale of Rs.15600
Rs.15600-39100 with Grade
Pay of Rs.5400 being contrary to the post so
sanctioned/advertised for the higher pre
pre-revised scale of
Rs.10000 15000 (Corresponding revised pay scale of
Rs.10000-15000
Rs.15600 39100 with Grade Pay of Rs.6600/
Rs.15600- Rs.6600/-) and to
award arrears thereto with interest @ 12% p.a.;
[c] or issue any other directio
direction which this Hon'ble
Court may deem fit and proper in the peculiar facts and
circumstances of the case in the interest of justice.
[d] filing of certified copies annexures may kindly
be dispensed with; of
[e] Advance notices upon the respondents may
kindl be dispensed with;"
kindly
14. The appellants were directed to produce the Rules which empowered
the appointing authority to reduce the grade pay of the post. The
learned Single Judge examined the condition No.5 in the advertisement
and noticed that the grade pay for the post of Information Scientist was
revised in terms of the recommendations of the Central Civil Services
(Revised Pay) Rules, 2008 extended to autonomous institutions. We
find that there was no downgradation of the post, nor any alternative
gradee pay was available for the said post. In fact, the Direct
Recruitment provisions of the Rules read as under:
"7.1
7.1 The candidates possessing the educational
qualifications and experience as specified in Schedules are
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eligible for direct recruitment and sh
shall be selected by the
Expert Selection Committee as specified in Schedule IV.
7.2 The selected candidates, from the date of
assuming the duties will be on contract initially for a
maximum period of five years. At the end of four years of
service the candidates performance will be assessed by an
Assessment Committee to be appointed bby the Appointing
Authority to decide if the candidate's performance during
the four years service has been satisfactory or otherwise. If
his/her performance is found to be satisfactory by the
Assessment Committee, he/she will be offered regular
appointment on completion of five years contract service.
In case his/her performance is not found to be satisfactory,
his/her contract service will stand terminated at the end of
five years term of the initial contract appointment.
7.3 In case a departmental candid
candidate is selected for
appointment for the post through this method, the same
shall be deemed to have been filled by Direct Recruitment.
7.4 Direct recruits may be given, in deserving cases,
to be so recorded by the Expert Selection Committee,
higher initial start than the minimum of the scale to which
they are appointed. However, such an initial start shall not
exceed five advance Increments over the minimum of the
scale. Recommendations, if any, by the Expert Selection
Committee for grant of more than five advance increments
will be examined by the Governing Body of the N.I.I.,
which is the competent body to decide the same.
same."
15. From perusal of above, it is apparent that as per clause 7.4
7.4, the Expert
Selection Committee may grant higher initial start than the minimum
of the scale to a candidate in deserving cases, which shall not exceed
five advance increments over the minimum of the scale. Thus, a
conjoint reading of clause 5 of the advertisement, and clause 7.4 of the
Rules would mean that Selection Committe
Committeee may grant a higher start
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to any individual than the minimum of the pay scale. However, the
Rules do not provide any power to lower down the grade pay of the
post.
Since the grade pay for the post of Information Scientist is
Rs.6600/ , the appointment of the writ petitioner on grade pay of
Rs.6600/-,
Rs.5400/ has to be treated as wrongful and unjustified.
Rs.5400/-
16. The Single Judge has also noticed the documents placed before it
received under the RTI Act, 2005
2005 which too reflect
reflects the power not to
be available with the Selection Committee, and it is an admitted
position that the NBRC has not downgraded the post.
17. Any person working on a particular post is entitled to receive the pay
and allowances of that post.
t. As observed by the Single Judge based on
the documents placed before it, we affirm that the authority to create
the core
ore posts in the NBRC vested with the Ministry of Finance. Such
authority is on the basis of recommendations of Department of
Biotechnology, Government of India, who would therefore have the
Biotechnology,
power to upgrade or downgrade the sanctioned core posts.
18. We also find from the position of the Rules that a departmental
candidate appointed by the method of direct recruitment in terms of
Rules 7.2 and
and 7.3 would be posted on a sanctioned post, although his
services are mentioned as contractual. Such appointment is distinct
from the ordinary contractual appointments, since the method of
appointment on the post results in finally appointing the person oon
n
regular basis.
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19. The scheme of Rules reflects that the record of the performance of the
person, who is appointed as Information Scientist, would be examined
for 5 years. It is like placing a person on probation for 5 years. We also
notice that after regular appointment, hhee continues to draw the same
pay scale and increments. The petitioner's services have been found to
be above board during contractual period, and he has been also
regularly appointed. Thus, it cannot be said that he was having any
lower profile, nor any other
other person was specially granted increments in
terms of Rule 7.4 of the Rules. Thus, the petitioner has to be treated at
par with his other colleagues who have been appointed under the same
selection. Distinguishing his case has been found to be arbitrary
arbitrary, and
we confirm with the view taken by the Single Judge.
20. The contention of the learned counsel for the appellants based on the
report prepared during the pendency of the writ petition mentioning the
petitioner not to possess
possess the sufficient experience deserves
rves to be
ignored and the same has rightly been ignored by the learned Single
ignored,
Judge. The Committee which has examined the experience of the writ
petitioner has not given any opportunity of hearing to the petitioner,
and its report has to be treated as a mere opinion, which is irrelevant
for the purpose of examining the appointment of the petitioner and
recommendations of the Selection Committee which made the
selection in the year 2010.
21. The reasons for offering appointment on a lower grade cannot be
prepared after a period of 4 years by forming a Committee to examine
the experience. It was not for the concerned subsequent Committee to
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state as to whether the petitioner's experience acqui
acquired
red as Project
Assistant in the Bioinformatics Centre, Institute of Microbial
Technology could be denied for counting the 5 years of experience.
The appellants themselves have confirmed the respondent No.1/writ
petitioner on the post. In view thereto, the contention of the appellants
is found to be wholly misconceived and without basis.
22. Appeal is found lacking in substance and on merits. The order passed
by the learned Single Judge does not warrant any interference by us.
Appeal is accordingly dismissed. The
he appellants shall now comply
with the order passed by the Single Judge, and accordingly revise the
pay and allowances of the writ petitioner.
23. Compliance of the order of the Single Judge shall be done within a
period of three months henceforth.
24. Interim orders passed by this Court stand disposed of in aforesaid
terms.
25. No costs.
26. All pending applications stand disposed of.
(SANJEEV
SANJEEV PRAKASH SHARMA
SHARMA)
JUDGE
(MEENAKSHI
MEENAKSHI I. MEHTA
MEHTA)
JUDGE
21.01.2025
Mohit goyal
1. Whether speaking/reasoned? Yes/No
2. Whether reportable? Yes/No
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