Tapan Kumar Sarma vs Union Of India And 5 Ors

Kalyan Rai Surana, J

Heard Mr. B.D. Das, learned Senior Counsel, assisted by Mr. R. Deka, learned counsel for the petitioner as well as Mr. B.P. Sinha, learned counsel appearing for respondents No.3 and 4 i.e. the Chairman, State Resource Centre, Assam and the Director, State Resources Centre, Assam. Also heard Mr. S. Bhuyan, learned standing counsel for the Higher Education Department for the State i.e. respondent No.5. None appears on call for the Union of India i.e. respondents No. 1 and 2 or for respondent No. 6 i.e. Principal, North Guwahati College.

In this writ petition filed under Article 226 of the Constitution of India, the petitioner has projected that pursuant to an advertisement published in 08.06.2007 edition of the Assam Tribune, wherein the respondent No.4 has solicited applications for appointment to the post of Deputy Director, the petitioner had applied for appointment and he was selected for appointment to the post of Deputy Director, State Resource Centre, Assam under National Literacy Mission Authority (referred hereinafter as SRC for short). As per the terms and conditions contained in the advertisement published on 08.06.2007, it was stated that the appointment would be for one year contract basis, subject to extension on mutual agreement, fixing remuneration of Rs.15,000/- per month. It was also stated that the SRC, Assam may consider protection of pay to deserving candidates. Thereafter, on joining in said post on 01.03.2008, the service of petitioner was extended from time to time till 28.02.2011. During the said period, the lien in respect of the petitioner in the Department of Physics, North Guwahati College, Guwahati was also extended from time to time till 28.02.2011. It is further projected that the petitioner was being paid salary according to the scale of pay which he would otherwise be getting as a Lecturer in Physics in North Guwahati College, Guwahati with other entitled emoluments. However, after leaving service of the State Resource Centre, Assam, the petitioner became aware that the UGC, in the meantime had granted one pay revision in the month of August, 2010 w.e.f. 01.01.2006 and accordingly, the petitioner claims to be entitled to the differential salary taking into account the one pay revision w.e.f. 01.01.2006. Based on the enclosures to Annexure- J-1 (Series), it is claimed that the petitioner was entitled to the differential pay amount of Rs.10,25,614/-, out of which the respondent No. 4 had sanctioned only a sum of Rs.1,50,000/- as ex-gratia in lieu of arrear salary vide letter No. SRC/5/96/462 dated 26.02.2014.

In this connection, the learned Senior Counsel for the petitioner has submitted that in terms of the advertisement published on 08.06.2007, the SRC, Assam had volunteered to consider protection of pay to the deserving candidates. By referring to the documents produced by the learned counsel appearing for the respondents No. 3 and 4 pursuant to order dated 26.11.2018, by which the pay and other emoluments released to the petitioner for the period from 01.03.2008 to 28.02.2011 as disclosed, it is submitted that the petitioner was being granted basic pay (unrevised) without considering the effect of one pay revision w.e.f. 01.01.2006, which was notified in the month of August, 2010. Accordingly, it is submitted that although pay protection was granted to the petitioner yet, he was not provided with the revised pay, which he would have otherwise got as a Lecturer in Physics in North Guwahati College. Hence, it is submitted that the respondents cannot deny the benefit of the revised pay structure to the petitioner on account of his "under lien" post of Lecturer in North Guwahati College and thereafter, as Associate Professor of Department of Physics of the same college.

In this connection, by relying on the case of B. Laltanpuia and Ors. Vs. Union of India and Ors., 2002 (2) GLT 284, it is submitted that this Court has held that the SRC, Shillong is a "State" within the meaning of Article 12 as 100% finance as well as 5th pay revision benefits were granted to its employees and in this connection, it is submitted that SRC, Assam is similar to SRC, Shillong, one is for the State of Assam and the other is for the State of Meghalaya. By further relying on the case of T.C.P. Negi Vs. State of H.P., (2007) 0 Supreme(H.P.) 287, it is submitted that pay, etc. have been held to be property as envisaged under Article 300-A of the Constitution of India and the matter of fixation of pay, etc., is a recurring cause of action and the protection of pay and their benefit under F.R. 22-B was inevitable as the applicant (therein) would not have otherwise preferred to join on the lower pay by incurring loss in his basic pay. By further relying on the ratio of the laid of Dr. Upendra Nath Mishra Vs. State of Assam and Ors. (2009) 1 GLR 78, it is submitted that in that case it was held that pensionery benefit for service on deputation cannot be denied and accordingly, it is submitted that similarly, the benefit of pay revision as well as pay protection cannot be denied to the petitioner, who had served for three years as Deputy Director in the SRC, Assam.

By referring to the stand taken by the respondent No. 3 in the affidavit-in-opposition filed on 24.04.2015, the learned Senior Counsel for the petitioner submits that the SRC has now taken u-turn by stating that the appointment of the petitioner as Deputy Director was illegal, having been made without the approval of the Governing Body by further stating that the salary which the petitioner had drawn during his tenure in the SRC, Assam was much higher then what can be stipulated for a post created even with the approval of the Governing Body and in this regard, it is submitted that the said stand is without any basis as no materials have been produced to demonstrate before this Court that the advertisement published on 08.06.2007 and the salary released to the petitioner from 01.03.2008 to 28.02.2011 prior to the pay revision were held by the Governing Body of SRC or by the Ministry of HRD, Govt. of India to be illegal. Further it is submitted that as no action had been initiated against the Director for illegal appointment, once the respondents had given the benefit of the scale of pay to which the petitioner was entitled as a Lecturer in the North Guwahati College, the petitioner cannot be denied the differential pay arising out of the pay revision w.e.f. 01.01.2006.

Per-contra, Mr. B.P. Sinha, learned counsel appearing for respondents No. 3 and 4 has submitted that while the petitioner was in service under the SRC, Assam he never raised a plea of not receiving his due salary as per pay protection and only after he was released from the office of SRC w.e.f. 28.02.2011, the claim by the petitioner had followed. It is submitted that the SRC, Assam was functioning out of the grants-in-aid received from the Ministry of HRD, Govt. of India and as the pay which was released to the petitioner was higher then what was stipulated for the post advertised, no further demand for arrear of pay on account of pay revision can be entertainable. It is also submitted that the post which was being held by the petitioner was without the approval of the Governing Body, as such, the appointment of the petitioner was an illegal appointment and as no claim was made within the period of tenure of the petitioner, belated claim cannot be entertained and no demand can be raised by the SRC, Assam to the Ministry of HRD on this account. It is further submitted that as the service of the petitioner was not absorbed in the SRC, any retirement benefits to which the petitioner was entitled to, the same has to be drawn from the State and not from SRC. Accordingly, it is submitted that as one time measure, an ex-gratia of Rs.1,50,000/- was released to the petitioner and he would not be entitled to any further salary on account of pay revision w.e.f. 01.01.2006.

Mr. Subrat Bhuyan, learned standing counsel for the Education (Higher) Department submits that the State is only a formal party and therefore, he is not been instructed to make any submission in the matter, which is a dispute pertaining to petitioner and the SRC, Assam which is not under the administrative control of the State Government and therefore, he submits that no financial liability should be saddled on the State Government on account of pay of the petitioner.

It would not be out of place to produce the relevant provision of F.R. 22-B. (1) [1998 Reprint, Seventh Revised Edition, Orient Publishing Company], which reads as under:

"F.R.22-B. (1) Notwithstanding anything contained in these Rules, the following provisions shall govern the pay of a government servant who is appointed as a probationer in another service or cadre, and subsequently confirmed in that service or cadre:

(a) during the period of probation, he shall draw pay at the minimum of the time scale or at the probationary stages of the time scale of the service or post, as the case may be:

Provided that if the presumptive pay of the permanent post on which he holds as a lien or would hold a lien had his lien not been suspended, should at any time be greater than the pay fixed under this clauses, he shall draw the presumptive pay of the permanent post;

(b) on confirmation in the service or post after the expiry of the period of probation, the pay of the Government servant shall be fixed in the time-scale of the service or post in accordance with the provisions of Rule 22."

Accordingly, from the above, it is observed that if the pay that the petitioner was entitled to as the Deputy Director, SRC was less than his entitled pay protection as Lecturer in Physics in North Guwahati College, by applying FR 22-B, the petitioner was entitled to claim the differential pay on account of the pay revision w.e.f. 01.01.2006.

It is seen that this Court, while considering the case of SRC, Shillong which is an establishment similar to the SRC, Assam, has already held SRC to be a "State" within the meaning of Article 12 of the Constitution of India. Therefore, notwithstanding the plea that the SRC, Assam is a non-government organization, in view of the finality of the ratio laid down in the case of B. Laltanpuia & Ors. (supra), this Court has no hesitation to hold the SRC, Assam to be a "State" within the meaning of Article 12 of the Constitution of India. More so, because even from the affidavit-in-opposition filed by the respondent No.3, it is apparent that the SRC, Assam has a Governing Body which is constituted by the Govt. of India and that the SRC, Assam depends on the funding by the Ministry of HRD, Govt. of India for its activities as well as for salary paid to the employees under the Head of grants which is stated to be a sum of Rs.45.00 lakhs per annum in the said affidavit-in-opposition filed on 24.04.2015. It is also seen that the various correspondence by SRC, which forms a part of the writ petition, the SRC, Assam has candidly mentioned that it is "An autonomous Institute of Govt. of India".

The relevant statement in paragraph 6 of the affidavit-in-opposition by respondent No.3 goes to show that the SRC has taken a stand that the petitioner had got pay protection of his original post, notwithstanding the claim by the respondents No. 3 and 4 that the said pay protection was granted to the petitioner with the connivance of the then Director, SRC. The said stand of the respondents No. 3 and 4 is not found to be sustainable by this Court because as per further submission made in paragraph 6 of the said affidavit-in-opposition, it is seen that the stand of the said respondents is that the funds towards emoluments are sanctioned on annual basis and the SRC meets out their salary requirements from the amount and submits the Annual Accounts to the Ministry of HRD. Hence, if the appointment was illegal, not only there was an acquiescence on part of the Ministry of HRD by release of salary to the petitioner in a non-existing post, but they had also approved the pay protection granted to the petitioner by approving release of salary on the basis of the scale of pay which was otherwise entitled to in his lien post i.e. Lecturer in Physics in North Guwahati College.

Therefore, as the UGC, which is the Statutory Authority of the Govt. of India by an Act of the Parliament in 1956 for the coordination, determination and maintenance of standards of teaching, examination and research in University education, had sanctioned pay revision w.e.f. 01.01.2006, as the petitioner had already been granted pay protection of his original post, the benefit of revised salary w.e.f. 01.01.2006 cannot be denied to the petitioner for his tenure from 01.03.2008 to 28.02.2011 in the SRC, Assam. Moreover, the respondents No. 3 and 4 have not produced any documents which can throw the light that the SRC, Assam had taken any decision in their Governing Body Meetings to make any enquiry as to the nature of appointment of the petitioner and thereafter, held the appointment of the petitioner as Deputy Director of the said organization to be illegal. Therefore, it is a mere allegation by the respondent No. 3 in his affidavit-in-opposition that the appointment of the petitioner was illegal. As the SRC, Assam, including the respondents No. 3 and 4 had paid salary and other emoluments to the petitioner by considering pay protection towards the post held in lien by him, this Court has no hesitation to hold the denial of the benefit of pay revision to be in violation of the pay protection granted to the petitioner.

Accordingly, this writ petition stands allowed, by directing the Chairman, SRC, Assam (respondent No.3) and Director, SRC, Assam (respondent No.4) to take necessary steps for sanctioning and releasing the differential pay of the petitioner as per the revised pay w.e.f. 01.01.2006 for the period during which the petitioner was served as the Deputy Director, SRC, Assam i.e. 01.03.2008 to 28.02.2011, which shall be done within a period of 1(one) month from the date of receipt of a certified copy of this order and necessary steps to secure the release of money to the petitioner shall be taken within a period of 3(three) months thereafter.

In the event, the respondents No. 3 and 4 are unable to release the differential pay to the petitioner within the outer period of 4(four) months from the date of receipt of certified copy, as indicated above, it would be a duty of the Secretary, Ministry of HRD, Govt. of India, New Delhi to satisfy the claim of the petitioner within a further period of 2(two) months, if necessary, by adjusting the payment due to the petitioner from the grants that may be released to the SRC, Assam. Hence, the petitioner shall produce a certified copy of this order before the Chairman, SRC, Assam as well as before the Secretary, Ministry of HRD, Govt. of India to enable them to do the needful.

With the aforesaid directions, this writ petition stands allowed.