University Of Calcutta And Others vs Dr. Amitava Bandopadhyay And Others

Sambuddha Chakrabarti, J

This appeal is directed against the judgment and order, dated August 12, 2016 passed by a learned single Judge in W.P. No. 28230 (W) of 2014 allowing the writ petition and directing the respondents to re-fix the writ petitioner's scale of pay in the Pay Band of Rs. 37,400/- to Rs. 67,000/- with effect from the date of= joining i.e., May 15, 2008 and thereafter to take steps for releasing all arrears which had accrued in favour of the writ petitioner. Such exercise was directed to be completed within a period of three months from the date of the communication of the judgment and order.

The case of the writ petitioner who is the respondent no. 1 in this appeal, inter alia, was that while working as a Senior Environmental Engineer under the West Bengal Pollution Control Board (WBPCB, for short), he applied for the post of Reader in the department of Chemical Engineering of the University of Calcutta. He was selected and he joined the post on May 15, 2008. His service was confirmed by a letter, dated July 30, 2009. He has been placed at the higher Pay Band of Rs. 37,400/- to Rs. 67,000/- and was re-designated as an Associate Professor from the year 2011.

The respondent no. 1 says that at WBPCB he was drawing his salary in the Pay Band of Rs. 28,000/- to Rs. 52,000/- from the year 2006 till 2008 when he left the services there. He has alleged that there exists only two distinct Pay Bands for University teachers viz., i) Rs. 15,600/- to Rs. 39,100/- and ii) Rs. 37,400/- to Rs. 67,000/-, as per the UGC Regulations of 2010. The Pay Band that he was enjoying when he left the WBPCB fell between these two distinct Pay Bands in the University teaching. Since his service was treated as a continuous one, he is entitled to the higher Pay Band of Rs. 37,400/- to Rs. 67,000/- from the date of his joining the University.

It has been the further case of the respondent no. 1 in the writ petition that the University has placed him in the Pay Band of Rs. 15,600/- to Rs. 39,100/- till the completion of three years from the date of his joining. This was much below the Pay Band he had been enjoying at the WBPCB. He claims that his pay in the University is liable to be fixed with effect from January 1, 2006 taking into consideration his previous service. By a letter, dated March 7, 2013, the University turned down his prayer for grant of higher Pay Band of Rs. 37,400/- to Rs. 67,000/- plus Rs. 9,000/-as academic grade pay with effect from April 16, 2009. It was communicated that the Finance Committee had regretted the prayer and the same has been confirmed by the syndicate.

The respondent no. 1 prayed for a direction setting aside the communication, dated March 7, 2013 made by the University and directing the University to re-fix his pay in the Pay Band of Rs. 37,400/- to Rs. 67,000/- with re-designation to Associate Professor with effect from his date of joining the University services.

Despite several opportunities the University did not file any affidavit-in-opposition.

The learned single Judge referred to the UGC Regulations, 2010 which inter alia provided that the Readers and Lecturers (Selection Grade) who had not completed three years in the pay scale of Rs. 12,000/- to Rs. 18,300/- on January 1, 2006 would be placed at the appropriate stage in the Pay Band of Rs. 15,600/- to Rs. 39,100/- with academic grade pay of Rs. 8,000/- till they completed three years of service in the grade of Lecturer (Selection Grade)/Reader. Thereafter, they would be placed in the higher pay band of Rs. 37,400/- to Rs. 67,000/- and shall be re-designated as Associate Professor. The respondent no. 1 belonged to the pay scale of Rs. 12,000/- to Rs. 18,300/- on April 16, 2006 and enjoyed the higher pay band of Rs. 28,000/- to Rs. 52,000/- from 2006 till the date of his leaving the WBPCB. The learned Judge thus found that the petitioner had been arbitrarily placed by the University in the pay band of Rs. 15,600/- to Rs. 39,100/- till he completed three years from the date of his joining i.e., May 14, 2011. The respondent no. 1 was placed in the pay band of Rs. 37,400/- to Rs. 67,000/- with effect from May 15, 2011, but he was entitled to the same from the date of joining i.e., May 15, 2008. Therefore, the order as mentioned before was passed.

The stand of the respondent no. 1 before us is much the same as made out in the writ petition. Mr. Bhattacharjee, the learned Advocate for the respondent no. 1, submitted that he should have been placed in the scale of pay of Rs. 37,400/- to Rs. 67,000/- from the date of joining the University and not upon completion of three years in his University service. His persistent stand has been that since he was in a much higher scale of pay while he was working at the WBPCB, his fixation at a much lower scale of pay of Rs. 15,600/- to Rs. 39,100/- was arbitrary. Since the University has accepted his service under it as a continuous one from the previous employment, he was entitled to protection of pay as he was already enjoying a higher scale of pay.

On behalf of the University, Mr. Bhattacharjee, the learned Advocate, submitted that the learned single Judge could not pass a mandatory direction upon the University to re-fix the scale of pay of the respondent no. 1 with effect from the date of joining the University.

Undoubtedly, the scale of pay which the respondent no. 1 was enjoying at WBPCB was not available in the University of Calcutta. Therefore, he was placed under the scale of pay of Rs. 15,600/- to Rs. 39,100/-. But when he was re-designated as an Associate Professor in 2011 he was placed under the pay band of Rs. 37,400/- to Rs. 67,000/-. The observation of the learned single Judge that an incumbent who has been enjoying a higher scale of pay cannot be placed in a lower scale and in such a situation it is the obligatory duty on the part of the authority to give pay protection to that incumbent and thereby placing him either in a higher pay band or equivalent to the pay band which he used to enjoy in his erstwhile department is a proposition which cannot be accepted without qualification. In the case of Basudeb Pati Vs. State of Orissa, reported in (1997) 3 SCC 632, the concerned employee while working as a Lecturer in a certain scale of pay was selected for appointment in Orissa Administrative Service which also carried the same scale of pay. The University Grants Commission retrospectively revised the Lecturer's pay scale and his pay was fixed at a higher figure. Subsequently, he claimed for protection of enhancement pay in his new employment. That was rejected by the Supreme Court as service as a Lecturer was entirely different from the service in Orissa Administrative Service. It has been observed by the Supreme Court that merely because he had worked earlier as a Lecturer at a scale of pay which was subsequently revised, he cannot have the benefit of the University Grants Commission's scale in his new service and could ask for fitment of scale of pay on that basis. That would create imbalance and gross infraction and would result in flooded claims of similarly situated persons under Article 39(d) of the Constitution of India. In the present case also the respondent no. 1 was not holding an academic position at a teaching institution before he joined the University of Calcutta. Therefore, the observation of the learned single Judge is not correct as an absolute legal proposition.

The basis of the conclusion of the learned single Judge that the respondent no. 1 was entitled to the same scale of pay from the date of his joining the University is not clear. The impugned judgment does not specify why was the respondent no. 1 entitled to the same scale of pay on his entry into the University service which was offered to him when he became an Associate Professor after three years.

It cannot be lost sight of that the respondent no. 1 had applied for the post of Reader, department of Chemical Engineering of the University pursuant to an advertisement published in the newspaper on March 1, 2007. The scale of pay for the post of Reader was Rs. 12,000/- - Rs. 420/- - Rs.18,300/-. At the relevant point of time he was enjoying the pre-revised scale of pay of Rs. 12,000/-- Rs. 375/- - Rs. 18,000/- at the WBPCB. Thus, the scale of pay for the post of Reader was slightly higher than that he was enjoying in his erstwhile place of work. Therefore, he was entitled to the corresponding revision of scale of pay, i.e., Rs. 15,600/- to Rs. 39,100/- plus annual grade pay of Rs. 8,000/-.

It is not the case of the respondent no. 1 that the last pay drawn at the WBPCB was not protected by the University on his entry or that this pay became lesser upon his joining the University. When he had completed three years of service as Reader with the pre-revised scale of pay he was placed in the higher pay band of Rs. 37,400/- to Rs. 67,000/- plus annual grade pay of Rs. 9,000/- per month. Thus, the finding of the learned single Judge that the respondent no. 1 was entitled to the same scale of pay on the day of his joining the University which was allowed to him after three years is not a just direction. Such a conclusion obviously has been drawn ignoring the fact that the respondent no. 1 did not enjoy the pre-revised scale of pay of a Reader at his former place of work.

Mr. Bhattacharjee, the learned Advocate for the respondent no. 1 relied on M. Raja Vs. Ceeri Educational Society Pilani and Another, reported in (2006) 12 SCC 636. The judgment has no application to the facts of the present case and is easily distinguishable. In that case, the appellant was assured protection of pay by the respondent University pursuant to which he joined the service. There was also an assurance by the respondent to make payment of the difference between the last drawn salary and the salary payable to the appellant on his joining the school on implementation of the report of the Pay Commission. That apart, the Supreme Court observed that parity in pay scale cannot be directed as the same does not pertain to any legal right of a teacher.

Mr. Bhattacharjee next relied on the case in State Bank of India and Others Vs. K. P. Suppaiah and Others, reported in (2003) 11 SCC 646, for a proposition that an employer while fixing the pay has to fix it at a level of pay which would ensure compliance with the requirement that it is not less than the last pay drawn by an employee. We have already noted that there is no material that the pay fixed for the respondent no. 1 was lesser than that which he was enjoying at his erstwhile place of work, i.e. WBPCB.

For the reasons aforesaid, we are of the view that the learned single Judge was not correct in directing the University to re-fix the scale of pay of the petitioner in the pay band of Rs. 37,400/- to Rs. 67,000/- with effect from the date of his joining the University.

We thus find sufficient merit in the stand taken by the University. It cannot be said that while fixing the pay of the petitioner the University acted in any mala fide manner or arbitrarily.

The judgment and order of the learned single Judge is set aside.

The appeal is allowed.

With this, the connected application being CAN 11066 of 2016 has become infructuous and the same is also disposed of.

There shall be no order as to costs.

Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite formalities.