Yogeshwar Prasad & Ors. vs National Inst. Edu. Planning & Admn. & Ors.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.288-289 OF 2005

YOGESHWAR PRASAD & ORS. Appellant (s)

VERSUS

NATIONAL INST.,EDU.PLANNING & ADMN.&ORS. Respondent(s)

WITH C.A.NO.209 OF 2007 J U D G M E N T

DALVEER BHANDARI, J.

These appeals are directed against the judgment dated

31.5.2002 passed by a Division Bench of the High Court of Delhi at

New Delhi in L.P.A.NO.301 of 1997 etc. By this common judgment, we

propose to dispose of Civil Appeals Nos.288-2009 of 2005 and Civil

Appeal No.209 of 2007.

Brief facts which are relevant to dispose of these appeals

are recapitulated as under:

The appellants in Civil Appeal Nos.288-289/2005 were

working as Assistants and Stenographers with Respondent no.1-

National Institute of Educational Planning and Administration,

Delhi.

The appellants in Civil Appeal No.209 of 2007 were working

with the Sahitya Academy, Delhi as Accounts and Administrative

Assistants/Assistants/Stenographers. The appellants' were getting

the pay scale of Rs.425-800 upto 1986. The Assistants in the

Central Government were also getting the same pay scale. According

to the IVth Pay Commission, the pay scale of Assistants and 2

Stenographers was revised from Rs.425-800 to Rs.1400-2600 in the

Central Government.

The Anomalies Removal Committee gave its recommendation

increasing the pay scales from Rs.1400-2600 to Rs.1640-2900. Though

the recommendation of the Anomalies Removal Committee were accepted

from 01.01.1986 but the appellants were not given the pay

scale of Rs.1640-2900.

According to the appellants, they were also entitled to

the pay scale of Rs.1640-2900. The Central Government vide letter

dated 5.1.1990 approved the service regulations of the respondent-

Institute. Regulation 4(2) provides as under :

"4(2) Group 'A' officers, other than faculty members and those on UGC grades of pay groups 'B', 'C' and 'D' employees shall draw salary and allowances in such scales of pay as may be applicable to the corresponding categories of Central Government employees and be subject to such conditions of service as are or may be applicable to Central Government employees from time to time."

According to this regulation, the appellants were also entitled to

the pay scale which was extended to their counterparts in the

Central Government but the appellants were not given the pay scale

of Rs.1640-2900. They were compelled to approach the High Court for

the relief.

The learned Single Judge of the Delhi High Court passed

the following order in the case of Assistants and Stenographers of

the National Institute of Educational Planning and Administration:

"IN THE HIGH COURT OF DELHI AT NEW DELHI 3 CW No.805/97

Heard the counsel for the parties and perused the record. The grievance of the petitioners are that they are also in the post of Assistant and Personal Assistants (Steno). Similarly situated organizations have been granting the revised pay scale for such posts as given by the Central Government to its employees whereas the respondents are not implementing the revised pay scales on account of the circular issued by the Ministry of Finance dated 11st December, 1990. This court in CW No.290/95 decided on 29 th November, 1995 as well as in the case of P.S.Gopinathan Nair & Ors. Vs. All India Institute of Medical Sciences. C.W.No.4462/94 decided on 16th October, 1995, has already given directions to the similarly situated organizations to grant the pay scale at par with the employees of the Central Government. Similar directions were also given in the case of the Indian Council of Agricultural Research, Indian Council of Medical Research and University Grants Commission. The case of the petitioners is at par with the employees of other organizations.

Taking the above factors into consideration, directions are accordingly given to the respondents to give the pay scales to the petitioners as admissible to the Central Government employees for the post of Assistant and Personal Assistant(Stenographers).

With these observations the petition stands disposed of.

28.7.1997 Sd/-

Usha Mehra Judge."

The said judgment of the learned Single Judge was based on

earlier judgments of the High Court passed in Civil Writ No.290/95

decided on 29th November, 1995 and in Civil Writ No.4462/94 decided

on 16th October, 1995. Respondent no.1-Institute aggrieved by the

said judgment preferred a Letters Patent Appeal (for short 'L.P.A.')

before a Division Bench of the High Court. By the impugned

judgment, the LPA filed by the respondent no.1 was allowed by the 4

Division Bench along with other appeals. Against the judgment of the

Division Bench, Review Petitions were filed, which were dismissed by

the Division Bench of the High Court.

The appellants, aggrieved by the judgment of the High

Court, preferred these appeals. It may be pertinent to mention that

the respondent-Institute was pursuing the case of the appellants

with the Central Government for higher pay scale. The respondent-

Institute in fact sent a letter to the Secretary, Ministry of Human

Resource Development, Government of India, New Delhi on December 19,

1994 praying that the appellants herein be given the revised pay

scales of Rs.1640-2900. The letter reads as under :

"No.4-29-2/94-Pers.

December 19,1994 The Secretary Government of India Ministry of Human Resource Development Department of Education Shastri Bhawan New Delhi -110 001

Attn:Sh.R.V. Vaidhyananthan Ayyar, Joint Secretary(Plg.)

Sub: Revision of scale of pay of Assistants/ Stenographers.

Sir, The Ministry of Health and Family Welfare has conveyed approval of the Govt. of India of the scale of pay Rs.1640-2900 to Assistants/ Sr.Stenographers Grade 'C' in place of Rs.1400-2600 working in the Indian Council of Medical research, New Delhi. Therefore, representations from the employees of this Institute have been received to revise their scale identical to those adopted for corresponding post at par with the Central Government.

SR 6(A)(iii) stipulate that the revision of the pay scale of any post except that of Director subject to the approval of the Govt. of India and 5

there upon the First Schedule shall stand amended in accordance with such directions. Provided that approval of the Govt. of India would not be necessary for adoption of pay scale and allowances identical to those adopted for corresponding post at par with Central Government/UGC orders issued from time to time except in case of general revision of scales of pay of posts. Since, the pay scales of Assistant and Senior Stenographer 'C' in the Central Government is Rs.1640-2600, therefore, in accordance with the service regulations cited above, the demand of the employees appear to be genuine. It is, therefore, requested that the case may kindly be considered at your end in consultation with Internal Finance Division and approval be conveyed so that the matter is placed before the Executive committee of the Institute......."

Thereafter another letter on August 1, 1995 was sent to the

Secretary, Ministry of Human Resource Development, Government of

India, New Delhi and the Institute again requested the Central

Government to grant pay scale of Rs.1640-2900 to the appellants.

The letter reads as under :

"No.F-29-2/94-Pers.

August 1, 1995 The Secretary Govt.of India Ministry of Human Resource Development (Deptt.of Education) Shastri Bhawan New Delhi -110 001

Attention: Dr.R.V.Vaidyanathan Ayyar, Joint Secretary (Planning)

Subject: Revision of scale of pay of Assistants/Senior Stenographers from Rs.140--2600 to Rs.1640- 2900.

Sir,

Kindly refer to our letter of even number dated 23.3.1995 and subsequent reminder dated 28.4.1995 on the subject cited above (copy enclosed). Our Service Regulations, which had been approved by the Govt. of India, among other things provide that the scales of 6

pay of the employees of the NIEPA other than the faculty and those on UGC grades of pay shall be at par with those of the Central Government Employees.

In this regard, it may be mentioned that some of the Autonomous Organizations under Ministry of Human Resource Development had allowed the revised scale of Rs.1640-2900 to Assistants and Senior Stenographers in their organizations.

It is, therefore, requested that approval of the Govt. on the revision of scales in respect of the above categories of employees of our Institute may kindly be sent to us at the earliest.

Yours faithfully, Sd/-Illegible 1.8.95 (O.P.Sharma) Acting Registrar"

The Director of the respondent Institute again sent a

letter on November 2, 1995 to the Education Secretary, Ministry of

Human Resource Development, Government of India, New Delhi in which

it is mentioned that the Assistants and Senior Stenographers of the

Institute be given the pay scale of Rs.1640-2900. The said letter

reads as under :

"No.F-29-2/94-Pers.

Kudleep Mathur Director November 2, 1995

Dear Shri Das Gupta,

Kindly refer to the Institute's letter No.F-29- 2/94/Pers. Dated December 19, 1994 and the subsequent letters of even number dated 23rd March, 1994, 28th April, 1995, 29th May, 1995 and 1st August, 1995 regarding revision of pay scales of Assistants/ Sr.Stenographers 'C'. In this respect it is submitted that the Ministry of Health & Family Welfare has conveyed the approval of the Govt. of India for the change of pay scales of Assistants/Sr.Stenographers 'C' working in the Indian Council of Medical research, New Delhi to Rs.1640- 2900 in place of Rs.1400-2600. The JNU and other universities are also having the scales of Rs.1640- 2900 for these categories of staff. It is learnt that 7

Kendriya Vidyalaya Sangathan have also change the pay scales from Rs.1400-2600 to Rs.1640-2900 recently.

The employees of this Institute have persistently been demanding that their pay scales may also be changed from Rs.1400--2600 to Rs.1640-2900. The Institute have only 7 posts of Assistants and 10 posts of Sr.Stenographers 'C' in position. The revision of pay scales and placement of these employees in this scale I.e. 1640-2900 will have minor financial implications and the same would be met out of the regular budget of NIEPA.

The Service Regulation 6A(C) of NIEPA provide that the revision of pay scales of any posts except that of Director subject to the approval of the Government and thereupon the First Schedule shall stand amended in accordance with such directions. Provided that the approval of the Govt. of India would not be necessary for adoption of pay scales and allowances identical to those adopted for corresponding post as per the Central Government/UGC orders issued from time to time except in cases of general revision of pay scales of posts. Since the pay scales of Assistants/Sr.Stenographers 'C' in the Central Government is Rs.1640-2900, therefore, in accordance with the Service Regulations cited above, the demand of the employees appears to be genuine.

I shall be grateful if the pay scale of Assistants/Sr.Stenographer 'C" of the Institute is also changed from Rs.1400-2600 to Rs.1640-2900 and approval of the Ministry may please be conveyed so that the matter is placed before Executive Committee for obtaining ex-post-facto approval. Necessary guidelines for effecting changes according for the posts of Sr.P.A.(presently 1640-2900) and P.S. To (sic) may also kindly be given.

Yours faithfully, Sd/-

(Kuldeep Mathur) Shri P.R.Das Gupta Education Secretary Ministry of Human Resource Development New Delhi."

It may be pertinent to mention that all these

communications were sent by respondent no.1 on the strength of the 8

regulations of respondent no.1 which was approved by the Central

Government. The said regulation has already been set out in the

preceding paragraphs.

The Vth Pay Commission has granted the pay scale of

Rs.1640-2900, now revised as Rs.5500-9000 to the appellants and

their counterparts working in the Central Government. We have been

informed that even the VIth Pay Commission has further revised it to

Rs.9300-15600 and presently the appellants and their counterparts in

the Central Government are in that pay scale.

The short question which arises for consideration in these

appeals is why the appellants should not be given the pay scale of

Rs.1640-2900 from the date when their counterparts have been given

that pay scale in the Central Government? Although the stand of the

Institute has also been that the appellants are entitled for the pay

scale of Rs.1640-2900 which is quite evident from the afore-

mentioned letters sent by the respondent institute to the Central

Government. The Union of India has now in the Vth and VIth Pay

Commissions has given that scale to the appellants.

In our considered view, the Division Bench was not

justified in setting aside the judgment of the learned Single

Judge. It may be pertinent to mention that the Division Bench did

not consider the service regulations of the National Institute of

Educational Planning and Administration. The case of the appellant

no.1 herein was not even discussed or considered in the impugned

judgment.

9

Mr.Amitesh Kumar, learned counsel appearing for the

Institute-respondent no.1 tried to make out the case that duties,

responsibilities and obligations of the appellants were different

to their counterparts functioning in the Central Secretariat and

they were justified in not giving the same pay scale. But we do not

find any merit in the submission because the respondent Institute's

stand all through was that the appellants be given the pay scale of

Rs.1640-2900. At this stage, respondent no.1 cannot be permitted to

take a somersault in this manner. The Union of India accepted the

recommendations of the Vth and VIth Pay Commissions and are giving

the appellants the same pay scale which their counterparts in the

Central Government are getting. It may be pertinent to observe that

these appellants were getting the same pay scale as was given to the

employees of their categories in the Central Government up to

1.1.1986. The Union of India accepted the recommendation of the Vth

and VIth Pay Commissions and are giving them same pay scale then how

only during the IIIrd Pay Commission their pay scale could be

different? and how their duties, obligations and responsibilities

became different only for a brief period?

In our considered view, the appellants are entitled to get

the benefit of pay scale of Rs.1640-2900 which their counterparts

were getting in the Central Government during the relevant period.

In case this amount has not been paid, the same may be paid to the

appellants by the Institute within three months from today.

Civil Appeal No.209 of 2007:

The relevant facts of the case are briefly narrated below:

10 The Sahitya Academy was established in the year 1952.

Later on, it was registered under the Societies Registration Act,

1860. According to the Constitution of the Academy, its General

Council is the highest authority, having the powers to inter alia,

approved the budget and frame its own rules, regulations, bye-laws

and rules of procedure and the Government of India does not have any

role in the same. The Sahitya Academy (Service) bye-laws came into

force on 4.3.1961. The rules of the Government of India with regard

to recruitment, service conditions etc. of employees are fully

applicable to the Academy. A bare perusal of the bye-laws would make

it amply evident that so far the allowances, salaries etc. of the

employees are concerned, they are absolutely at par with those of

the employees of the Government of India. The employees in the cadre

of Assistants/Stenographers in the Academy have been drawing the

same pay scale as that drawn by the Assistant Grade of the Central

Secretariat Services and Grade 'C' Stenographers of Central

Secretariat Stenographers Service. This scale of pay was Rs.1400-

2600 after the recommendations of the IVth Central Pay Commission

(pre-revised scale of Rs.425-800).

A High Powered pay committee was constituted pursuant to

the directions of the Court and its recommendations were

incorporated in a government notification dated 12.06.1990. Clause

11 of the said notification stipulated 'The employees in respect of

whom the recommendations of the High Power Pay Committee are not

being implemented under the orders of this Court dated 3.5.1990

would get pay revision only as and when similar changes are being 11

affected for the central government employees."

The Government of India on 31.07.1990 granted the revised

scale of Rs.1640-2900 to the posts included in the Assistant Grade

of the Central Secretariat Services and Grade 'C' Stenographers of

Central Secretariat Stenographers Service, with effect from

1.1.1986. It was made clear in the order that the same revised pay

scale would also be applicable to the Assistants and Stenographers

in other organizations, where the posts are in comparable grade with

same qualification and pay scale.

The appellants, who are working as

Assistants/Stenographers/other designations in the same cadre,

started representing before the concerned authorities for grant of

the revised scale of Rs.1640-2900 to them.

The Government of India issued another order on 11.12.1990

which it directed that revised scale of Rs.1640-2900 granted to the

Assistants/Stenographers of the Central Secretariat Services would

not be applicable to the Assistants/Stenographers of autonomous

organizations.

In response to an unstarred question in the Rajya Sabha on

18.1.1991 regarding revision of pay scales of Assistants/

Stenographers of autonomous organizations and statutory bodies, the

then Minister replied that these bodies can decide on their own,

whether or not to implement the revised scale of pay.

The Central Administrative Tribunal on 21.12.1993 directed

the Government of India to revise the pay scale of Stenographers and 12

Assistants to the same level as that of the Assistants/

Stenographers of the Central Secretariat Services.

The Indian Council of Medical Research issued letter on

18.4.1994 extending the pay scale of Rs.1640-2900 to the Assistants/

Stenographers.

The Government of India issued another letter on 6.1.1995

stating that the revised scale of Rs.1640-2900 granted to the

Assistants/Stenographers of the Central Secretariat Services would

not be applicable to the Assistants/Stenographers of autonomous

organizations.

The Indian Council of Agricultural Research issued an

order on 7.6.1995 conveying the sanction by the competent authority

of the pay scale of Rs.1640-2900 to its Assistants/Stenographers.

The Council of Scientific and Industrial Research issued

an order on 9.6.1995 conveying the sanction by the competent

authority of the pay scale of Rs.1640-2900 to its Assistants/

Stenographers.

The Delhi High Court passed orders directing payment of

revised scale of Rs.1640-2900 to Assistants/Stenographers working in

the All India Institute of Medical Sciences.

The Finance Ministry, Government of India, issued a letter

on 20.6.1996 conveying the grant of revised scale of Rs.1640-2900 to

Assistants/Stenographers working in the National Institute of Health

and Family Welfare.

The Ministry of Urban Development, Government of India,

issued an order on 7.10.1996 conveying the grant of revised scale of 13

Rs.1640-2900 to Assistants/Stenographers working in the Delhi

Development Authority.

The appellants on 14.2.1997 sent one of the several

representations seeking revised pay scale of Rs.1640-2900. However,

the appellants did not receive any favourable communication.

The appellants filed a Civil Writ Petition No.559 of 1998

before the Delhi High Court seeking quashing of the Government of

India order dated 11.12.1990, letter dated 6.1.1995 and for a

further direction that the revised pay scale of Rs.1640-2900 be

granted to them.

The aforesaid writ petition filed by the appellants was

allowed by a single Judge of the Delhi High Court with a direction

that the appellants be paid the revised pay scale of Rs.1640-2900,

with effect from 1.1.1986. The respondent Institute gave the pay

scale of Rs.1640-2900 to the appellants.

The Union of India preferred a Letters Patent Appeal (for

short 'L.P.A.') bearing LPA No.92 of 1999, against the aforesaid

order dated 16.10.1998.

The Division Bench of the Delhi High Court heard the

aforesaid LPA as well as the other connected appeals and writ

petitions filed by the Union of India. By an order dated 31.5.2002

LPA No.92/1999 was allowed as also the other appeals and writ

petitions filed by the Union of India and thereby held that the

revised pay scale of Rs.1640-2900 was not payable to the Assistants/

Stenographers working in autonomous organizations/statutory bodies

like the Sahitya Academy.

14

The Delhi High Court, in the impugned judgment, took into

consideration the facts of the case relating to ESI corporation only

and as such the individual facts relating to different

organizations, including the Sahitya Academy, were not considered at

all.

The appellants filed a review application before the Delhi

High Court being Review Petition No.2000 of 2002. The Respondent-

Union of India filed a counter affidavit in the aforesaid Review

Petition No.2000/2002. The appellants then filed a rejoinder

affidavit in the aforesaid Review Petition No.2000/2002. The Review

Petition was also dismissed. The appellants have now approached

this Court.

We have heard the learned counsel for the parties. In

view of our judgment in Civil Appeal Nos.288-289 of 2005, the

appellants in this appeal were fully justified in getting the

benefit of the revised pay scale of Rs.1640-2900 from 01.01.1986. In

the instant case the appellants have already received the benefit of

the revised pay scale. The question which arose for consideration

was whether the respondents can recover the additional amount paid

to the appellants. In our considered view, the appelants in this

appeal were fully justified in getting the benefit of the revised

pay scale. Even otherwise also the additional amount cannot be

recovered from them.

Mr.Amarendra Sharan, learned senior counsel appearing for

the appellants in this appeal, submitted that the benefit of higher 15

pay scale granted to appellants cannot be recovered in view of the

series of the judgments of this Court. He placed reliance on a three

judge Bench judgment of this Court in Shyam Babu Verma & Ors. Vs.

Union of India & Ors., (1994) 2 SCC p.521 para 11, which reads as

under :

"Although we have held that the petitioners were entitled only to the pay scale of Rs.330-480 in terms of the recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs.330-560 but as they have received the scale of Rs.330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to do adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same."

This judgment has been followed in the subsequent judgment of this

Court in Sahib Ram Vs. State of Haryana & Ors., (1995) Suppl.1 SCC

p.18 para 5, which reads as under :

"Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs."

Mr.Sharan also cited another relatively recent judgment of this

Court in the case of State of Bihar & Ors. Vs. Pandey Jagdishwar 16

Prasad, (2009) 3 SCC p.117 para 19 which reads as under :

"It is not needed for this Court to verify the veracity of the statements made by the parties. If at all the respondent entered the second date of birth at a subsequent period of time, the authorities concerned should have detected it and there should have been a detailed enquiry to determine whether the respondent was responsible for the same. It has been held in a catena of judicial pronouncements that even if by mistake, higher pay scale was given to the employee, without there being misrepresentation or fraud, no recovery can be effected from the retiral dues in the monetary benefit available to the employee."

In view of a series of judgments of this Court, the

appellants are otherwise entitled to the revised pay scale. the

amount paid to the appellants-employees pursuant to the grant of

higher pay scale should not be recovered unless it was a case of

mis-representation or fraud. Admittedly, neither mis-representation

nor fraud can be attributed to the appellants in C.A.NO.209/2007.

In this view of the matter, respondent no.1-Institute would be

restrained from recovering any amount which has already been paid to

the appellants in C.A.NO.209/2007.

In the result, the impugned judgment is set aside and

Civil Appeals Nos.288-289 of 2005 and Civil Appeal No.209 of 2007

are allowed and disposed of. However, the benefit of this order

would be confined to the appellants in Civil Appeals Nos.288-

289 of 2005 and Civil Appeal No.209 of 2007.

17

In the facts and circumstances of these cases, we direct

the parties to bear their own costs.

...................J. (DALVEER BHANDARI)

...................J. (DEEPAK VERMA)

NEW DELHI;

21ST OCTOBER, 2010