1 IN THE HIGH COURT OF JUDICUATURE AT MUMBAI ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1491 OF 2009 Dr. S. D. Karnik, aged 70 years, ) 4N, Dilwara, M. K. Road, Cooperage, ) Mumbai – 21. ) ... ... Petitioner. VERSUS 1) Vice Chancellor, ) University of Mumbai and ) Chairman WRC/ICSSR, Fort, ) Mumbai – 400 032. ) 2) Hon. Director, ) Western Regional Centre, ICSSR, ) J. P. Naik Bhavan, Vidyanagari, ) Mumbai – 400 098. ) 3) Member Secretary, Indian ) Council for Social Science ) Research, P. O. Box No. 10528, ) Aruna Asaf Ali Marg, New Delhi ) – 110 067. ) 4) Union of India, ) Through the Ministry of Human ) Resource Development, Post ) Box No. 10528, Aruna Asaf Ali ) Marg, New Delhi – 110 067. )... ... Respondents. 2 Mr. Mihir Desai for the petitioner. Mr. Rui A. Rodriques for Respondent No.1. Mr. S. G. Talekar for Respondent No.2. Dr.(Mr.) K. D. Prasad for Respondent No.3. CORAM : F. I. REBELLO and A. A. SAYED, JJ. RESERVED ON : 6TH MAY, 2010 DELIVERED ON: 10TH JUNE, 2010 JUDGMENT ( Per F. I. Rebello, J.) : 1. Rule. 2. Considering the controversy and the detailed replies which have been filed, by consent of all the parties heard forthwith. 3. The petitioner was employed with the Indian Council for Social Science Research (ICSSR) which has a Western Region Centre (WRC) at Mumbai. The petitioner was appointed in the year 1973 as a Deputy Director of WRC in the scale of “Reader”. The petitioner was earlier working as a Lecturer in the University of Mumbai from 3 1971. The petitioner kept his lien on the post of lecturer. By letter of 1st March, 1978, the petitioner was informed by the Member Secretary, ICSSR that if the application of the Readers Pay Scale of Rs.1200-1900 is accepted by the Governmental Authority, the Council had no objection to accept the decision on the understanding that the pay scale will be personal to him. On 19th March, 1978 the Member Secretary wrote to the Vice-Chancellor that if the Vice Chancellor and the Advisory Committee think the petitioner should be given a pay scale of Rs.1200-1900 with effect from the date on which he was recruited, the Member Secretary would accept the decision in view of the petitioner’s outstanding good work and it would not be proper to go back on the promise given. It was further set out that the pay scale of Rs.1200-1900 will be regarded as personal to Dr. Karnik, the petitioner herein. In the same letter it was mentioned that the the U.G.C. Pay scales are not applicable to ICSSR and the pay scale of Deputy Director was revised only to Rs.1100-1600. However, there was one exception i.e. when a person is taken from the University, ICSSR was permitted to make an exception and give the university pay scales. A resolution was passed at the meeting held on 28th March, 1979 placing the petitioner in the 4 pay scale of Rs.1200-1900 with retrospective effect from 21st December, 1973 as also other terms and conditions. The petitioner was given the higher pay scale. 4. The petitioner, in the year 1978, joined the Department of History as an Associate Professor/Reader in the pay scale of Rs.1200-1900. The petitioner, in the same year (1978) was recalled by WRC and appointed as a Joint Director. The Executive Council of the University passed a resolution at its meeting held on 16th March, 1979 to send the petitioner on deputation to the ICSSR, Western Region Centre for a period of four years as Joint Director from 1st July, 1979 with a condition that the petitioner will draw in the pay scale of Rs.1200-1900 prescribed for the post of Reader of University Department and other terms and conditions as set out therein. 5. The Council at its meeting held on 21st April, 1981 decided to appoint the petitioner as Full Time Director in the scale of Rs.1500-2000. This was communicated to the petitioner by letter of 8th July, 1981. The petitioner by his letter of 17th July, 1981 accepted the appointment with a request to accept the post on deputation. By 5 letter of 1st October, 1986, the Chairperson of WRC as also the Vice Chancellor of University of Mumbai informed the petitioner that he is appointed as a Professor & Director at the Western Regional Centre in the pay scale of Rs.1500-2500 on a starting pay of Rs.2250/- with effect from 1st October, 1986. It was also informed that this has been fixed in view of the stagnation in the pay scale of Rs.1500-2000. The petitioner since then continued to draw in the said pay scale. 6. The petitioner in the year 1989 was appointed as a Pro-Vice Chancellor for three years and on 5th May, 1992 was appointed as a Vice Chancellor of University of Mumbai and served in that post for three years upto 1995. Petitioner kept his lien on the post of Director of WRC/ICSSR. In the year 1995, the petitioner completed his term as Vice Chancellor and returned to his earlier post as the Director of WRC/ICSSR which he held upto 24th July, 1999. During this period the petitioner was paid as per the pay scale of Professor as per the IVth Pay Commission which was Rs.4500-7300 in terms of communication dated 15th July, 1988. 7. The recommendation of the Vth Pay Commission was 6 implemented with effect from 1st January, 1996. The petitioner claims that he is entitled to entire arrears and back wages as per the Vth Pay Commission for the period from 1st January, 1996 to 24th July, 1999. The pay scale of Professor in terms of the Resolution of the Government of Maharashtra dated 11th December, 1999 was revised in the scale of 16400-22400 with effect from 1st January, 1996. The petitioner, in the meantime, had also been appointed as the Chairman of the MPSC and thereafter as Member of UPSC. On his return, he applied to be paid the arrears. Correspondence shows that the petitioner received a communication of 2nd January, 2006 whereby he was informed that he would be entitled to the pay scale fixed for Directors of Regional Centres by the ICSSR and not that of a Professor of the collaborating institution. On receipt of the letter, he made a representation. A one-man Committee was appointed to look into the grievance of the petitioner, who submitted his recommendation in favour of the petitioner. 8. Amongst the grounds taken by the petitioner in the present petition is that fixation of petitioner’s pay scale for the purposes of implementing the Vth Pay Commission’s recommendation in the pay 7 scale lower than that of a Reader and not in the scale of the Professor is arbitrary, illegal, unconstitutional and that the petitioner is entitled to being paid in the revised pay scale of Professor in terms of the recommendation of the Vth Pay Commission for the period from 1st January, 1996 to 24th July, 1999. 9. Reply has been filed on behalf of respondent No.3. In the reply of 27th November, 2009 it is set out that when the petitioner was paid in the pay scale of the post of Professor, the same was wrongly paid. On realizing the said mistake, respondent No.1 brought the same to the attention of the petitioner by their communication of 2nd January, 2006. The ICSSR, however, had not passed for recovery of the excess amounts paid, taking a sympathetic view of the matter and considering the financial hardship that would be faced by the petitioner. 10. In the additional affidavit filed on 17th March, 2010, it is stated that the petitioner was never granted and paid salary / emoluments in the scale of pay of University Professor. In view of this affidavit the respondents were asked to file additional affidavit as to whether in 8 fact the petitioner at any point of time had been paid in the pay scale of Professor. The only answer given is that the pay scale of Professor never existed in the ICSSR or the Regional Centres. In yet another affidavit dated 3rd May, 2010, it is set out that the petitioner, after he was illegally upgraded, was drawing the salary equivalent to the pay scale of Professor till his retirement. In the affidavit of 12th April, 2010 it is set out that the petitioner’s pay scale as Director, WRC had been fixed in the pay scale of 12000-16500 and to that affidavit is annexed the statement of arrears which the petitioner would be entitled to from March, 1996 to July, 1999 in the pay scale of 12000-16500 (Rs.16,500-20,000 revised). 11. The short question for our consideration is, whether the petitioner, who was placed in the Professor’s grade of Rs.1500-2500 as on 1st October, 1986 by letter dated 1st October, 1986 and subsequently placed in the revised pay scale of Rs.4500-7300 at the time of IVth Pay Commission, is entitled on the implementation of the Vth Pay Commission recommendation to the revised pay scale of Professor. 9 From 1st January, 1976 onwards the scale of the Reader was Rs.1200-1900 and of the Professor was 1500-2500. From 1st January, 1986 the scale of lecturer (Selection Grade) was 3700-5700 and that of Professor was 4500-7300. From 1st January, 1996 the pay scale of the Reader was 12000-18300 and of the Professor 16400-22400. 12. The petitioner, according to the respondents, is entitled to be paid in the pay scale of 3700-5700 in terms of the IVth Pay Scale recommendation which has been revised to 12000-16400. It may be noted that in so far as the initial scale of 1200-1900 is concerned, the same was approved by the respondents and we have already adverted to that earlier. From 1st January, 1986 the pay scale of Reader was revised to 3700-5700 and from 1st January, 1996 it was revised to 12000-18300. What the communication effectively means is that the petitioner on the 1st January, 1996 would be in the lower pay scale of 12000-16400 as against the scale of University Reader of 12000-18300. The petitioner, in fact, by letter of 1st October, 1986 was appointed in the pay scale of 1500-2500, which from 1st January, 10 1986 was revised to 4500-7300 and from 1st January, 1996 to 16400-22400. The letter of 1st October, 1986 had clearly stated that the petitioner was being given the Professor's pay scale which was personal to the petitioner and would not be applicable to the future Directors. 13. The entire defence of the respondents to this factual position by which the petitioner was paid for the post of Professor in the pay scale of 4500-7300 is based on certain documents which have been relied upon. The communication dated 28th March, 2002 sets out that the revision of pay scales could be admissible in respect of such posts and pay scales which have been created/upgraded only after obtaining the prior approval of the ICSSR and further the revised pay scales shall not be extended in respect of those employees who are enjoying the scales of pay not approved by ICSSR but have resulted from any personal promotion or career growth scheme, if any. Such cases should be also referred to ICSSR. It is, therefore, submitted that as there is no post of Director in the pay scale of Professor with respondent Nos.2 and 3, merely because by a communication of 1st October, 1986 the petitioner was informed that he would be paid in 11 the pay scale of Professor does not entitle him to the said pay scale. It has been set out that the promotion of the petitioner in the scale of Professor was subsequently realised as a mistake and by communication of 2nd January, 2006 it was rectified by informing him that he was not entitled to the pay scale of Professor. 14. We are here concerned with the claim, by which the petitioner is claiming the benefit of the Vth Pay Commission for the period from 1st January, 1996 to 24th July, 1999. Previous to 1st January, 1996 the petitioner was being paid in the scale of Professor of 4500-7300 as per IVth Pay Commission recommendation. The petitioner was given the pay scale of a Reader for the post of Joint Director after he had rejoined after serving as Assistant Professor/Reader in the University. The letter of 19th March, 1978, from ICSSR itself notes in para 5, that the petitioner had made a point that he did not try for posts of readers which were otherwise open to him as the petitioner was already in the Reader's scale. It is in the circular that the petitioner's pay scale as Deputy Director/Joint Director was revised to Rs.1200-1900. Subsequently the petitioner was appointed as Director. Surely the post of Director must carry a higher pay scale 12 than that of a Reader. The respondent Nos.2 and 3 paid the petitioner in the pay scale of 4500-7300 without raising any objection at least from 1st October, 1986 and making it clear that it was personal to him. The petitioner, therefore, would have a legitimate expectation that the post of Director will carry the pay scale of Professor as otherwise the petitioner was already drawing in the pay scale of Reader/Associate. The petitioner also could have pursued other posts for a higher pay scale of Professor if the respondents had refused to pay him the pay scale of Professor which was prescribed to him from 1st October, 1986. Is it, therefore, open to the respondents now to contend, though from 1st October, 1986 till 31st December, 1995 the petitioner was paid in the pay scale of Professor, that on revision by the Vth Pay Commission he would not be so entitled and that was a mistake which was corrected in July, 2006 long after the petitioner had retired. In our opinion, the action of the respondents will be totally arbitrary. Once having allowed the petitioner to join the post of a Director and having paid him in the scale of Professor under the IIIrd Pay Commission, IVth Pay Commission, the petitioner would be entitled to legitimately draw in the pay scale of Professor also under the Vth Pay Commission, even if 13 there be some irregularity. The petitioner in 1978 was as Joint Director was already drawing in the pay scale of Associate Professor/ Reader in the University which was a higher pay scale. The petitioner surely would not join in a lower time scale. The petitioner joined as he was given the pay scale of Rs.1500-2000 which was a higher pay scale than that of Reader which was 1200-1900. The petitioner when he was appointed as Director was given the pay scale of Professor as personal to him. It is not open to respondent Nos.1 to 3 to now contend that it was a mistake. Allowing the petitioner to join as Director in the pay scale of Professor, granting him the revised pay scale after the IVth Pay Commission recommendation, the respondents cannot deny to the petitioner the revised pay scale as per the Vth Pay Commission recommendation. It was not open to the respondents, more so after the petitioner’s retirement, to raise an issue that the petitioner would not be entitled to draw in the pay scale of Professor. In our opinion, therefore, the petition must succeed. 15. In the light of the above, the Rule made absolute in terms of prayer clauses (a) and (b). The arrears to be paid to the petitioner 14 not later than three months from today. 16. In the circumstances of the case, there shall be no order as to costs. Sd/- (F. I. REBELLO, J.) Sd/- (A. A. SAYED, J.)