Meghalaya High Court

Prof. Manmohan Singh vs Union Of India And Ors on 4 June, 2014

Author:
T Nandakumar Singh

Bench:
T Nandakumar Singh

THE HIGH COURT OF MEGHALAYA

W.P.(C)No.245/2012
Prof. Manmohan Singh,
S/o Late Dr. Indar Singh,
Professor, Centre for Science Education,
North Eastern Hill University,
East Khasi Hills District, Shillong, Meghalaya. :::: Petitioner

-Vrs-

1. Union of India
represented by the Secretary to the Govt. of India,
Ministry of Human Resource Development,
New Delhi.

2. The University Grants Commission,
through its Officiating Secretary,
Bahadurshah Zafar Marg, New Delhi.

3. North Eastern Hill University,
represented by the Registrar, Umshing,
East Khasi Hills District, Shillong, Meghalaya.

4. The Academic Council,
represented through its Chairman,
North Eastern Hill University,
Umshing, East Khasi Hills District,
Shillong, Meghalaya.

5. Executive Council
represented by Chairman
North Eastern Hill University,
Umshing, East Khasi Hills District,
Shillong, Meghalaya.

6. The Assistant Registrar,
Establishment II,
North Eastern Hill University,
Umshing, East Khasi Hills District,
Shillong, Meghalaya. :::: Respondents

Page 1 of 31
BEFORE
THE HON'BLE MR. JUSTICE T NANDAKUMAR SINGH

For the petitioner : Mr. K Paul, Adv

For the respondents : Mr. SC Shyam, CGC for respdt.No.1 & 2
Mr. S Sen, SC NEHU

Date of hearing : 27.05.2014

Date of Judgment : 04.06.2014

JUDGEMENT AND ORDER

By the impugned order of the North Eastern Hill University (for

short 'NEHU') Mawlai, Umshing fixed the revised pay of Professors of NEHU

w.e.f. 01.01.2006 according to the fitments table for fixation of salary

prescribed by the University Grants Commission (for short 'UGC') on the

recommendations of the Sixth Central Pay Commission; and none of the

professors of NEHU, whose revised pay are also fixed similar with that of the

present petitioner made any whisper against the impugned revised pay i.e.

against the impugned revision of pay scales and they are fully satisfied with

the revision of their pay scales by the NEHU according to the fitments table

for fixation of salary prescribed by the UGC.

2. The Apex Court (Constitution Bench) coined the words "litigious

employment" in State of Karnataka vs. Umadevi (3): (2006) 4 SCC 1 and

held that the High Courts acting under
Article 226
of the Constitution should

not, therefore, ordinarily issue directions for absorption, regularization or

permanent continuance unless the recruitment itself was made regularly and

in terms of the constitutional scheme. Merely, because an employee had

continued under cover of an order of the court, which the Apex Court has

described as "litigious employment", he would not be entitled to any right to

be absorbed or made permanent in the service. The courts must be careful in

ensuring that they do not interfere unduly with the economic arrangement of

Page 2 of 31
its affairs by the State or its instrumentalities or lend themselves the

instruments to facilitate the bypassing of the constitutional and statutory

mandates. The Apex Court is not encouraging in granting the relief to the writ

petitioner which would unduly interfere with the economic arrangement of its

affairs by the State or its instrumentalities. The Apex Court further held that

the orders based on sentiments would result in perpetuating illegalities and in

the "jettisoning" of the scheme of the public employment and approving of the

orders passed by the authority in mistakes in favour of the employee would

result in perpetuating illegalities. The ratio laid down by the Apex Court

(Constitution Bench) in Umadevi (3) case (Supra) was also followed by the

Apex Court in State of Karnataka & Ors v. G.V. Chandrashekar: (2009) 4

SCC 342.

3. It appears from the pleaded case of the petitioner in the writ

petition that the writ petitioner had interpreted the scheme of revision of pay

of teachers and equivalent cadres in the universities and colleges following

the revision of pay scales of Central Govt. employees on the

recommendations of the Sixth Central Pay Commission under the letter of

the Govt. of India, Ministry of Human Resource Development, Department of

Higher Education, New Delhi dated 31.12.2008 to the Secretary, UGC and

the fitments table for fixation of salary prepared by the UGC in pursuance to

the scheme of revision of pay (a) teachers and equivalent cadres and (b)

administrative posts in the universities and colleges following the revision of

pay scales of the Central Govt. employees on the recommendations of the

Sixth Central Pay Commission in such a manner that the revision of pay

scales of Professors of NEHU once made by the authority of NEHU, even if it

is provisional, could not be altered to the disadvantage of the petitioner and

also the petitioner is trying to justify, without any rational reasons, the

provisional fixation of revised pay of Professors by the University-NEHU

Page 3 of 31
before receiving the fitments table for fixation of salary prepared by the UGC

vide Resolution No.6 of the 23rd Emergent Meeting of the Executive Council

of NEHU wherein, the Executive Council resolved to approve the

recommendation of the academic council to accept the revision of pay scales

etc. as per MHRD's letter dated 31.12.2008 and the payment of arrears up to

40% of the total arrears be made latest by Wednesday 25th February, 2009

and also the petitioner by relying on the Circular dated 28.07.2011 issued by

the NEHU claimed for three advance increments for holding Ph.D. degree as

grant for incentives.

4. Heard Mr. K Paul, learned counsel for the petitioner and Mr. SC

Shyam, learned CGC for the respondents No.1 & 2. Also heard Mr. S Sen,

learned counsel for the NEHU.

5. The petitioner possessing Ph.D. degree, which was/is the

essential requirement for appointment to the post of Professor, was

appointed to the post of Professor in Centre for Science Education, NEHU as

a direct recruit on 12.07.1991 and has been working since then as Professor.

The Govt. of India, Ministry of Human Resource Development, Department of

Higher Education in the year 2008 under the letter dated 31.12.2008

informed the scheme of revision of pay of teachers and equivalent cadres in

the universities and colleges following the revision of pay scales of the

Central Govt. employees on the recommendations of the Sixth Central Pay

Commission to the Secretary, UGC; and the scheme provides for the revision

of pay scales of teachers as per the Govt. of India's decision to revise the

pay scales of teachers and equivalent cadres on the recommendations of the

Sixth Central Pay Commission. Para1 of the said scheme dated 31.12.2008

provides the eligibility criteria for appointment as Professor, Para 2 provides

the revised pay scales and career advancement scheme for

Page 4 of 31
teachers and equivalent positions, Para 7 provides the incentives for

Ph.D./M.Phil and other higher qualification and Para 7(q) provides the

applicability of the scheme and also that the implementation of the revised

scales shall be subject to the acceptance of all the conditions mentioned in

the said letter itself i.e. 31.12.2008 as well as regulations to be framed by the

UGC in that behalf. The Universities implementing the scheme shall be

advised by the UGC to amend their relevant statutes and ordinances in line

with the UGC Regulations within three months from the date of issue of the

letter. For easy reference, the relevant portions of the scheme under the said

letter dated 31.12.2008 are quoted hereunder:-

"No.1-32/2006-U.II/U.I (I)
Government of India
Ministry of Human Resource Development,
Department of Higher Education.

New Delhi, dated the 31st December, 2008

To,
The Secretary,
University Grants Commission,
Bahadur Shah Zafar Marg,
New Delhi-110002.

Sub: Scheme of revision of pay of teachers and
equivalent cadres in universities and colleges
following the revision of pay scales of Central
Govt. employees on the recommendations of the
Sixth Central Pay Commission.

1. General

***** ***** ***** *****

(ii) No one shall be eligible to be appointed, promoted or
designated as Professor, unless he or she possesses a Ph.D.
and satisfies other academic conditions, as laid down by the
University Grants Commission (UGC) from time to time. This
shall, however, not affect those who are already designated as
'Professor'.

2. Revised Pay Scales, Service conditions and Career
Advancement Scheme for teachers and equivalent
positions:

***** ***** ***** *****

Page 5 of 31
(xiv) The pay of a directly recruited Professor shall be fixed at a
stage not below Rs.43000 in the Pay Band of Rs.37400-67000,
with the applicable AGP of Rs.10000.

7. Incentives for Ph.D./M.Phil and other higher
qualification:

***** ***** ***** *****

(q) Applicability of the Scheme:

(i) This Scheme shall be applicable to teachers and other
equivalent cadres of Library and Physical Education in all the
Central Universities and Colleges there-under and the
Institutions Deemed to be Universities whose maintenance
expenditure is met by the UGC. The implementation of the
revised scales shall be subject to the acceptance of all the
conditions mentioned in this letter as well as Regulations to be
framed by the UGC in this behalf. Universities implementing
this Scheme shall be advised by the UGC to amend their
relevant statutes and ordinances in line with the UGC
Regulations within three months from the date of issue of this
letter. ..........................."

6. After the circulation of the scheme of revision of pay scales

under the said letter of the Ministry of Human Resource Development,

Department of Higher Education dated 31.12.2008, the Executive Council of

NEHU in its 23rd Emergent Meeting of the Executive Council held on

20.02.2009 passed a Resolution in Item No.6, which reads as follows:-

"ITEM No.6 ADMINISTRATIVE MATTERS:

6:6- Service condition/Financial & Other matters.

(i) Revision of pay scales etc. of the teachers and
equivalent cadres in Universities and Colleges on the
recommendation of the Sixth Central Pay Commission.

EEC:23:2009:6:6:(i): The Council considered the letter of
Ministry of Human Resource Development vide letter No.1-
32/2006-U.II/U.I(1) of 31st December, 2008 on Scheme of
revision of pay of teachers and equivalent cadres in universities
and colleges following the revision of pay scales of Central

Page 6 of 31
Government employees on the recommendation of the Sixth
Central Pay Commission and the Draft UGC Notification on
Revision of Pay Scales, minimum qualifications for appointment
of teachers in Universities and Colleges & Other measures for
the maintenance of standards, 2009 on the recommendations
of the Sixth Central Pay Commission.

The Council RESOLVED to approve the recommendation of
the Academic Council to accept the revision of pay scales etc.
as per MHRD's letter referred to above and that payment of
arrear up to 40% of the total arrears be made latest by
Wednesday 25th February, 2009.

Further the Council RESOLVED to approve the
recommendation of the Academic Council to authorize the
Chairman to constitute a Committee to amend the relevant
Rules of the University on service conditions and pay scales
etc.

(ii) Revision of pay scales etc. for the post of Vice
Chancellor, Pro-Vice-Chancellor, and officers on the
recommendation of the Sixth Central Pay Commission."

7. Pursuant to the said Resolution of the Executive Council of

NEHU, the provisionally revised pay scales of the petitioner and other are as

follows:-

"Professor who joined on or before 01.01.2006
Pay Band + Academic Grade Pay
Pay Band ::: Rs. 37,400 - 67,000/- + Rs.10,000/- (S-)

STATEMENT - B
Sl. Name of the Date of Basic pay as Pay fixed on With 3% With 3% With 3%
No Teacher & joining on 01.01.06 01.01.2006 increment, increment, increment,
Department to (Pre-revised) (Revised) pay as on pay as on pay as on Remarks
which attached 01.07.2006 01.07.2007 01.07.2008
1. Prof.R.Lalthan- 18.08.1984 Rs.22,400/- Rs.51,850/- Rs.53,700/- Rs.55,630/- Rs.57,600/-+
luanga, +Rs. 10,000 +Rs.10,000/- +Rs.10,000/- Rs.10,000/-
Biochemistry

2. Prof.R.P. 15.07.1986 Rs.21,900/- Rs.51,850/-+ Rs.53,700/-+ Rs.55,630/-+ Rs.57,600/-+
Bajpai Rs.10,000/- Rs.10,000/- Rs.10,000/- Rs.10,000/-
RSIC
3. Prof.P.Shukla, 28.08.1986 Rs.22,400/- Rs.51,850/-+ Rs.53,700/-+ Rs.55,630/-+ Rs.57,600/-+
Physics Rs.10,000/- Rs.10,000/- Rs.10,000/- Rs.10,000/-
4. Prof.T.Ao, 06.06.1986 Rs.21,900/- Rs.51,850/-+ Rs.53,700/-+ Rs.55,630/-+ Rs.57,600/-+
English Rs.10,000/- Rs.10,000/- Rs.10,000/- Rs.10,000/-
5. Prof.J.War, 06.06.1989 Rs.21,400/- Rs.50,340/-+ Rs.52,160/-+ Rs.54,030/-+ Rs.55,960/-
Linguistics Rs.10,000/- Rs.10,000/- Rs.10,000/- +Rs.10,000/-

6. Prof.L.K.Jha, 08.08.1990 Rs.21,400/- Rs.50,340/-+ Rs.52,160/-+ Rs.54,030/-+ Rs.55,960/-+
Centre Rs.10,000/- Rs.10,000/- Rs.10,000/- Rs.10,000/-
for
Environmental
Studies
7. Prof.A.C. 12.07.1991 Rs.21,400/- Rs.50,340/-+ Rs.52,160/-+ Rs.54,030/-+ Rs.55,960/-+
Mohapatra, Rs.10,000/- Rs.10,000/- Rs.10,000/- Rs.10,000/-
Geography
8. Prof.(Mrs)V. 12.07.1991 Rs.21,400/- Rs.50,340/-+ Rs.52,160/-+ Rs.54,030/-+ Rs.55,960/-+
Tandon, Rs.10,000/- Rs.10,000/- Rs.10,000/- Rs.10,000/-
Zoology

Page 7 of 31
9. Prof.S.K 12.07.1991 Rs.21,400/- Rs.50,340/-+ Rs.52,160/-+ Rs.54,030/-+ Rs.55,960/-+
Mishra, Rs.10,000/- Rs.10,000/- Rs.10,000/- Rs.10,000/-
Economics
09 10 11
10. Prof.M.M. 12.07.1991 Rs.21,900/- Rs.51,850/- Rs.53,700/- Rs.55,630/- Rs.57,600/- 59630 61720 73880
Singh Centre +Rs.10,0000/ +10,000/- +Rs.10,000/- +Rs.10,000/-
for Science -
Education
11. Prof.A.K. 12.07.1991 Rs.21,400/- Rs.50,340/-+ Rs.52,160/-+ Rs.54,030/-+ Rs.55,960/-+
Baruah, Rs.10,000/- Rs.10,000/- Rs.10,000/- Rs.10,000/-
Political
Science
12. Prof.M.B.Rege, 12.07.1991 Rs.21,400/- Rs.50,340/-+ Rs.52,160/-+ Rs.54,030/-+ Rs.55,960/-+
Mathematics Rs.10,000/- Rs.10,000/- Rs.10,000/- Rs.10,000/-
13. Prof.B.K. 18.08.1993 Rs.21,400/- Rs.50,340/-+ Rs.52,160/-+ Rs.54,030/-+ Rs.55,960/-+
Sharma, Rs.10,000/- Rs.10,000/- Rs.10,000/- Rs.10,000/-
Zoology

It is admitted case of the parties that the basic pay (Pre-

revised) of the petitioner as on 01.01.2006 was Rs.21,900/- pm and as per

the provisionally revised pay of the petitioner, the revised pay of the

petitioner as on 01.01.2006 was Rs.51,850/- in the Pay Band + Academic

Grade Pay :: Rs.37,400-67,000+Rs.10,000/-.

8. The UGC, later on, prepared the fitments table of fixation of

salary in pursuance to the said scheme dated 31.12.2008 vide UGC, New

Delhi-110002 dated 30.06.2010, viz. "the UGC Regulations on minimum

qualifications for appointment of teachers and other academic staff in

universities and colleges and measures for the maintenance of standards in

higher education, 2010" (for short 'UGC Regulations, 2010'). Under the UGC

Regulations, 2010, one of the essential qualifications for appointment of

Professors is Ph.D. degree and also the fitments table of fixation of salary of

Professors in universities and colleges are mentioned at Table 5 to the UGC

Regulations, 2010. For easy reference, Table 5 is quoted hereunder:-

"TABLE - 5

(i) Incumbent Professor in Colleges and Universities
(ii) Incumbent Principals of PG Colleges
(iii) Incumbent Librarian (University)
(iv) Incumbent Director of Physical Edu. (University)

Page 8 of 31
Pre-revised scale
Revised Pay Band + AGP
Rs.16400-450-20900-500-
Rs.37400-67000+AGP 10000
22400 (S27 and S29)

Pre-revised Revised Pay
Basic Pay Pay in the Pay Academic Revised Basic
Band Grade Pay pay
16400 40890 10000 50890
16850 40890 10000 50890
17300 42120 10000 52120
17750 42120 10000 52120
18200 43390 10000 53390
18650 43390 10000 53390
19100 44700 10000 54700
19550 44700 10000 54700
20000 46050 10000 56050
20450 46050 10000 56050
20900 47440 10000 57440
21400 47440 10000 57440
21900 48870 10000 58870
22400 48870 10000 58870
22900 50340 10000 60340
23400 50340 10000 60340
23900 51860 10000 61860

9. Admittedly the pre-revised basic pay of the petitioner as on

01.01.2006 was Rs.21,900/- pm and the fitments table quoted above clearly

provides that the basic pay of the pre-revised of Rs.21,900/- pm will be

Rs.48,870/- pm i.e. pay in the Pay Band (revised) and the revised basic pay

will be Rs.58,870/- pm. The authorities of NEHU, in compliance with Para

2(xiv) "the pay of a directly recruited Professor shall be fixed at a stage not

below Rs.43000 in the pay band of Rs.37400-67000, with the applicable

AGP of Rs.10000" and Para 4.0 "the pay of a directly recruited Professor

shall be fixed at a stage not below Rs.43,000 in the Pay Band IV of

Rs.37,400-Rs.67,000, with applicable AGP of Rs.10,000" and the said

fitments table 5, fixed the revised pay band of the petitioner at Rs.48,870/-

which correspond to pre-revised basic pay of Rs.21,900/- which the petitioner

had enjoyed on 01.01.2006 as pre-revised basic pay vide order dated

Page 9 of 31
04.12.2009. The basic revised pay band of the petitioner at Rs.48,870/-pm is

not below Rs.43,000/-pm indicated in the said Para 2(xiv) and Para 4.0 of the

UGC Regulations, 2010. The impugned order dated 04.12.2009 reads as

follows:-

"NORTH EASTERN HILL UNIVERSITY
MAWKYNROH::::UMSHING
SHILLONG::::793022

No.4-2/Estt-II/2009(pt-I)-1048 Dated:4th December, 2009.

O R D E R

Consequent upon the revision of pay w.e.f. 01.01.2006, the pay
of Professor Man Mohan Singh of Centre for Science Education
is regulated hereunder:

Designation Pay Band Academic Grade Pay
Professor Rs.37,400-67,000/- Rs.10,000/-

As regulated after 1.11.2009 Consequent upon acceptance of
01.01.06 Rs.48,870+10,000/- pay revision referred GOI MHRD
01.07.06 Rs.50,640+10,000/- letter No.1-32/2006-U-II/U 1 dated
01.07.07 Rs.52,460+10,000/- 31.12.2008.
01.07.08 Rs.54,340+10,000/- Revised as on Ref: 3rd & 23rd
01.07.09 Rs.56,280+10,000/- 1.01.06 51850.00 Emergent
1.07.06 53700.00 Meeting of AC
1.07.07 55630.00 & EC held on
1.07.08 57600.00 20th Feb 2009.
1.07.09 59630.00

Sd/-
Assistant Registrar,
Establishment-II"

Being aggrieved by the order dated 04.12.2009, the petitioner

filed the present writ petition and as stated above, the claim of the petitioner

in the present writ petition is that the revised pay scale of the petitioner

should be the one provisionally fixed by the NEHU at Rs.51,870/-+10,000/-

as on 01.01.2006.

Page 10 of 31

10. The further case of the petitioner in the present writ petition is

that as per the Circular dated 28.07.2011 issued by the NEHU for giving

incentives to the teachers for acquiring Ph.D. degree or holding Ph.D.

degree, the petitioner having Ph.D. degree before his appointment as a direct

recruit Professor is entitled to draw three advance increments. The said

Circular dated 28.07.2011 (Annexre-11 to the writ petition) reads as follows:-

"NORTH EASTERN HILL UNIVERSITY
NEHU CAMPUS SHILLONG ::::: 22

No.F.4-2/Estt-II/2009-1968 28th July, 2011

C I R C U L A R

The UGC Regulation 2010 interalia provided incentives in the
form of advance increments for Ph.D./M.Phil and other higher
qualifications. On adoption of UGC Regulation 2010 by the
University, the incentives that will be applicable may read as
under:-

1. The effective date for grant of advance increment, in all
cases, shall be with effect from 1.9.08.

2. Assistant Professors recruited on or after 1.1.06 with M.Phil
degree shall be entitled to draw two advance increments.

3. The Assistant Professors recruited on or after 1.1.06
possessing Post graduate degree in the professional course
such as LLM/M.Tech/M.Arch./M.E./M.V.Sc/MD., etc.
recognized by the relevant statutory body/council shall also be
entitled to two advance increments.

4. Five advance increments shall be admissible at the level of
recruitment as Asstt. Professors, possessing the degree of
Ph.D. awarded in the relevant discipline by the University
following the process of admission, registration, course work
and external evaluation as prescribed by the UGC. In order to
grant five advance increments, the concerned teachers are
required to produce necessary documents in support of their
claim.

5. The teachers in service who have already been awarded
Ph.D. degree before adoption of the UGC Regulation 2010 by
the University, shall be entitled to draw three advance
increments. Similarly, the teachers in service who have enrolled
for Ph.D. and undergone course work as well as evaluation, if
any, shall also be entitled to draw three advance increments
even if the University awarding such Ph.D. degree has not yet

Page 11 of 31

been notified by the UGC as having complied with the process
prescribed by UGC.

6. One increment shall be admissible to a teacher who acquires
an M.Phil/M.Litt. degree, while three advance increments shall
be admissible to a teacher who acquires Ph.D./D.Litt/D.Sc in
his/her service career. Provided further, the number of
increments shall not exceed three if a teacher acquires both the
degrees in his/her service career.

Sd/-

(L Roy)
Registrar"

11. The NEHU i.e. respondents No.3-6 filed joint affidavit-in-

opposition in the present writ petition. It is the case of the respondents No.3-

6 in their joint affidavit-in-opposition stated that as per the enabling provision

of the MHRD Scheme contained in the letter dated 31st December 2008 and

direction of the UGC vide its letter dated 28th February 2009, pending receipt

of Fitment Tables for final fixation of revised pay scale in the pay band and

Academic Grade Pay prepared by the UGC, the basic revised pay scale of

the writ petitioner had been provisionally fixed at Rs. 51,850/- for the purpose

of facilitating the release of 40% of the arrear, however, on receipt of the

Fitment Table the Writ Petitioner had been placed in the appropriate pay

fixation. The representation/appeal of the writ petitioner had been duly

considered, however, the same could not be entertained as the writ petitioner

had been ultimately placed in the appropriate pay fixation to the

corresponding revised pay scale as per the Fitments Table. It is further

stated that incentive like three advance increments is contemplated purely for

additional qualification of a teacher of the University, but Ph.D. is a minimum

requirement for the post of a professor which the Writ Petitioner is holding

and the claim of the writ Petitioner for advance increments for his possessing

Ph.D. is totally misconceived. However, it is stated that "the pay of a directly

recruited professor shall be fixed at a stage not below Rs. 43,000/- in the pay

band IV of Rs. 37,400-67,000, with applicable AGP of Rs. 10,000/-" in

Page 12 of 31

respect of Professor recruited on or after 01.01.2006, as would be evident

from the gazette notifying the UGC Regulation 2010 where in the letter from

Deputy Secretary, Ministry of Human Resource Development addressed to

UGC printed along with Authenticated Fitment Tables. It is stated that the

Fitment Tables are for fixation of pay of existing incumbents who were in

position as on 01.01.2006.

12. The NEHU in their joint affidavit-in-opposition further stated that

"the University may take action to adopt the above Government of India

Scheme for University and its colleges and payment of pay scales,

enhancement of retirement age and release of 40% arrears during the

current financial year in accordance with these provisions. The commission

was in the process of finalizing Regulations in consultation with the

stakeholders. The Fitment Tables for fixation of salary was likely to be

received from the Central Government shortly which would be circulated to

all Universities and would also be placed on UGC Website. The provisional

payment may be made after taking an Undertaking from every beneficiary

under the scheme to the effect that any excess payment made on account of

incorrect fixation of pay in the Pay Band or Academic Grade Pay shall be

adjusted against the future payments due. Hence, it is amply clear from the

spirit of the said provisional fixation of pay scale of the writ petitioner that

pending receipt of Fitment Tables for final fixation of Pay in the Pay Band or

Academic Grade Pay by the University, 40% of the arrears was released on

provisional fixation basis to the beneficiaries on obtaining an Undertaking

from such beneficiaries to the effect that in case of incorrect fixation, the

same shall be adjusted against the future payments due". The factual matrix

of the subject matter being so, the allegation of "downgrading" as leveled by

the Petitioner holds no merit. The fixation of the Petitioner's Salary at Rs.

51,850/- was a provisional one solely for the purposes of releasing 40% of

Page 13 of 31

the arrears to him pending receipt of Fitment Table from the UGC. The figure

of Rs. 48,870/- was arrived at after final fixation of the Petitioner's pay in the

light of Fitment Tables received subsequently. Similar exercise was done in

case of others who were/are similarly placed with the Petitioner as per terms

and conditions of said UGC and Govt. of India, MHRD letters. Hence, in the

light of the above, describing an appropriate fixation in a grade as

"downgrading" by the Petitioner amounts to blatant misinterpretations and

distortion of facts. In fact, the Petitioner has misinterpreted and

misrepresented the spirit of the aforesaid letters of the UGC and Govt. of

India, thereby misleading the Hon'ble Court. Further, suppression of vital fact

as to the Petitioner himself executing the Undertaking dated 06.03.2009 in

order to receive 40% of arrears based on provisional fixation as mentioned

earlier, speaks volumes of the ulterior motive with which this Writ Petition has

been filed. The question of giving Show cause notice for placing the Writ

Petitioner in the appropriate revised pay scale as per the Fitment Table does

not arise as the same is not a penal action and the University has merely

acted as per the directives of the UGC/MHRD in so far as the fixation of pay

of teachers are concerned in accordance with the approved Fitment Table in

this regard and for which an Undertaking had been duly executed by the Writ

Petitioner.

13. It is the further case of the NEHU in their joint affidavit-in-

opposition that as per the provision of Scheme of MHRD for pay revision of

Central University teacher contained in Letter dated 31.12.2008,

recommendation of UGC the revised pay scale of the Petitioner had been

fixed provisionally for the purpose of releasing 40% of the arrear, however,

on receipt of Fitment Table from MHRD the Petitioner had been placed in

appropriate pay fixation corresponding to the revised scale. The

representation/appeal filed by the Petitioner had been duly considered,

Page 14 of 31

however, for reasons as stated above the same could not be entertained.

The petitioner cannot claim for the advance increments inasmuch as, every

Pay Commission used to give incentives in the form of advance increments

especially to teachers/Assistant Professors for possessing M.Phil and Ph.D

Degrees. However, the Vth Pay Commission did not provide for any advance

increment for movement into grade of Reader and above for possession of

Ph.D Degree because possession of Ph.D has been prescribed as the

minimum requirement/qualification for the aforesaid posts. In the instant

case, the Petitioner was appointed as Reader in the University on

08.12.1984. Further UGC Regulation 2010 also stipulates that the Ph.D shall

be mandatory qualification for the appointment of Professor and promotion

as Professor. The Petitioner was appointed as Professor in the University on

12.07.1991, thus on the date on which the writ petitioner was appointed as

Reader and Professor, the minimum qualification prescribed by UGC was

Ph.D. Therefore, he is not entitled to the incentives of advance increment.

14. It is clear from the joint affidavit-in-opposition filed by the NEHU

that the UGC under the letter dated 28.02.2009 to the Vice Chancellor,

NEHU, clearly stated that the University may take action to adopt the Govt. of

India scheme for University and its colleges and its affiliated colleges and

payment of pay scales, enhancement of retirement age and release of 40%

of the arrears during the current financial year in accordance with these

provisions and the fitments table for fixation of salary was likely to be

received from the Central Govt. very shortly. While awaiting the fitments table

for fixation of salary, the NEHU provisionally fixed the revised pay scale of

the petitioner as on 01.01.2006 at Rs.51,850/-+10,000/- and as per the

directions of the UGC under the said letter dated 28.02.2009, the NEHU had

obtained the undertaking from the petitioner that any excess payment made

to him as a result of incorrect fixation of pay in the revised scale of pay or on

Page 15 of 31

account of any other reason which is detected subsequently will be refunded

by him to the University either by way of adjustment against future payment

due to him or otherwise as may be decided by the authority. The said letter of

the UGC dated 28.02.2009 and the said undertaking of the petitioner are

quoted hereunder:-

"UNIVERSITY GRANTS COMMISSION
BAHADUR SHAH ZAFAR MARG
NEW DELHI - 110 002

SPEED POST

No.F 1-6/2009/PRC 28th February, 2009

To

The Vice-Chancellor
North Eastern Hill University
NEHU Campus, Shillong
Meghalaya - 793 022

Sub.: Scheme of revision of pay of (a) teachers and
equivalent cadres and (b) administrative posts
in universities and colleges following the
revision of pay scales of Central Government
Employees on the recommendations of the
Sixth Central Pay Commission.

Sir/Madam,

The Commission has received orders from the
Government of India, Ministry of Human Resource
Development, Department of Higher Education, New
Delhi vide letter No. 1-32/2006-U.II/U.I(i) and 1-32/2006-
U.II/U.I(ii) dated 31st December, 2008 on the above
subject and to say that the University may take action to
adopt the above Government of India scheme for
University and its affiliated Colleges and payment of pay
scales, enhancement of retirement age and release of
40% of the arrears during the current financial year in
accordance with these provisions. The Commission is in
the process of finalizing Regulations in consultation with
the stakeholders.

The fitment tables for fixation of salary is likely to
be received from the Central Government shortly which
will be circulated to all Universities and will also be placed
on UGC website. The payment may be made taking an
undertaking from every beneficiary under the scheme to
the effect that any excess payment made on account of
incorrect fixation of pay in the pay band or academic

Page 16 of 31

grade pay shall be adjusted against the future payments
due.

The University may initiate immediate action with
regard to the above and ensure that the action is taken in
a time bound manner.

Yours faithfully,
Sd/-

(D.K.C.Pathak)
Joint Secretary

UNDERTAKING

I, Shri/Smt./Ms. MAN MOHAN SINGH do hereby
undertake that any excess payment made to me as a result of
incorrect fixation of pay in the revised scale of pay or grant of
inappropriate pay band or grade pay or on account of any other
reason which is detected subsequently will be refunded by me to
the University either by way of adjustment against future
payment due to me or otherwise as may be decided by the
Authority.

Signature: Sd/-

________________
Name: MAN MOHAN SINGH
Designation: PROFESSOR
Department: CENTRE FOR SCIENCE
EDUCATION, NEHU"

15. The UGC also filed affidavit-in-opposition in the present writ

petition. The University Grants Commission (hereinafter to be referred as

"the Commission") has been constituted under the provisions of the

University Grants Commission Act, 1956
(Act No.3 of 1956) which came into

force w.e.f. 5.11.1956. The Act was enacted to make provisions for the co-

ordination and determination of standards in universities. The Commission

under the provisions of the Act has been entrusted with the duty to take such

steps as it may think fit for the promotion and co-ordination of university

education and for the determination and maintenance of standards of

teaching, examination and research in universities. For the said purpose, the

Page 17 of 31

Commission has been vested with the power to recommend to any university

the measures necessary for the improvement of university education and

advised the universities upon the action to be taken for the purpose of

implementation of such recommendation. The Commission is also authorized

to perform such other functions as may be prescribed or as may be deemed

necessary by the Commission for advancing the cause of higher education in

India or as may be incidental or conducive to the discharge of its functions.

Section 26
of the Act which gives power to the Commission to make

regulations consistent with the Act, permits the Commission to define the

qualifications that should ordinarily be required of any person to be appointed

to the teaching staff of the university, having regard to the branch of

education in which the applicant is expected to give instruction. The

Department of Higher Education, Ministry of Human Resource Development,

Government of India vide its letter dated 31.12.2008 addressed to the

Secretary, UGC informed regarding the scheme of revision of pay of

teachers and equivalent cadres in universities and colleges following the

revision of pay scales of Central Government employees on the

recommendations of the Sixth Central Pay Commission. In the said letter, it

was informed to the UGC that the Government of India has decided, after

taking into consideration the recommendations made by the UGC based on

the decisions taken at the meeting of the Commission held on 7-8 October,

2008, to revise the pay scales of teachers in the central universities. The

revision of pay scales of teachers shall be subjected to various provisions of

the scheme of revision of pay scales as contained in the letter and

regulations to be framed by the UGC in this behalf in accordance with the

scheme given in the letter. The revised pay scales and other provisions of

the scheme was stipulated in para 1 to 12 of the said letter.

Page 18 of 31

16. It is further stated that so far as the applicability of the scheme

is concerned, it has been stipulated in para 8 (p) of the letter to the following

effect:-

8(p)(i) This scheme shall be applicable to teachers and other
equivalent cadres of Library and Physical Education in all the Central
Universities and colleges there-under and the institutions deemed to
be Universities whose maintenance expenditure is met by the UGC.
The implementation of the revised scales shall be subject to the
acceptance of all the condition mentioned in this letter as well as
Regulations to be framed by the UGC in this behalf. Universities
implementing this scheme shall be advised by the UGC to amend their
relevant statutes and Ordinances in line with the UGC Regulations
within three month from the date of issue of this letter."

Further, clause 8(P)(v) deals with the applicability of the

scheme to Universities, colleges and other higher educational institutions

which comes under the purview of the state legislature and the following has

been stipulated:-

8(P)(V): "this scheme may be extended to Universities, colleges and
other higher educational institutions coming under the purview of the
state legislatures, provided State Governments wish to adopt and
implement the scheme subject to the following terms and conditions:-

(a) Financial assistance from the Central Government to State
Governments opting to revise pay scales of teachers and other
equivalent cadre covered under the Scheme shall be limited to the
extent of 80% (eighty percent) of the additional expenditure
involved in the implementation of the revision.

(b) The state government opting for revision of pay shall meet the
remaining 20% (twenty percent) of the additional expenditure from
its own sources.

(c) Financial assistance referred to in sub-clause (a) above shall be
provided for the period from 1.01.2006 to 31.03.2010.

Page 19 of 31

(d) The entire liability on account of revision of pay scales etc. of
university and college teachers shall be taken over by the State
Government opting for revision of pay scales with effect from
1.4.2010.

(e) Financial assistance from the Central Government shall be
restricted to revision of pay scales in respect of only those posts
which were in existence and had been filled up as on 1.01.2006.

(f) State Government taking into consideration other local conditions,
may also decide in their discretion, to introduce scales of pay
higher than those mentioned in this Scheme, and may give effect
to the revised bands/scales of pay from a date on or after
1.01.2006; however, in such cases the details of modifications
proposed shall be furnished to the Central Government and
Central assistance shall be restricted to the Pay Bands as
approved by the Central Government and not to any higher scale
of pay fixed by the State Government (s).

(g) Payment of Central assistance for implementing this scheme is
also subject to the condition that the entire scheme of revision of
pay scales, together with all the conditions to be laid down by the
UGC by way of Regulations and other guidelines shall be
implemented by State Governments and Universities and Colleges
coming under their jurisdiction as a composite scheme without any
modification except in regard to the date of implementation and
scales of pay mentioned herein above.

17. It is also stated that after receiving the aforesaid letter dated

31.12.2008, the UGC constituted an expert committee to consider the issues

and suggest follow up action as also to frame the regulation as contemplated

in the said letter dated 31.12.2008. Subsequently, in exercise of the powers

conferred under clause (e) and (g) of sub-section (1) of
Section 26
of

University Grants Commission Act, 1956 (3 of 1956), and in pursuance of the

MHRD O.M.No. F.23-7/2008-IFD dated 23rd October, 2008, read with

Page 20 of 31

Ministry of Finance (Department of Expenditure) O.M.No.F.1-1/2008-IC

dated 30th August, 2008, and in terms of the MHRD Notification No.1-

32/2006-U.II/U.I(1) issued on 31st December, 2008 and in supersession of

the University Grants Commission (Minimum Qualifications Required for the

Appointment and Career Advancement of Teachers in Universities and

Institutions affiliated to it) Regulations, 2000, issued by University Grants

Commission vide Regulation No. F.3-1/2000 (PS) dated 4th April, 2000,

together with all amendments made therein from time to time, the University

Grants Commission framed the University Grants Commission (Minimum

Qualifications for Appointment of Teachers and other Academic Staff in

Universities and Colleges and other Measures for the Maintenance of

Standards in Higher Education) Regulations, 2010.

18. The NEHU and UGC clearly stated in their respective affidavits-

in-opposition that incentives like three increments are contemplated purely

for additional qualification of a teacher of the University but Ph.D. degree is a

minimum qualification for the post of Professor, which the petitioner is

holding and the claim of the petitioner for advance increments of his

possessing Ph.D. is totally misconceived. There cannot be incentives in the

form of advance increments for possessing minimum qualification of Ph.D.

degree for the post of Professor. The incentives according to the normal

service parlance which the ordinary employee or layman understood is that

the incentives are given to the employee for acquiring additional qualification.

Holding of Ph.D. degree is an additional qualification of a teacher holding the

post of teacher for which Ph.D. degree is not an essential qualification and

there cannot be incentives in the form of advance increments for holding

minimum essential/basic qualification i.e. Ph.D. degree for the post of

Professor. The UGC under the letter dated 24.07.2002 to all the Registrars of

the Universities clarified that these two increments shall not be admissible to

Page 21 of 31

teachers, who were recruited/promoted to a post for which Ph.D. was an

essential qualification. The said letter dated 24.07.2002 of the UGC reads as

follows:-

"University Grants Commission
Bahadur Shah Zafar Marg
New Delhi-110 002.

F.5-3/2001(PS) 24 July, 2002

The Registrar
(All Universities & State Governments)
(As per list attached)

Sir, Madam,

The UGC vide its letter of even number dated 31.8.2001,
had extended the benefit of two advance increments to
teachers who acquired Ph.D. during service prior to 1.1.96 and
who did not get the benefit of any advance increments as per
earlier Career Advancement Scheme. These advance
increments were payable with effect from 27.7.98.

It is clarified that these two advance increments shall not
be admissible to teachers, who were recruited/promoted to a
post for which Ph.D. was an essential qualification.

Yours faithfully,
Sd/-

(K.P. Singh)
Deputy Secretary"

19. There is no room for interpretation of the incentives in the

manner the petitioner pleaded in the present writ petition that he would be

entitled to receive the advance increments in the form of incentives for

having Ph.D. degree. The said letter dated 24.07.2002 clearly speaks that

the advance increments shall not be admissible to teachers, who were

recruited/promoted to a post for which Ph.D. degree was an essential

qualification. It is fairly well settled law that when the legislature has spoken,

the judges cannot afford to be wiser. (Reference may be made to the

decision of the Apex Court in
Shri. Mandir Sita Ramji v. Governor of Delhi

Page 22 of 31

& Ors
reported inAIR 1974 SC 1868). The petitioner, it appears, had

misunderstood the basic principle of construction of statue while interpreting

the scheme of revision of pay of teachers and equivalent cadres in the

universities following the revision of pay scales of Central Govt. employees

on the recommendations of the Sixth Central Pay Commission i.e. the said

scheme dated 31.12.2008 and the said Regulations on minimum

qualifications for appointment of teachers and other academic staff in the

universities and colleges and measures for the maintenance of standards in

higher education 2010 and the said fitments table for fixation of salary i.e.

Table 5 to the said UGC Regulations 2010.

20. It is, no doubt, well settled that it is the basic principle of

construction of statute that the same should be read as a whole, then chapter

by chapter, section by section and word by word. Recourse to construction or

interpretation of statute is necessary when there is ambiguity, obscurity, or

in-consistency therein and not otherwise. An effort should be made to give

effect to all parts of the statute and unless absolutely necessary, no part

thereof shall be rendered superfluous or redundant. True meaning of a

provision of law is to be determined on the basis of what it provides by its

clear language, with due regard to the scheme of law (Reference may be

made to
Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd. & Ors
,

reported in (2003) 2 SCC 111.

It is cardinal rule of construction that no word

should be construed redundant or surplus in interpreting the provision of a

statute or rule (Ref:
Dinesh Chandra Sangma Vs. State of Assam & Ors
:

AIR 1978 SC 17). The Apex Court in
State of Maharashtra & Ors. Vs.

Santosh Shanker Acharya
: (2000) 7 SCC 463 held that it is too well known

principle of construction of statute that the legislature engrafted every part of

the statue for a purpose. The legislative intention is that every part of the

statute should be given effect. Legislature is deemed not to waste its words

Page 23 of 31

or to say anything in vain and a construction which attributes redundancy to

the legislature will not be accepted except for compelling reasons.

The Apex

Court in
Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd. & Ors.
:

(2003) 2 SCC 111 held that it is the basic principle of construction of statute

that statutory enactment must ordinarily be construed according to their plain

meaning and no words should be added, altered or modified unless it is

plainly necessary to do so to prevent a provision from being unintelligible,

absurd, unreasonable, unworkable or totally irreconcilable with the rest of the

statute.

21. The Apex Court in State of Gujrat & Anr v. Justice R.A.

Mehta (Retired) & Ors: (2013) 3 SCC 1 held that:

"96. In the process of statutory construction, the court must
construe the Act before it, bearing in mind the legal maxim ut
res magis valeat quam pereat which means it is better for a
thing to have effect than for it to be made void, i.e., a statute
must be construed in such a manner, so as to make it
workable. Viscount Simon, L.C. in Nokes v. Doncaster
Amalgamated Collieries Ltd.: 1940 AC 1014: (1940) 3 All ER
549 (HL) stated as follows: (AC p.1022)

"......if the choice is between two interpretations, the
narrower of which would fail to achieve the manifest
purpose of the legislation, we should avoid a
construction which would reduce the legislation to futility
and should rather accept the bolder construction based
on the view that Parliament would legislate only for the
purpose of bringing about an effective result."

97. Similarly in Whitney v. IRC: 1926 AC 37 (HL), it was
observed as under: (AC p.52)

"...... A statute is designed to be workable, and the
interpretation thereof by a court should be to secure that
object, unless crucial omission or clear direction makes
that end unattainable."

98. The doctrine of purposive construction may be taken
recourse to for the purpose of giving full effect to statutory
provisions, and the courts must state what meaning the statute
should bear, rather than rendering the statute a nullity, as

Page 24 of 31

statutes are meant to be operative and not inept. The courts
must refrain from declaring a statute to be unworkable. The
rules of interpretation require that construction, which carries
forward the objectives of the statute, protects interest of the
parties and keeps the remedy alive, should be preferred,
looking into the text and context of the statute. Construction
given by the court must promote the object of the statute and
serve the purpose for which it has been enacted and not efface
its very purpose. "The courts strongly lean against any
construction which tends to reduce a statute to futility. The
provision of the statute must be so construed so as to make it
effective and operative." The court must take a pragmatic view
and must keep in mind the purpose for which the statute was
enacted, as the purpose of law itself provides good guidance to
courts as they interpret the true meaning of the Act and thus,
legislative futility must be ruled out. A statute must be
construed in such a manner so as to ensure that the Act itself
does not become a dead letter, and the obvious intention of the
legislature does not stand defeated, unless it leads to a case of
absolute intractability in use. The court must adopt a
construction which suppresses the mischief and advances the
remedy and "to suppress subtle inventions and evasions for
continuance of the mischief, and pro privato commodo, and to
add force and life to the cure and remedy, according to the true
intent of the makers of the Act, pro bono publico". The court
must give effect to the purpose and object of the Act for the
reason that legislature is presumed to have enacted a
reasonable statute. (Vide: M. Pentiah v. Muddala
Veeramallappa: AIR 1961 SC 1107, S.P. Jain v. Krishna
Mohan Gupta: (1987) 1 SCC 191: AIR 1987 SC 222, RBI v.

Peerless General Finance and Investment Co. Ltd.: (1987) 1
SCC 424:
AIR 1987 SC 1023, Tinsukhia Electric Supply Co.
Ltd. v. State of Assam
: (1989) 3 SCC 709: AIR 1990 SC 123
SCC p.754 para 118,
UCO Bank v. Rajinder Lal Capoor
:

(2008) 5 SCC 257: (2008) 2 SCC (L&S) 263 and Grid Corpn.

of
Orissa Ltd. v. Eastern Metals and Ferro Alloys
: (2011) 11
SCC 334)."

22. The Apex Court in
Raghunath Rai Bareja & Anr v. Punjab

National Bank & Ors
: (2007) 2 SCC 230 held that:

"40. It may be mentioned in this connection that the first and
foremost principle of interpretation of a statute in every system
of interpretation is the literal rule of interpretation. The other
rules of interpretation e.g. the mischief rule, purposive
interpretation, etc. can only be resorted to when the plain words
of a statute are ambiguous or lead to no intelligible results or if
read literally would nullify the very object of the statute. Where
the words of a statute are absolutely clear and unambiguous,
recourse cannot be had to the principles of interpretation other
than the literal rule, vide
Swedish Match AB vs. Securities
and Exchange Board of India
: (2004) 11 SCC 641: AIR 2004

Page 25 of 31

SC 4219.

As held in
Prakash Nath Khanna v. C.I.T.
: (2004) 9
SCC 686, the language employed in a statute is the
determinative factor of the legislative intent. The legislature is
presumed to have made no mistake. The presumption is that it
intended to say what it has said.

Assuming there is a defect or
an omission in the words used by the legislature, the Court
cannot correct or make up the deficiency, especially when a
literal reading thereof produces an intelligible result, vide
Delhi
Financial Corpn. v. Rajiv Anand
: (2004) 11 SCC 625.

Where
the legislative intent is clear from the language, the Court
should give effect to it, vide
Government of A.P. v. Road
Rollers Owners Welfare Assn.
: (2004) 6 SCC 210 and the
Court should not seek to amend the law in the garb of
interpretation.

46. The rules of interpretation other than the literal rule would
come into play it there is any doubt with regard to the express
language used or if the plain meaning would lead to an
absurdity. Where the words are unequivocal, there is no scope
for importing any rule of interpretation vide
Pandian Chemicals
Ltd. v. CIT
: (2003) 5 SCC 590.

47. It is only where the provisions of a statue are ambiguous
that the court can depart from a literal or strict construction vide

Nasiruddin v. Sita Ram Agarwal
: (2003) 2 SCC 577: AIR
2003 SC 1543.

Where the words of a statue are plain and
unambiguous effect must be given to them vide
Bhaiji v. Sub-
Divisional Officer
: (2003) 1 SCC 692."

23. Wisdom and advisability of economic policies are ordinarily not

amendable to judicial review unless it can be demonstrated that the policy is

contrary to any statutory provision or the Constitution. In other words, it is not

for the courts to consider relative merits of different economic policies and

consider whether a wiser or better one can be evolved. In matters relating to

economic issues, the Government has, while taking a decision, right to "trial

and error" as long as both trial and error are bona fide and within limits of

authority. For testing the correctness of a policy, the appropriate forum is

Parliament and not the courts. Here the policy was tested and the motion

defeated in the Lok Sabha on 1-3-2001. (Ref:
Balco Employees' Union

(Regd) v. Union of India & Ors
: (2002) 2 SCC 333).

Page 26 of 31

24. The policy decision/ or decision of the UGC for revision of pay

scales of teachers on the recommendations of the Sixth Central Pay

Commission is not amendable to judicial review unless it can be

demonstrated that the policy is contrary to any statutory provision or the

constitution. The Apex Court in
State of U.P. & Ors v. U.P. State Tax

Officers Grade II Assn.
reported in (2003) 6 SCC 250 held that the

decision of expert body like the pay commission is not ordinarily subject to

judicial review obviously because pay fixation is an exercise requiring to go

into various aspects of the posts held in various services and nature of duties

of the employees.

The Apex Court in
K.T. Veerappa & Ors v. State of

Karnataka
: (2006) 9 SCC 406 held that Court should interfere with

administrative decision pertaining to pay fixation and pay parity when they

find such a decision to be unreasonable, unjust and prejudicial to a section of

employees and taken in ignorance of material and relevant factors.

Para 13

of the SCC in
K.T. Verrappa
's case (Supra) reads as follows:-

"13. He next contended that fixation of pay and parity in duties
is the function of the executive and financial capacity of the
Govt. and the priority given to different types of posts under the
prevailing policies of the Government are also relevant factors.

In support of this contention, he has placed reliance on State of
Haryana v. Haryana Civil Secretariat Personal Staff Assn. and

Union of India v. S.B. Vohra
.
There is no dispute nor can there
be any to the principles as settled in State of Haryana v.
Haryana Civil Secretariat Personal Staff Assn. that fixation of
pay and determination of parity in duties is the function of the
executive and the scope of judicial review of administrative
decision in this regard is very limited. However, it is also equally
well settled that the courts should interfere with administrative
decisions pertaining to pay fixation and pay parity when they
find such a decision to be unreasonable, unjust and prejudicial
to a section of employees and taken in ignorance of material
and relevant factors."

25. It is the further case of the petitioner that the petitioner was not

given an opportunity of being heard before taking decision of the NEHU for

revision of pay scale of the petitioner by the impugned order dated

Page 27 of 31

04.12.2009. The petitioner clearly misunderstood that in the present case,

there is no question of reducing pay scale of the petitioner vide impugned

order dated 04.12.2009 as a punishment and in such case, there is no

question of giving show cause notice to the petitioner before passing the

impugned order dated 04.12.2009. Over and above, there is no requirement

of giving prior notice to the employees in the case of taking policy decision or

the decision in general for the employees by the State Govt. or its

instrumentalities. The Apex Court in
Balco Employees' Union
case (Supra)

held that employees of such PSUs have no right of pre-decisional notice in

taking the policy decision involving the pay scales of the employees. Any

consequential effect of the policy decision the general decision of the

authority to the conditions of service shall be taken as an incidence of

service.

Paras 48 & 49 of the SCC in
Balco Employees' Union
case (Supra)

read as follows:-

"48. Merely because the workmen may have protection of

Articles 14
and
of the Constitution, by regarding BALCO as
a State, it does not mean that the erstwhile sole shareholder
viz. Government had to give the workers prior notice of hearing
before deciding to disinvest. There is no principle of natural
justice which requires prior notice and hearing to persons who
are generally affected as a class by an economic policy
decision of the Government. If the abolition of a post pursuant
to a policy decision does not attract the provisions of
Article 311

of the Constitution as held in
State of Haryana vs. Des Raj
Sangar
: (1976) 2 SSC 844: 1976 SCC (L&S) 336 on the same
parity of reasoning, the policy of disinvestment cannot be
faulted if as a result thereof the employees lose their rights or
protection under
Articles 14
and
of the Constitution. In other
words, the existence of rights of protection under
Articles 14

and
of the Constitution cannot possibly have the effect of
vetoing the Government's right to disinvest. Nor can the
employees claim a right of continuous consultation at different
stages of the disinvestment process. If the disinvestment
process is gone through without contravening any law, then the
normal consequences as a result of disinvestment must follow.

49. The Government could have run the industry
departmentally or in any other form. When it chooses to run an
industry by forming a company and it becomes its shareholder
then under the provisions of the
Companies Act
as a
shareholder, it would have a right to transfer its shares. When

Page 28 of 31

persons seek and get employment with such a company
registered under the
Companies Act
, it must be presumed that
they accept the right of the Directors and the shareholders to
conduct the affairs of the company in accordance with law and
at the same time they can exercise the right to sell their
shares."

26. It is well settled that when there is a conflict between law and

equity, it is the law which has to prevail. The Apex Court in
Raghunath Rai

Bareja
's case (Supra) held that:

"29. ................... that it is well settled that when there is a
conflict between law and equity, it is the law which has to
prevail, in accordance with the Latin maxim "dura lex sed lex"

which means "the law is hard, but it is the law". Equity can only
supplement the law, but it cannot supplant or override it."

27. The Apex Court in
Videsh Sanchar Nigam Ltd., & Anr v. Ajit

Kumar & Ors
: (2008) 11 SCC 591 held that a bona fide mistake does not

confer any right on any party and bona fide mistake can be corrected. In that

case, the respondents are allowed to enjoy wrong payment of D.A. on

account of some errors or bona fide mistakes; and the said bona fide

mistakes had been corrected.

Paras 46 & 47 of the SCC in
Videsh Sanchar

Nigam Ltd.
case (Supra) read as follows:-

"46. It is well settled that a bona fide mistake does not confer
any right on any party and it can be corrected. VSNL vide
subsequent Office Order bearing Ref. No. HQ-A/01-04/91-PE1
dated 18-10-1995 had rectified its mistake appearing in earlier
order dated 3-9-1993 and the said office order was again
modified by another Office Order bearing No. HQ-8A/01-04/91-
PE1 dated 19-12-1995 by which Para 2(A) of the Office Order
dated 18-10-1995 was modified to the extent as stated in the
earlier part of this judgment. The modified order was a one-time
exercise for choosing the alternatives of settlement of pension
and the pensioners were required to submit their consent to the

Page 29 of 31

regional heads in a prescribed format by 15-1-1996. The
Government of India, Ministry of Personnel, Public Grievances
and Pension (DP & PW), New Delhi, issued OM dated 22-11-
1996 (Annexure P-14) which is the nodal department of the
Government of India for taking policy decisions on pensionary
matters sent clarificatory order, a copy thereof was sent to the
Ministry of Telecommunications, Department of
Communications, dealing with the subject of payment of
pension to the employees of erstwhile OCS who were absorbed
in VSNL.

47.
In view of the above, we are of the opinion that the
benefit of DR of the CDA scales, which had been given to the
respondent retirees by mistake at the time of their retirement, is
not to be given again as clarified by the Government of India
from time to time in their various office memoranda
referred to
above
and the respondent retirees are entitled to pension to be
calculated on emoluments in the IDA pay scales."

28. The Apex Court in
Union of India & Anr v. Narendra Singh
:

(2008) 2 SCC 750 held that mistakes are mistakes and they can always be

corrected by following due process of law. Para 32 of the SCC in
Narendra

Singh
's case (Supra) reads as follows:-

"32. It is true that the mistake was of the Department and the
respondent was promoted though he was not eligible and
qualified. But, we cannot countenance the submission of the
respondent that the mistake cannot be corrected. Mistakes are
mistakes and they can always be corrected by following due
process of law. In ICAR v. T.K. Suryanarayan: (1997) 6 SCC
766 it was held that if erroneous promotion is given by wrongly
interpreting the rules, the employer cannot be prevented from
applying the rules rightly and in correcting the mistake. It may
cause hardship to the employees but a court of law cannot
ignore statutory rules."

29. For the foregoing reasons, this Court is of the considered view

that the petitioner had utterly failed to make out a case that the revision of

pay scale of the petitioner under the decision of NEHU in compliance with the

UGC Regulations, 2010 was in ignorance of material and relevant factors

and also that the NEHU cannot be prevented from correcting the mistake in

the provisional fixation of the revised pay scale of the writ petitioner.

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30. The writ petition is devoid of merit; and accordingly dismissed.

JUDGE
Lam

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