Prof. Man Mohan Singh V. Union of India & Ors

WA/56/2014

AI Insights

The case involves Prof. Man Mohan Singh, who appealed against the judgment and order dismissing his writ petition concerning his pay scale and increments at North Eastern Hill University, Shillong. The appellant argued that the university did not implement the 6th Pay Commission's recommendations and denied him three increments for holding a PhD. The university contended that the pay was correctly revised according to UGC guidelines and that the increments were not applicable as a PhD was a requisite for his position. The High Court of Meghalaya dismissed the appeal, agreeing with the university's position and finding no merit in the appellant's claims.

• Counselvise Citation: [2021] 140 COUNSELVISE.COM (IT) 800030 (HC-MEGHALAYA)
• Appeal Type: Others
• Pronouncement Date: 11-02-2021
• Assessment Year: misc
• Other Referred Cases: Prestige Lights Ltd. vs. State Bank of India, K.D. Sharma vs. Steel Authority of India Limited, Dalip Singh vs. State of Uttar Pradesh and others, Madhusudan Ghosh vs. State of West Bengal, Raj Kapoor Jaiswal & Anr vs. State of West Bengal & Ors
• Laws Referred To: CCS (Revised Pay) Rules, 2008, UGC Regulations on minimum qualifications for appointment of teachers and other academic staff in Universities and Colleges and measures for maintenance of standards in higher education, 2010
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: R DEBNATH; B DEB; S SEN
• Assessee Lawyers: VK JINDAL; E MARWEIN
• Keywords: 6th pay commission; Pay Revision; PhD Incentive; Basic Pay; Academic Grade Pay
• Section: 147; 148; 143(3); 153A; 68

Judgement Text

" WA No. 56 of 2014 Page 1 of 11 Serial No.01 Regular List HIGH COURT OF MEGHALAYA AT SHILLONG WA No. 56 of 2014 Date of Decision: 11.02.2021 Prof. Man Mohan Singh Vs. Union of India & Ors Coram: Hon’ble Mr. Justice BiswanathSomadder, Chief Justice Hon’ble Mr. Justice H. S.Thangkhiew, Judge Appearance: For the Petitioner(s)/Appellant(s): Mr. V.K. Jindal, Sr. Adv. with Ms. E. Marwein, Adv. For the Respondent(s) : Mr. R. Debnath, GCG (For R 1) Mr. B. Deb, Adv. (For R 2) Mr. S. Sen, Adv. (For R 3-6) i) Whether approved for reporting in Yes/No Law journals etc.: ii) Whether approved for publication in press: Yes/No The Court:- 1. This instant appeal has been preferred against the judgment and order dated 4th June, 2014 passed in WP(C) No. 245 of 2012. The case of the writ appellant (writ petitioner) – who has since retired – is that he was directly appointed as a Professor from 12.07.1991 in the North Eastern Hill University, Shillong. His grievances as put forth, centre around two aspects:- (i) First, that the respondent University had not implemented the Scheme of Revision of Pay in accordance with the recommendations of the 6th Pay Commission, and had acted contrary to MHRD letter dated 31.12.2008 which was approved by the Ministry of Finance vide memorandum dated 30.08.2008 as also the CCS (Revised Pay) Rules, 2008 and (ii) secondly, the denial of three increments meant for PhD holders, a type of incentive for higher qualification. By the impugned order, the said WA No. 56 of 2014 Page 2 of 11 writ petition was dismissed by the learned Single Judge, who observed that the writ appellant had utterly failed to make out any case. 2. Mr. V.K. Jindal, learned senior counsel assisted by Ms. E. Marwein, learned counsel for the appellant submits that the appellant, being a directly recruited professor, his pay falls under the category of (XIV) of clause 2A of the recommendation of the Government of India dated 31.12.2008 under the caption, „the pay structure for different categories of teachers and equivalent position shall be as indicated below (a) Assistant Professor/Associate Professor/Professor in Colleges and Universities……’. Learned senior counsel submits that as per the said clause of the recommendation, the pay of a directly recruited professor should have been fixed not below Rs. 43,000/- in the Pay Band of Rs. 37,400-67,000/- with Academic Grade Pay (AGP) of Rs 10,000/-. It is further submitted that the respondent University downgraded and reduced the Basic Pay of the appellant from Rs. 51,850/- to 48,870/- with retrospective effect from 01.01.2006, vide the impugned order dated 04.12.2009, in utter violation of the recommendation of the 6th Pay Commission. Learned senior counsel has also contended that the revised pay fixation of the incumbent Professors by the use of fitment table is arbitrary, inasmuch as, per the 6th Central Pay Commission, the pay of a directly recruited professor should be fixed on the level not below Rs. 43,000/- in the Pay Band of 37,400-67,000/- with AGP of Rs. 10,000/-. 3. The learned Senior counsel submits that the appellant has also been wrongly denied three advance increments, due as an incentive to teachers possessing a PhD degree, in terms of order dated WA No. 56 of 2014 Page 3 of 11 31.12.2008 issued by the Ministry of HRD and UGC Regulation dated 30.06.2010 (Annexure P/5). In assailing the order of the learned Single Judge, learned senior counsel reiterates his submissions that the respondent University failed to implement the recommendation of the 6th Pay Commission pursuant to the MHRD letter dated 31.12.2008, and further that the directions of the Ministry of Finance, dated 30.08.2008, CCS (Revised Pay) Rules issued by the Ministry of Personnel etc. dated 13.09.2008, which were communicated to the UGC vide Memo dated 31.12.2008, were totally ignored by the learned Single Judge. As such, he submits that the impugned judgment & order be set aside and quashed and the reliefs as prayed in the writ petition be allowed. 4. Mr. S. Sen, learned counsel for the respondent University which has been arrayed as respondents No. 3 to 6, countering the submissions of the counsel for the appellant has submitted that the allegations that the University has downgraded the revised Basic Pay Scale of the appellant is misplaced and factually incorrect and no illegality can be said to have been committed in placing the appellant in the appropriate revised Basic Pay, which was as per the recommendation of the UGC and based on the 6th Pay Commission. He further submits that the provisional fixation of pay of the appellant at Rs. 51,850/- by the University, was only for the purpose of facilitating the release of 40% of the arrears pending the receipt of the fitment table for final and appropriate fixation of the revised pay scale. 5. With regard to the point on the alleged deprivation of three increments, the learned counsel for the respondent University has WA No. 56 of 2014 Page 4 of 11 taken this Court to the affidavit filed on 10.05.2019, to further substantiate the fact that there has been no such denial of three increments as alleged. Mr. S. Sen submits that even when the writ appellant was initially appointed to the post of Reader, a PhD degree or an equivalent qualification was an essential criterion for the said post and to substantiate the same, he has referred to the advertisement dated 27.02.1984 (Annexure A to the affidavit dated 10.05.2019). He further submits that at the time when the writ appellant was appointed to the said post there was neither any regulation nor directive from the UGC providing for any incentive by way of increment for the equivalent qualifications of PhD for the post of Reader. He then submits that a PhD degree now also being an essential qualification for the post of Professor which was last held by the writ appellant, no Professor possessing a PhD qualification has been granted any incentive in the form of advance increment. In this regard he has also placed a letter dated 24.07.2002 (Annexure B to the affidavit) issued by the UGC which clarified that the benefit of two advance increments shall not be admissible to teachers who were recruited/promoted to a post for which PhD was an essential qualification. As such, he submits the appellant holding the post of Professor – wherein a PhD is an essential qualification – was not entitled in any manner to the advance increments as prayed. 6. In closing his submissions, the learned counsel for the respondents submits that the revised pay scale of the 6th Central Pay Commission has been extended to the University by a regulation namely, „the UGC Regulations on a minimum qualification for WA No. 56 of 2014 Page 5 of 11 appointment of teachers and other academic staff in Universities and Colleges and measures for the maintenance of standard in education of 2010‟. He submits that as per the said Regulation of 2010, revised salary of teachers was to be fixed strictly in accordance with the decision of the MHRD and the fixation formula developed by UGC and approved by the MHRD, as contained in Appendix-1&II of the Regulation. A bare perusal of the Regulation, he submits, would show that the revised pay scale for Professor was to be fixed strictly in accordance with the fitment table-5 as given in Appendix-II. On the contention of the appellant that his pay had been downgraded by the respondent University when the provisional fixation of pay of the appellant was at Rs. 51,850/-, the learned counsel submits that the appellant had himself signed an undertaking on 28.01.2009 to the effect that any excess payment made to him as a result of incorrect fixation or any other reasons would be refunded by him. Learned counsel strongly contends that not only was this undertaking suppressed at the time of filing the writ petition, but in fact demolishes the case of the appellant from its very root itself. He then concludes his submissions, by maintaining that the learned Single Judge had rightly decided the matter and that the writ appeal deserves no consideration. 7. We have heard learned counsel for the parties and considered their submissions. As noted earlier and also as advanced by the learned counsel for the parties, the only two aspects on which the entire case of the writ appellant hinges upon are re-fixation of the pay scale and the purported denial of advance increments. In this backdrop, in an Intra-Court Mandamus appeal, we are required therefore only to WA No. 56 of 2014 Page 6 of 11 examine whether the impugned judgment suffers from any palpable infirmity or perversity based on the findings arrived at by the learned Single Judge in respect of the two aspects indicated hereinabove. 8. From the impugned order, it is evident that the learned Single Judge has gone into great detail and examined all aspects of the matter, as put forth by the appellant and countered by the respondents. It is noted from paragraph-3 of the judgment itself, that the learned Single Judge has observed as follows: “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 tables 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 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.” WA No. 56 of 2014 Page 7 of 11 9. The learned Single Judge has noted that the Ministry of Human Resources Development, Department of Higher Education, under letter dated 31.12.2008 had informed the Scheme of Revision of Pay of teachers and equivalent cadres in the Universities and Colleges, following the recommendations of the 6th Central Pay Commission to the Secretary, UGC. The Scheme also mandated that the Universities implementing the Scheme shall be advised by UGC to amend the relevant Statutes and Ordinances in line with the UGC Regulations within 3(three) months from the date of issue of the letter. Accordingly, the respondent University, pursuant to the said Scheme of Revision of Pay scales dated 31.12.2008 at the 23rd Emergent meeting of the Executive Council held on 20.02.2009, resolved to approve the recommendations of the Academic Council to accept the Revision of Pay scales, etc. and that payment of arrears upto 40% of the total arrears were to be made latest by 25.02.2009. It is apparent that it was only in this context that the respondent University provisionally revised the pay scale of the writ appellant and other Professors and the provisional revised pay of the petitioner on the basis of the basic pay, which was Rs. 21,900/- per month as on 01.01.2006 was fixed at Rs. 51,850/- in the pay band of Rs. 37,400-67,000/- + Academic Grade Pay of Rs. 10,000/-. 10. Consequently, the UGC in pursuance to the Scheme dated 31.12.2008 on 30.06.2010 brought out “The UGC Regulations on minimum qualifications for appointment of teachers and other academic staff in Universities and Colleges and measures for maintenance of standards in higher education, 2010. Under this WA No. 56 of 2014 Page 8 of 11 Regulation of 2010, the essential qualifications of PhD for Professor was mentioned and also the fitment table of fixation of salary of Professors in the Universities and Colleges was given. As per the said fitment table, which is reproduced in the impugned order at paragraph- 8, it can be clearly seen that the pre-revised pay of the writ appellant which was Rs. 21,900/-, as on 01.01.2006, by application of the fitment table would now be in the pay band of Rs. 48,870 with the revised basic pay fixed at Rs. 58,870/-. As such, the fitment being as per the prescribed fitment table, the claim of the writ- appellant that his revised scale be reckoned from the pay provisionally fixed by the respondent University (NEHU) at Rs. 51,870/- as on 01.01.2006 instead of the admitted amount of Rs. 21,900/- as on 01.01.2006, does not hold any water and the findings of the learned Single Judge in this regard cannot be faulted with. 11. As discussed and noted earlier, the respondent University had revised the pay scale of the writ appellant and other teachers provisionally only for the purpose of releasing 40% of the arrears and that on receipt of the Fitment Table, the writ-appellant as well as other Professors had been placed in the appropriate pay band. The writ appellant himself – it can be safely inferred – being aware that the pay was provisional had executed an undertaking on 06.03.2009 to refund any amount caused by incorrect fixation of pay in a revised scale, in order to avail of the 40% arrears, which was based on the provisional fixation. This undertaking was never disclosed by the writ petitioner in his writ petition. The suppression by the writ appellant of this fact has also been noted and recorded by the learned Single Judge, and the said WA No. 56 of 2014 Page 9 of 11 undertaking is also reproduced at paragraph-14 of the impugned judgment. 12. At this stage, we must observe, it is palpably evident that the writ-appellant had suppressed material facts before the First Court. As such, his bona fides immediately became suspect. Discretionary relief under Article 226 of the Constitution of India is not available to a person such as the writ-appellant. He has, in fact, abused the process of Court by indulging in such suppression of material facts by not disclosing the undertaking which he had himself furnished before the respondent University. In this context, the observations of the Hon’ble Supreme Court in three of its judgments were noticed by one of us (Biswanath Somadder), while rendering a judgment on 3rd August, 2016 in W.P. 5296 (W) of 2016 (Madhusudan Ghosh vs. State of West Bengal) reported in AIR 2016 (NOC) 740 (CAL.) = 2017(1) CHN (CAL) 233, in paragraphs 7, 8 and 9, which are reproduced hereinbelow:- “7. In this context, one may take notice of the judgments rendered by the Supreme Court in Prestige Lights Ltd. vs. State Bank of India, reported in (2007) 8 SCC 449: (2007 AIR SCW 5350); K.D. Sharma vs. Steel Authority of India Limited, reported in (2008) 12 SCC 481 : (AIR 2009 SC (Supp) 1309) and Dalip Singh vs. State of Uttar Pradesh and others, reported in (2010) 2 SCC 114 : (AIR 2010 SC (Supp)116). 8. As it is palpably evident that the petitioner has suppressed material facts, his bonafides immediately become suspect. Discretionary relief under Article 226 of the Constitution of India is not available to a person such as the writ petitioner. However, should the writ Court stop at that? The answer is a clear and unequivocal, no. The ratio of the judgments of the Supreme Court„ “referred hereinbefore „ “goes even a step further. While following the ratio of the decision rendered by the King— s Bench in R. v. Kensington Income Tax Commissioners, reported in (1917) 1 KB WA No. 56 of 2014 Page 10 of 11 486 (CA), it has been observed to the effect that a writ petitioner who does not come with candid facts and „clean breast‟ cannot hold a writ of the Court with „soiled hands‟. Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, manoeuvring or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the writ petitioner does not disclose all material facts fairly and truly, but states them in a distorted manner and misleads the Court, the Court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the Rule NISI and refuse to proceed further with the examination of the case on merits. If the Court does not reject the petition on that ground, the Court would be failing in its duty. In fact, such a writ petitioner requires to be dealt with for contempt of Court for abusing the process of the Court. 9. Based on the above observations„ “ culled out from the ratio of the three judgments of the Supreme Court‟ “ and applying them in the facts of the instant case, this Court is of the view that not only the bona fides of the writ petitioner are suspect‟ “having suppressed material facts‟ “ by such action, he has also abused the process of Court by seeking to invoke the high prerogative jurisdiction of this Court under Article 226 of the Constitution of India, which is essentially discretionary in nature.” Madhusudan Ghosh (supra) was later relied upon and followed by a Division Bench of the High Court at Calcutta in a judgment and order rendered on 7th February, 2017 in FMA 19 of 2017 with CAN 10660 of 2016 (Raj Kapoor Jaiswal & Anr vs. State of West Bengal & Ors). 13. On the second aspect, i.e. the entitlement to draw three advance increments, the arguments, as put forward and averred on affidavit by the respondent University and as also observed by the learned Single Judge, that a PhD being a minimum requirement for the post of Professor which the writ-appellant is holding, the claim for advance increments on the attendant facts and circumstances is totally misplaced and unsustainable. WA No. 56 of 2014 Page 11 of 11 14. For reasons stated above, in the absence of any palpable infirmity or perversity, we do not find any cogent or justifiable reason to interfere with the impugned judgment and order passed by the learned Single Judge while sitting in an Intra-Court Mandamus Appellate jurisdiction. The writ-appeal is therefore liable to be dismissed and stands accordingly dismissed. (H.S. Thangkhiew) (BiswanathSomadder) Judge Chief Justice Meghalaya 11.02.2021 “V. Lyndem PS” "