The High Court
Case Details
THE HIGH COURT OF MEGHALAYA AT SHILLONG. WP(C) NO.(SH)204/2012 Mr.Manidhish Bhattacharjee, S/o Shri.Sitangshu Kumar Bhattacharjee, R/o Wearian Lane, Arbuthnot Road, Laitumkhrah, Shillong-793003, East Khasi Hills District, Meghalaya. -Vs- The North Eastern Hill University (NEHU), a University established under an Act of Parliament represented by the Registrar, NEHU Campus, Mawkynroh Umshing, Shillong-793022, Meghalaya. The Registrar, North Eastern Hill University, NEHU Campus, Mawkynroh Umshing, Shillong-793022, Meghalaya. Shri. Lal Kishor Rathaur, Presently serving as Junior Engineer, North Eastern Hill University, NEHU Campus, Mawkynroh Umshing, Shillong-793022, Meghalaya. 1. 2. 3. :::: Petitioner :::: Respondents. BEFORE THE HON’BLE MR JUSTICE T NANDAKUMAR SINGH For the Petitioner For the Respondents Date of hearing Date of Judgment & Order : : : : Mr. HS Thangkhiew, Sr.Adv, Mr. N. Mozika, Adv. Mr. K Khan, Adv for respdt.No.1&2. Mr. BK Das, Adv for respdt.No.3. 12.06.2013 03.07.2013 WP(C) NO.(SH)204/2012 Page 1 of 26 (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:7)(cid:3)(cid:9)(cid:11)(cid:12)(cid:3)(cid:6)(cid:12)(cid:9)(cid:9)(cid:9)(cid:9) (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:7)(cid:3)(cid:9)(cid:11)(cid:12)(cid:3)(cid:6)(cid:12) (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:7)(cid:3)(cid:9)(cid:11)(cid:12)(cid:3)(cid:6)(cid:12) (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:7)(cid:3)(cid:9)(cid:11)(cid:12)(cid:3)(cid:6)(cid:12) By this writ petition, the petitioner is questioning the partiality in fixation of his pay as Junior Engineer lower than that of the respondent No.3, who is admittedly junior to the writ petitioner as Junior Engineer. (cid:9)(cid:9)(cid:9)(cid:9) 2. Heard Mr. HS Thangkhiew, learned senior counsel assisted by Mr.N Mozika, learned counsel appearing for the petitioner, Mr. K Khan, learned counsel appearing for the respondents No.1 & 2 and Mr. BK Das, learned counsel for the respondent No.3. 3. A short factual panorama, sufficient for deciding the matter in issue in the present writ petition, is recapitulated as under:- The petitioner on the recommendation of the duly constituted Selection Committee was appointed as Junior Engineer (Electrical) in the respondent-university on regular basis vide Appointment Order No.F.8-2/Estt- I/90/4168 dated 20.08.1991 and pursuant to the said appointment order, the petitioner joined his duty as regular Junior Engineer on 20.08.1991 and continued to serve in the post till date. The petitioner, as reflected in the pay slip for the month of March, 2012, is placed in pay band of Rs.9300/- to Rs.34,800/- pm and his basic pay at present is Rs.16,550/-pm. 4. The respondent No.3 was initially appointed as Work Charged Junior Engineer w.e.f. 26.02.1990 in pay scale of Rs.1400-40-EB-1800-50-2300/- plus allowances as admissible under the University from time to time. It is an
Legal Reasoning
admitted case of both the parties that the respondent No.3 was initially appointed as Work Charged Junior Engineer w.e.f. 26.02.1990 and the appointment was made purely on temporary basis subject to termination at any time without assigning any reason. Subsequently, the respondent No.3 was brought to the WP(C) NO.(SH)204/2012 Page 2 of 26 regular establishment and on the recommendation of the Selection Committee was appointed as Junior Engineer on regular basis in the respondent-university w.e.f. 06.01.1999 vide Appointment Order No.F.8-2/Estt-I/Appt/90-1016 dated 21.08.1999 and the basic pay of the respondent No.3 was fixed at Rs.4500/- as indicated in the said regularization order dated 21.08.1999. 5. At the time of regular appointment of the respondent No.3 in the year 1999, the petitioner had already accrued several increments and as such, his basic pay for the month of January, 1999 was Rs.5850/-, whereas, the basic pay of the respondent No.3 for the month of January, 1999 as mentioned in the appointment order was Rs.4500/- pm only. Therefore, the petitioner being the senior Junior Engineer was getting more pay than that of the respondent No.3 in the month of January, 1999 i.e. at the time of joining the respondent No.3 as regular Junior Engineer in the respondent-university. 6. Even though the respondent No.3 was admittedly working as Work Charged Junior Engineer till he was brought to the regular establishment of the respondent-university vide the said order dated 21.08.1999 appointing him as regular Junior Engineer w.e.f. 06.01.1999, the whole period of service of the respondent No.3 as Work Charged Junior Engineer was taken as regular service and accordingly, he was allowed to enjoy regular annual increment, right from the date of his joining as Work Charged Junior Engineer vide Resolution No.EC 98:98:6.6(vi); and also the pay of the respondent No.3 was re-fixed and as reflected in the pay slip for the month of March, 2012, the basic pay of the respondent No.3 at present is Rs.16,940/-. Though the retrospective regularization was accorded to the respondent No.3 w.e.f. the date of his initial appointment as Work Charged Junior Engineer i.e. 26.02.1990, the seniority of the petitioner and the respondent No.3 were reckoned from the dates of their WP(C) NO.(SH)204/2012 Page 3 of 26 respective regular appointments viz 20.06.1991 (for the petitioner) and 06.01.1999 (for the respondent No.3) respectively. In the final inter-se seniority list prepared by the respondent-university, the petitioner by virtue of his regular appointment on 20.08.1991, had been made senior to the respondent No.3, who joined as regular Junior Engineer only on 06.01.1999. In the Gradation List issued vide Office Order No.F.22-35/Estt-I/Apptt/8-805 dated 14.12.2007, the name of the petitioner appeared at Srl.No.7, whereas, the name of the respondent No.3 appeared at Srl.No.9. 7. Therefore, the parties admitted that the petitioner is senior to the respondent No.3 in grade or in the post of Junior Engineer. Further, it is not the case of the parties that the respondent No.3 was allowed to enjoy special pay because of his onerous special duty performed by the respondent No.3 as regular Junior Engineer. As the said anomalous situation or anomaly in pay was created by the respondent-university because of treating the whole length of work charged service of the respondent No.3 as regular Junior Engineer, the petitioner submitted several representations. The Executive Council of the respondent-university in order to remove the anomaly in pay, constituted a Five Members Committee under the Chairmanship of Professor Lalthantluanga to look into the matter. The Committee after careful examination of the matter, came into conclusion that the regularization of the service of the respondent No.3 was irregular as his engagement as work charged employees should have been terminated when the project against which, he was engaged came to an end. The Committee, accordingly, vide minutes of the meeting dated 06.11.2008 recommended two options to set right the anomaly:- (a) Since the regularization of the service of the respondent No.3 was irregular, his case might be reviewed and his pay be refixed. OR WP(C) NO.(SH)204/2012 Page 4 of 26
Legal Reasoning
(b) Stepping up of pay might be granted to Shri.Manidhish Bhattacharjee (the petitioner herein) and Shri. M.S. Cidiki, who are senior to Shri. Rathaur (respondent No.3) at par with their junior Shri.L.K. Rathaur (respondent No.3 herein). The copy of the Minutes of the meeting of the said Committee dated 06.11.2008 is available at the Annexure to the writ petition. For easy reference, the minutes of the meeting of the said Committee held on 06.11.2008 is quoted hereunder:- “MINUTES OF THE COMMITTEE TO LOOK INTO THE REPRESENTATION OF SHRI M.BHATTACHARJEE, JUNIOR ENGINEER, FOR STEPPING UP OF PAY HELD ON 6TH NOVEMBER, 2008 AT 2.30P.M. The Committee appointed by the Vice-Chancellor to look into the case of Shri Manidhish Bhattacharjee, Junior Engineer; who joined the University on 20.09.1991 and who was drawing less pay than that of Shri. L.K.Rathore, Junior Engineer, who joined the University on 06.01.1999; met on 6th November, 2008, in the Conference Room of the Administrative Building, NEHU, Shillong. The following members were present: 1.Prof. Lalthantluanga, Dept. of Bio-Chemistry - Chairman 2.Prof. D.T.Khathing, Registrar - Member 3.Prof. D.R.Syiemlieh, Controller of Examinations- Member 4.Shri P.C.Majhi, Finance Officer 5.Smti D.Bareh, Deputy Registrar (Estt.-I) - - Member Member At the outset, the Chairman welcomed the members of the Committee, and the Convener informed the Chairman that Prof. K.Ismail had communicated about his inability to attend the meeting as he would be out-of-station. The Committee examined the appointment of Shri L.K.Rathore who was first engaged by the University Engineer vide Order No.CD/Acctin/32/88-89/4625, dated 15.02.1990 in the scale of pay of Rs.1400-40-1800-50-2300, as Work Charged employee WP(C) NO.(SH)204/2012 Page 5 of 26 and he joined on 26.02.1990. The engagement was temporary and his services might be terminated at any time without assigning any reason thereon. There was no subsequent Order(s) to show that Shri Rathore was further engaged as Work charged employee till his regular appointment as Junior Engineer on 06.01.1999. The engagement as Work Charged employee is temporary in nature, but the Executive Council Committee in its meeting held on 29.08.1998 recommended for consideration of his case as regular appointment as per the University rules as and when vacancy arises, and the E.C., vide Resolution EC:98:98:6:6(vi), accepted the recommendation of the Committee that his case might be settled within 1998. The Committee examined and found that the regularization of the case of Shri L.K.Rathore was irregular as his engagement as Work Charged employee should have been terminated when the project against which he was engaged, came to an end. The Committee recommended either 2(two) options to set right this case as follows: 1) Since the regularization of the service of Shri L.K.Rathore was irregular, the case of Shri Rathore might be reviewed and his pay might be re-fixed. OR 2) The Committee recommended that stepping up might be granted to Shri Manidhish Bhattacharjee and Shri M.S. Cidiki who is also Senior to Shri Rathore at par with their junior, Shri L.K.Rathore, Junior Engineer. The meeting ended with a vote of thanks from the Chair. Sd/- (Prof.R.Lalthantluanga) (Prof.D.T.Khathing) (Prof.D.R.Syiemlieh) Sd/- Sd/- Chairman Member Member The said Resolution of the Committee dated 06.11.2008 was placed before the Executive Council of the respondent-university. The Agenda WP(C) NO.(SH)204/2012 Page 6 of 26 placed before the Executive Council of the respondent-university, reads as follows:- “AGENDA FOR THE EXECUTIVE COUNCIL STEPPING UP OF PAY IN RESPECT OF SHRI. MANIDHISH BHATTACHARJEE, JUNIOR ENGINEER. Shri. Manidhish Bhattacharjee joined the University as regular Junior Engineer on 20.08.1991 and has represented that Shri. L.K. Rathore, Junior Engineer, who was appointed on regular basis w.e.f. 06.01.1999, was drawing more salary, though junior to him. The representation dated 26.11.2007 may kindly be referred to at Annexure-A. In this connection, it may be stated that Shri. L.K. Rathore was initially engaged as Worked Charged Assistant Junior Engineer in the core pay scale of Rs.1400-40-EB-1800-50-2300 plus allowances as per the Appointment Order No.CD/Acctts/32/68- 69/4625 dated 19.2.1990 (Annexure-B). His engagement was purely temporary and was to be terminated any time without assigning any reason or it was to be terminated after the completion of the project against which he was initially engaged. Thereafter, neither any subsequent Orders were in continuation of his original engagement as Work-Charge employee nor was it terminated after completion of the project against which he was engaged as Work-Charge Junior Engineer till his regular appointment as Junior Engineer on 06.01.1999. issued The Executive Council, vide Resolution No.EC:97:98:6:6(x), constituted a Committee to look into the case of grant of increment and regularization of service in respect of Shri. L.K. Rathore, Work- Charge Junior Engineer, and the minutes of the EC Committee meeting held on 29.08.1998 may kindly be referred to at Annexure- C. The EC, vide Resolution No.EC:98:98:6:6(vi), considered the case of Shri. L.K. Rathore and accepted the recommendation of the Committee appointed by it. The Council further resolved that his case may be settled within 1998. Since the case of Shri. L.K. Rathore has been regularized, Shri. Rathore, Junior Engineer, was drawing more salary than Shri.Manidhish Bhattacharjee, Junior Engineer, though his regular appointment was only from 6.1.1999, and as per the seniority list, Shri.Manidhish Bhattacharjee is senior to that of Shri. L.K. Rathore and the final seniority list vide Order No.F.22-35/Estt.-I/Apptt/89-805 dated 14.12.2007, may kindly be referred to at Annexure-D. the regularization The office, while examining representation of Shri.Manidhish Bhattacharjee, Junior Engineer, felt that the case of Shri. Bhattacharjee is not feasible as the length of service of Shri. L.K.Rathore after that of Shri.Manidhish Bhattacharjee. Shri. Bhattacharjee has claimed solely on the basis of seniority list ignoring the administrative aspects such as length of service, date of increment, etc. and as per rule FR 22-C, if the junior draws from time to time a higher rate of pay than the seniority by virtue of grant of advance increment or on any other account, the provision will not be invoked to set up the pay of senior officer. This may kindly be referred to at Annexure-E. longer than is WP(C) NO.(SH)204/2012 Page 7 of 26 following members The Vice-Chancellor constituted a Committee consisting of representation of look the Shri.M.Bhattacharjee, Junior Engineer, for stepping up of pay with reference to Shri.L.K.Rathore, Junior Engineer. into the to 1. Prof.Lalthantluanga, Dept. of Bio-Chemistry – Chairman 2.Prof.K.Ismail, Dean, School of Physical Scs. & Technology – Member 3. Prof.D.T.Khating, Registrar – Member 4. Prof.D.R.Syiemlieh, Controller of Examinations – Member 5. Prof.P.C. Majhi, Finance Officer – Member 6. Smti.B Bareh, Deputy Registrar (Estt.-I) – Convener The Committee met on 6.11.2008, and the Minutes of the Committee may kindly be referred to at Annexure-F, where it recommended either of the following two options to set right the case. 1) Since the regularization of the service of Shri. L.K. Rathore was irregular, the case of Shri.Rathore might be reviewed and his pay might be re-fixed. OR 2) The Committee recommended that stepping up might be granted to Shri.Manidhish Bhattacharjee and Shri. M.S. Cidiki, who is also senior to Shri.Rathore, at par with their junior, Shri.L.K. Rathore, Junior Engineer. The matter is placed to the Executive Council for consideration.” The Executive Council after consideration of the recommendation of the said Committee, had accepted the recommendation of the Committee vide Resolution dated 07.06.2010, which reads as follows:- “(ii) Case of Shri.L.K. Rathaur, Junior Engineer in connection with all such Engineers in NEHU. No.EC:142:2010:4:(ii): The Council considered the case of Shri.L.K. Rathaur, Junior Engineer in connection with all such Engineers in NEHU, and RESOLVED that stepping up of pay already allowed to Shri.J Kalita and Shri. K Biswas, Junior Engineers stands and the request of Shri.M.Bhattacharjee and Shri.M.S. Cidiki for stepping up of their pay allowed. The Council further RESOLVED to regret the seniority claimed by Shri.L.K. Rathaur.” WP(C) NO.(SH)204/2012 Page 8 of 26 8. The said Resolution i.e. Resolution No.EC:142:2010:4(ii) of the Executive Council/respondent-university, which had been quoted above, to step up the pay of the petitioner at par with his junior i.e. respondent No.3 was not implemented for the reason best known to the respondent-university. But by a subsequent Resolution of the Executive Council in its meeting held on 24.05.2011 being EC:146:2011:6:6:(ii), held that stepping up of pay of the petitioner with reference to the respondent No.3 is not admissible to him. For ready reference, the said Resolution of the Executive Council dated 24.05.2011 is quoted hereunder:- “(ii) Stepping up of pay of Shri.M.Bhattacharjee and Shri.M.S.Ciddiki, J.E. with reference to Shri.L.K.Rathaur, J.E. NO:EC:146:2011:6:6:(ii): The Council considered stepping up of pay of Shri.M.Bhattacharjee and Shri.M.S.Ciddiki, J.E. with reference to Shri.L.K.Rathaur, J.E., and after discussion on the matter the Council RESOLVED to regret the same as stepping up of pay is not admissible to them.” 9. On bare perusal of the impugned Resolution dated 24.05.2011, it is clear that no reason had been assigned for reviewing the earlier resolution dated 06.11.2008 for stepping up of pay scale of the writ petitioner at par with that of the respondent No.3 and also for what reason stepping up of pay scale of the writ petitioner at par with his junior i.e. respondent No.3, is not admissible to him. Hence, this writ petition for quashing the said Resolution of the Executive Council dated 24.05.2011, which is a cryptic and non-speaking one and also for a direction to the respondent-university to remove the anomaly in pay between the petitioner and his junior i.e. respondent No.3 by stepping up of pay of the petitioner at par with that of the respondent No.3. 10. The respondent-university had filed affidavit-in-opposition, wherein, the respondent-university did not deny that the Executive Council of the respondent-university, on the basis of the said recommendation of the said WP(C) NO.(SH)204/2012 Page 9 of 26 Committee (specially constituted Committee under the Chairmanship of Prof. Lalthantluanga) in its meeting held on 06.11.2008, had passed the Resolution
Decision
dated 07.06.2010 for stepping up of pay scale of the writ petitioner at par with the respondent No.3. The respondent-university also did not deny that the impugned Resolution dated 24.05.2011, does not mention any reason for passing the Resolution that stepping up of the pay scale of the petitioner at par with that of the respondent No.3 is not admissible to the writ petitioner, but the respondent- university is trying to justify the impugned Resolution by mentioning different reasons in the counter affidavit. It is well settled law that the satisfaction of the authority to form an opinion as to a particular fact is subject to judicial review, the Court can determine whether the formation of opinion is arbitrary, capricious or whimsical. It is always open to the court to examine the question whether the reasons for formation of opinion have rational connection or relevant bearing to the formation of such opinion and are not extraneous to the purposes of the statue. Public opinion or public orders must be construed objectively with reference to the language used in the order itself. The opinion cannot be construed in the light of explanations subsequently given by the decision making authority in the form of affidavit or otherwise. Reference may be made to the decisions of the Apex Court in Commr. of Police vs. Gordhandas Bhanji: AIR 1952 SC 16, Mohinder Singh Gill vs. Chief Election Commr.: (1978) 1 SCC 405: AIR 1978 SC 851 and Bhikhubhai Vithlabhai Patel vs. State of Gujarat & Anr: (2008) 4 SCC 144. 11. It is clear from the ratio decidendi of the above cases that the public order cannot be construed in the light of the explanations subsequently given by the decision making authority and it is also open to the court to determine whether the formation of opinion is arbitrary, capricious or whimsical. Coming back to the present case, the impugned Resolution of the Executive Council WP(C) NO.(SH)204/2012 Page 10 of 26 dated 24.05.2011 is a cryptic one and no reason is given for denying the stepping up of pay scale of the petitioner at par with his junior i.e. the respondent No.3. Even only on this score, the impugned Resolution of the Executive Council of the respondent-university is liable to be quashed. Paras 33 and 35 of the SCC in Bhikhubhai Vithlabhai Patel’s case (Supra), read as follows:- “33. The court is entitled to examine whether there has been any material available with the State Government and the reasons recorded, if any, in the formation of opinion and whether they have any rational connection with or relevant bearing on the formation of the opinion. The court is entitled particularly, in the event, when the formation of the opinion is challenged to determine whether the formation of opinion is arbitrary, capricious or whimsical. It is always open to the court to examine the question whether reasons for formation of opinion have rational connection or relevant bearing to the formation of such opinion and are not extraneous to the purposes of the statue. 35. Be that as it may, the impugned preliminary notification itself does not reflect formation of any opinion by the State Government that it had become necessary to make substantial modifications in the draft development plan and, for that reason, instead of returning in the plan, decided to publish the modifications so considered necessary in the Official Gazette along with the notice inviting suggestions or objections with the proposed modifications. It is very well settled that public orders publicly made, in exercise of a statutory authority, cannot be construed in the light of the explanations subsequently given by the decision-making authority. Public orders made by the authorities are meant to have public effect and must be construed objectively with reference to the language used in the order itself. (See Commr. of Police vs. Gordhandas Bhanji: AIR 1952 SC 16 and Mohinder Singh Gill vs. Chief Election Commr.: (1978) 1 SCC 405: AIR 1978 SC 851)”. respect to 12. The Apex Court in Ravi Yashwant Bhoir vs. District Collector, Raigad & Ors: (2012) 4 SCC 407, held that “it is a settled proposition of law that even in administrative matters, the reasons should be recorded as it is incumbent upon the authorities to pass a speaking and reasoned order.” Paras 38, 39, 40, 41, 42, 43, 44, 45 & 46 of the SCC in Ravi Yashwant Bhoir’s case (Supra), read as follows:- “38. It is a settled proposition of law that even in administrative matters, the reasons should be recorded as it is incumbent upon the authorities to pass a speaking and reasoned order. WP(C) NO.(SH)204/2012 Page 11 of 26