IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF OCTOBER, 2019 BEFORE BETWEEN:
THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.47845/2011(S-RES) SIRAJUDDIN AGED ABOUT 61 YEARS, S/O A. NAZIRUDDIN EARLIER WORKING AS SENIOR ADMINISTRATIVE OFFICER AT THE INDIAN INSTITUTE OF MANAGEMENT, BANGALORE.
SINCE RETIRED AND RESIDING AT NO. 339, 7TH CROSS, VI PHASE, 1ST STAGE, WEST OF CHORD ROAD, BANGALORE 560010.
(BY SRI SIRAJUDDIN (PARTY-IN-PERSON)) ... PETITIONER AND:
INDIAN INSTITUTE OF MANAGEMENT, BANNERGHATTA ROAD, BANGALORE 560076. REPRESENTED BY ITS CHIEF ADMINISTRATIVE OFFICER.
(BY SRI SYED KASHIP ALI, ADVOCATE FOR SRI PRADEEP S SAWKAR, ADVOCATE) … ... RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 11.11.11 PASSED BY THE RESPONDENT (UNDER ANNEXURE-K TO THE WRIT PETITION) BY ISSUE OF A WRIT IN THE NATURE OF CERTIORARI AND DIRECT THE RESPONDENT BY ISSUE OF A WRIT IN THE NATURE OF MANDAMUS TO SET RIGHT THE ANOMALY AND FIX THE PAY OF THE PETITIONER IN THE GRADE PAY OF RS.7600/-UNDER THE CENTRAL CIVIL SERVICES (REVISED PAY) RULES, 2008 AND GRANT HIM ALL CONSEQUENTIAL BENEFITS INCLUDING PAYMENT OF ARREARS OF SALARY FROM 23.5.2007 TILL THE DATE OF HIS SUPERANNUATION AND ACCORDINGLY REGULATE AND PAY RETIRAL BENEFITS THAT WOULD FLOW FROM SUCH ORDER ALONG WITH INTEREST AT 18% FROM THE DATE OF SUPERANNUATION OF THE PETITIONER TILL THE DATE OF PAYMENT.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner-Party-in-Person has filed the present writ petition for a writ of certiorari quashing the impugned order dated 11.11.2011 passed by the respondent – Annexure-K and a writ of mandamus directing the respondent to set right the anomaly and fix the pay of the petitioner in the grade pay of Rs.7,600/- under the Central Civil Services (Revised Pay) Rules, 2008 (herein after called as ‘Rules’) and grant him all consequential benefits including payment of arrears of salary from 23.5.2007 till the date of his superannuation and accordingly, regulate and pay retiral benefits that would flow from such order along with interest at 18% per annum from the date of superannuation of the petitioner till the date of payment.
2. It is the case of the petitioner that he joined the service of the respondent in the Indian Institute of Management as Lower Division Clerk with effect from 1.3.1974. Owing to his blemishless record of service, honesty, integrity and devotion to duty, he was promoted from time to time to the Higher Cadres viz., in the year 1990, he was promoted to the Cadre of Superintendent and in the year 1994, he was promoted to the cadre of Senior Superintendent on 24.3.2003. It is further contended that the petitioner was appointed as the Administrative Officer and was posted to discharge the duties of Administrative Officer (P & A). When he was working as Administrative Officer in the year 2007, he was further promoted by the order dated 23.5.2007 to the cadre of Senior Administrative Officer in the pay-scale of Rs.10000-325-15200 with effect from 23.5.2007. It was also indicated in the order that option was to be exercised by the petitioner within one month indicating the date on which he would require the pay to be fixed in the scale of pay of the new post as per the Fundamental Rule 22(i)(a)(1)of the ‘Rules’. It was further ordered that in all service matters, he would be governed by the Rules in force of the Institute and orders regarding pay fixation would be issued separately. It is his further case that the post of Senior Administrative Officer is equivalent to that of Personal Manager in the respondent Institute in terms of the post being in the same payscale and that has been treated so in the respondent-Institute and he was assigned the work of Personal Manager only.
3. It is the further case of the petitioner that when he was functioning as Senior Administrative Officer, two persons came to be appointed – One Mr. Mohapatra Dilip Kumar to the Post of Campus Computer Manager and another Ms. Gayathri Subramanian to the Post of Manaager, Finance and Accounts. The person appointed as Campus Computer Manager by order dated 22.1.2009 was appointed with Grade Pay of Rs.7,600/- in the pay-scale of Rs.15600-39100 and another person was appointed as Manager, Finance and Accounts by order dated 1.9.2009 with Grade Pay of Rs.7,600/- in the pay scale of Rs.15600-29100. Under the Recruitment and Promotion Rules of the respondent/IIM, the posts to which the above said two persons namely Mr. Mohapatra Dilip Kumar, who was appointed as Campus Computer Manager and Ms. Gayathri Subramanian, who was appointed as Manager, Finance and Accounts, are posts which are equivalent to the post of Senior Administrative Officer which the petitioner was holding as per Annexure-A. It also depicts that all the three posts of Manager Computer Center, Personal Manager and Senior Finance Officer are in the same pay scale of Rs.10000-325-15200.
4. It is further contended that the petitioner was working as Senior Administrative Officer in the respondent/IIM was way far senior to the persons so recruited under Annexures-C and D. While fixing the pay of the petitioner, by the order dated 23.5.2007, it was stated that it would be done at a later point of time and separate orders would be issued; ; what was given to him was grade pay of Rs.6600/- and was placed in the pay scale of Rs.10000-325-15200. Pursuant to the recommendations of the Sixth Central Pay Commission, the pay scale of Rs.10000-325-15200 which was the pay scale in the Fifth Central Pay Commission was enhanced to Rs.15600-39100 with Grade pay of Rs.6600/-. The corresponding pay scale comes under S-19 i.e., Rs.10000-325-15200 in pay band PB-3 with the revised pay scale of Rs.15600-39100. In terms of the recommendation of the Sixth Central Pay Commission this pay scale carried a Grade pay of Rs.6600. Two persons whose reference is made above, were recruited after the recommendations of the Sixth Central Pay Commission in the pay scale of Rs.15600- 39100 and were granted Grade Pay of Rs.7600/-. Grade Pay of Rs.7600/-is coming under Block S-21 in the recommendations of the Sixth Central Pay Commission which was not the pay fixed for the persons referred to above. Therefore, he brought to the notice of the respondent/IIM by his representation dated 21st April, 2010 regarding the Grade Pay that is granted to him and further referred to the 90th Meeting of the Board of Governors which approved the Grade Pay of Rs.6600/- for a particular Pay Scale under the Recruitment and Promotion Rules. The appointments of the two persons referred to above were higher than the approved Pay Scale as recommended by the Sixth Central Pay Commission and as adopted by the Board of Governors in its 90th Meeting held on 15th July, 1999, but the respondent/IIM did not reply to the representation made by the petitioner. The petitioner retired on attaining the age of superannuation on 31.8.2010 with a strong grievance of anomaly that had occurred by way of his colleagues, who were fresh recruiters getting higher pay that his and had to retire without the IIM setting right the said anomaly. The respondent without considering the representation of the petitioner rejected his claim by the impugned order Annexure-K. Therefore, he is before this Court for the relief sought for.
5. The respondent filed statement of objections and contended that the petitioner has based his claim on the Fundamental Rule 22, which contains the Rules for removal of anomaly by stepping up pay of a Senior on promotion drawing less pay than his juniors. The said Rule lays down that stepping up should be done with effect from the date of promotion or appointment of a Junior Officer and is subject to the conditions that:
i) Both the junior and senior officers should belong to the same cadre and the posts in which they have been promoted or appointed should be identical and in the same cadre;
ii) The scales of pay of the lower and higher posts in which they are entitled to draw pay should be identical;
iii) The anomaly should be directly as a result of the application of Fundamental Rule 22-C which is now FR 22(i)(a)(1). For example, if in the lower post the junior officer draws from time to time a higher rate of pay than the senior by virtue of grant of advance increments, the above provisions will not be invoked to step up the pay of the senior officer;
6. It is the further contended by the petitioner that both the Managers referred to above were directly appointed as Managers and apparently having regard to their qualification and experience elsewhere, they have been given higher pay in the same cadre. Even among them, there is difference in the basic salary. It is not the case of the petitioner and it is factually not correct to say that the Managers concerned were promoted and on account of their promotion, though he is Senior, is getting lesser basic pay. It is further contended that to claim the benefit of Fundamental Rule 22, what is required to be shown is that as the rule itself contemplates, the anomaly should have arisen on account of the three situations described in the rule itself and therefore, the petitioner is not entitled to any relief before this Court and sought for dismissal of the writ petition.
7. I have heard the learned Counsel for the parties to the lis.
8. Sri Sirajuddin – Party-in-Person contended with vehemence that the impugned order passed by the respondent. Annexure-K is not a speaking order in view of the fact that absolutely no reasons are assigned for rejecting his claim. Therefore, the impugned order is not sustainable. He further contended that by his representation dated 21st April, 2010 as per Annexure- G, he has clearly stated how he is entitled, but the same has not been considered by the respondent while passing the impugned order. Therefore, he is entitled for the relief as sought for. He would further contend that the as per the Government of India Decision (18) under Fundamental Rule 22, he is entitled to the benefit of the pay scale awarded to persons, who were subsequently appointed i.e., Mr. Mohapatra Dilip Kumar as Campus Computer Manager and Miss Gayathri Subramanian as Manager, Finance and Accounts. Therefore, he sought to allow the writ petition.
9. Per contra, Sri Syed Kaship Ali for Sri Pradeep S. Sawkar, learned Counsel for the respondent sought to justify the impugned order passed by the respondent and contended that the petitioner has not made out any case to grant the prayer as sought exercising the powers under Articles 226 and 227 of the Constitution of India. He would further contend that the claim of the petitioner is based on the Government of India Decision (18) under Fundamental Rule 22 which contains the rules for removal of anomaly by stepping up pay of a Senior on promotion drawing less pay than his juniors. The said Rule lays down that stepping up should be done with effect from the date of promotion or appointment of a Junior Officer and is subject to the condition that both the junior and senior officers should belong to the same cadre and the posts in which they have been promoted or appointed should be identical and in the same cadre and the pay drawn should be identical. If in the lower post, the junior officer draws from time to time a higher rate of pay than the senior by virtue of grant of advance increments, the above provisions will not be invoked to step up the pay of the senior officer. Therefore, he sought to dismiss the writ petition.
10. Having heard the petitioner-Party-in-Person and the learned Counsel for the respondent, it is clear that it is not in dispute that the petitioner joined the service of the respondent as Lower Division Clerk with effect from 1.3.1974 and subsequently, he was promoted from time to time and ultimately by the order dated 24.3.2003, he was appointed as the Administrative Officer. It is also not in dispute that, subsequently in the year 2007, he was promoted as Senior Administrative Officer in the pay scale of Rs.10000-325-15200 with effect from 23.5.2007. According to the petitioner, when he was functioning as Senior Administrative Officer, two persons came to be appointed i.e., one to the post of Campus Computer Manager and another to the post of Manager, Finance and Accounts with grade pay of Rs.7,600/- in the pay scale of Rs.15600-39100, but the same was denied to the petitioner. Therefore, the petitioner by a detailed representation as per Annexure-G dated 21st April, 2010 requested the respondent to rectify the anomaly in his grade pay and fix the grade pay at Rs.7600/- with effect from July 2009 giving details as to how he is entitled.
11. Though the respondent by way of statement of objections denied that the petitioner is not entitled to the fixation of grade pay at Rs.7600/- with effect from July 2009, by the impugned order dated 11th November, 2011 as per Annexure-K has stated as under:
“ In this regard, I am directed to convey that we have examined your representation and we would like to inform you that your request for up- gradation of Grade Pay from Rs.6600- Rs.7600 has not been accepted.”
Except the above statement, absolutely no reason is assigned by the respondent for rejecting his claim. What is not stated in the impugned order cannot be permitted to be raised by way of statement of objections as contended by the learned Counsel for the respondent.
12. It is well settled that what is not stated in the impugned order cannot be permitted to substantiate the reasons in the statement of objections. On that ground alone, the impugned order passed by the respondent cannot be sustained and absolutely neither there is any reason nor the impugned order is a speaking order and therefore, requires to be quashed.
13. For the reasons stated above, writ petition is allowed. The impugned order dated 11.11.2011 passed by the respondent, Annexure-K is quashed. The matter is remitted to the respondent to reconsider the representation of the petitioner as per Annexure-G dated 21st April, 2010 and pass appropriate reasoned order strictly in accordance with law after giving due notice and affording an opportunity of hearing to the petitioner within a period of four weeks from the date of receipt of a copy of this order.
14. All the contentions raised by both parties in the present writ petition are kept open to be urged before the respondent.
Ordered accordingly.
Sd/- Judge Nsu/-