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Friday, July 11, 2014

Service matter - fresh appointment under direct recruit - Deputy Register selected and appointed as Registrar - in letter of appointment, it was typed as promotion and central pay scale was fixed as he adopted central pay scale while he was as Deputy registrar in the same institution - Disciplinary proceedings issued - found guilty of bias - challenged - Apex court held that The appellant-Institute when discovered that respondent No.1 was drawing salary in a higher scale of pay than the scale of pay to which he was entitled constituted a five-members Enquiry Committee to look into the matter headed by Dr.Balaveera Reddy. Though allegation of bias has been made against Dr.Balaveera Reddy, no allegation has been made against rest of the four Members of the Committee. Even the other members were not impleaded as a party. In this background, it was not open for the High Court to give finding of bias against one or other member of the Committee, who decided the issue pursuant to which the notice was issued to respondent no.1. The Division Bench of the High Court while wrongly held that the enquiry was tainted with bias, erred in holding that respondent no.1 was entitled to the Central scale of pay.= NATIONAL INSTITUTE OF TECHNOLOGY … APPELLANT VERSUS U. DINAKAR AND ANR. … RESPONDENTS = 2014 – June. Part -http://judis.nic.in/supremecourt/filename=41719

Service matter - fresh appointment under direct recruit - Deputy Register selected and appointed as Registrar - in letter of appointment, it was typed as promotion and central pay scale was fixed as he adopted central pay scale while he was as Deputy registrar in the same institution - Disciplinary proceedings issued - found guilty of bias - challenged - Apex court held that The   appellant-Institute   when discovered that respondent No.1 was drawing salary in a higher scale of  pay than the scale of pay to which he was entitled  constituted  a  five-members Enquiry Committee to look into the  matter  headed  by  Dr.Balaveera  Reddy. Though allegation of bias has  been  made  against  Dr.Balaveera  Reddy,  no allegation has been made against rest of the four Members of the  Committee. Even the other members were not impleaded as a party.  In  this  background, it was not open for the High Court to give finding of bias  against  one  or other member of the Committee, who decided the issue pursuant to  which  the notice was issued to respondent no.1. The Division Bench of the  High  Court while wrongly held that the enquiry was tainted with bias, erred in  holding that respondent no.1 was entitled to the Central scale of pay.=

It  is  alleged  that  he  colluded  with  the
officers  of  the  appellant-Institute  to  issue  an   appointment   letter
prescribing the Central scale of pay i.e. Rs.3000-100-3500-125-4500  instead
of the State pay scale of Rs.2375-75-2900-100-3700-125-4450 as  provided  in
the advertisement notification dated 29th July, 1994.
11.   When the  appellant-Institute  discovered  that  respondent  No.1  was
drawing a salary higher than what he was entitled to due to the  anomaly  in
the advertisement and the  letter  of  appointment,  it  appointed  a  five-
members Enquiry Committee, which comprised of respondent No.2 herein as  the
Chairman and  4  other  Members,  to  look  into  the  matter.  The  Enquiry
Committee issued a show cause notice dated 23rd January, 1998 to  respondent
No.1 seeking explanation for the  aforesaid  anomaly.  Later,  another  show
cause notice was issued to respondent No.1  by  the  appellant-Institute  on
9th February, 1999 to which respondent no.1 sent a reply on  15th  February,
1999. The Enquiry Committee considered all the aspects  of  the  matter  and
submitted a  report  dated  24th  February,  1999  recommending  appropriate
disciplinary action against respondent No.1.=
Accordingly, the  pay  scale  of  Rs.3000-
4500 mentioned in the appointment  letter  dated  16th  February,  1995  was
deleted and same was substituted with pay  scale  of  Rs.2375-4450  and  the
salary was refixed as per the said pay scale.=
Though
the order of refixing was challenged, respondent No.1 did not challenge  the
Government of India notification  dated  19th  July,  1988  whereby  it  was
decided to grant  State  scale  of  pay  to  the  newly  appointed/recruited
persons.During the pendency of the writ  petition  the  appellant-Institute
issued Office Memorandum dated  7th  February,  2000  requesting  respondent
No.1 to refund the excess salary of  Rs.4,763.50  paise  paid  to  him.  
According  to  appellant,  there  was  a
mistake in the order of appointment issued in favour of respondent no.1,  it
was open to the competent authority to rectify the mistake.
21.   On the other hand, stand taken by  respondent  no.1  is  that  he  was
rightly granted Central scale of pay, the order  recalling  the  benefit  is
illegal. =
We do not intend to go  into  the  question  whether  respondent  no.1
manipulated and inserted the word promoted in  the  letter  of  appointment.
Admittedly,  the  appointment  order  has  been  issued  pursuant   to   the
notification of direct recruitment,  therefore,  it  should  be  treated  as
direct recruitment. Mistake if any committed by clerical staff or any  other
authority in mentioning the  word  ‘promoted  and  appointed’  in  place  of
‘appointed’ and showing higher scale of pay of  Rs.3000-100-3500-125-4500,it
is always open to the competent authority to correct the mistake.=
 The bias or malafide plea is generally raised by an interested  party,
the Court cannot draw any conclusion unless  allegations  are  substantiated
beyond doubt. 
In this connection, one may refer decision in  M.V.  Thimmaiah
and others v. Union Public Service Commission and others (2008) 2  SCC  119.
So  far  as  the  allegation  of  malafide  against  Dr.Balaveera  Reddy  is
concerned, though he was impleaded as a party, no  specific  allegation  was
made  to  substantiate  such  allegation.   
The   appellant-Institute   when
discovered that respondent No.1 was drawing salary in a higher scale of  pay
than the scale of pay to which he was entitled  constituted  a  five-members
Enquiry Committee to look into the  matter  headed  by  Dr.Balaveera  Reddy.
Though allegation of bias has  been  made  against  Dr.Balaveera  Reddy,  no
allegation has been made against rest of the four Members of the  Committee.
Even the other members were not impleaded as a party.  In  this  background,
it was not open for the High Court to give finding of bias  against  one  or
other member of the Committee, who decided the issue pursuant to  which  the
notice was issued to respondent no.1. The Division Bench of the  High  Court
while wrongly held that the enquiry was tainted with bias, erred in  holding
that respondent no.1 was entitled to the Central scale of pay.
29. For the reasons aforesaid, we set aside the impugned judgment and  order
dated 8th November, 2011 passed by the Division Bench of the High  Court  of
Karnataka in Writ Appeal No.1030 of 2006. The appeal is allowed.  No  costs. 

 2014 – June. Part -http://judis.nic.in/supremecourt/filename=41719

                                                              REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 5854 OF 2014
                  (arising out of SLP(C) No.31621 of 2012)

NATIONAL INSTITUTE OF TECHNOLOGY              … APPELLANT

                                   VERSUS

U. DINAKAR AND ANR.                                … RESPONDENTS

                               J U D G M E N T

Sudhansu Jyoti Mukhopadhaya, J.

      Leave granted.
2.    This appeal is directed against  the  judgment  and  order  dated  8th
November, 2011 passed by the High Court  of  Karnataka,  Bangalore  in  Writ
Appeal No.1030 of 2006. By the impugned judgment,  the  High  Court  allowed
the appeal preferred by the respondent no.1 and held that he is entitled  to
the Central pay scale and denial of such scale would be bad in law.
3.    The factual matrix of the case is as follows:
      Respondent No.1 was selected and  appointed  as  Deputy  Registrar  of
Karnataka Regional Engineering College,  Suratkal  (now  known  as  National
Institute of  Technology,  Karnataka)  in  March,  1979.  While  he  was  so
performing the duty the Department of Education, Ministry of Human  Resource
Development,  Government   of   India   issued   a   communication   bearing
No.F.No.A11014/2/87/T-4 dated 5th February, 1988 to the  Principals  of  all
Regional Engineering Colleges (except  Srinagar  and  Jaipur)  revising  the
scales of pay attached to  the  Senior  Administrative  posts  carrying  the
Central scales of pay on the basis of  the  recommendations  of  the  Fourth
Central  Pay  Commission  w.e.f.  01.01.1986.  Thereafter,  the   Board   of
Governors of the appellant-Institute resolved to accept the proposal of  the
Central Government regarding revision of pay scale attached  to  the  Senior
Administrative posts.
4.    On 19th April, 1988, the Department of Education,  Ministry  of  Human
Resource Development, Government of  India,  issued  another  order  to  the
effect that the non-academic post of Registrar,  Librarian  and  Foremen  in
the Regional Engineering Colleges be given State pay  scales  comparable  to
pay scales in similar other institutions in the State. It was  decided  that
an option may be sought from the present incumbents whether they would  like
to opt for the Central scales of pay or State scales of pay. Those  who  may
opt for Central Scales of pay their posts may be  convened  into  the  State
Scales of pay as and when the present incumbents to the posts leave the  job
or retire. In due course of time all the  posts  are  converted  into  State
scales of pay. Thus, for new incumbents it was ordered to give State  scales
of pay.  The relevant extract of the order dated 19th April, 1988  which  is
necessary for adjudication of this appeal is as under:
“In the meeting it was observed that  the  incumbents  to  the  non-academic
post of Registrar, Librarian and Foreman in the RECs are on  Central  scales
of pay, put drawing D.a. and other allowances  of  State  Government  rates.
The matter was discussed at length and it was observed  that  incumbents  to
these posts are mostly recruited locally. It was  accordingly  decided  that
incumbents to all these posts may be given State pay  scales  comparable  to
pay scales in similar other institutions in the State keeping  in  view  the
size of the RECs and duties and responsibilities assigned  accordingly  draw
State scales and State Government allowances. To obviate any  difficulty  in
implementing this decision, it was decided that  an  option  may  be  sought
from the present incumbents whether they would like to opt for  the  Central
scales of pay or State scales  of  pay.  However,  for  these  who  opt  for
central scales of pay, those posts may be convened into State scales of  pay
as and when the present incumbents to the posts leave  the  job  or  retire.
Thus in due course of time all these posts be converted  into  State  scales
of pay.”

5.    According to appellant, the aforesaid order dated  19th  April,  1988,
was adopted and applied in respect of the appellant-Institute  with  respect
to the Senior Administrative Posts in the appellant-Institute.
6.    The Department of Education,  Government  of  India  issued  an  order
dated 23rd June, 1990 granting its  approval  to  the  Government  of  India
notification dated 5th February, 1988 and giving an option to  the  existing
incumbents either to continue in the Central pay scale or opt for State  pay
scale. It further provided that the State pay scale suggested therein  would
be applicable to the future incumbents, who will be appointed as  and  when,
the existing incumbents would  cease  to  hold  the  respective  posts.  The
relevant portion of the letter dated 23rd June, 1990 reads as under:
”Pay to the aforesaid no academic posts into the Karnataka Regional
Engineering college, Surthkal, as indicated in Column 4 of the Statement
below:


|S. No.    |Names of the  |Present scale now|Revised 1986 scale|
|          |post          |approved (w.e.f. |of pay as approved|
|          |              |of pay)          |by Govt. Of India |
|1.        |Registrar     |Rs.3000-100-3500-|Rs.2200-5-2300-75-|
|          |              |125-4500         |2900-90-2350-100-3|
|          |              |                 |950-120-4070      |
|2.        |Workshop      |Rs.3000-100-3500-|Rs.2200-5-2300-75-|
|          |Supdt.        |125-4500         |2900-90-2350-100-3|
|          |              |                 |950-120-4070      |
|3.        |Deputy        |Rs.2200-75-2800-E|Rs.1900-50-2300-75|
|          |Registrar     |B-100-4000       |-2900-90-3350-100-|
|          |              |                 |3650              |
|4.        |Librarian     |Rs.2200-075-2800-|Rs.1900-50-2300-75|
|          |              |EB-100-4000      |-2900-90-3350-100-|
|          |              |                 |3650              |

7.      Respondent  No.1,  who  was  working  as  Deputy  Registrar  in  the
appellant-Institute opted for the Central pay  scale  with  respect  to  the
post of Deputy Registrar vide his letter dated 7th July, 1993.
8.    Several posts, including the post  of  the  Registrar,  became  vacant
during this period. Therefore, the appellant-Institute  issued  notification
No.5295/ESTT/12/B1  dated  29th  July,  1994   inviting   applications   for
appointment to various posts,  including  the  post  of  the  Registrar,  by
direct recruitment. The notification unequivocally stated that the scale  of
 pay applicable to the post  of  Registrar  is  Rs.2375-75-200-100-3700-125-
4450 and that besides the basic pay in the applicable time scale of  pay  of
the respective posts, admissible allowances  in  accordance  with  Karnataka
Government Rules as in  force  from  time  to  time  are  payable.  Relevant
extract of the advertisement dated 29th July, 1994 reads as under:
“4.   Registrar: 1 post (Principal’s office)
(Scale of pay Rs.2375-75-200-100-3700-125-4450).

II.   Details of qualification/Experience/ specialization required:

      xxx   xxx  xxx   xxx   xxx

General Instructions:
In case a candidate for the advertised post is not suitable  for  the  post,
the next lower position may be offered to the candidates,  it  he  is  found
suitable for the lower position.

      xxx   xxx  xxx   xxx   xxx

IV.   Besides the basic pay in the applicable  time  scale  of  pay  of  the
respective  posts  admissible  allowances  in  accordance   with   Karnataka
Government Rules in force from time to time are payable.”

9.    Pursuant to the said advertisement, respondent No.1  applied  for  the
post of Registrar of the appellant Institute.  The  Selection  Committee  of
the appellant-Institute selected respondent  No.1  for  the  said  post  and
issued the appointment  letter  No.5487/ESTT/1994/91  dated  16th  February,
1995.
10.   As respondent No.1 was already holding the post  of  Deputy  Registrar
in the  appellant-Institute.  It  is  alleged  that  he  colluded  with  the
officers  of  the  appellant-Institute  to  issue  an   appointment   letter
prescribing the Central scale of pay i.e. Rs.3000-100-3500-125-4500  instead
of the State pay scale of Rs.2375-75-2900-100-3700-125-4450 as  provided  in
the advertisement notification dated 29th July, 1994.
11.   When the  appellant-Institute  discovered  that  respondent  No.1  was
drawing a salary higher than what he was entitled to due to the  anomaly  in
the advertisement and the  letter  of  appointment,  it  appointed  a  five-
members Enquiry Committee, which comprised of respondent No.2 herein as  the
Chairman and  4  other  Members,  to  look  into  the  matter.  The  Enquiry
Committee issued a show cause notice dated 23rd January, 1998 to  respondent
No.1 seeking explanation for the  aforesaid  anomaly.  Later,  another  show
cause notice was issued to respondent No.1  by  the  appellant-Institute  on
9th February, 1999 to which respondent no.1 sent a reply on  15th  February,
1999. The Enquiry Committee considered all the aspects  of  the  matter  and
submitted a  report  dated  24th  February,  1999  recommending  appropriate
disciplinary action against respondent No.1.
12.   Based on the  recommendation  of  the  Enquiry  Committee  dated  24th
February, 1999, a show cause notice dated  10th  May,  1999  was  issued  to
respondent  No.1  seeking  an  explanation  as  to  why  the  pay  scale  of
respondent No.1 as shown in the appointment letter should not  be  rectified
by amending the appointment letter dated 16th February, 1995 issued  to  him
by deleting the scale of pay of Rs.3000-4500 and substituting the same  with
the scale of Rs.2375-4450. The show cause notice  also  sought  to  fix  his
salary accordingly and sought explanation  as  to  recovery  of  excess  pay
drawn by respondent No.1 be not made.
13.   On 5th  June,  1999,  respondent  No.1  submitted  his  reply  to  the
aforesaid show cause notice dated 10th May, 1999.
14.    Thereafter,  on  6th  July,  1999  the   appellant-Institute,   after
considering the reply filed by respondent No.1 issued  an  order  rectifying
the pay scale of respondent No.1. Accordingly, the  pay  scale  of  Rs.3000-
4500 mentioned in the appointment  letter  dated  16th  February,  1995  was
deleted and same was substituted with pay  scale  of  Rs.2375-4450  and  the
salary was refixed as per the said pay scale.
15.    Aggrieved by the order dated 6th July, 1999, passed by the appellant-
Institute, respondent No.1 filed an appeal challenging the  aforesaid  order
and claiming the pay scale  which  he  was  drawing  under  the  appointment
order. The Board of Governors in its 128th  meeting  dated  30th  September,
1999/13th October, 1999 rejected the appeal filed  by  respondent  No.1  and
upheld the pay scale rectification order dated 6th July, 1999.
16.   Pursuant to the above order, the appellant-Institute issued  an  order
dated 13th October, 1999 whereby the pay scale of respondent No.1 was  fixed
in the State pay  scale  of  Rs.2375-75-2900-100-3700-125-4450  with  effect
from 20th February, 1995. He was granted the revised  equivalent  pay  scale
of Rs.7400-200-8800-260-10880-320-12320.
17.   Being aggrieved, respondent No.1 filed a Writ  Petition  No.40037/1999
before the High Court of Karnataka challenging the action of the  appellant-
Institute refixing his salary on the basis of the State  pay  scale.  Though
the order of refixing was challenged, respondent No.1 did not challenge  the
Government of India notification  dated  19th  July,  1988  whereby  it  was
decided to grant  State  scale  of  pay  to  the  newly  appointed/recruited
persons. During the pendency of the writ  petition  the  appellant-Institute
issued Office Memorandum dated  7th  February,  2000  requesting  respondent
No.1 to refund the excess salary of  Rs.4,763.50  paise  paid  to  him.  The
appellant-Institute also filed a  counter-affidavit  in  the  writ  petition
denying all the allegations and justifying the order impugned.
18.   Learned Single Judge of the High Court by  judgment  and  order  dated
30th May, 2006 dismissed the writ petition.
19.   Against the order of dismissal respondent no.1 preferred  Writ  Appeal
No.1030 of 2006, which was  allowed  by  the  impugned  judgment  dated  8th
November, 2011.
20.   Learned counsel appearing on behalf of the  appellant  submitted  that
respondent no.1 had not taken any plea of bias  before  the  learned  Single
Judge as apparent from the judgment and order dated 30th  May,  2006  passed
by the learned Single  Judge.  However,  such  plea  was  taken  before  the
Division Bench which allowed the writ appeal inter alia on the  ground  that
the enquiry was tainted  by  bias.  According  to  appellant,  there  was  a
mistake in the order of appointment issued in favour of respondent no.1,  it
was open to the competent authority to rectify the mistake.
21.   On the other hand, stand taken by  respondent  no.1  is  that  he  was
rightly granted Central scale of pay, the order  recalling  the  benefit  is
illegal.
22.   Appointment to the post of Registrar was  made  by  the  Institute  by
direct recruitment pursuant to notification  No.5295/ESTT/12/B1  dated  29th
July, 1994. The notification unequivocally stated  that  the  scale  of  pay
applicable to the post of Registrar is Rs.2375-75-200-100-3700-125-4450  and
that besides the basic pay in the  applicable  time  scale  of  pay  of  the
respective  posts,  admissible  allowances  in  accordance  with   Karnataka
Government Rules as in force from time to time are payable. Pursuant to  the
said notification respondent no.1  was  appointed  as  Registrar  by  letter
No.5487/ESTT/1994/91 dated 16th  July,  1995.  However,  in  the  letter  of
appointment the Central  scale  of  pay  of  Rs.3000-100-3500-125-4500  with
other allowances were mentioned.
23.   It is not the case of respondent no.1 that the Central  scale  of  pay
of Rs.3000-4500 as shown in his letter of appointment was  notified  by  the
Institute. The case of respondent no.1 is also not a case  of  promotion  so
as to enable him to claim  Central  scale  of  pay,  which  he  was  drawing
against lower post of Deputy Registrar. The case of  respondent  no.1  being
that of the direct recruitment pursuant to  notification  dated  29th  July,
1994, respondent no.1 cannot claim that he  was  promoted  to  the  post  of
Registrar. In the letter of appointment, it was  mentioned  that  respondent
no.1 i.e. “Sh. U. Dinakar is promoted and appointed  as  Registrar”  in  the
office of the Karnataka Regional Engineering College, Surathkal.
24.   We do not intend to go  into  the  question  whether  respondent  no.1
manipulated and inserted the word promoted in  the  letter  of  appointment.
Admittedly,  the  appointment  order  has  been  issued  pursuant   to   the
notification of direct recruitment,  therefore,  it  should  be  treated  as
direct recruitment. Mistake if any committed by clerical staff or any  other
authority in mentioning the  word  ‘promoted  and  appointed’  in  place  of
‘appointed’ and showing higher scale of pay of  Rs.3000-100-3500-125-4500,it
is always open to the competent authority to correct the mistake.
25.   However, before such correction it is incumbent to  the  part  of  the
authority to inform the officer concerned that there is  a  mistake  in  his
order of appointment and competent authority intends to correct the same  so
as to enable the officer to submit an effective reply and show that  it  was
not a mistake but the order was genuine and in accordance with law.
26.   In the present case, the authority  had  given  notice  to  respondent
no.1 and brought to his notice that  there  is  a  genuine  mistake  in  his
letter of appointment and he has been wrongly given a higher  pay  of  scale
of Rs.3000-4500. Respondent no.1 submitted his reply and not taken any  plea
that he has not applied pursuant to the notification of  direct  recruitment
but his case was considered by way of promotion. In that view of the  matter
we hold that the competent authority  has  inherent  power  to  correct  the
mistake if any committed in the order of  appointment  after  giving  proper
opportunity to the concerned employee/officer.
27.   In view of the aforesaid  finding  we  hold  that  the  appellant  had
committed no error in correcting the letter of appointment by replacing  the
correct scale of pay to which respondent no.1 was entitled i.e.  Rs.2375-75-
2900-100-3700-125-4450 as provided in the  advertisement/notification  dated
29th July, 1994.
28.   The bias or malafide plea is generally raised by an interested  party,
the Court cannot draw any conclusion unless  allegations  are  substantiated
beyond doubt. In this connection, one may refer decision in  M.V.  Thimmaiah
and others v. Union Public Service Commission and others (2008) 2  SCC  119.
So  far  as  the  allegation  of  malafide  against  Dr.Balaveera  Reddy  is
concerned, though he was impleaded as a party, no  specific  allegation  was
made  to  substantiate  such  allegation.   The   appellant-Institute   when
discovered that respondent No.1 was drawing salary in a higher scale of  pay
than the scale of pay to which he was entitled  constituted  a  five-members
Enquiry Committee to look into the  matter  headed  by  Dr.Balaveera  Reddy.
Though allegation of bias has  been  made  against  Dr.Balaveera  Reddy,  no
allegation has been made against rest of the four Members of the  Committee.
Even the other members were not impleaded as a party.  In  this  background,
it was not open for the High Court to give finding of bias  against  one  or
other member of the Committee, who decided the issue pursuant to  which  the
notice was issued to respondent no.1. The Division Bench of the  High  Court
while wrongly held that the enquiry was tainted with bias, erred in  holding
that respondent no.1 was entitled to the Central scale of pay.
29. For the reasons aforesaid, we set aside the impugned judgment and  order
dated 8th November, 2011 passed by the Division Bench of the High  Court  of
Karnataka in Writ Appeal No.1030 of 2006. The appeal is allowed.  No  costs.

                                               …………………………………………………………………….J.
                                       (SUDHANSU JYOTI MUKHOPADHAYA)


                                               …………………………………………………………………….J.
                                            (KURIAN JOSEPH)

NEW DELHI,
JUNE 30,2014.

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