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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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