01. By way of this petition, petitioners have challenged the inter se pay disparity created by the respondents in between the two groups of senior stenographers, direct recruits and promotees insofar as their payscales are concerned. Petitioners have challenged and sought quashment of the Order No. 51(Est) of 2016 dated 12.09.2016, to the extent it pertains to the partial modification of University order No. 14 (Est) of 2008, dated 10.06.2008, issued by respondent Nos. 1 and 2 by virtue of which the petitioners have been granted the higher pay-scale. Petitioners have further sought direction upon respondents not to disturb the pay scales granted to the petitioners/non-teaching employees in pursuance to the University Order No. 14 (Est) of 2008, dated 10.06.2008.
02. Sher-e-Kashmir, University of Agricultural Sciences and Technology (hereinafter to be referred to as „SKUAST‟) was established under Section 3 of Sher-e-Kashmir, University of Agricultural and Sciences and Technology Act, 1982. In the year 1999, the SKUAST was bifurcated into SKUAST Kashmir and SKUAST Jammu and after the creation of SKUAST Jammu, certain teaching and non-teaching posts were created by the Government for it which included, amongst others, 10 posts of Senior Stenographers having dual pay scale of Rs. 5500–175– 9000/6500–200–10500, vide University Order dated 15.06.2000.
03. It is stated in the writ petition that while issuing a formal order for creation of staff for establishment of SKUAST Jammu vide University Order dated 15.06.2000, two pay-scales of same post of Senior Stenographer were provided, which created an anomaly in the pay scale of senior Stenographers and in this regard, the Registrar SKUAST Jammu vide letter dated 21.11.2017, addressed to Principal, Secretary, Finance Department, respondent No. 3 mentioned that due to mistake, two pay scales of the same post of Senior Stenographers have been provided in the notification which has created anomaly in the pay scale of Stenographers and requested that existing pay scale of Rs. 5500–9000 (pre-revised) for the post of Senior Stenographers may be treated enhanced to Rs. 6500– 10500 (pre-revised), from 15.06.2000, that is, the date of creation of these posts in the university.
04. It is stated that out of 10 posts of Senior Stenographers sanctioned for SKUAST Jammu, 08 posts were filled up by the SKUAST Jammu i.e. Five by promotion and three by direct recruitment. The petitioners, in response to the notification dated 04.06.2001, applied for the two leftover posts of Senior Stenographers through proper channel and their candidature was forwarded to SKUAST Jammu, by the previous employers of the petitioners i.e. University of Jammu and J&K State Board of School Education, respectively. The petitioners qualified the skill test and interview and came to be appointed as Senior Stenographers in SKUAST Jammu. The previous service rendered by the petitioners was also counted by the University for pensionary benefits in terms of clause 29 (iii) of SKUAST Statutes.
05. It is stated that the petitioners were appointed in the pay scale of Rs. 5500–175–9000 on 02.08.2002 which is a lower pay Scale in comparison to those working in other Government Departments, despite the fact that they were recruited with same academic qualifications and technical skills as is prescribed for such similarly placed employees in the State Government Departments. It is further stated that the petitioners after their appointment also agitated before the University Authorities for conversion/rectification of their pay scale. The same was considered by SKUAST from time to time in the meetings of Board of Management held on 29.08.2005, and subsequently it was decided that the case be sent to respondent No. 3 for examination.
06. It is also stated that the respondent No. 3, who is a Financial Advisor to both the wings of SKUAST Jammu/Kashmir, vide office letter dated 23.04.2008, addressed to the Registrars of three UniversitiesUniversity of Kashmir, University of Jammu and SKUAST Jammu, advised them to adopt the pre-revised pay scales of Rs. 1640–2900 and Rs. 2000–3500 revised to Rs. 5500–9000 and Rs. 6500–10,500, in favour of two categories of employees holding the pay scale of Rs. 1400-2600 and Rs. 1640–2900 revised to Rs. 5000–8000 and Rs. 5500–9000 respectively on interim basis, subject to outcome of the writ petition, pending disposal before this Court.
07. It is further stated that SKUAST Jammu consequent upon the concurrence of the Financial Advisor, granted approval to the extension of said benefits to its employees (stenographers, head Assistants, and equivalents). The benefit was also extended to all the Senior Stenographers, including petitioners‟ w.e.f. 23.08.2007 and notionally from the date of their appointment as Senior Stenographers.
08. This Court disposed of the writ petition i.e., SWP No. 2996/1992 on 28.08.2015. The relevant extract reads as under.
1. Learned counsel for the petitioner submits that the grievance of the non-teaching employees association has been redressed as the anomaly has been removed during the pendency of the petition. The said submission is recorded.
2. In view of the same, writ petition is dismissed as having rendered infructuous.
3. The anomaly which was already removed would be allowed to continue. However, it is open to the petition Association to approach this court by filing a separate writ petition if they have any fresh grievance.
09. Pursuant to the judgment dated 28.08.2015, SKUAST Kashmir, vide University Order No.903 (Est) of 2015 dated 21.10.2015, declared the said benefits as absolute ab-initio to all the non-teaching employees.
10. Similarly, the non-teaching employees Association of SKUAST Jammu also approached this Court at Jammu and vide judgment dated 22.04.2016, the writ petition was disposed of with the following directions:
“I have considered submissions raised by learned counsel for the petitioner and am of the considered view that apparently the claim of the petitioner is well founded. However, instead of directing grant of the benefits to the petitioners of the instant writ petition at par with the petitioners in SWP No. 2996/1992 as per decision dated 28.08.2015, it is deemed appropriate to direct respondent No.1 to consider and decide the representation AnnexureG dated 02.11.2015 by taking into account the factual position as has been referred to above and to pass a speaking order in respect thereto within a period of four weeks from the date certified copy of the order is served on respondent No. 1. In Case entitlement to relief is found on the basis of parity in the light of the position referred to above, benefits admissible be released as expeditiously as possible preferably within a period of three months thereafter.”
11. It is stated that by virtue of impugned order dated 12.09.2016, in partial modification of University Order No.14 (Est) of 2008 dated 10.06.2008, the effect of Placement/promotion was made with effect from 23.08.2007, for all practical purposes, without any notional benefit, and shall have no bearing on the appointments made pursuant to an advertisement in a direct recruitment. The benefits of higher pay-scale as granted to the petitioners, at par with the non-teaching employees of three other universities, in terms of university order dated 10.6.2008, were also withdrawn which may have the effect of recoveries to be made from the petitioners.
12. The petitioners have challenged the impugned order on the ground that the same is violative of principles of natural justice. It is stated that before issuing the impugned order, no opportunity of being heard was ever provided to the petitioners and the impugned order visits the petitioners with serious civil consequences. It is stated that the impugned order is a result of sheer non-application of mind on the part of respondent Nos. 1 & 2 inasmuch as the petitioners are similarly placed with other senior stenographers and entitled to the higher pay scale but have been denied the same only for the reason that the petitioners have been appointed through direct recruitment. It is also stated that the senior stenographers appointed through promotion or by way of direct recruitment possess same qualification and perform same duties, as such, constitute one class and entitled to the same benefits. The action of respondent Nos. 1 & 2, therefore, extending the benefit of higher pay scale to Senior Stenographers appointed by promotion and denying the same to the petitioners appointed through direct recruitment amounts to discrimination and is clear violation of Article-14 and 16 of the Constitution of India.
13. It is stated that with the promulgation of SRO – 367 dated 23.10.2007, issued by General Administration Department, all Senior Scale Stenographers have been placed in the pay scale of Rs. 7450–225– 11500, notionally from 01.01.1996 and monetarily from 19.02.2003. The Senior Stenographers of SKUAST Jammu made a representation on 24.10.2007, on the ground that they are also performing the same functions as their counterparts in the State Government Departments and on the basis of principle of natural justice i.e., equal pay for equal work they should also be placed in the revised pay scale of R. 7450–225–11500 in terms of SRO 367, but instead of considering the genuine claim of the petitioners, respondent Nos. 1&2 have drawn the benefits of conversion of pay scale extended to them about a decade ago.
14. Learned counsel for the petitioners has relied upon the judgments of Supreme Court delivered in cases titled Telecommunication Research Centre vs. Union of India reported as 1987 AIR (SC) 490 and A. K. Behra Vs Union of India reported as 2010 (11) SCC 322 [LQ/SC/2010/515] wherein it has been observed that “equal pay for equal work and no rationale or justification in providing different conditions of service for the members of the Tribunal on the basis of their appointment under the amended and the unamended rules, when both the categories discharging the same duties, obligations and responsibilities”.
15. Per contra, reply has been filed by the respondents wherein it is stated that the employees promoted/placed in the pre-revised pay scale of Rs.1400-2600 and Rs.1640-2900, after the issuance of above orders represented for extension of interim order in the pre-revised pay scale of Rs. 1640-2900 and Rs.2000-3500 in their favour on the same terms and conditions as reflected in the U.O. and aforementioned Memo. The case was referred to legal Advisor, SKUAST-K (Commissioner/Secretary to Govt. Law Department, J&K) for opinion and the legal Advisor, SKUAST-K (Commissioner/Secretary to Govt. Law Department, J&K) opined for extension of interim direction to the employees falling in the pre-revised pay scale of Rs. 1640-2900 and Rs. 2000-3500 in respect of employees promoted/placed in the pre-revised pay scale of Rs. 1400-2600 and Rs. 1640-2900 after the issuance of above orders on the same terms and conditions. Whereas, SKUAST-Kashmir vide University order No. 573 (Est.) of 2007 dated 23.08.2007, issued an order for placement of employees promoted/placed as (Stenographers, Head Assistants and equivalents) holding the revised pay scale of Rs. 1400-2600 and Rs. 1640- 2900 revised to Rs. 5000-8000 and Rs 5500-9000 as on date were ordered on interim basis in the pre-revised pay scales of Rs. 1640-2900 and Rs. 2000-3500 revised to Rs. 5500-9000 and Rs. 6500-10500 respectively on the following terms and conditions:
(i) The conversion shall have immediately effect
(ii) The fixation of the pay shall be got confirmed from comptroller’s office before relapse of Salary,
(iii) The conversion of pay scales in KVKs/AICRPs or other centrally sponsored schemes shall be subject to approval of the funding agency.
(iv) The appointment made against an advertisement through direct recruitment shall not come in the purview of the said relief due to the fact that the scales have been accepted by the appointees,
(v) The interim placement shall be subject to final outcome of the main writ petition pending disposal in the Hon'ble High Court of J&K at Srinagar.
(vi) The employees coming under the purview of relief shall furnish an undertaking to the University that in the event they fail in the main petition, the payments of enhanced pay scales released in their favour on interim basis will be reimburse by them to the University.
16. It is stated that consequently, Commissioner/Secretary Finance (FA Universities) J&K Govt. vide letter No. FA-U/AB/KUJU/AUK/687/08 dated 23.04.2008 communicated the approval for extension of interim directions to University employees holding the pre- revised pay scale of Rs. 1400-2600 and Rs. 1640-2900 revised to Rs. 5000-8000 and Rs. 5500-9000 on interim basis in the pre-revised pay scale of Rs. 1640-2900 and Rs. 2000-3500 revised to Rs. 5500-9000 and Rs. 6500-10500 subject to the outcome of writ petition to State Universities. Subsequently, SKUAST-J issued University Order No. 14 (Est.) of 2008 dated 10.06.2008 which is read as under:
Consequent upon the concurrence of the Financial Advisor (Universities received) vide his letter No. FA-U/AB/KUJU/AUK/687/08 dated 23.04.2008, the Hon'ble Vice Chancellor of this University has been pleased to approve the extension of benefits to employees (Stenographer, Head Assistant and equivalent) who have been promoted/placed in the pre-revised pay scale of Rs.1400-2000 and Rs.1640-2900 revised to Rs. 5000-8000 and Rs.5500-9000 shall be placed in pre-revised pay scale of Rs. 1640-2900 and Rs.2000-3500 revised to Rs.5500 9000 and Rs. 6500-10500 respectively on interim basis in light of court directions passed in favour of employees of the SKUAST by the Hon’ble High Court of J&K Srinagar.
The pay of such employees will be fixed on notional basis from the date of their promotion/placement in the above mentioned scale and will be paid arrear from 23.08.2007 i.e., the date from which this benefit has been extended to the employees of the SKUAST-K on the following terms and conditions:-
(i) The interim placement shall be subject to the final outcome of the main writ petition pending disposal in the Hon'ble High Court of J&K at Srinagar.
(ii) The employees coming under the purview of relief shall furnish an undertaking to the University that in the event they fail in the main writ petition, the payments of enhanced pay scales released in their favour on interim basis will be reimbursed by them to the University.
17. It is further stated that in pursuant to said judgment, SKUASTKashmir vide University order No. 902 (Est.) of 2015 dated 21.10.2015 declared the said benefit as absolute ab-initio and on the basis of order passed by SKUAST-K, the non-teaching employees association, SKUAST-J, also made a representation for passing of same order. The SKUAST-Jammu was in a process of implementing the said judgment as done by SKUAST-K, the SKUAST-J also filed a writ petition i.e., SWP No. 834/2016 which was disposed of vide order dated 22.04.2016. the relevant extract reads as follows:
“I have considered submissions raised by learned counsel for the petitioner and am of the considered view that apparently, the claim of the petitioner is well founded. However, instead of directing grant of the benefit to the petitioners of the instant writ Petition at par with the petitioner in SWP No, 2996/1992 ay per direction dated 28.08.2015, it is deemed appropriate to directed respondent No. 1 to consider and decided the representation Annexure-"G" dated 02.11.2015 by taking into account the actual position as has been referred to above and to pass a speaking order in respect thereto within a period of four weeks from the date certified copy of the order is served on respondent No.1. In case entitlement to relief is found on the basis of parity in light of the position referred to above benefits admissible be released as expeditiously as possible preferable within a period of three months thereafter."
18. It is stated that the University through Registrar issued an order No. 14 (Est.) of 2008 dated 16.06.2008, contradictory to the approval of the Competent Authority of SKUAST-Jammu by granting notional benefit and had excluded the following terms and conditions which were given by SKUAST-K to their employees:
a. Appointment made against an advertisement through direct recruitment shall not come in the purview of the said relief due to the fact that the post along with pay scales have been accepted by the appointee as also opined by the Law Secretary also.
b. The conversion shall have immediate effect, which in the instant case is 23.08.2007 and the then office of the Registrar Contradictory to the approval of the then Competent Authority of SKUAST-J and SKUAST-K order No.573 (Est.) of 2007 dated 23.08.2007 issued an erroneous order which after issuing the final order has been accordingly modified the details are as under:
“University modified the University order 14 (Est.) of 2008 dated 16.06.2008 by virtue of University Order No. 51 (Est.) of 2016 dated 12.09.2016 and implemented the directions of Hon'ble High Court of J&K at Jammu dated 22.04.2016 on the analogy of SKUJAST-Kashmir as well with respect to order dated 23.08.2007 & dated 21.10.2015. The direction of the Hon'ble High Court of J&K at Jammu passed in case title “Non-teaching employees Union Vs SKUAST-J considered by the SKUAST-J and benefits have been given to the petitioners in SWP No.2996/1992 in consonance with the various orders issued by erstwhile SKUAST and legal opinion given by Legal Advisor (Universities), SLC's of the University along with financial advisor from time to time. It is pointed out that after examination of the record. It was also found that the University order 14 (Est.) of 2008 dated 10.06.2008 was erroneously issued contrary to the approval of the then Vice Chancellor, Legal Opinion of Legal Advisor (Universities, and Financial Advisor (Universities). In this regard, the University has framed the inquiry Committee against the erring officials/officers. Besides the Vigilance Organization vide its No. SSP/VRB/2016-3167/VoJ dated 30.07.2016 (Annexure “X") had also sought details in the regard and the University vide its letter No. AUJ/Est./G-412/2016-17/5054 dated 14.12.2016 had informed the latest position.
19. It is also stated that petitioner No. 1 was appointed directly as Sr. Stenographer vide University Order No. AUJ/Adm/02-03/1968 dated 17.07.2002 under direct recruitment quota in the pay scale of Rs. 5500- 175-9000, and joined the University on 01.08.2002 and Ajay Sharmapetitioner No. 2 had also been appointed directly as Sr. Stenographer in the pay scale of Rs. 5500-175-9000 plus allowances vide University Order No. 2 (Est.) AUJ/Adm/02-03/2943 dated 14.08.2002. As per the service book records of petitioner No. 2, comptroller office/concerned D.D.O has fixed his salary in the pay scale of Rs. 6500-10500 instead of 5500-175- 9000 from the date of his appointment in the University which scale was not available to the persons appointed through direct recruitment. It is further stated that the pay scale as per University statutes applicable in respect of directly appointed Sr. Stenographers was 5500-175-9000 and consequent upon the fact that the petitioners were granted higher payscale of Rs. 6500-10500 instead of 5500-9000, University vide Order No. 51 (Est.) of 2016 dated 12.09.2016 issued order which concludes as under:
“In partial modification to University Order no. 14 (est.) of 2008 dated the effect of placement/promotion shall be w.ef. 23.08.2007 for all practical purposes without any notional benefit as stated therein and shall have no bearing on the appointments made against an advertisement through direct recruitment”
20. It is further stated that in light of University Order No. 51 (Est.) of 2016 dated 12.09.2016 recovery of Rs. 5,31,757 has been calculated by the Comptroller office in respect of petitioner No. 2 and the recovery amount has also been calculated in respect of petitioner No. 1, who was granted higher pay-scale than what was admissible under rules. Consequently, the petitioners filed this writ petition and this Court stayed the operation of impugned order No. 51 (Est.) of 2016 dated 12.09.2016 qua the petitioners to the extent of partial modification.
21. Heard Learned counsels for the parties and perused the material on record.
22. The genesis of instant petition is a pay disparity created by the respondents in respect of conversion/revision of pay scales from higher to lower i.e. Rs. 2000–3500 to Rs. 1640–2900 to Rs. 1400–2600 at the time of implementation of fourth Central Pay Commission in favour of the employees of SKUAST, Jammu and Kashmir. The action was contested by the Non-Teaching Employees Association for restoration of pay scales. The claim of the petitioners was settled after the restoration of the pay scales of Rs. 2000–3500 pre-revised/ Rs. 6500–10,500 revised and Rs. 1640–2900 pre-revised/ Rs. 5500–9000 in SKUAST Kashmir and the same was also implemented at SKUAST Jammu. However, a distinction has been created by the SKUAST Jammu with the denial of said benefits to the directly appointed employees as such not only a pay anomaly has been created but the employees of the one institution have been divided in groups.
23. The denial of the said benefit to the directly appointed employees including the petitioners is in itself a clear violation of legal principle of equal pay for equal work under Article 39(d) of the Constitution of India. In terms of the letter dated 23.04.2008 of Commissioner, Secretary Finance communicating approval for extension of interim direction to university employees, thereby granting revised pay scale in their favour on interim basis subject to outcome of the writ petition, there was no distinction made between promoted employees and directly appointed employees and the benefits were rightly extended to both the categories of employees by virtue of University order dated 10.06.2008.
24. Learned counsel for the petitioners states that he has placed on record certain orders in his re-joinder affidavit, wherein it is reflected that similar benefits have been granted by the University to Artist–cum– photographers, Account Assistants, and Subject Master Specialists. They were granted the benefit of enhancement of pay scales despite the fact that they had initially accepted a pay scale, being a direct recruit, as such, the contention of the respondents that the appointment made against advertisement through direct recruitment does not come within the purview of the relief of granting enhanced pay scale on account of the fact that the post along with the Pay scales have been accepted by the petitioners is not sustainable. The stand taken by the respondents is contrary to the decision taken in respect of the similarly circumstanced employees, who have been granted the benefit of higher pay scale after their appointment.
25. The Senior Stenographers working in Kashmir University, Jammu University and all other departments of the State Government are getting the grade of Rs. 6500–10500 and the petitioners have been performing the similar duties in SKUAST Jammu and possessing the same academic, qualifications and technical skills are also entitled to the benefit of higher pay scale and deserve to be treated at par with the promoted Senior Stenographers of SKUAST Jammu.
26. In terms of order dated 10.06.2008, the respondent-University had approved the extension of benefits to employees, who have been promoted/placed in the pre-revised scales of 1400–2600 and 1640–2900 revised to 5000– 8000 and 5500–9000 were placed in the pre-revised pay scales of 1640–2900 and 2,000–3500 revised to 5500–9000 and 6500– 10,500 on interim basis in the light of the directions passed in favour of employees of SKUAST by this Court and the pay of such employees was fixed on notional basis from the date of their promotion/placement in the pay scale and monetarily from 23.08.2007 with the condition that the interim placement shall be subject to final outcome of the main writ petition, pending disposal before this Court. The employees coming under the purview of relief were directed to furnish an undertaking to the university that in the event they fail in the main writ petition, the payments of enhanced pay scales released in their favour on interim basis shall be reimbursed by them to the University. In the said order, no disparity or distinction was made with respect to promotees and direct recruits and the benefit was equally extended in favour of both the categories of employees.
27. It is further argued that the writ court in SWP No. 2996/1992 on 28.08.2015, decided to treat petition as having become infructuous on the basis of the statement of the petitioners that the grievance of the nonteaching employees association has already been redressed with the removal of anomaly. It is stated that the benefits were declared absolute ab initio. The petitioner-beneficiaries were allowed to continue to draw the benefits in the light of the order passed in SWP No. 2996/1992, whereas in partial modification to University Order dated 10.06.2008, the fact of placement/promotion with effect from 23.08.2007 for all practical purposes, without any notional benefit was withdrawn in respect of the appointments made against the posts through direct recruitment on the ground that the post along with the skills were accepted by the appointees at the time of their appointment as direct recruits.
28. The Hon‟ble Apex Court in Kamlakar & ors. vs. Union of India & others reported as AIR 1999 SC 2300 [LQ/SC/1999/575] has held as under :-
12. We have considered the limited issue. We are of the view that all these appellants should get the same relief as the appellants in the Civil Appeal which arose out of Special Leave Petition No. 16646 of 1995. Once they were all in one cadre, the distinction between direct recruits and promotees disappears at any rate so far as equal treatment in the same cadre for payment of the pay scale given. The birth marks have no relevance in this connection. If any distinction is made on the question of their right to the post of Data Processing Assistants they were holding and to its scale - which were matters common to all of them before the impugned order of the Government of India was passed on 2.7.1990, then any distinction between Data Processing Assistants who were direct recruits and those who were promotees, is not permissible. We, therefore, reject the respondent's contention. We have examined the record and the common points arising in this case and those in Civil Appeal which arose out of Special Leave Petition 16646 of 1995 and we are unable to find any lawful distinction between the appellants and those in the other appeal which has been allowed.
13. We accordingly declare that the appellants are entitled to all the benefits which we had granted to the appellants in the Civil appeal which arose out of Special Leave Petition No. 16646 of 1995 as per our judgment dated 25.9.1998 reported in Chandra Prakash Madhav Rao Dadwe and Ors. v. Union of India and Ors. . We grant the same directions in this case also and direct compliance within 3 months from today. Appeal allowed. No order as to costs.”
29. The High Court of Delhi in Union of India & anr. vs. Shashi Kant & others decided on 26.09.2017 has held as under :-
“The anomaly and discrepancy of fixing lower pay scale for promotes amounts to invidious discrimination and violates Article 14 of the Constitution. The same post with identical duties and responsibilities, ex facie cannot have two different pay scales, one for the promotes and the other for direct recruits.”
30. The Supreme Court in Somesh Thapliyal & anr. etc. vs. Vice Chancellor, H.N. B. Garhwal University & anr. reported as (2021) 10 SCC 116 [LQ/SC/2021/2976 ;] has held as under :-
“42. The submissions of the learned counsel for the respondents that the appellants have accepted the terms and conditions contained in the letter of appointment deserves rejection for the reason that it is not open for a person appointed in public employment to ordinary choose the terms and conditions of which he is required to serve. It goes without saying that employer is always in a dominating position and it is open to the employer to dictate the terms of employment. The employee who is at the receiving end can hardly complain of arbitrariness in the terms and conditions of employment. This Court can take judicial notice of the fact that if an employee takes initiation in questioning the terms and conditions of employment, that would cost his/her job itself
43. The bargaining power is vested with the employer itself and the employee is left with no option but to accept the conditions dictated by the authority. If that being the reason, it is open for the employee to challenge the conditions if it is not being in conformity with the statutory requirement under the law and he is not estopped from questioning at a stage where he finds himself aggrieved.”
31. The Supreme Court in State of Punjab & ors. vs. Rafiq Masih (White Washer) reported as 2014 (8) SCC 883 [LQ/SC/2014/704] has held as under :-
“8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the concerned employee. If the effect of the recovery from the concerned employee would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover.”
32. In Col. B. J. Akkara (Retd.) v. Government of India and others, reported as 2006 (11) SCC 709 [LQ/SC/2006/920] the Supreme Court considered an identical question as under:-
“28. Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery.”
33. In Syed Abdul Qadir and Others v. State of Bihar and Others reported as (2009) 3 SCC 475, [LQ/SC/2008/2493] the Supreme Court has held as under:-
“59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter-affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made.”
34. In Col. A. S. Iyer & Ors. V/s Bala Subramanyan & Ors. reported as (1980) 1 SCC 634, [LQ/SC/1979/423] the Supreme Court has held as under:
“Let us eye the issue from the egalitarian angle of article 14 and 16. It is trite law that equals shall be treated as equals and, its application to public service, this simply means that once several persons have become members of one service, they stand as equals and cannot, thereafter, be invidiously, differentiated for purposes of salary, Seniority, promotion, or otherwise, based on the source of recruitment or other adventitious factor. Birth – marks of public servants are obliterated on entry into a common pool and our country does not believe in official casteism or blue blood as assuring preferential treatment in the future career. The basic exemption for the application of this principle is that the various members or groups of recruits have fused into or integrated as one common service merely because the sources of recruitment are different, there cannot be apartheidisation within the common service”.
35. The Apex court in catena of judgments has held that once the employees are in one Cadre, the distinction between direct recruits and promotees disappear, at any rate, so far as, equal treatment in respect of payment of pay scale is concerned. It is not permissible to make any distinction with respect to the rights of the direct recruit and promotees, holding the same post and performing the same set of duties as their counterparts in their own institution and in the other Government Departments. The only reason for depriving the petitioners of the benefit of higher pay scale is acceptance of their appointment through direct recruitment. Whenever the post is advertised and an applicant submits his application, it is not open for a person who is appointed against direct recruit post to choose the terms and conditions, the employer is always in a dominating position and it is not open to the employee to dictate the terms of employment. But once the employees are coming from two different sources that is direct recruitment and through promotion, they form a common cadre, their birth mark i.e. the source from which they had joined the cadre loses its significance and no discrimination can be made thereafter in fixing their service conditions including their Pay scales. The petitioners are also entitled to the benefit of higher pay scale as has been extended to senior stenographers appointed through promotion on the principle of equal pay for equal work. The petitioners though holding a higher post in status in comparison to the Head Assistants but would be rendered lower to them in case the impugned order is allowed to sustain.
36. The petitioners have not only suffered with the withdrawal of the benefit of higher pay scale but the recovery has also been imposed on them by the respondents who on their own had extended the benefit in favour of all senior stenographers, including direct recruits and promotees. Even if it is assumed for the sake of arguments that the higher pay scales have been granted in favour of the petitioners by mistake, yet the petitioners cannot be held responsible for it as the said mistake, admittedly, is committed by the respondents themselves. As such, it doesn‟t lie in the mouth of the respondents to recover benefit of the higher pay scales granted to the petitioners from 2008 till 2016. Undoubtedly, the higher pay scale was being paid to the petitioners, not because of any misrepresentation or fraud on their part. The respondents have already admitted that the higher pay scales has been granted to the petitioners till 2016 on the basis of the interim order passed by this Court. On the touchstone of equity, the process of recovery is iniquitous and arbitrary.
37. In view of above, this court is of the considered opinion, that order No. 51- (Est) of 2016 dated 12.09.2016, to the extent it pertains to partial modification of the university order No. 14(Est) of 2008 dated 10.06-2008, issued by Respondents 1 & 2, thereby creating disparity in the pay-scales of direct recruits and promotees, is not only arbitrary but also violates Article 14, 16 and 39(d) of the Constitution of India, as such, same is quashed. Petitioners being direct recruits are entitled to the same pay scales as have been granted to the promotees of such category of nonteaching employees in pursuance to the order No. 14 (Est) of 2008, dated 10.06.2008. Respondents are further directed not to affect any recovery against the petitioners on account of the benefits of higher pay scales granted to the petitioners since 2008 till date.
38. Disposed of.
