Union of India & Ors v. Mahabir Singh Gosain & Ors

ORDER o/o

23.07.2013. CM No.355212013 in W.P.(C) No.6809/2011 CM No.3530/2013 in W.P.(C) No.6868/2011

¶1In spite of being served with the applications above captioned seeking early hearing of the two writ petitions, none has appeared for the respondents. W.P.(C) Nos.6809/11 & 6868/11 t v Signed By:RAM DATT Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. Y is ? \

¶2For the reasons mentioned in the application garly hearing allowed and the writ petitions are taken up for hearing today itself. W.P.(C) No.6809/2011 & W.P.(C) No.6868/2011

¶1In a prolix decision spanning 30 pages, O.A.No.1855/2010 filed by the respondents of W.P.(C) No.6809120I1 has been allowed by the Tribunal. f he decision is dated February 02,20II. The same has been followed by the Tribunal to allow O.A.No.205712011 filed by the sole respondent of W.P.(C) No.6868/20I1. The decision is dated F'ebruary 02,20II.

¶2The three respondents of W.P.(C) No.680912011 and the sole respondent of W.P.(C) No.6868l20Il were working as Detnonstrators in the Indian Military Academy, Dehradun. The said academy imparts rnilitary training and which includes academic study in Physics and Chernistry as well; and the syllabus for said courses is prescribed by the Jawahar Lal Nehru lJniversity; and needless to state the level of education imparted is of the undergraduate degree level. This means that laboratories exist in the Indian Military Academy i.e. a Physics Laboratory and a Chemistry Laboratory. As we all know, Laboratory Assistants and Demonstrators work in these laboratories.

¶3The Demonstrators at the Indian Military Academy started claiming pay as per UGC pay scales and succeeded. The Allahabad Bench of the Central Administrative Tribunal held that since the staffing pattern on the academic side of the Indian Military Academy was as per pattern prescribed by UGC, the pay scales as adopted by UGC would be applicable. The Indian Military Academy accepted the decision.

¶4Ilut to the misfortune of the Demonstrators, UGC decided to restructure the staffing pattern and recommended to abolish the post of .,-- "l' l, ,l v w.P.(C) Nos.6809/11 & 6868/11 Page2 of 4 I ,|\ Demonstrators. Indian Military Academy accordingly intimated Demonstrators working in the Academy to either accept employment as a Demonstrator in such laboratories of the Government of India where the posts existed or to accept working against the post of Laboratory Assistant in the Physics and Chemistry Laboratory in the Indian Military Acaderny.

¶5The respondents refused to accept the offer and filed Original Applications which, as noted above have been allowed by the Tribunal.

¶6'fhe reasoned decision allowing OA No.1855/2010 makes interesting reading. With reference to the decision reported as (1990) 2 SCC 707 Mallikarjuna Rao Vs. State qf A.P. the Tribunal noted the law that the Administrative'Iribunals cannot enter into policy matters, and to use the expression by the Tribunal 'issue advisory sermons'. The decision notes that the constitution shows that India is a sovereign, socialist, secular and democratic republic and integrates justice, social, economic and political. The decision proceeds to hold that the Constitution is the living organic thing. The theory of basic structure of the Constitution has been discussed. Exploitation of human values has been discussed. Article 23 ofthe Constitution has been discussed. In a nut shell the Tribunal has indulged in'advisory sermons'. With reference to the facts that Demonstrators had litigated on pay parity as per llGC scales and had won, the Tribunal has opined that the decision to abolish posts of Dernonstrators was mala-fide. The Tribunal has opined that only the academicians could take a decision whether Demonstrators were needed or not and not the Executive. Thus, direction has been issued to retain the respondents at the Acaderny in Dehradun.

¶7Suffice would it be for us to state w.P.(C) Nos.6809/11 & 6868/IL that Demonstrators Page 3 of4 i V t '{-,\, rF working in the laboratories at the Indian Military Academy claimed parity with Dernonstrators working in colleges under the University Grants Commission claiming similarity in staffing pattern in the UGC funded colleges and the teaching wing of the Indian Military Academy. They succeeded. Thus, once IIGC decided to change the staffing pattern, the consequences thereof had to follow. The reasoning of the lribunal that it was academicians which could decide said fact i.e. change in the staffing pattem and not the Executive overlooked the fact that it was the academicians who took the decision: The Academicians in the University Grants Cornmission. The executive functionaries of the Indian Military Acaderny simply implemented the said decision.

¶8lJnfortunately, as a result of the irnpugned decision, which have not been stayed, the respondents are receiving salary for doing no work.

¶9Allowing the writ petitions and quashing the impugned decisions dated February 02,2011 we dismiss O.A.No.2057/2010 anct O.A.No.I855l20I0. However, we direct the petitioner to once again seek option from the respondents to either join any other laboratory where work of a Demonstrator is available or to accept employment in a lower post at the Indian Military Academy in Dehradun. No costs. c F'

¶10PRA;ffiKIoc,J. \il rr"

V.KAMESWAR RAO, J. a 6U ltt (r w'*}""^' X "/c* *' JULY 23,2013 ,rnntto Fpr A &'P tto W.P.(C) Nos.6809/11 & 6868/11 rr1 s-2 &3 *INTHEHIGIICOURToFDELHIATNEwDELHI + w.P.(c) 6809/2011 I-I'NION OF-INDIA & ORS' ""' Petitioners n"pr.rentedby: ivfr'n'J'!]nha' Advocate with Mr.A. S. Singh, Advocate VEISUS MAHABIR SINGH GOSAIN & ORS' ""' Respondents Repr"s"nted by: Ms'Meenu Mainee' Advocate for resPondents/ review Petitioner .lt VETSUS KAILASH CHANDRA DABRAL ""' Respondent n"f '"'"nted bYr X:#:;l;mL"; #fJ'""""T: "' CORAM: HON'BLE MR. JI]STICE PRADEEP NANDRAJOG IION'BLE MR. JUSTICE V. KAMESWAR RAO w.P.(c) 6868/2011 IINION OF INDIA & ORS. RePresented bY: ORDER L2.12.2013 ..... Petitioners Mr.R.V. Sinha, Advocate with Mr.A.S. Singh, Advocate o R.P.No.463l2013 in W.P'(Q) No'6809/201 1 @itr w.p.(ct No.osoglzot t

¶1Notwithstanding various contentions put forth in the lV.P.(C) 6809/20 I I & conn'tnatter two revtew Page I of5 } tp petitions, leained counsel for the review applicants/respondents states that if observations made in paragraph 8 of the order under review are removed the respondents would be happy for the reason as a matter of fact the respondents are continuing to work at the Indian Military Academy and are not being paid salary for sitting idle'

2.Inparagraph8ofourorderdatedJuly23,20|3wehadrecordedas under:- "8. (Jnfortunately, as a result of the impugned decision' which have not been stayed, the respondents are receiving salarY for doing no work''

¶3Needless to state the observations is not a determinative finding of fact. It was so recorded because it was so told to us by learned counsel for the petitioner and as is apparent from the order dated July 23'2013' there was no representation from the side of the respondents'

¶4we note that leamed counsel for the respondents has shown to us photocopies of various documents which would reveal that the respondents are working and earning wages for work done and not sitting idle'

¶5We do not comment upon.the said documents for the reason we are inclined to remov e paragraph 8 from our decision dated July 23' 2013 on account of the fact that what is recorded therein is not central to our decision. It merely notes a factstated at the bar to us when decision dated IurIy 23,2013 was Pronounced'

¶6The two review petitions accordingly stand disposed of deleting paragraph 8 from the decision dated July 23, 2013 and as a consequdnce parag and 10 being renumbered as 8 and 9' W.P'(C) 6809/2011 & conn'ntatte'' l'.

¶7The decision dated IuIy 23,2013 shall henceforth read as under:- "W.P.G) No.6809/2011 & W'P'G) No'6868/2011

¶1In a prolix decision spanning 30 pages' O.A.No.I855/20iti fited by the respondents. of W.P.(C) No.6809/20: I has been allowed by the Tribunal. The decision is dated F-ebruary 02, 2011. The same has beenfollowed by the Tribunal to oito* O'A'No'2057/2011 fiIed by the ,sole- ,urpond"nt of i.p (cl No.6g6g/2011. The decision is dated February 02, 201 I.

2.ThethreerespondentsofW.P.(C)No.6809/20]]andthe sole respondent oi w.p (c) No 6g68/2011 were working as Demonstrators trihu Indian Military Academy' Dehradun' The said academy imparts military training and which includes academicstudyinPhysicsandChemistryaswell;andthe syllabus for said courses is prescribed by the Jawahar Lal Nehru (Jniversity; and. needleis to state the level of education imparted is of thi undergraduate degree level-This means that laboratories exist in the Indian Military Academy i.e-a Physics Laboratory and a Chemistry Laboratory' As we all lcnow' LaboratoryAssistantsandDemonstratorsworkinthese laboratories-

3.TheDemonstratorsatthelndianMilitaryAcademy started claimin[ poy o' per UGC pay scales and succeeded' The AtlahoUoa'iu""n oi the Cential Administrative Tribunal held that since the stffig pattern on the academic side of the Indian Military Academy was as per pattern -prescribed -by (JGC,thepay,scalesasadoptedby.UGCw.ouldbeapplicable. The indiai tt'tttttory Academy accepted the decision'

4.ButtothemisfortuneoftheDemonstrators,UGCdecided to restructure the sffing pattern and recommended to abolish the post of Demonit'oto"' Indian Military Academy t l W.P.(C) 6809/2011 & conn'nrutter page 3 of5 l accordingly intimated Demonstrators working in the Academy toeitheracceptemploymentasaDemonstratorinsuch laboratories of the Government of India where the posts existed or to accept working against the post of Laboratory Assistant in the p.hysi^ ord ciluitrtry Lab,oratory in the Indian Military Academy.

¶5The respondents refused to accept the offer and filed-original Applications which, as noted above have been allowed by the Tribunal.

6.ThereasoneddecisionallowingoANo.lB55/20]0makes interesting reading. With reference to the decision reported as innol 2 scc 767 Mattikariuna Rao vs. stpte qf A.P. the Tribunal noted the lai that the Administrative Tribunals cannot enterintopolicymatters,andtousetheexpressionbythe Tribunal ,issu.e advisory sermons'. The decision notes that the constitution shows thai Indta is a sovereign, socialist, secular and democratic republic and integrates . justice, social, economic and potiticzl. The decision proceels tg hold that the constitution is the living organic thing. The theory of basic structure of the constitution-has been discussed' Exploitation -ofhumanvalueshasbeendiscussed.Article23ofthe Constitution has been discussed. In a nut shell the Tribunal has intdulged in 'advisory sermons'. With reference to thefacts that Demonstrators had'titigated on pay panity as'per UGC scales and had won, the Tribunal has opined thgt-the decision to abolish posts of Demonstrators was mala-fidu' The Tribunal has opried that only the academicians could take a decision whetherDemonstratorswereneededornotandnotthe Executive in"r, direction has been issued to retain the respondents at the Academy in Dehradun' T.SfficewoulditbeforustostatethatDemonstrators working in the laboratories at the Indian Military Academy claimed parity with Demonstrators working in colleges under the (Jniversity Grants commission claiming similarity in /7 lz- ) W.P.(C) 6809/2011 & conn'matter page4 of5 trt3 stffing pattern in the UGC funded colleges and the teaching ;:r* if inu Indiam Militarv Academy' They ltlcceeded' Thus' once UGC decided to change the stffing pattern' the ,onruqrurru, thereof had to follow' The reasoning of the Tribunal that it was academicians which could decide said fact i.e. change in the stffing pattern and not the Executive overlooked the fact thai"it iai the academicians who took the decision:TheAcademiciansintheUniversityGrants commission. The executivefunctionaries of the Indian Military Academy simply implemented the said decision'

¶8Allowing the writ petitions and quashing the impugned decisions aatea Februa'y 02' 2011 we dismiss O.A.No.2057/2010andO'A'No'1855/2010'However'wedirect thepetitionerto-onceagainseekoptio'f'oYtherespondentsto either ioin any other tiboratory where work of a Demonstrator isavailableor-toacceptemploymentinalowerpostatthe Indian Military Academy in Dehradun' l

¶9No costs. " DECEMBER I2,2OI3 ,rrorrrtu -,-:=flfl PRADEEP NANilR,X.JOG, J. [)^.NtP V. KAMESWAR RAO' J. j W.P.(C) 6809/2011 & conn'ntatter page 5 of5

I r\.'l \\ $-9 & 10 ,F IN THE HIGH COURT OF DELHI AT NEW DELHI + w.P.(c) 680912011 UNI.N ou ffil**'""fft, MTRV St*", iillL"il'i"nn Mr.R.N. Singh and Mr.P.K. Singh Advocates VETSUS MAHABIR SINGH GOSAIN & ORS. ..... Respondents Represented by: None w.P.(c) 6868/20rr UNION OF INDIA & ORS. .....Petitioners . Represented by: N4r.R.V.Sinha, Advocate with .Mr.R.N. Singh and Mr.P.K. Singh Advocates VETSUS KAILASH CHANDRA DABRAL ..... Respondent Represented by: None CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR.JUSTICE V.KAMESWAR RAO