Full Judgment Text
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CASE NO.:
Appeal (civil) 4614 of 2006
PETITIONER:
M. Raja
RESPONDENT:
CEERI Educational Society Pilani & Anr.
DATE OF JUDGMENT: 31/10/2006
BENCH:
S.B. Sinha & Markandey Katju
JUDGMENT:
J U D G M E N T
[Arising out of SLP (C) No. 1242 of 2006]
S.B. SINHA, J :
Leave granted.
Appellant was working as a Trained Graduate Teacher (TGT for
short) (English) in Atomic Energy Central School, Rawatbhata in the State
of Rajasthan. An advertisement was issued by Respondent No. 1 \026 Society
for recruitment and appointment to the post of TGT in its school. The
appellant applied therefor. An interview was held. Allegedly, he asked for
pay protection. It was assured that his pay would be protected.
An offer of appointment was made to him on 17.12.1996 wherein it
was stated:
"2. You will be paid salary which includes
Basic Pay + DA as per CES Rules.
*
14. You shall abide by the service rules of
CEERI Educational Society as decided from time
to time."
The respondent, however, by a letter dated 8.01.1997 offered a basic
salary of Rs. 1700/- with seven advance increments as also accommodation,
etc. to the appellant as he did not join and demanded for settlement of terms
and conditions in service to be spelt out clearly. It appears that the wife of
the appellant was also offered an appointment. In his letter dated
15.01.1997, the appellant contended:
"I was promised pay protection till the
implementation of Pay Commission Report by way
of personal pay (by the Interview Committee, of
which you were also a member). There is no
mention about it in both your letters i.e. dated
17.12.96 and 8.1.97.
I am greatly obliged that you have offered
me seven advance increments in the pay scale of
Rs. 1400-40-1600-50-2300-EB-60-2600, but I
wish to bring to your kind notice that I would be
drawing 1600/- basic pay in the same grade in
March, 1997. Henceforth my request to you is that
you have to protect my last drawn pay of Atomic
Energy Central School (under AEES), as agreed
upon by the Committee."
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In response thereto, Respondent No. 1 \026 Society by a letter dated
21.01.1997 clarified the queries raised by the appellant inter alia in the
following terms:
"Your basic salary of Rs. 1600/- in March, 1997
with your present employer has been well
protected by offering you Rs. 1700/- basic pay as
soon as you join us at CVM. As the pay
commission report is likely to be implemented in
our school from April, 1997 after its
announcement, therefore, your pay will be
automatically protected at that time. However, if
you are joining us earlier than the implementation
of pay commission report the difference in your
last drawn salary and the salary at CVM on joining
would be given to you as additional personal pay
as per rules."
Yet again by a letter dated 25.01.1997, pay protection was assured
stating:
"Yes, your pay will be protected in any way either
providing personal pay or fixing basic pay at
suitably higher level. The appointment letter sent
to you is not supposed to carry all these details.
Principal, CVM has already written to you
in this regard in detail. If you have further any
query please feel free to contact Principal, CVM."
The appellant joined the services in Respondent No. 1 \026 School on
30.04.1997. It is not in dispute that the Fifth Central Pay Commission
revised the scale of pay with effect from 1.01.1996 pursuant whereto the
appellant claimed that he was entitled to the scale of pay Rs. 5500-9000
whereas he was put in the pay scale of Rs. 5000-8000. The
recommendations of the Fifth Central Pay Commission, however, were
applied by the respondent with effect from 1.07.1999.
Inter alia on the premise that the respondents were bound to protect
his scale of pay keeping in view the promises made and the Management
Committee backtracked therefrom, he moved the Rajasthan Non-
Government Educational Institutions Tribunal, Jaipur. The Tribunal allowed
the said application in part holding the appellant to be entitled to pay as per
the recommendations of the Fifth Central Pay Commission with effect from
the date of appointment and directing the respondents to calculate the
amount of difference and pay the same to him within three months. A writ
petition filed by the respondents thereagainst was dismissed by a learned
Single Judge of the High Court. The respondents preferred an intra-court
appeal and the Division Bench by reason of the impugned judgment allowed
the same.
The appellant is, thus, before us.
A limited notice was issued by an order dated 23.01.2006 only in
regard to the question as to whether the revised pay is being paid to the
appellant with effect from 1.07.1999. In its counter affidavit, the
respondents contend that the appellant is entitled thereto but he must give his
consent therefor by way of a written agreement. It is, thus, not in dispute
that once the appellant signs the agreement, he would be given benefits of
the revised scale of pay. Our attention in this connection has also been
drawn to a letter of the appellant dated 4.02.1997 wherein he stated:
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"I have gone through the following\005 and I am
pleased to accept the terms and conditions of
appointment stated through the above said offer
and letters.
I have resigned from my present job/
assignment on 28.1.1997, giving three months
notice, which expires on 28.4.1997.
I have requested them to relieve me at the
earliest, if they could do the same, by waiving the
notice pay/ period.
I would join your organization as and when I
am relieved, but I assure you that I would join
CEERI VIDYA MANDIR latest by 30.04.1997
(i.e. on or before 30.04.1997)."
The learned counsel appearing on behalf of the appellant would
submit that the respondents are bound by the doctrine of promissory estoppel
and keeping in view the stand taken by the then Managing Committee
regarding benefit of the revised scale of pay by way of pay protection, the
new Managing Committee could not have resiled therefrom.
The learned counsel appearing on behalf of the respondents, on the
other hand, submitted that whereas the appellant was entitled to protection of
pay, he had never been assured that the benefit of the revised scale of pay
would also be given to him with retrospective effect.
The appellant had been given the benefit of pay protection. He
accepted the same. He had moreover been given also additional benefits.
However, the offer of appointment cannot be read so as to extend such
benefits in regard to the applicability of the recommendations of the Fifth
Central Pay Commission which would come in force in future. The
respondents in that sense are right in contending that their being no
commitment in that behalf, the question of being bound by the purported
commitment did not arise. Revision of pay took place subsequently. It was,
therefore, a subsequent development.
It may be true that even the respondents expected that the
recommendations of the Pay Commission would be implemented from
April, 1997, but if for one reason or the other, the same was given effect to
from 1.07.1999, a promise cannot be said to have been made out that
irrespective of the implementation of the report of the Pay Commission, the
appellant would be given the benefit thereof.
It may be that the respondents in its letter dated 21.01.1997 stated "as
the Pay Commission Report is likely to be implemented in our school from
April, 1997, after its announcement, therefore, your pay will be
automatically", but the same cannot be said to be a clear promise which
would attract the principle of promissory estoppel.
The appellant was not entitled to the benefit of the recommendations
of the Fifth Central Pay Commission with effect from 1.01.1996.
Recommendations of the Fifth Central Pay Commission were made
applicable by the respondent in its school only from 1.07.1999.
Rights of the parties are not governed by any statutory provisions.
They have to be considered having regard to the terms and conditions
contained in the offer of appointment as also the subsequent
correspondences of the parties. The letter dated 21.01.1997 speaks of
payment of difference between the last drawn salary and salary payable to
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the appellant on his joining Respondent \026 School on implementation of the
Report of the Pay Commission. The same did not mean that the respondents
were bound to implement the same with retrospective effect.
It is one thing to say that the benefit of pay protection was accorded to
him on the basis of his last drawn pay but it is another thing to say that he
should be given the benefit of revised scale of pay with effect from 1997.
They stand on different footings. The matter which was never contemplated
by the parties could not have been the subject matter of contract and, thus,
could not have been the basis for making a promise.
We may notice that the appellant in Ground I of Special Leave
Petition stated:
"Because the respondent in their special appeal
have made a categorical statement that after the
Vth Central Pay Commission recommendations
were implemented in their school w.e.f. 1.7.1999,
petitioner at par with other employees of the
respondent school, has been paid salary in the
scale revised in accordance with the Vth CPC
recommendations\005"
Contention of the respondents in this behalf is:
"That the other staff of the appellant school, to
whom benefit of Fifth Central Pay Commission
has been given entered into contract with the
appellants. These contracts were entered by staff
as per CES, service rule. However, the respondent
employee refused to sign such contract. Such
contract needs to be signed as per CBSE (with
whom appellant is affiliated) guidelines."
We may, however, notice that the appellant himself in paragraph 2C-
D of the rejoinder affidavit stated:
"That it is submitted that it is not stated anywhere
in the appointment letter that signing of the
contract was essential for getting the pay revision.
Though it is not a part of the appointment letter,
signing of the contract would not have been a
problem had the contract been in accordance with
the CBSE Affiliation Bye-Laws. Further, the
revised pay scale w.e.f. 01.07.1999 is neither as
per the Fifth Central Pay Commission
recommendations nor is it as per the State
Government pay scale which is arbitrary and
unreasonable\005"
The legality of the contract entered into by and between the parties is
not in issue.
Respondent - School, as noticed hereinbefore, is ready and willing to
extend the benefit of revised scale of pay with effect from the date when it
was implemented by it. Respondent \026 School, thus, has not treated the
appellant very unfairly or unreasonably. A parity in payment of scale of pay
between a private institution and the employees of the State cannot be
directed as the same does not pertain to any legal right of a teacher.
We may notice that in Sushmita Basu and Others v. Ballygunge
Siksha Samity and Others [2006 (9) SCALE 459] a Division Bench of this
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Court opined that for issuing such a direction an existence of a legal right in
the teacher is imperative.
This Court clearly held that interference in the affairs of a private
educational institution would be justified only if public law element is
involved.
In this case, only a limited notice had been issued and as the
respondents are ready and willing to extend the benefit of revised scale of
pay to the appellant in the event he enters into an agreement, we are of the
opinion that no further order need be passed.
Learned counsel for the appellant submitted that despite the fact that a
limited notice had been issued, this Court should consider the applicability
of the doctrine of promissory estoppel in this case. We do not find any
reason so to do. Limited notice was issued by this Court so as to find out as
to whether the appellant was being discriminately dealt with vis-‘-vis other
teachers. Once it is found that he has been dealt with fairly and reasonably,
then there is no reason as to why we would enlarge the scope of appeal at
this stage.
Reliance placed by learned counsel on a decision of this Court in U.P.
SRTC v. Mahendra Nath Tiwari & Anr. [(2006) 1 SCC 118], does not lay
any law in absolute terms. Even in that case, the Court refrained itself from
doing so stating:-
"\005Of course, when we are hearing the appeal on grant of
leave or the petition for special leave to appeal after
notice, we are entitled to reopen the appeal in its entirety
and consider the question of punishment and the legality
of the reinstatement ordered by the Labour Court and
affirmed by the High Court. This could be done by
giving a notice in that behalf to the respondent and giving
him an opportunity of being heard. But for the purpose
of this case and at this distance of time, we do not think
that it is necessary to do so. Therefore, somewhat
reluctantly, we refrain from adopting that course, though,
according to us, this is a fit case where neither the Labour
Court nor the High Court had any justification in
interfering with the order removing the respondent from
service\005"
The jurisdiction of this Court in this behalf is not in dispute, but
exercise thereof would depend on the facts and circumstances of each case.
It was also submitted that the Division Bench of the High Court failed
to properly construe the respondent’s letter dated 21.1.1997. We do not
think so.
The applicability of the doctrine of promissory estoppel is a question
of law in a given situation. The Division Bench for the said purpose did not
enter into any question of fact, although it was entitled to do so.
In Management of Madurantakam Coop. Sugar Mills Ltd. v. S.
Viswanathan [(2005) 3 SCC 193], this Court did not say that the High Court
in exercise of its power of judicial review can never enter into questions of
fact but merely stated that it has a limited jurisdiction in this regard stating:-
"Normally, the Labour Court or the Industrial Tribunal,
as the case may be, is the final court of facts in these
types of disputes, but if a finding of fact is perverse or if
the same is not based on legal evidence the High Court
exercising a power either under Article 226 or under
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Article 227 of the Constitution can go into the question
of fact decided by the Labour Court or the Tribunal. But
before going into such an exercise it is necessary that the
writ court must record reasons why it intends
reconsidering a finding of fact\005"
The Division Bench of the High Court in the impugned judgment has
assigned reasons for interfering with the findings of the Tribunal and the
learned Single Judge. We do not find any legal infirmity therein.
The appeal is dismissed. No costs.