1Whether reporters of Local Papers may be allowed to see the judgment? Yes IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.4556 of 2023 Date of decision: 27.06.2025 Harshvardhan. ...Petitioner. Versus Central University of HP. ...Respondent. Coram: Ms. Justice Jyotsna Rewal Dua, Judge. Whether approved for reporting? For the petitioner : Mr. Sanjeev Bhushan, Senior Advocate with Mr. Sparsh Bhushan, Advocate. For the respondents : Mr. Balram Sharma, DSGI with Mr. Rajiv Sharma, Advocate. Jyotsna Rewal Dua, Judge Petitioner superannuated as In-charge, Painting Department, Institute of Music & Fire Arts, University of Jammu in the year 2018. He was appointed afresh as Eminent Professor in the Department of Visual Arts in the respondent-Central University of Himachal Pradesh on 30.07.2019 in Academic Pay Level-14. The appointment was for period of 5 years or till petitioner’s attaining the age of 65 years, whichever was earlier. Salary was not paid to him by the respondents for 9 months. Thereafter, a consolidated monthly salary of Rs.80,400/- p.m. was paid to him, due arrears for the period were also paid on this basis. Petitioner -2- resigned from the respondent-University on 30.10.2022. He claims his monthly salary at Academic Pay Level-14 in accordance with his appointment order for the duration of his service in respondent-University. After hearing learned counsel for the parties, the gist of the case and the grievance of the petitioner was noted in the order passed in this writ petition on 26.11.2024, as under:- “Heard for some time. 2. The petitioner was appointed as Eminent Professor (Painting) in the Department of Visual Arts in Central University of Himachal Pradesh on 30.07.2019 at Pay Matrix Level-14. His appointment was for a tenure of five years or till his attaining the age of 65 years, whichever is earlier. Further, petitioner’s services were to be governed by the provisions of the Act, Statutes, Ordinances and Rules & Regulations of the University as amended from time to time. The instructions issued by the UGC/MHRD/GOI from time to time with respect to service conditions were to apply. -3- It is the case of the petitioner that he was not paid any salary for about a year. Subsequently, upon acceptance of the recommendations dated 29.05.2020 (Annexure-7 with the reply), the respondent fixed monthly salary of the petitioner at Rs.80,400/-. Petitioner is aggrieved against this fixation of his monthly remuneration. According to the petitioner, he is entitled for his pay fixed at Academic Pay Matrix Level-14, in which he was appointed and as per the UGC norms. 3. Learned Senior Counsel for the petitioner lays stress upon paragraph 4 of the writ petition with the averments that one Dr. Baldev had been appointed as Eminent Professor in the Department of Journalism and Mass Communication in the respondent-University in the year 2018 in the same manner in which the petitioner was appointed. The aforesaid Dr. Baldev was also appointed in Academic Pay Matrix Level-14 and had been paid Rs.1,44,200/- as initial of Pay Matrix Level-14 with yearly increments thereafter. -4- The respondent in its reply has not refuted the aforesaid assertions. 4. Alongwith the rejoinder, the petitioner has placed on record the offer of engagement/appointment letter dated 01.03.2024 (Annexure P-5) as Eminent Professor of one Sh. Aditya Kant in Journalism and Mass Communication in the respondent-University. He was appointed as Eminent Professor in Academic Pay Matrix Level-14. The terms & conditions of appointment of Sh. Aditya Kant appear to be the same as that of the petitioner. 5. During hearing of the case, learned Senior Counsel for the petitioner placed on record pay fixation order of Sh. Aditya Kant, in terms of which, his pay was fixed at Rs.1,44,200/- (initial of Pay Matrix Level-14). In view thereof, learned Senior Counsel for the petitioner contends that the petitioner is also entitled for similar treatment as given by the respondent- University to Dr. Baldev and Sh. Aditya Kant. 6. The respondent, alongwith its reply, has placed on record the pay fixation carried out in case of the -5- petitioner, in terms of which, he had been drawing Rs.36,850/- as monthly pension on account of his retirement from University of Jammu. It appears that pension emoluments have been deducted by the respondent from his Academic Pay Matrix Level-14, i.e. Rs.1,44,200-Rs.36850/- and accordingly his gross emoluments were computed as Rs.1,07,350/-, however, even this amount has not been sanctioned by the respondent in favour of the petitioner, rather, the respondent has held him entitled to monthly salary of Rs.80,400/-. No further clarity can be deciphered from the record as to how and on what basis, the respondent has (i) Deducted pension from the Academic Pay Matrix Level-14 due to the petitioner; (ii) Sanctioned Rs.80,400/- as monthly emoluments; (iii) Why the petitioner is being discriminated vis-à-vis Dr. Baldev and Sh. Aditya Kant. 7. Let learned Deputy Solicitor General of India to have instructions on the above aspects by the next date of hearing. -6- In case the respondent on consideration of the case of the petitioner arrives at a finding that the petitioner is to be treated at par with Dr. Baldev and Sh. Aditya Kant, it may take appropriate decision and release due & admissible monetary benefits in favour of the petitioner. List on 16.12.2024.” 2. Pursuant to the above directions, learned Deputy Solicitor General of India appearing for the respondent– Central University of Himachal Pradesh informed on the next date, i.e. 16.12.2024, that the respondent was reconsidering the case of the petitioner. The matter was thereafter adjourned to 31.12.2024 and subsequently as well. On 09.05.2025, office instructions dated 31.12.2024 were placed on record. The two point stand of respondent as per these office instructions is that:- (i) Pay fixation as allowed in cases of S/Sh. Baldeo Bhai Sharma and Aditya Kant cannot be applied to the case of the petitioner. These two persons were not retired Govt. employees. Their pay was fixed as fresh entrant -7- in the pay-scale of the Professor in the respondent- University. (ii). The petitioner was a retired Government employee, drawing pension from the Government at the time of his appointment as Eminent Professor in the Department of Visual Arts in the respondent- University, therefore, his pay was fixed pursuant to DoPT office memorandum dated 28.02.2019, which, inter alia, provides as under:- “OFFICE MEMORANDUM Subject:- Restriction of officiating pay under FR 35 in the context of CCS(Revised Pay) Rules, 2016-regarding The undersigned is directed to state that in terms of the provisions contained in Fundamental Rule 35 (FR 35), the Central Government may fix the pay of an officiating Government servant at an amount less than admissible under the Fundamental Rules. Accordingly, orders have been issued from time to time indicating the circumstances and the extent to which provisions of FR 35 would apply. In this row, this Department vide OM No.1/4/2009- Estt(Pay-I) dated 08.03.2010 laid down the ceilings for restriction of basic pay under FR 35 in running pay bands and grade pay system in the 6th CPC scenario. 2. The question of revising these ceilings after implementation of CCS (RP) Rules, 2016 has been considered by the Government and the President is pleased to decide that the pay under FR 35 shall be restricted in a manner so that the increase in the basic pay of the post held by the Government Servant prior to the officiating appointment shall not exceed 12.5% subject to a maximum of Rs. 6700 per month. Any increase in excess of 12.5% of the basic pay with a further ceiling of Rs. 6700 per month shall be -8- treated as substantial increase for the purposes of FR 35.” In fact, the reply filed by the respondent also relies upon the DoPT Office Memorandum dated 28.02.2019 for fixing the petitioner’s monthly pay at Rs.80,400/-. Along with the reply, the respondent has placed on record Annexure-7 (page 42 of the paperbook), which contains notes dated 29.05.2020 prepared by the ‘Sahayak (Sansthapna)’. As per the noting sheet on page 42 of the paperbook:- The petitioner was a pensioner from Jammu University, in receipt of Rs.36,850/- as monthly basic pension and had been drawing Rs.73,700/- as basic monthly salary prior to his superannuation; In view of DoPT office memorandum dated 28.02.2019, ‘Sahayak (Sansthapna)’ opined to give maximum increase by Rs.6,700/- in the monthly basic salary drawn by the petitioner prior to his superannuation and in this process determined the monthly salary payable to the petitioner as Eminent Professor at Rs.73,700/- + Rs.6,700/- = Rs.80,400/-. The above proposal of ‘Sahayak (Sansthapna)’ was accepted by the Vice Chancellor of the respondent- University by referring (A) as Rs.80,400/- with remark -9- ‘िफलहाल (A) दे िदया जाए’ [for the time being, (A) be granted]. The respondent-University was dealing with the pay to be given to its employee-the petitioner, who was appointed as Eminent Professor (Visual Arts). Without examining the issue with respect to entitlement of the petitioner to the specific monthly pay level as provided in his appointment letter dated 30.07.2019, the Vice Chanceller of the respondent-University in a casual manner directed to give monthly pay to the petitioner at the rate of Rs.80,400/- as determined by Sahayak (Sansthapna) ‘for the time being’. No final determination of the pay to which the petitioner was entitled to was ever made by the Competent Authority for the next three years. As a result, petitioner preferred present writ petition on 17.06.2023 seeking his pay and emoluments for the duration of service rendered by him, i.e. w.e.f. 05.08.2019 to 30.10.2022, in the ‘Academic Pay Level-14’ in terms of his appointment order dated 30.07.2019 (Annexure P-1). 3. As observed earlier, the respondent has defended paying Rs.80,400/- per month to the petitioner as his monthly pay on the basis of DoPT office memorandum dated 28.02.2019. This office memorandum has been placed on -10- record at Annexure-6 with the reply. Relevant portion of the office memorandum has been extracted in para 2 above. Office memorandum dated 28.02.2019 is on the subject ‘Restriction of officiating pay under FR 35 in the context of CCS(Revised Pay) Rules, 2016-regarding’. The aforesaid office memorandum is regarding ‘officiating pay’ under Fundamental Rules-35 in context of CCS(Revised Pay) Rules, 2016. FR-35 with which DoPT office memorandum dated 28.02.2019 is concerned, reads as under:- “F.R. 35. The Central Government may fix the pay of an officiating Government servant at an amount less than that admissible under these rules.” The subject matter of DoPT office memorandum dated 28.02.2019 and FR-35 pertain to fixing the pay of an officiating Government servant at an amount less than admissible under the Rules. This has no applicability to the case of the petitioner as he was not an officiating Government employee. Petitioner was appointed as Eminent Professor in respondent-University in a particular pay level and not as an officiating employee. Petitioner’s pay cannot be fixed on DoPT office memorandum dated 28.02.2019. In fact, during hearing of the case learned Deputy Solicitor General of India fairly conceded that DoPT office memorandum dated -11- 28.02.2019 has no bearing in the matter of fixing petitioner’s pay. This fair submission made by learned Deputy Solicitor General of India takes away the edifice of respondent’s defense in fixing his pay @ Rs.80,400/- p.m. and not paying him monthly pay as per his appointment order. Furthermore, there is nothing on record to justify respondent’s endeavour to deduct monthly pension being received by the petitioner from monthly emoluments/salary promised to him by the respondent under his appointment order dated 30.07.2019. No submission was even urged in defense of respondent’s deducting pension from petitioner’s monthly emoluments. Petitioner was appointed by the respondent on 30.07.2019 in the Academic Pay Level-14. The appointment was subject to terms & conditions stipulated therein. Condition No.(v) of the appointment order is:- “v. Your services will be governed by the provisions of the Act, Statutes, Ordinances and Rules and Regulations of the University as amended from time to time. The instructions issued by the UGC/MHRD/GOI from time to time w.r.t. service conditions shall be applicable.” Since the respondent has not established that pension being paid to the petitioner by his previous employer was required, in law, to be deducted by the respondent from -12- the monthly emoluments of the petitioner, i.e. Academic Pay Level-14, petitioner has to be held entitled to his full monthly pay, i.e. Academic Pay Level-14 without deduction of pension received by him. 4. In view of above, action of respondent in fixing the monthly pay of the petitioner at Rs.80,400/- cannot be sustained and is accordingly held illegal. Respondent’s reliance upon DoPT office memorandum dated 28.02.2019 for fixing monthly pay of the petitioner is also held to be misplaced. The aforesaid office memorandum has no bearing on the case of the petitioner. Respondent’s deducting monthly pension being paid to the petitioner by his previous employer from the emoluments promised to him by the respondent under his appointment order dated 30.07.2019 is also held illegal. Accordingly, this writ petition is allowed. For the duration of service rendered by the petitioner with respondent, the respondent is directed to pay salary to him strictly in consonance with his appointment order dated 30.07.2019. The salary, if any, already paid to the petitioner, be adjusted against the payable amount. This exercise be completed within six weeks, failing which the amount shall become payable with interest @ 5% p.a. from due date. -13- The writ petition stands disposed of in the above terms, so also the pending miscellaneous application(s), if any. Jyotsna Rewal Dua 27th June, 2025 Judge (Pardeep)