Calcutta High Court (Appellete Side)
Tapan Kumar Ghosh & Ors vs Union Of India & Ors on 11 April, 2012
Author: Ashoke Kumar Dasadhikari
Bench: Ashoke Kumar Dasadhikari
1
11.04.2012
ss W.P. 16635(W) of 2010
Tapan Kumar Ghosh & ors.
Vs.
Union of India & ors.
Mr. Jayanta Kumar Mitra, Sr. Adv.
Mr. Gopal Chandra Ghosh
Mr. Om Narayan Rai
.... For the petitioners
Mr. Joytosh Majumdar
Mr. Bhakti Prasad Das
... For the State
The case of the writ petitioners as made out in the
writ petition is that the writ petitioners are the Lecturers
who have joined the post with Ph.D. degree and are
employed in different colleges.
Mr. Mitra, learned Senior Counsel appearing in
support of the writ petitioners submits that the Lecturers
who were appointed on or after 1st January, 1996 with
Ph.D. degree were allowed four increments in order to
attract and retain better talent in teaching professions.
Mr. Mitra pointed out the Government Order No.118 Edn
(CS) dated 4th February, 1999.
Mr. Mitra drew my attention as regards clause 3 of
the aforesaid Government Order. Under sub-clause (c) of
clause 3 the respondent authorities allowed two advance
2
increments to a Lecturer with Ph.D. degree when he moved into selection grade as Reader. He also referred sub-clause (d) and pointed out that a teacher will be eligible for two advance increments as and when he acquires a Ph.D. degree in his service career. Whereas in the present case Mr. Mitra submitted that the petitioners who have joined prior to 1st January, 1996 with Ph.D. degree were not given the benefit of sub-clause (a) of clause 3 of the aforesaid Government Order.
Mr. Mitra submitted that the respondent authorities have their power to classify but that classification should be reasonable classification and must be having an intelligible differentia. The learned Counsel submits that in the instant case the impugned classification is unreasonable and contrary to Government policy and moreover there is no inteligible differentia for such classification. In the instant case the Government policy is to attract and retain better talent in teaching professions and therefore, the writ petitioners should not be treated differently. He submits that it is a clear case of discrimination and violative of Article 14 of the Constitution of India and the impugned classification has no nexus with the object sought to be achieved by 3 the respondent authorities.
Mr. Mitra cited two judgements in support of his clients. The first one is reported in (1983) 1 S.C.C. 305 (D.S. Nakara & ors. Vs. Union of India). In this judgement the Hon'ble Supreme Court has clearly held that Article 14 forbids class legislation, it does not forbid reasonable classification for the purpose of legislation. However, in order to pass the test of permissible classification, two conditions must be fulfilled, viz., (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group; and (ii) that differentia must have a rational relation to the objects sought to be achieved by the statute in question.
Mr. Mitra submitted that the aforesaid principle was not followed by the respondent authorities while granting the benefit to the persons who have improved their qualification or having a Ph.D. degree on or after 1st January, 1996.
The second judgement cited by Mr. Mitra is reported in A.I.R. 2000 S.C. 451 (Ajay Jadhav Vs. Government of Goa & ors.). In that judgement the 4 Hon'ble Supreme Court has dealt with similar type of situation and held that the impugned action is discriminatory and allowed the same pay scale in favour of the applicant.
Mr. Mitra also referred to one unreported Division Bench judgement delivered by the Hon'ble Division Bench of this Court rendered in F.M.A. 252 of 2007 with F.M.A. 1782 of 2006 (Dr. Sudhir Kr. De Vs. Union of India & ors.). While disposing of these two appeals, the Hon'ble Division Bench considered the same issue and/or same question which was under challenge by two other Ph.D. degree holders who have joined with Ph.D. degree prior to 1st January, 1996 and in that case the Hon'ble Division Bench has come to the following conclusion :-
" In Memo No.F.3-1/94(PS) dated 24.12.1998 issued by University Grants Commission, it was stipulated that a teacher would be eligible for two increments as and when she/he acquired a Ph.D. Degree in her/his service career. It was emphasized that the condition as to increments would come into force with immediate effect. Although the initial pay of a teacher was to be fixed on 1.1.1996 in terms of Government Order No.118 Edn (CS) dated 04.02 1999, in subsequent Memo 5 No.F-5.3/2001 (PS) dated 31.08.2001, it was clarified that teachers who acquired Ph.D. Degree during service prior to 1.1.1996 and who were not given the benefit of any advance increments as per earlier Career Advancement Scheme would be given two advance increments with effect from 27.07.1998. The other teachers namely, Dr. Achinta Chattopadhyay and Dr. Diptendu Bhusan Dutta were given two increments with effect from 27.07.1998, as indicated in the Comparative Chart placed at page 87 of the paper book in F.M.A. 151/07. Not a single teacher in the State of West Bengal has been given two increments with effect from 1.1.1996, as fairly acknowledged by Ms. Arati Dutta representing the appellant/writ petitioner. As enjoyed by other teachers and in terms of memo No. F.5-1/2001 dated 31.08.2001, the writ petitioner would also be entitled to two increments with effect from 27.7.1998.
We have heard the learned Advocates of the respective parties. We have perused the relevant papers and documents, which are placed before us. Considering the submission of the respective parties, we dispose of both the appeals. The impugned order passed by the learned trial Judge does not suffer from any illegally. We do not find any reasons to interfere with the same, but we modify such order to the effect that the appellant/writ petitioner will not be entitled to get any benefit with effect from 1st January, 1986 as it 6 was directed by the learned Single Judge and such benefit can only be given to the writ petitioner/appellant with effect from 27.07.1998. The notification dated 31st September, 1988 is very much clear and it is specifically stated in the said notification that the existing Lecturers with research degree will also be eligible for a similar benefit. The writ petitioner/appellant having the degree of Ph.D. on the date of joining in the institution, is also entitled to same benefit. The respondent authorities will now take up the matter within a period of two weeks from the date4 of communication of the order and will pass appropriate reasoned order. It is further directed that the respondent authorities will dispose of the matter after giving an opportunity of hearing to the appellant/writ petitioner Both the appeals are thus, disposed of."
In the instant case there was direction for filing affidavit but no affidavit filed since 2010 and nobody was appearing. However, on notice the learned Counsel appeared and took time. On earlier occasion the learned Advocate who appeared at the hearing did not make any submission. Today also the learned Advocate prayed for time which was refused by this Court.
However, while this Court started dictating the judgement, Mr. Majumdar appeared and submitted that 7 he was engaged in the matter only yesterday. He submitted that the matter be sent back to the respondent authorities for consideration. He submits that the file was not traceable which he was informed over telephone yesterday. He further submitted that the writ petition is not maintainable since the concerned Lecturers are of different colleges.
Heard the matter and considered the submission made by Mr. Mitra, learned Senior Counsel appearing for the writ petitioner and Mr. Majumdar, learned Counsel representing the respondent authorities today. I find that the Hon'ble Division Bench has decided on the same circulars which are involved herein and has come to a conclusion that the concerned applicants have been discriminated and therefore, they are entitled to get the increments as per the Circular, although they have joined with Ph.D. Degree prior to 1st January, 1996.
In my view, the ratio of the aforesmentioned Division Bench judgement is clearly applicable and the writ petition should be allowed in favour of the writ petitioners who joined with Ph.D. Degree prior to 1st January, 1996. I also find that the classification made by the respondents is discriminatory and violative of 8 Article 14 of the Constitution. It also violates Government policy of attracting and retaining better talent. I find from the Government Order that the intention and/or policy of the Government to attract the talented teachers having Ph.D. Degree and to utilise their service for the benefits of the students who are reading in different colleges. There is no justifiable reason to give such benefit to some professors who joined with Ph.D. degree on or after 1st January, 1996 or to some who improved their qualification after joining on 1st January, 1996, by getting Ph.D. degree and to refuse some who have joined the service with Ph.D. degree prior to 1st January, 1996. In my considered opinion all of them are on same status and under same class.
In this context paragraph 15 of the judgement of D.S. Nakara's case (supra) is very relevant and the same is quoted hereunder :-
"15. Thus the fundamental principle is that Article 14 forbids class legislation but permits reasonable classification for the purpose of legislation which classification must satisfy the twin tests of classification being founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and that differentia must have a rational nexus to the object 9 sought to be achieved by the statute in question."
I do not find any justification on the part of the respondent authorities to create discrimination between the same class of people. It is true that the power and authority of classification based on intelligible differentia rest with the State Government but in the instant case I do not find any such intelligible differentia for classifying the Professors who have joined with Ph.D. degree prior to 1st January, 1996 and the Professors who have joined on or after 1st 1996 with Ph.D. degree and/or have improved their qualification getting Ph.D. degree on or after 1st January, 1996. In my opinion, this clearly violates the mandate enshrined under Article 14 of the Constitution of India. Therefore, the action of the respondent authorities in creating such discrimination is not at all justifiable and should not be allowed to stand.
Mr. Mitra cited another decision of Ajay Jadav (supra) and in that case also the concerned candidates who are working even in temporary posts were allowed the same scale of pay which they were getting earlier. In my view, the action of the respondent authorities are unjust, improper and illegal. Therefore, I allowed this 10 writ petition directing the respondent authorities to give four increments in favour of each of the writ petitioners as prayed for. The writ petitioner would be paid arrears within a period of eight weeks from the date of communication of this order. I find that this a joint writ petition filed by 31 Professors and/or Lecturers of different colleges. Therefore, separate court fees should be paid for the respective writ petitioners and I direct the writ petitioners to deposit the different amount within a period of one week from date. In default, the writ petition should be treated as dismissed and in case the deposit is made within the stipulated time then the aforesaid direction given by this Court is to be followed within the time stipulated.
In the above direction I dispose of the writ petition. However, there would be no order as to costs.
(Ashoke Kumar Dasadhikari, J.)