Andhra HC (Pre-Telangana)
Osmania University Teachers ... vs State Of Andhra Pradesh And Ors. on 21 September, 2001
Equivalent citations: 2001(6)ALD451, 2001(6)ALT757
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, C.J.
1. The writ appeal is directed against a judgment and order dated 12.2.1996 passed by a learned single Judge of this Court whereby and whereunder the writ petition filed by the appellants herein praying for the following relief:
... to issue an appropriate writ or direction or order more Particularly in the nature of Writ of mandamus directing the respondent to fix the Pay scale of the Reader and Professor who were appointed under merit Promotion scheme on par with Reader/professor appointed under regular advertised substantive post by considering Articles 14, 16 and 39 (d) of the Constitution of India as envisaged under principle of doctrine of equal pay for equal work.
was dismissed. They have also filed writ petitions for similar reliefs.
2. The members of the appellant No. 1 and other writ petitioners are readers and professors working in the 3rd respondent-University. The 3rd petitioner was appointed as a lecturer in the year 1964. He was appointed as a reader in the year 1971. He was further appointed in the post of a professor in the scale of pay of Rs. 4500/- to Rs. 7300/- in the year 1989 in open category. But he was appointed as a professor under merit promotion scheme with effect from 17.5.1997 in a scale of pay of Rs. 4500/- to Rs. 5700/-. The recommendations of the 2nd respondent as regard grant of pay scale was accepted by the State in terms of G.O. Ms. No. 520, dated 15.12.1988. By reason of the said Government order, all teachers are granted three months' time to exercise their option. They did so. The existing scales of pay and revised scales of pay of lecturers, readers, professors, etc., are:
Sl. No. Designation Existing Scale of pay Revised scale of pay
1.
Lecturers 700-1000 2200-75-2800-100-4000
2. Lecturers (Senior scale) Not existing 3000-100-3500-125-5000
3. Lecturers (Selection scale)
-do-
3700-125-4950-150-5700
4. Reader 1200-1900
5. Professors 1500-1900 4500-150-5700-200-7300
6. Principals of Colleges 1200-1900 3700-125-4950[-150-5700 1500-2500 4500-150-5700-200-7300
7. Vice Chancellors 3000 (fixed) 7600 (fixed)
8. Tutors/Demonstrators existing incumbents only 500-900 1740-60-2700-EB-3000
3. Para 4 of G.O. Ms. No. 520, dated 15.12.1988 is as follows:
These scales shall be applicable to all the teachers in the Universities and affiliated degree and post-graduate colleges, whether Government or private aided colleges, and also to the physical educational personnel and librarians in the Universities and in the above said colleges, who are drawing pay in the revised pay scales, 1976, which are analogous to the U.G.C. scales of pay. These scales are also applicable to teachers who are drawing pay in the State pay scales of 1978/1986. Separate orders will be issued laying down the principles of pay fixation from State scales to U.G.C. scales 1986. These orders are also applicable to such of the teachers who are teaching both degree and intermediate classes in composite degree colleges, but not to teachers who are teaching exclusively intermediate classes. The Director of Higher Education is requested to take necessary action to separate the two cadres as early as possible.
4. Recruitment and qualification to the post of readers in Universities and colleges are to be on merit basis through all India advertisement and only those readers who fulfil the criteria prescribed in the scheme are selected. Para 13 of the appendix to G.O.Ms. No. 520 reads thus:
The existing teachers in Universities and colleges where the Merit Promotion Scheme formulated by the U.G.C. in 1983, or any other similar schemes are in operation, will have an option to continue to be governed by the provisions of those schemes, provided that they exercise that option in writing prior to their pay fixation under this scheme. They will also be entitled to the designations envisaged for various categories of teachers in those schemes, but the scales of pay will be as follows:
(i) Lecturer Rs. 2200-4000.
(ii) Reader/Lecturers (Selection grade) Rs. 3000-5000.
(iii) Professor Rs. 4500-5700.
5. Certain additional guidelines had been issued for implementation of the merit promotion scheme for the Universities by reason of G.O.Ms. No. 169, dated 7.7.1990 which are:
(i) All Lecturers in the pre-revised scale of Rs. 700-1600 who have completed 8 years of service on 1.1.1986 will be awarded the senior scale of Rs. 3000-5000 through a process of screening/ selections, based on regular and systematic appraisal of their performance by a screening committee constituted by the concerned University, without interview. The lecturers working in various Government and private aided colleges (including post-graduate centres) within the University jurisdiction will be considered by the screening committee constituted by the respective University.
(ii) The selection grade of Rs. 3700-5700 shall be awarded for the lecturers in Govt & private aided colleges and P.G. centres, having 18 years of service, without Ph.D qualification and without the designation of reader, without any interview of the lecturers, but after screening of their applications by a duly constituted committee in each University. However, lecturers who are to be designated as readers have to face interview by the selection committee constituted by the University.
(iii) The lecturers in Government and private aided colleges including PG centres who have completed 16 years of service in Government/Private aided colleges and possessing Ph.D. degrees or equivalent publications shall be selected for the award of selection grade of Rs. 3700-5700 and be designated as Reader on the basis of interview to be conducted by the selection committee constituted for the purpose of the respective Universities.
6. Pursuant to or in furtherance of the said scheme the teachers improved their qualifications. They are otherwise eligible to the benefit of merit promotion scheme as readers and professors.
7. The grievance of the petitioners is that those who are appointed as readers, professors under the merit promotion scheme are being paid less than those who were appointed directly, although requisite qualifications, responsibilities and functions are same and the posts are interchangeable. Petitioners contend that thus they have been discriminated against and there has been a violation of Articles 14, 16 and 39 (d) of the Constitution.
8. The respondents on the other hand contend that professors and readers under merit promotion theme form a distinct class of ex-cadre or supernumerary employees as compared to cadre employees viz., directly recruited readers and professors. It is stated that there exists a qualitative difference in the process of selection between the two categories and thus difference in scale of pay is obviated by a justifiable factor.
9. The learned single Judge purported to be on the ground that the University is entitled to make a distinction between the two classes dismissed the writ petition. The learned counsel appearing on behalf of the petitioners would submit that a hostile discrimination has been committed in that those who were granted the merit promotion scheme before 1987 had been given regular scale of pay whereas those who were promoted thereafter, had been denied. Sources of recruitment, contends the learned counsel, cannot be a ground for making discrimination having regard to the functional identity of the posts as also the qualification. Our attention has been drawn to the fact that the State by issuing G.O.Ms. No. 208, dated 29.6.1999 has accepted that even the professors are entitled to the same scale of pay but the readers have been denied.
10. The learned Government Pleader on the other hand would submit that in terms of the merit promotion scheme only, promotion is granted. Our attention has been drawn to a decision of a learned single Judge of this Court in M.V. RAMKUMAR RATNAM v. GOVT. OF ANDHRA PRADESH, 1999 (1) An.WR 37, wherein the University Grants Commission's recommendations had been directed to be carried out. Sri Satyanarayana Prasad, the learned Government Pleader contends that in the said case it has categorically been held that merit promotion cannot be claimed automatically. He also submitted that the operation of the said order has been suspended by a division bench of this Court.
11. The learned counsel would contend that different scales of pay are permissible on several grounds including higher qualification. Reliance has been placed on SUMAN AGARWAL v. VICE-CHANCELLOR, , STATE OF T.N. v. M.R. ALAGAPAN, , UNION OF INDIA v. ANIL KUMAR , , SHAM v. UNION OF INDIA, .
12. The learned counsel for the University Sri K. Ramakanth Reddy would submit that the petitioners had opted for the merit promotion scheme knowing fully well that they would not be given the regular scale of pay and as such they must be held to have waived their right. It was submitted that this Court shall not interfere with a policy decision nor this Court in exercise of its jurisdiction shall direct grant of a pay scale. Strong reliance in this connection has been placed on SECRETARY, FINANCE DEPARTMENT AND ORS. v. WEST BENGAL REGISTRATION SERVICE ASSOCIATION AND ORS., , SHIBA KUMAR DUTTA AND ORS. v. UNION OF INDIA AND ORS., .
13. The following facts are not disputed. During the Sixth Five Year Plan,' merit promotion scheme was introduced to relieve stagnation and also to provide reasonable opportunities for provisional advancement of the teachers. The said scheme came to an end by 31.12.1985. However, the said scheme was replaced by career advancement as propounded for the benefit of the teachers working in Central Universities, colleges and other institutions financed by the Central Government. The said scheme was introduced pursuant to or in furtherance of the report of the Malhotra committee with effect from 1.1.1986. Career advancement scheme was given a legal shape by the State by reason of G.O.Ms. No. 520, Education, dated 15.12.1988 with effect from 1.1.1986. By reason of the said scheme the teachers working in the Universities under the control of the State of Andhra Pradesh were to be benefited.
14. It, however, appears that by reason of G.O.Ms. No. 242, dated 1.8.1994 and G.O.Rt. No. 589 the merit Promotion scheme had been extended upto 31.12.1995. It is, thus, not in dispute that the scheme of grant of a higher scale of pay to the lecturers who had completed 8 years of service to that of the reader and those who had completed further 8 years of service to that of professor had been in vogue. Having regard to the arena of controversy, it is not necessary for this Court to delve deep into the object and purport of the said scheme as also the mode and manner in which such scheme was to be implemented. But suffice it to point out that it is not in dispute that the qualifications, responsibilities and duties of the posts held by the petitioners either as professors or as readers in terms of the merit promotion scheme are same as that of the directly recruited teachers. It is also not in dispute that those who had been promoted prior to 17.6.1987 have been granted the regular scale of pay. It is, therefore, not a case where the principles of equal pay for equal work as adumbrated in Article 14 read with Article 39 (d) of the Constitution cannot be extended to the instant case on the ground of equality in qualification or functional identities or other relevant factors.
15. One of the grounds, as indicated hereinbefore, for denial of the said benefit is the different source of recruitment.
16. Different sources of recruitment by itself in the opinion of the Court cannot be a ground for grant of different scale of pay. In S.A. SIDDIQUI v. M. WAJID KHAN, , the objective of the merit promotion scheme which was as follows:
(1) To recognise outstanding work done by the university teachers in the areas of teaching and research, (2) Subject such work to objective evaluation by experts in the subjects/ areas concerned, and (3) To provide for reasonable opportunities for professional advancement to such teachers who merit academic recognition on a competitive basis.
was considered. The apex court upon considerations of the various provisions of the statutes made by the Aligarh Muslim University and referring to its earlier decisions in RASHMT SRIVASTAVA v. VIKRAM UNIVERSITY, , as also SUMAN AGARWAL v. VICE-CHANCELLOR, BAL KRISHNA AGARWAL v. STATE OF U.P., , held that professors of Aligarh Muslim University are entitled to seniority above the directly recruited candidates in the light of the regulation for determining inter se seniority framed by the executive council. They were also held to be entitled to the consequential benefits.
17. In KAMLAKAR v. UNION OF INDIA, as a sequence to its earlier decision in CHANDRAPRAKASH MADHAVRAO DADWA v. UNION OF INDIA, , the apex court held:
.... 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......
18. The question is now also covered by a decision of the apex court in CHANDIGARH ADMINISTRATION v. RAJNI VALI, , wherein the apex court directed grant of the same scale of pay to the teachers working in private school particularly when the same scale of pay was granted to the teachers upto class 10 stating:
..... It needs no emphasis that appointment of qualified and efficient teachers is a sine qua non for maintaining high standards of teaching in any educational institution. Keeping in mind these and other relevant factors this Court in a number of cases has intervened for setting right any discriminatory treatment meted out to teaching and non-teaching staff of a particular institution or a class of institutions. To notice a few such decisions on the point, we may refer to the case of HARYANA STATE ADHYAPAK SANGH v. STATE OF HARYANA, , IN WHICH THIS court issued a direction that the State Government will also take up with the management of the aided schools the, question of bringing about parity between the teachers of aided schools and the teachers of government schools for the period following that to which the thirty-five instalments relate, so that a claim for payment may be evolved after having regard to the different allowances claimed by the petitioners. In the case of HARYANA STATE ADHYAPAK SANGH v. STATE OF HARYANA, , a Bench of three learned Judges of this Court clarifying the judgment in HARYANA STATE ADHYAPAK SANGH v. STATE OF HARYANA (supra) issued a direction, inter alia, that the parity in the pay scales and dearness allowance of teachers employed in aided schools and those employed in government schools shall be maintained and with that end in future the pay scales of teachers employed in government schools shall be revised and brought on a par with the aided schools and dearness allowance payable to the teachers employed in government schools with effect from 1.1.1986.
19. In the instant case, this court is concerned with three groups whose qualifications, responsibilities and duties are same and who are holding the same posts viz., those of the readers-(i) Those who have been promoted under merit promotion scheme prior to 17.6.1987; (ii) those who are appointed after 17.6.1987; and (iii) those who are regularly recruited teachers.
20. So far as the first two groups are concerned, in our opinion, they cannot be held to be forming two different classes at all. Only by reason of fortuitous circumstances, one group was admitted to the scale of pay which is being given to the regularly recruited teachers and another who were not. The discrimination, therefore, is within the same class. In a case of this nature, Articles 14 and 16 of the Constitution shall squarely apply. The purported cut off date cannot be held to be providing a rational basis for a classification. Such classification, in any event, is not reasonable. The apex court in a similar situation in D.S. NAKARA AND ORS. v. UNION OF INDIA, , has held that when pensionary benefits cannot be denied to one group of persons on the basis of a cut off date which has no reasonable nexus with the object and purport sought to be achieved by means of a beneficial scheme. We may mention that the factual statements made by the petitioners herein as regard their qualifications, functional identities and duties having been denied and disputed. The matter may be considered from another angle. Those who have been promoted to the post of professors, in terms of G.O.Ms. No. 508, dated 29.6.1999 are not entitled to the same scale of pay having regard to the fitment formula evolved therein.
21. However, according to the State, merit promotion scheme was abolished. Para 7 of appendix to G.O.Ms. No. 208, dated 29.6.1999 reads thus:
Merit Promotion Scheme of 1983 which was terminated in 1987 for those who did not opt for it, stands abolished. However, Professors who were governed by the old merit promotion scheme of 1987 would be eligible for full scale of Professor w.e.f. 01.01.1996. The University can discuss in its academic body and decide inter se seniority between the merit promotees and direct recruits, based on the date of selection, and as per the existing/amended Acts and Statutes of the University.
22. As noticed hereinabove, the merit promotion scheme was directed to continue upto 31.12.1995. In any event, if readers and professors can be given the same scale of pay in terms of the merit promotion scheme, we fail to see any reason as to why the same benefits should not be extended to the readers. We are, therefore, of the opinion that the writ petitioners should succeed. We may, however, notice the decisions relied upon by the learned Government Pleader. In STATE OF TAMILNADU v. M.R. ALGAPPAN (supra), the apex court held that when there are distinguishing features like educational qualification for appointment, mode of recruitment, special assignments entrusted to one category only, and provisions for different seniority lists the doctrine of equal pay for equal work may not be applied. The said decision has no application in the present case. In that case the apex court was considering the cases of Deputy Mining Officers vis-a-vis the local officers who are found not forming an identical class of employees insisting grant of same scale of pay as not to offend Articles 14 and 16. Such is not the position here. In SHAM v. UNION OF INDIA, , different pay scales were recommended by the Third Pay Commission itself having regard to the qualification and experience for the posts of pharmacists. The Act itself classified pharmacists into two different categories on the basis of qualification and experience and on that premise it was held that there being a reasonable basis for difference in pay scale, principle of equal pay for equal work was not attracted. In ANIL KUMAR's case (supra) classification had been made on the basis of an award in which the school scientific assistants themselves had been shown to have demanded two different pay scales. The said decision, therefore, cannot be said to have any application.
23. This matter has also been considered by a Division Bench of the Rajasthan High Court in R.R. GUPTA v. STATE OF RAJASTHAN. We agree with the said decision.
24. For the aforesaid reasons, the Writ Appeal and the Writ Petitions are allowed. The respondents are directed to give the readers the same scales of pay.