Dr Rajendra Prasad Sharma vs State (Finance Department )Ors on 8 April, 2013

[Cites 1, Cited by 0]

Rajasthan High Court - Jaipur

Dr Rajendra Prasad Sharma vs State (Finance Department )Ors on 8 April, 2013

Bench: Mn Bhandari

    

 
 
 

 THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
JAIPUR BENCH, JAIPUR
ORDER 

S.B. CIVIL WRIT PETITION NO. 9264/2011
S P Soni Vs. State of Rajasthan & Ors.

AND 

S.B. CIVIL WRIT PETITION NO. 12614/2010
Dr. Bal Krishan Gupta Vs. State of Rajasthan & Anr.

AND 

S.B. CIVIL WRIT PETITION NO. 4951/2011
Chandu Ram Kukkar Vs. State of Rajasthan & Ors.

AND 

S.B. CIVIL WRIT PETITION NO. 6982/2011
Mohan Shrotriya Vs. State of Rajasthan & Anr.

AND 

S.B. CIVIL WRIT PETITION NO. 6983/2011
P N Bharadwaj Vs. State of Rajasthan &  Ors.

AND 

S.B. CIVIL WRIT PETITION NO. 6984/2011
Dr. Rajendra Prasad Sharma Vs. State of Rajasthan &  Ors.

AND 

S.B. CIVIL WRIT PETITION NO. 6985/2011
Nemi Chand Vs. State of Rajasthan &  Ors.

AND 

S.B. CIVIL WRIT PETITION NO. 6986/2011
Janardan Kandpal Vs. State of Rajasthan &  Ors.

AND 

S.B. CIVIL WRIT PETITION NO.6988 /2011
Dr. Suresh Chand Sharma Vs. State of Rajasthan &  Ors.

AND 

S.B. CIVIL WRIT PETITION NO. 7049/2011
Salig Ram Vs. State of Rajasthan &  Ors.

AND 

S.B. CIVIL WRIT PETITION NO. 7050/2011
Roshan  Lal  Vs. State of Rajasthan &  Ors.

AND 

S.B. CIVIL WRIT PETITION NO. 7071/2011
Dr. Harbir Singh Vs. State of Rajasthan &  Ors.

AND 

S.B. CIVIL WRIT PETITION NO. 7072/2011
Dr. K C Gupta Vs. State of Rajasthan &  Ors.

AND 

S.B. CIVIL WRIT PETITION NO. 7073/2011
R C Khandelwal Vs. State of Rajasthan &  Ors.

AND 

S.B. CIVIL WRIT PETITION NO. 7074/2011
Dr. S P  Jalan Vs. State of Rajasthan &  Ors.

AND 

S.B. CIVIL WRIT PETITION NO. 7075/2011
Dr. Suchendra Mohan Vs. State of Rajasthan &  Ors.

AND 

S.B. CIVIL WRIT PETITION NO. 7129/2011
Krishna Govind Singh & Ors. Vs. State of Rajasthan &  Ors.

AND 

S.B. CIVIL WRIT PETITION NO. 7130/2011
Param Dev Sharma Vs. State of Rajasthan &  Ors.

AND 

S.B. CIVIL WRIT PETITION NO. 7131/2011
Jagdish Singh Khinchi Vs. State of Rajasthan &  Ors.

AND 

S.B. CIVIL WRIT PETITION NO. 7132/2011
T C Gupta Vs. State of Rajasthan &  Ors.

AND 

S.B. CIVIL WRIT PETITION NO. 7133/2011
Dr. Mohan Lal Kasat  Vs. State of Rajasthan &  Ors.


AND 

S.B. CIVIL WRIT PETITION NO. 7134/2011
Hukum Chand Jain Vs. State of Rajasthan &  Ors.

AND 

S.B. CIVIL WRIT PETITION NO. 8018/2011
Himmat Singh Gahlot Vs. State of Rajasthan &  Ors.

AND 

S.B. CIVIL WRIT PETITION NO. 8019/2011  
Dr. Bhagwati Lal Chawat & Anr.Vs. State of Rajasthan &  Ors.

AND 

S.B. CIVIL WRIT PETITION NO.8020 /2011
Jai Pal Singh & Ors. Vs. State of Rajasthan &  Ors.

AND 

S.B. CIVIL WRIT PETITION NO. 8321/2011
Rampal Verma Vs. State of Rajasthan &  Ors.

AND 

S.B. CIVIL WRIT PETITION NO. 8322/2011
Dr. (Smt) Pushpa Gupta Vs. State of Rajasthan &  Ors.

AND 

S.B. CIVIL WRIT PETITION NO. 8323/2011
Dr. Ram Kumar Garwa Vs. State of Rajasthan &  Ors.

AND 

S.B. CIVIL WRIT PETITION NO. 8324/2011
Ravindra Rao Bidwalkar  Vs. State of Rajasthan &  Ors.

AND 

S.B. CIVIL WRIT PETITION NO. 8349/2011
Mrs. Sajjan SidhuVs. State of Rajasthan &  Ors.

AND 

S.B. CIVIL WRIT PETITION NO. 8356/2011
 Ramvatar Joshi Vs. State of Rajasthan &  Ors.

AND 

S.B. CIVIL WRIT PETITION NO. 8358/2011
D K Gupta Vs. State of Rajasthan &  Ors.

AND 

S.B. CIVIL WRIT PETITION NO. 8359/2011
Mahendra Nath Sharma Vs. State of Rajasthan &  Ors.

AND 

S.B. CIVIL WRIT PETITION NO. 8479/2011
K L Yadav Vs. State of Rajasthan &  Ors.

AND 

S.B. CIVIL WRIT PETITION NO. 8574/2011
Keshav Audichya & Ors. Vs. State of Rajasthan &  Ors.

AND 

S.B. CIVIL WRIT PETITION NO. 9158/2011
S C Thukral & Ors.Vs. State of Rajasthan &  Ors.

AND 

S.B. CIVIL WRIT PETITION NO. 9212/2011
Dr. S K Hawa & Ors. Vs. State of Rajasthan &  Ors.

AND 

S.B. CIVIL WRIT PETITION NO. 9213/2011
S K Acharya & Ors. Vs. State of Rajasthan &  Ors.

AND 

S.B. CIVIL WRIT PETITION NO.9247 /2011
Durga Lal Panwar Vs. State of Rajasthan &  Ors.

AND 

S.B. CIVIL WRIT PETITION NO. 9248/2011
Suresh Pal Vs. State of Rajasthan &  Ors.

AND 

S.B. CIVIL WRIT PETITION NO. 9263/2011
Mahaveer Prasad Sharma Vs. State of Rajasthan &  Ors.

AND 

S.B. CIVIL WRIT PETITION NO. 13554/2011
Dr. Ravindra Kulshrestha Vs. State of Rajasthan &  Ors.

AND 

S.B. CIVIL WRIT PETITION NO. 14809/2011
Mrs. Jamila Khatoon Mirza Vs. State of Rajasthan &  Ors.

AND 

S.B. CIVIL WRIT PETITION NO. 17923/2011
Smt. Bhagwati Swami & Ors. Vs. State of Rajasthan &  Ors.

AND 

S.B. CIVIL WRIT PETITION NO. 640/2012
Dr. Mahavir Mal Lodha Vs. State of Rajasthan &  Ors.

Date of Order :					             8th April, 2013
HON'BLE MR. JUSTICE MN BHANDARI
Mr Saransh Saini
Mr Anurag Sharma    for petitioners
Mr GS Bapna, Advocate General with 
Ms Sunita Satyarthi, Dy Government Counsel  for respondents  
BY THE COURT:

REPORTABLE These writ petitions were earlier decided vide order dated 20.9.2011. Non-petitioners preferred special appeals where, after hearing the parties, the Division Bench set aside the judgment with a request to decide the matters afresh after considering guidelines and various other aspects of the case. In view of the above, all these writ petitions have been heard together and decided by this common order.

Brief facts of the case are that all the petitioners retired prior to 1.1.2006 and were in selection scale as per guidelines then existing. The controversy in the present writ petitions is regarding revision of pension after the recommendations of the Sixth Pay Commission and issuance of Notification dated 12.10.2009 revising pay scale. This is precisely for the reason that now for the post of Lecturer, two pay scales in selection scale have been provided corresponding to the earlier pay scale. Petitioners are praying for revision of pension with fitment in the higher pay scale of Rs.37400-67000.

Learned counsel for petitioners submit that prior to the Notification dated 12.10.2009 to revise pay scale, a memorandum was issued on 12.9.2008 for revision of pension. As per para 5 of the memorandum, consolidated pension (treated as final 'Basic Pension') as on 1.9.2006 shall not be lower than 50% of sum of the minimum pay of the post in the running pay band plus grade pay introduced w.e.f. 1.9.2006 corresponding to the pre-revised pay scale of the post from which pensioners retired. This is with a condition that existing provisions governing qualifying service for grant of pension and minimum pension shall continue to be operative. Thus, as per para 5 of the Memorandum, respondents were under an obligation to fix pension of the petitioners at the minimum of 50% in the running pay band plus grade pay of the post so introduced vide the Notification dated 12.10.2009. The respondents have revised the pension pursuant to the Notification dated 12.10.2009 but out of the two pay bands for Lecturer (Selection Scale) lower pay band of Rs.15600-39100 is taken into consideration for revision instead of the pay band of Rs.37400-67000 though they had completed three years of service in the selection scale prior to retirement. The main ground taken by the respondents to deny higher pay scale is in reference to University Grants Commission Regulations notified on 30.6.2010. The aforesaid Regulations provide minimum qualification for appointment of teachers and other academic staff in the Universities and colleges.

According to the petitioners, higher pay band in selection scale is applicable only to those who were adjudged suitable and given selection scale pursuant to the UGC guidelines dated 30.6.2010. The petitioners retired much prior to the aforesaid Regulations thus cannot claim higher pay band on selection scale. The respondents even denied revision of pension pursuant to the Notification dated 12.10.2009 as, according to them, it is applicable only to the existing employees. The respondents have given reference of various clauses of the Regulations of 2010 for it. The Regulations aforesaid requires a person to be on the roll and in active service on the prescribed date. The argument aforesaid was raised without considering the fact that higher pay scale of Rs.37400-67000 has been given whoever has completed three years of service in the selection scale and, for the aforesaid purpose, no screening or exercise is separately provided under the Regulations of 2010. The argument of the respondents that higher pay band is not to be given automatically but on recommendation in ignorance of Regulations of 2010. Thus, argument of learned counsel for the respondents is not only contrary to Regulations of 2010 but the action earlier taken by them.

A further reference of para 6.3.9 is given without considering the fact that if benefit of revised pension of selection/ CAS promotion is to be given only to those who were on the roll and in active service on the date of Regulations of 2010, then the petitioners' fitment in the revised pay scale of selection scale should not have been given because petitioners were never adjudged for selection scale pursuant to the Regulations of 2010. Reference of certain letters issued by the Government of India has also been made where similar controversy was decided in the manner it has been prayed by the petitioners herein. Accordingly, the petitioners are entitled for revision of pension in the pay scale of Rs.37400-67000 instead of Rs.15600-39100.

Learned Advocate General Mr GS Bapna submits that the revision of the pension has rightly been done in the pay band of Rs.15600-39100 as petitioner are not entitled to higher pay band of selection scale i.e. 37400-67000. This is precisely for the reason that revision of the pay scale vide Notification dated 12.10.2009 is applicable only to the existing college teachers and not to the retired employees. Referring to the Regulations of the 2010, it is stated that one should be in possession of the minimum qualification provided therein and given selection scale as per the procedure provided therein. A reference of para 3.2 of the Regulations is given to show that minimum qualification for different posts are different, thus benefit of selection scale can be claimed by those who have been adjudged suitable for it under the Regulations of 2010. Reference of clause 6.3 is further given to show that a candidate wishes to be considered for promotion under CAS has to submit in writing to the University within three months in advance to due date indicating that he fulfils all the qualifications required for CAS along with all details and material to show his eligibility. Para 6.3.9 clarifies that the incumbent must be on the roll and in active service of the University/ college on the date of consideration by the selection committee. A further reference of 6.4 is given to show stages of promotion under CAS. It is indicated that for every stage, one is required to complete number of years to become eligible apart from required qualification. It would be then subject to adjudging candidate suitable for upward promotion in higher grade. The selection scale is now having two pay bands i.e. 15600-39100 and 37400-67000. For the higher pay band of Rs.37400-67000, one is required to be adjudged for selection scale as per the Regulations of 2010. Since none of the petitioners were given selection scale as per Regulations of 2010, they cannot claim higher pay band automatically. The aforesaid was thus clarified by the government. Those retired prior to 1.1.2006 would be entitled to revision of pension in the pay band of Rs.15600-39100 plus grade pay of Rs.8000/-. The petitioners have already been extended revision of pension to the aforesaid pay band thus their claim for upward revision of the pension with the aid of the pay band of Rs.37400-67000 is not tenable.

I have considered rival submissions of learned counsel for the parties and considered the record.

The controversy in these writ petitions is as to in which pay band, pension of the petitioners should be revised. It is in view of sixth revised pay scale rules notified on 12.10.2009. It provides two pay bands for Lecturer (Selection Scale). A subsequent Notification was issued on 13.5.2010 to provide similar two pay bands for the post of Librarian and PTI. The pay band given in the Notification are relevant thus quoted hereunder for ready reference -

Schedule-1 (Rule No.5) Section 'B' Running Pay Bands and Academic Grade Pay of the posts S. No. Name of the Post Existing Pay Scale Running Pay Band Academic Grade Pay (AGP) Special Allowance (p.m.) 1 2 3 4 5 6 1 Lecturer (Ordinary Scale) 8000-275-13500 15600-39100 6000

Lecturer (Senior Scale) 10000-325-15200 15600-39100 7000

(i)Lecturer (selection Scale)( who have not completed three years of service in the existing pay scale as on 01.01.2006)

(ii)Lecturer (selection Scale)( who have not completed three years of service in the existing pay scale as on 01.01.2006 onwards subject to Guide-lines issued it this regard) 12000-420-15300 12000-420-18300 15600-39100 37400-67000 8000 9000

Vice Principal, Post Graduate College/ Degree College 12000-420-18300(minimum Rs.12840/-) 37400-67000 9000 1000 5 Principal, Degree College 12000-420-18300(minimum Rs.12840/-) 37400-67000 10000 2000 6 Principal,Post Graduate College 16400-450-20900-500-22400(minimum Rs. 17300/-) 37400-67000 10000 3000 7 Librarian (Ordinary Scale) 8000-275-13500 15600-39100 6000

Librarian (Senior Scale) 10000-325-15200 15600-39100 7000

Librarian (Selection Scale)

-do-

12000-420-18300

-do-

15600-39100 37400-67000 8000 9000

Physical Training Instructor (Ordinary Scale) 8000-275-13500 15600-39100 6000

Physical Training Instructor (Senior Scale) 10000-325-15200 15600-39100 7000

Physical Training Instructor (Selection Scale) 12000-420-18300

-do-

15600-39100 37400-67000 8000 9000

In section 'B of Schedule-1 of the aforesaid rules, the existing entries at S No.9 and 12 shall be substituted by the following, namely:-

S. No. Name of the Post Existing Pay Scale Running Pay Band Academic Grade Pay (AGP) Special Allowance (p.m.) 1 2 3 4 5 6 9

(i) Librarian (Selection Scale) (who have not completed three years of service in the existing pay scale as on 01.01.2006)

(ii) Librarian (Selection Scale) (who have completed three years of service in the existing pay scale as on 01.01.2006 & onwards subject To Guidelines issued in this regards) 12000-420-18300 12000-420-18300 15600-39100 37400-67000 8000 9000

-

(i) Physical Training Instructor (Selection Scale)(who have not completed three years of service in the existing pay scale as on 01.01.2006)

(ii) Physical Training Instructor (Selection Scale) (who have completed three years of service in the existing pay scale as on 01.01.2006 & onwards subject To Guidelines issued in this regards) 12000-420-18300 12000-420-18300 15600-39100 37400-67000 8000 9000

The perusal of the schedule quoted above reveals that for Lecturer, Librarian and PTI (selection scale) running pay band of Rs.15600-39100 and 37400-67000 are prescribed. The pay band of Rs.15600-39100 is for those who have not completed three years of service in the existing pay scale as on 1.1.2006, where as, higher pay band of Rs.37400-67000 is provided for those who have completed three years of service in the existing pay scale as on 1.1.2006 and onwards, subject to guidelines issued in this regard.

All the petitioners are claiming revision of pension in the pay band of Rs.37400-67000 as they had completed three years of service in selection scale prior to 1.1.2006 and their retirement. The respondents however revised their pension in the running pay band of Rs.15600-39100 pursuant to the Notification dated 12.10.2009. In view of revision of pension pursuant to the Notification dated 12.10.2009, it becomes clear that aforesaid Notification has been applied even by the respondents to revise the pension thus first argument of learned Advocate General regarding non-applicability of the Notification dated 12.10.2009 for those who were not given selection scale under Regulations of 2010 cannot be accepted in contradiction to their own action.

The issue aforesaid can be examined from other angle also. If the definition of 'existing government college teacher' given under para 4.2 of the Notification dated 12.10.2009 limits application on those who were in service as on 1.1.2006 then how the Notification aforesaid was applied for revision of pension of the petitioners retired prior to 1.1.2006, could not be answered by the learned Advocate General, rather, he later on conceded for application of the Notification dated 12.10.2009, but then urged that benefit of the running pay band of Rs.37400-67000 is subject to the Regulations of 2010. It is without considering the fact that prior to the Notification for revision of pay, a Memorandum was issued by the respondents on 12.9.2008 for revision of pension. It was after recommendations of the Sixth Pay Commission and a decision by the government to apply it with effect from 1.9.2006. Para 5 of the Memorandum dated 12.9.2008 is relevant thus quoted hereunder for ready reference -

5. (i) The consolidated pension (treated as final 'Basic Pension') as on 01.09.2006 of pre-01.09.2006 pensioner shall not be lower than 50% of sum of the minimum pay of the post in the running pay band plus grade pay introduced w.e.f.01.09.2006 corresponding to the pre-revised pay scale of the post from which pensioner had retired, subject to the condition that the existing provisions in the rules governing qualifying service for grant of pension and minimum pension shall continue to be operative.

(ii) Similarly, consolidated family pension (treated as final 'Basic Pension') as on 01.09.2006 of pre-01.09.2006 family pensioner shall not be lower than 30% of sum of the minimum pay of the post in the running pay band plus grade pay introduced w.e.f.01.09.2006 corresponding to the pre-revised pay scale of the post last held by the pensioner/ deceased Government servant, as the case may be, subject to the condition that the existing provisions in the rules governing minimum family pension shall continue to be operative.

(iii) These provision shall be deemed to have come into force w.e.f. 01.04.2008. The provision of FD Memorandum No. F.15(1) FD (Rules)/99 dated 22.05.2008 shall stand modified to this extent. The pension shall be as contained in the aforesaid Memorandum.

The perusal of the para quoted above reveals that consolidated pension as on 1.9.2006 would not be lower than 50% of the minimum pay of the post in the running pay band plus grade pay introduced w.e.f. 1.9.2006. Since it makes a reference of the revision of pay w.e.f. 1.9.2006, then it becomes clear that revised pay scale is required to be taken note for revision of the pension. The revised pay scale is pursuant to the Notification dated 12.10.2009 though aforesaid was revised w.e.f. 1.1.2006 instead of 1.9.2006. In view of para quoted above also , it becomes clear that revision of pension would be at the minimum of the 50% of the sum of the pay in running pay band plus grade pay so introduced from the year 2006. It is for that reason alone that pension of the petitioners was revised by considering pay scale as revised by the Notification dated 12.10.2009.

Looking to the aforesaid and judging the matter from any angle, Notification dated 12.10.2009 is applicable to the petitioners.

The question now comes in reference to the Regulations of 2010 issued by the UGC on which much emphasis has been made by the learned Advocate General. It is to indicate that higher pay band of Rs.37400-67000 to a Lecturer/ Librarian/ PTI (selection scale) is not automatic but subject to the Regulations of 2010. Certain paras of the Regulations have been referred thus it would be gainful to quote those paras. Accordingly, para 1.3, 6.3, 6.3.9, 6.4.0 to 6.4.8 are quoted hereunder -

1.3 -They shall come into force with immediate effect.

Provided that in the event any candidate becomes eligible for promotion under Career Advancement Scheme in terms of these Regulation on or after 31st December,2008 the promotion of such a candidate shall be governed by the provisions of these Regulations.

Provided further that notwithstanding anything contained in these Regulation, in the event any candidate became eligible for promotion under Advancement Scheme prior to 31st December, 2008 The promotion of such a candidate under Career Advancement Scheme shall be governed by the University Grant Commission (Minimum Qualifications Required for the Appointment and Career Advancement for Teachers in Universities and institutions affiliated to it Regulations 2000 notified vide Notification No. F.3-1/2000, as amended from time to time, read with notification and guidelines issued by the University Grant Commission (UGC) from time to time, in this regard...

6.3.0 In order to remedy the difficulties of collecting retrospective information and to facilitate the implementation of these regulations from 31-12-2008 in the CAS Promotion, the API based PBAS will be progressively and prospectively rolled out. Accordingly, the PBAS based on the API scores of categories I and II as mentioned in these tables is to be implemented for one year, initially based on the existing systems in universities / colleges for one year only with the minimum annual scores as depicted in Table II (a) and II (b) for university and college teachers, or by Librarian/Physical Education and Sports cadres as depicted in Tables V(a) and V (b), Tables VIII(a) and VIII (b) respectively.. This annualized API scores can then be compounded progressively as and when the teacher becomes eligible for CAS promotion to the next cadre. Thus, if a teacher is considered for CAS promotion in 2010, one year API scores for 2009-10 alone will be required for assessment. In case of a teacher being considered for CAS promotion in 2011, two years average of API scores for these categories will be required for assessment and so on leading progressively for the complete assessment period. For Category III (research and academic contributions), API scores for this category will be applied for the entire assessment period.

6.3.9 The incumbent teacher must be on the role and active service of the Universities/Colleges on the date of consideration by the Selection Committee for Selection/CAS Promotion.

6.4.0. STAGES OF PROMOTION UNDER CAREER ADVANCEMENT SCHEME OF INCUMBENT AND NEWLY APPOINTED ASSISTANT PROFESSORS/ASSOCIATE PROFESSORS / PROFESSORS 6.4.1. Entry level Assistant Professors (Stage 1) would be eligible for promotion under the Career Advancement Scheme (CAS) through two successive stages (stage 2 and Stage 3), provided they are assessed to fulfill the eligibility and performance criteria as laid out in Clause 6.3. of this Regulation.

6.4.2. An entry level Assistant Professor, possessing Ph. D. Degree in the relevant discipline shall be eligible, for moving to the next higher grade (stage 2) after completion of four years service as Assistant Professor.

6.4.3. An entry level Assistant Professor possessing M.Phil. Degree or post-graduate Degree in professional courses, approved by the relevant statutory body, such as LL.M. / M. Tech., etc. shall be eligible for the next higher grade (stage 2) after completion of five years service as Assistant Professor.

6.4.4. An entry level Assistant Professor who does not have Ph.D. or M.Phil, or a Masters Degree in the relevant professional course, shall be eligible for the next higher grade (stage 2) only after completion of six years service as Assistant Professor.

6.4.5. The upward movement from the entry level grade (stage 1) to the next higher grade (stage 2) for all Assistant Professors shall be subject to their satisfying the API based PBAS conditions laid down by the UGC in this Regulation.

6.4.6. Assistant Professors who have completed five years of service in the second grade (stage 2) shall be eligible, subject to meeting the API based PBAS requirements laid down by these Regulations, to move up to next higher grade (stage 3).

6.4.7. Assistant Professors completing three years of teaching in third grade (stage 3) shall be eligible, subject to the qualifying conditions and the API based PBAS requirements prescribed by these Regulations, to move to the next higher grade (stage 4) and to be designated as Associate Professor.

6.4.8. Associate Professor completing three years of service in stage 4 and possessing a Ph.D. Degree in the relevant discipline shall be eligible to be appointed and designated as Professor and be placed in the next higher grade (stage 5), subject to (a) satisfying the required credit points as per API based PBAS methodology provided in Table I-III of Appendix IV stipulated in these Regulations, and (b) an assessment by a duly constituted selection committee as suggested for the direct recruitment of Professor. Provided that no teacher, other than those with a Ph.D., shall be promoted or appointed as Professor.

The argument of learned Advocate General is that as per para 6.3.9, application of the Regulations of 2010 is for a teacher on the roll and active in service. Accordingly, it is argued that none of the petitioners were on the roll and in active service on the date of introduction of the Regulations of 2010 thus cannot be covered by it.

The argument aforesaid is in ignorance of second proviso to para 1.3 quoted above. The aforesaid proviso is to the effect that notwithstanding anything contained in the Regulations of 2010, if any candidate became eligible for promotion under CAS prior to 31.12.2008 the promotion under CAS would be as per Regulations of 2000 as amended from time to time, read with Notification and guidelines issued by the UGC from time to time. It would be out of place to mention that promotion under the CAS were provided by the Notification issued from time to time and prior to it was selection scale, accordingly, petitioners were also given promotion in selection scale prior to their retirement. Therefore, promotion in selection cannot be nullified if it was given prior to Regulations of 2010, rather it is saved by second proviso of para 1.3 of the Regulations of 2010. It is apart from the fact that a Teacher/ Librarian/ PTI earlier given selection scale cannot again be adjudged under the Regulations of 2010, rather, the Regulations of 2010 nowhere provide that retired employees in selection scale need to be considered again in the year 2010. The Regulations have not taken away status enjoyed under the earlier provision. If a teacher was given selection scale in the year 2002 or prior to it under the old Regulations and is continuing , then to get benefit of Revised Pay Scale Rules and he is not required to be considered again for selection scale under Regulations of 2010.

It is further noted that whenever the Rules and Regulations are repealed or superseded, then amended provisions always apply prospectively and cannot take away the benefit earlier given as per the previous Rules or Regulations. If the argument of learned Advocate General that an individual should be in selection scale as per Regulations of 2010, then selection scale to the petitioners on earlier occasion needs to be withdrawn, which is not the arrangement given under the Regulations of 2010 and is not otherwise permissible under law thus reference of para 6.3.9 applies to those who are now claiming benefit under the Regulations of 2010 and not for those who are governed by the Regulations then existing prior to 31.12.2008, otherwise para 1.3 would become redundant. Accordingly, argument in reference to para 6.3.9 denying benefit of higher pay band of selection scale as notified on 12.10.2009 cannot be accepted. This is more so when even the Regulations of 2010 do not provide any qualification, element of selection or scrutiny for advancement to higher pay band of Rs.37400/67000 to a Teacher in selection scale. To clarify the aforesaid, paras 6.4.0 to 6.4.8 are relevant and otherwise reproduced hereinabove.

Para 6.4.0 provides stages of promotion under CAS. Para 6.4.1 provides that entry level would be on the post of Assistant Professor as Stage 1 and such incumbent would be entitled to two successive stages 2 and 3, provided they fulfil the eligibility and performance criteria as laid down in para 6.3 of the Regulations. If other paras are looked into, then it will show that entry level is on the post of Assistant Professor and he would be entitled to higher pay scale of two stages namely; senior and selection scale. If the Regulations of 2010 is read with the Notification dated 12.10.2009 where different stages of pay scales have been notified which are ordinary scale, senior scale and selection scale and referred as stage 1, 2 and 3 in the Regulations of 2010 because after getting stage 3 (selection scale) an Assistant Professor is moved to the higher post of Associate Professor. It is taken to be stage 4 in the Regulations of 2010 and would be clear from para 6.4.7 where an Assistant Professor on completion of required length of service would move to higher Stage 4 and be designated as Associate Professor. As per para 6.4.8, an Associate Professor would move to stage 5 and to be designated as Professor. In the background aforesaid, Regulations of 2010 make a reference of 5 stages, out of which, 4th and 5th stages are on promotion to the post of Associate Professor and Professor respectively. The first three stages are on the post of Assistant Professor and, as stated and compared with the table appended to the Notification dated 12.10.2009 , three stages are ordinary scale, senior scale and selection scale on the post of Assistant Professor earlier known as Lecturer. The selection scale is now having two pay bands but higher pay band is granted on the required length of service in selection scale and not by scrutiny of record.

The view aforesaid is even supported by the action of the respondents itself where they have given higher pay scale of Rs.37400-67000 to the Assistant Professor/ Lecturer (selection scale) on completion of 3 years itself, hence, it is nothing but an automatic revision of pay scale on completion of 3 years service in the selection scale. The order dated 1.6.2011 at annexure-A/6 and order dated 15.2.2010 at annexure-A/7 annexed with the additional affidavit in CW 12614/2010 are relevant and fortify the observations aforesaid.

The learned Advocate General could not show that on completion of 3 years in the selection scale, pay scale in the pay band of Rs.37400-67000 was given after adjudging suitability of the candidate rather the orders at annexure-A/6 and A/7 in CW 12614/2010 show that benefit aforesaid is to be given on completion of 3 years of service in selection scale. Thus, very same argument raised by the learned Advocate General before the Division Bench was in ignorance of the action of the department itself.

The similar controversy came up for consideration before the Government of India, Ministry of Human Resource Development, Department of High Education and, therein, it was clarified that pay band of Rs.37400-67000 is to be given to all those who have already completed 3 years of service in selection selection prior to 1.1.2006 and, more specifically, for pensioners. Relevant para 2 and 3 of the said letter dated 15.12.2009 issued by the Government of India, Ministry of Human Resource Development, Depart of Higher Education, New Delhi at annexure-6 in CW 9264/2011 are quoted hereunder for ready reference -

2. According to revised pay scales applicable to Teachers/ Equivalent Cadres in Central Universities/ Colleges as notified vide Ministry's letter No.1-32/2006-U.IUU.I(i) dated 31.12.2008, incumbents of the posts mentioned at categories (A) and (B) above who had completed 3 years of service in the pay scale of Rs.12000-420-18300 on 1.1.2006 have been placed in Pay Band of Rs.37400-67000 with Academic Grade Pay (AGP) of Rs.9000. Similarly, in terns of this Ministry's letter No. l-32/2006-U.II/U. (ii) dated 31.12.2008, incumbents of the posts of Deputy Registrars/ Dy Finance Officers/ Deputy Controllers of Examinations who had completed 5 years of service in pre-revised pay scale of Rs.12000-420-18300 on 1.1.2006 were placed in the Pay Band of Rs.37400-67000 with Grade Pay (GP) of Rs.8700.

3. Accordingly, the Government has decided that in the case of teachers and equivalent cadres, the pre- 1.1.2006 pensioners mentioned at categories (A) and (B) above who had completed 3 years of service in the pre-revised pay scale of Rs.12000-420-18300 (and/or the corresponding pay scale(s) applicable prior to 1.1.1996) shall be placed at the minimum of the Pay Band of Rs.37400-67000 with AGP of Rs.9000, for revision of their pension/ family pension with effect from 1.1.2006. Similarly, in the case of non-teaching posts /cadres, the pre- 1.1.2006 pensioners mentioned at category (C) above who had completed 5 years of service in the pre-revised pay scale of Rs.12000-420-18300 (and the corresponding pay scale (s) applicable prior to 1.1.1996) shall be placed at the minimum of the Pay Band of Rs.37400-67000 with GP of Rs.8700 for revision of their pension/ family pension with effect from 1.1.2006. The pension/ family pension of these pre- 2006 pensioners may be revised accordingly.

The Government of India has given interpretation based on the existing rules and regulations applicable to all Universities/ colleges thus a discrimination cannot otherwise be caused to similarly placed in the State of Rajasthan. It is more so when they are governed by same set of Rules.

If the matter is considered even in reference to the Schedule appended to the Notification dated 12.10.2009, more specifically for the pay band of Rs.37400-67000 then it clarifies that pay scale/band aforesaid would be applicable to those who have completed 3 years service in the existing pay scale as on 1.1.2006 and onwards subject to guidelines issued in this regard. According to the learned Advocate General, reference of Guidelines is of the year 2010 whereas in the year 2010 UGC issued Regulations and not the Guidelines. Even if the word 'Guidelines' is taken to be Regulations then again it does not refer to the Regulations of 2010 but would be to the Regulations issued from time to time. Thus even if matter is scrutinised in the strict terms of the words used in the schedule 1 to the Notification dated 12.10.2009, selection scale not necessarily to be under the Regulations of 2010 but can be under the Guidelines issued from time to time. It is for that reason alone that second proviso to para 1.3 of the Regulations of 2010 saves previous promotion hence after judging the matter from all angles, I find that the petitioners, who have completed 3 years service in selection scale prior to their retirement would be entitled to the pension in the pay band of Rs.37400-67000.

The determination of the pension would obviously be in accordance with the Memorandum dated 12.9.2008. Reference of the judgment of the Supreme Court in the case of All India Reserve Bank Retired Officers Association & ors versus Union of India & anr reported as 1992 Supp (1) SCC 664 would also be relevant wherein higher pensionary benefits cannot be denied by fixing cut off date. Herein, if higher benefit of the pay band of selection scale is restricted only for those who have been given benefit of CAS under the Regulations of 2010 then cut off becomes the date of issuance of the Notification i.e. 30.6.2010. The aforesaid is not permissible in the light of the judgment in the case of All India Reserve Bank Retired Officers Association & ors (supra).

The retired employees cannot be discriminated in regard to the higher benefits of pension irrespective of their date of retirement thus action of the respondents is not legally sustainable.

In view of discussion made above, all the writ petitions are allowed. The respondents are directed to consider the case of all the petitioners as per the Memorandum dated 12.9.2008 for revision of the pension after taking note of the pay scale so notified vide Notification dated 12.10.2009 at annexure-4 and 13.5.2010 at annexure-5. If the petitioners had completed 3 years service in the selection scale prior to their retirement, then pay scale in the pay band of Rs.37400-67000 would be taken into consideration for them and pension be revised accordingly. The directions given aforesaid may be complied with within a period of three months from the date or receipt of copy of this order.

(MN BHANDARI), J.

bnsharma All corrections made in the judgment/ order have been incorporated in the judgment/ order being emailed.

(BN Sharma) PS-cum-J

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