Rajasthan High Court - Jaipur
Dr Bajrang Lal Swami vs Malaviya National Institute Ors on 19 May, 2012
Author: M.N. Bhandari
Bench: M.N. Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER 1. S.B. Civil Writ Petition No.4085/2011 Dr. N.C. Upadhyay Versus Malviya National Institute of Technology, Jaipur and others 2. S.B. Civil Writ Petition No.4037/2011 Dr. Y.P. Mathur Versus Malviya National Institute of Technology, Jaipur and others 3. S.B. Civil Writ Petition No.4038/2011 Dr. S.P. Chaurasia Versus Malviya National Institute of Technology, Jaipur and others 4. S.B. Civil Writ Petition No.4039/2011 Dr. Shyam Lal Soni Versus Malviya National Institute of Technology, Jaipur and others 5. S.B. Civil Writ Petition No.4080/2011 Dr. A.K. Vyas Versus Malviya National Institute of Technology, Jaipur and others 6. S.B. Civil Writ Petition No.4081/2011 Dr. Rohit Goyal Versus Malviya National Institute of Technology, Jaipur and others 7. S.B. Civil Writ Petition No.4082/2011 Dr. C.P. Sharma Versus Malviya National Institute of Technology, Jaipur and others 8. S.B. Civil Writ Petition No.4083/2011 Dr. Gunwant Sharma Versus Malviya National Institute of Technology, Jaipur and others 9. S.B. Civil Writ Petition No.4084/2011 Dr. A.K. Bhargava Versus Malviya National Institute of Technology, Jaipur and others 10. S.B. Civil Writ Petition No.4086/2011 Dr. Ashok Sharma Versus Malviya National Institute of Technology, Jaipur and others 11. S.B. Civil Writ Petition No.4087/2011 Dr. Y.V.S.S. Prasad Versus Malviya National Institute of Technology, Jaipur and others 12. S.B. Civil Writ Petition No.4088/2011 Dr. Ravindra Nagar Versus Malviya National Institute of Technology, Jaipur and others 13. S.B. Civil Writ Petition No.4089/2011 Dr. Vikas Gupta Versus Malviya National Institute of Technology, Jaipur and others 14. S.B. Civil Writ Petition No.4090/2011 Dr. P.R. Soni Versus Malviya National Institute of Technology, Jaipur and others 15. S.B. Civil Writ Petition No.4091/2011 Prof. Chandra Mohan Arora Versus Malviya National Institute of Technology, Jaipur and others 16. S.B. Civil Writ Petition No.4190/2011 Dr. A.B. Gupta Versus Malviya National Institute of Technology, Jaipur and others 17. S.B. Civil Writ Petition No.4191/2011 Dr. Bajrang Lal Swami Versus Malviya National Institute of Technology, Jaipur and others 18. S.B. Civil Writ Petition No.4207/2011 Dr. Ajay Pal Singh Rathore Versus Malviya National Institute of Technology, Jaipur and others 19. S.B. Civil Writ Petition No.4208/2011 Dr. Gopal Agrawal Versus Malviya National Institute of Technology, Jaipur and others 20. S.B. Civil Writ Petition No.4215/2011 Dr. Khaleequr Rehman Nizai Versus Malviya National Institute of Technology, Jaipur and others 21. S.B. Civil Writ Petition No.4216/2011 Dr. Sushil Kumar Gupta Versus Malviya National Institute of Technology, Jaipur and others 22. S.B. Civil Writ Petition No.4217/2011 Dr. Sudhir Kumar Versus Malviya National Institute of Technology, Jaipur and others 23. S.B. Civil Writ Petition No.4218/2011 Dr. Harpal Tiwari Versus Malviya National Institute of Technology, Jaipur and others Date of Order :: 19.5.2012 PRESENT HON'BLE MR. JUSTICE M.N. BHANDARI Mr.Rajendra Soni, Mr. Mohit Soni and Mr. Rahul Kamwar - for petitioners. Mr.S.S. Raghav, AAG for UOI. Mr.P.P. Mathur and Mr. Kishore Gaur for Mr. Bharat Vyas for respondents. <><><> By the Court:
Since on similar set of facts, same relief has been prayed, all the aforesaid writ petitions are decided by this common order.
By these writ petitions, a challenge is made to the order withdrawing the benefit of three non-compounded advance increments.
It is stated that all the petitioners are working with the respondent Malaviya National Institute of Technology (for short 'the MNIT') and after joining the service, they completed their Ph.D. As per the recommendations of the 6th Pay Commission, an order was passed by the Government of India, Human Resources dated 31.12.2008. As per the said order, they become entitled to three non-compounded advance increments, which was then allowed by the MNIT under their resolution. The said benefit has been withdrawn on the ground that the petitioners obtained qualification of Ph.D. prior to 1.1.2006. The clarification to that effect was issued by the Government of India vide letter dated 9.3.2010. A challenge to the said clarification dated 9.3.2010 has also been made on the ground of discrimination.
It is urged that incentive is given for Ph.D. then a cut off date for the aforesaid cannot be provided. This is more so when petitioners are those who obtained qualification of Ph.D. while in service. The reference of the original order dated 31.12.2008 has also been given where no cut off date was provided. The action of the respondent MNIT is also challenged as without withdrawing earlier resolution, impugned order of withdrawal of the benefit of three non-compounded advance increments has been issued.
Learned counsel appearing for respondent Union of India, on the other hand, submitted that the order dated 31.12.2008 at Annexure-5 was issued for Universities and Colleges and was not applicable to MNIT and other Technical University. Referring to Para 8 of the said order, it is submitted that decision for Technical Institutions was to be taken by the Committee, which was later on taken and as a consequence thereof, an order was passed on 18.8.2009 to govern Centrally funded Technical Institution and MNITs. In the order dated 18.8.2009, benefit of increment was allowed only at the entry level and not beyond it. No benefit was kept for those who obtained qualification of Ph.D. while in service. Thus, reference of the order dated 31.12.2008 by the petitioners is misleading. They are governed only by the order dated 18.8.2009. This is more so when a clarification was further made vide order dated 9.3.2010 with a circulation to all the National Institutes of Technology, which includes MNIT. It was clarified that benefit of non-compounded increments as provided in the order dated 31.8.2008 would available to those who have done Ph.D. in Professional Courses after 1.1.2006 and while in service. The petitioners are those who did their Ph.D. prior to 1.1.2006, thus were not eligible for the benefit of three non-compounded increments pursuant to the order dated 31.12.2008. The MNIT was, accordingly, directed to regulate their affairs as per the directions of Government of India.
Learned counsel appearing for respondent MNIT, on the other hand, submits that the benefit of three non-compounded increments was made applicable vide Annexure-R/3 dated 16.6.2004. This was to encourage young faculty to acquire qualification of Ph.D. and in any case, was not applicable to the Professors but was applicable to the Lecturers as promotion to the post of Professors can be if they are having qualification of Ph.D. Aforesaid was not clarified by the petitioners. Thus, even if the benefit of three non-compounded increments is made applicable, it can be to the Lecturers. The MNIT unfortunately took a decision to allow benefit of three non-compounded increments to all who did their Ph.D. while in service, which was later on withdrawn in the light of the clarification made by the Government of India. A decision has already been taken for withdrawal of the benefit, but on account of interim order of this Court, final order has not been passed. Rest of the argument as advanced by learned counsel for Government of India has been adopted.
I have considered the rival submissions of the parties and scanned the matter carefully.
The issue for grant of non-compounded increments came in picture on issuance of the order dated 31.12.2008. It was pursuant to the recommendations of the 6th Pay Commission. The relevant Para 7(iv) of the said order is quoted hereunder for ready reference:-
7. Incentives for Ph.D./M.Phil and other higher qualification:
(iv). Teachers who complete their Ph.D. degree while in service shall be entitled to three non-compounded increments if such Ph.D. is in the relevant discipline and has been awarded by a University complying with the process prescribed by the UGC for enrollment, course-work and evaluation etc. The perusal of the para quoted above reveals that Teachers who complete their Ph.D. degree while in service would be entitled to three non-compounded increments, if such Ph.D. is obtained in the relevant discipline. The order aforesaid does not define who are Teachers because Universities or Colleges are having Assistant Professor, Associate Professor and Professor, which were earlier known as 'Lecturer, Reader and Professor'.
The argument of learned counsel for Government of India is that order dated 31.12.2008 is not applicable to respondent MNIT. In that regard, a reference of para 8 of the aforesaid order has been given. It is submitted that for MNIT, a separate decision was to be taken on the recommendations of the Committee followed by order dated 18.8.2009 at Annexure-6. Perusal of the order dated 18.8.2009 reveals that a decision for Centrally Funded Technical Institutions and this order does not provide benefit of non-compounded increments on obtaining qualification of Ph.D. while in service though it deals with other benefit. If the aforesaid is applied to the MNIT, then none would be entitled to the benefit of three non-compounded advance increments if obtained qualification of Ph.D. either prior to 1.1.2006 or subsequent to it. If the impugned order passed by the MNIT is looked into, then indication exists for withdrawal of benefit of three non-compounded increments for those who obtained qualification of Ph.D. prior to 1.1.2006 and not to others who obtained qualification of Ph.D. after 1.1.2006.
It is not being clarified as to how such benefit has been given to the Teachers of the MNIT when order dated 31.12.2008 was not applicable. The confusion did not end here as on 9.3.2010, another order was issued by the Government for all MNITs as it was addressed to all National Institutes of Technology. In Para 1, direction exists for non-compounded increments and therein referring to the order dated 31.12.2008, the benefit of non-compounded increments has been allowed to those who obtained qualification of Ph.D. after 1.1.2006. Learned counsel for Government of India could not clarify aforesaid direction because at the first instance, argument was about non-application of the order dated 31.12.2008 to MNITs, but later on, it has been applied. It seems that the Government of India itself is not clear in their policies, therefore, at one hand, they do not apply order dated 31.12.2008 and make emphasis for application of subsequent order dated 18.8.2009 on MNITs and at the same time, issued order dated 9.3.2010 to make order dated 31.12.2008 applicable on MNITs. It reveals to this Court that due to contradictory decisions and the orders by the Government, litigation is created rather is mounting. The present case is one of the illustration of the nature aforesaid. If order dated 31.12.2008 is not applicable to the MNIT more specifically Para 7, there was no reason for MNIT to even allow benefit of three non-compounded increments to those who obtained Ph.D. after 1.1.2006, but it has been allowed, thus by implication and otherwise it is to be taken that benefit of three non-compounded advance increments is made applicable even to the MNITs.
The question now comes regarding justification about the cut off date. It is given out that recommendations of the 6th Pay Commission is dated 1.1.2006, thus any benefit has to be from the aforesaid date only. The only justification given is not sustainable in view of the judgment of the Hon'ble Apex Court in the case of D.S. Nakara Vs. Union of India reported in AIR 1983 SC 130. Therein, fixing cut off date for the benefit for the first time is held to be illegal. If ratio descidendi is applied to the present matter, then cut off date 1.1.2006 has wrongly been applied by the respondents. This is more so when to give incentive for higher education by virtue of order dated 31.12.2008 and subsequent order dated 9.3.2010 is after lapse of two years, yet incentive has been allowed in favour of those who had undertaken Ph.D. prior to 31.12.2008 though after 1.1.2006, but for them it was without knowing that they will get incentive in the shape of three non-compounded increments, if course of Ph.D. is undertaken. The position could have been different, if benefit of three non-compounded increments would have been given w.e.f. 31.12.2008 i.e., date when order in that regard was issued for the first time. In the aforesaid eventuality, the Teacher would have taken Ph.D. Course subsequent to 31.12.2008 to get benefit of three non-compounded increments, but in the present case, it has been applied since 1.1.2006. The only logic given is for implementation of Revised Pay Scale Rules from the aforesaid date, but if object to give incentive is taken note of, then it is to promote higher education for those Teachers, who are in service. The object aforesaid cannot be by providing a cut off date 1.1.2006, when order was passed on 31.12.2008, hence, action of the respondents to deny benefit of three non-compounded increments to those who have undertaken Ph.D. Course prior to 1.1.2006, is not legal and justified, rather it is hit by judgment of the Hon'ble Apex Court referred to above. The fact further remains that original order dated 31.12.2008 does not provide a cut off date.
The question further comes that according to respondents, order dated 31.12.2008 is not applicable to MNITs though it has been applied to MNITs vide order dated 9.3.2010 ignoring the fact that even in the earlier order dated 18.8.2009 applicable to MNITs, a direction to provide three non-compounded increments for higher qualification does not exist. In the aforesaid background, respondents are directed to take a proper decision as to whether order dated 31.12.2008 has to be applied to MNITs and Technical University throughout India. If it has to be applied, then all those who have taken higher education while in service, would be entitled to three non-compounded increments. If benefit as given out in the order dated 31.12.2008 is not applicable to the MNITs and Technical University, then it should be clarified to all concerns, but in that eventuality, benefit already given should not be recovered as it was extended by the MNIT at their own level and not due to fraud and misrepresentation by the petitioners.
A further issue is as to whether those who are working on the post of Professor would be entitled to the aforesaid benefit or not as Ph.D. is one of essential qualifications for promotion to the post of Professor. I find that order dated 31.12.2008 makes a reference for the incentive to the Teachers, but Teachers have not been defined, thus respondents are given liberty to take a decision as to whether Professor would be included in it or not. It would, however, be kept in mind that if qualification of Ph.D. was obtained while working on the lower post and a decision is taken by the respondents to apply order dated 31.12.2008 to Technical University and MNIT, then benefit of three non-compounded increments would be admissible to the Lecturers, who undertook Ph.D. while in service. With the aforesaid direction and observation, all these writ petitions are disposed of. However, it is again clarified that in either of the case, the benefit already given to the petitioners would not be recovered in view of the judgment of the Hon'ble Apex Court in the case of Sahib Ram Versus State of Haryana and others reported in 1995 Supp (1) SCC 18 holding that recovery is not permissible once benefit is extended by the administration if it is not out of fraud or misrepresentation by the employee.
(M.N. BHANDARI), J.
Sunil/PA All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
(Sunil Solanki) P.A.