Rajasthan High Court - Jodhpur
Dr. Rajendra P. Khichar And Ors vs University Grants Commission And Ors on 17 February, 2022
Bench: Manindra Mohan Shrivastava, Madan Gopal Vyas
(1 of 11) [CW-10619/2016]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition No. 10619/2016
1. Dr. Rajendra P. Khichar S/o Shri Bhani Ram Khichar, aged
about 36 years, resident of C/o Dr. Madhulika, 4-E-1, J.N.V.
Colony, Bikaner. Presently working as Lecturer, Government
Maharani Sudarshan Kanya Mahvidhyalya, Bikaner.
2. Dr. Sharda D/o Shri Hari Krishan Munjal, aged about 37
years, resident of 1/206, Mukta Prasad Nagar, Bikaner. Presently
working as Lecturer, Government Maharani Sudarshan Kanya
Mahvidhyalya, Bikaner.
3. Dr. Seem Ojha D/o Shri Dr. Premratan Ojha, aged about 43
years, R/o 5A-11, Duplex Colony Bikaner. Presently working as
Lecturer, Government Maharani Sudarshan Kanya Mahvidhyalya,
Bikaner.
4. Dr. Dinesh Gupta S/o Shri Moti Lal Gupta, aged about 34
years, R/o C/o Shri Sharad Kumar Singariya, E-124/D, Kanta
Khaturia Colony, Bikaner. Presently working as Lecturer,
Government Maharani Sudarshan Kanya Mahvidhyalaya, Bikaner.
5. Dr. Ashok Kumar Mahla S/o Shri Prakash Chand, aged about
37 years, R/o C/o Dr. Ashit Goswami, G-3-B, Kanta Khaturia
Colony, Bikaner. Presently working as Lectuere, Government
Maharani Sudarshan Kanya Mahvidhyalya, Bikaner.
6. Dr. Srikant Vyas S/o shri Rajendra Prasad Vyas, aged about
33 years, R/o Outside Nathusar Gate, Opposite Lalji Bhai Park,
Bikaner. Presently working as Lecturer, Government Maharani
Sudarshan Kanya Mahvidhyalya, Bikaner.
7. Dr. Smt. Radha Solanki D/o Shri Kamlesh Kumar Badgujar,
aged about 39 years, R/o Opposite Shitla Gate, Near Hanuman
Temple, Bikaner.
8. Dr. Babita Jain D/o Shri Chandan Mal Nahta, aged about 44
years, R/o 6-E-15, Pawan Puri, South Extension, Bikaner.
9. Dr. Vijay Laxmi Sharma D/o Shri Kundanmal Purohit, aged
about 42 years, R/o Opposite Bangali Mandir, Rani Bazaar,
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Bikaner.
10. Bhupesh S/o Shri Ramniwas Bijiya, aged about 33 years,
R/o Veer Teja Bearing House, Near Bus Stand, Marwar Mundwa,
District Nagaur. Presently working as Lecturer, Government
SBRM Mahavidhyalya, Nagaur.
----Petitioners
Versus
1. University Grants Commission, Bahadur Shah Zafar Marg,
New Delhi, through the Secretary.
2. State of Rajasthan through the Secretary, Higher Education
Department, Government of Rajasthan, Secretariat, Jaipur
(Raj.).
3. The Secretary, Finance Department, Government of
Rajasthan, Secretariat, Jaipur (Raj.)
4. The Director, College Education, Government of Rajasthan,
Jaipur (Raj.).
----Respondents
For Petitioner(s) : Mr. K.R. Saharan
For Respondent(s) : Mr. Sandeep Shah, AAG
Mr. Girish Joshi, for UGC
Mr. Himanshu Shrimali
Mr. Rishab Handa, for UGC
HON'BLE MR. JUSTICE MANINDRA MOHAN SHRIVASTAVA
HON'BLE MR. JUSTICE MADAN GOPAL VYAS Order Reportable 17/02/2022 By this petition under Article 226 of the Constitution of India, the petitioners, who were working as Lecturers in various Government colleges in the State of Rajasthan affiliated to the State universities, have raised a grievance that though earlier the (Downloaded on 23/02/2022 at 08:31:15 PM) (3 of 11) [CW-10619/2016] Rajasthan Civil Services (Revised Pay Scales for Government College Teachers including Librarians and PTIs) Rules, 1999 (hereinafter referred to as the 'Rules of 1999') provided for grant of incentives for acquiring Ph.D./M.Phil, that provision was omitted vide notification dated 06.05.2002 (Annexure-5).
Learned counsel for the petitioners would submit that entitlement to incentive for Ph.D./M.Phil is a statutory mandate issued by the University Grants Commission in exercise of its power conferred under the University Grants Commission Act, 1956 (for short the 'UGC Act') and Regulations framed therein, therefore, such benefits could not be withdrawn by the State. The second limb of submission of learned counsel for the petitioners are that though it was earlier withdrawn in the year 2002, it was re-introduced in the year 2013 vide notification dated 28.06.2013 but limited only to extend the benefits to the counterparts of the petitioners, who are engaged in teaching job in Medical Colleges under the Department of Medical / Health Services in the State, subjecting the petitioners and the class as a whole, to hostile discrimination. Further submission of learned counsel for the petitioners is that the benefits of incentives are limited to classification of higher qualification and the State having granted such benefits, ought not to have withdrawn those benefits as the withdrawal of the incentives would otherwise have adverse impact on the quality of teachers and ultimately quality of education to be imparted by these teachers. Referring to the communication dated 31.12.2008 of the Government of India, Ministry of Human Resource Development, Department of Higher Education addressed to the Secretary, University Grants Commission, it has been submitted that there is also a prescription for grant of (Downloaded on 23/02/2022 at 08:31:15 PM) (4 of 11) [CW-10619/2016] incentives in the form of advance increments to those who possessed Ph.D./M.Phil and other higher qualification. On the strength of the aforesaid submission before us, it is prayed that direction may be issued to the respondents for providing the incentives to the petitioners also in the form of advance increments as they are possessed of Ph.D./M.Phil and are working as Lecturers in Government colleges affiliated and are governed by mandate and directions which are issued by the UGC from time to time.
Even though, in the petition it has not been specifically pleaded nor any relevant document is placed on record but during the course of arguments, learned counsel for the petitioners referred to the provisions contained in the UGC Regulation, 2010 and drew attention of this Court to the provision contained in Clause 9.0 of Schedule referrable to Clause 6.8.0 to submit that UGC by its regulation has mandated grant of incentives to the persons possessing Ph.D./M.Phill and, therefore, there is no option left to the State but to implement these provisions having statutory force.
On the other hand, learned Additional Advocate General replying to the arguments would submit that as far as grant of incentives/advance increments to teachers who possessed Ph.D./M.Phill is concerned, it was earlier introduced by the State, taking into consideration, the then existing situation, when qualified teachers were not available to impart teaching in higher education. Later on, when large number of highly qualified candidates for appointment to the post of Lecturers were readily available, and the requirement of holding Ph.D./M.Phill was made one of the eligibility qualification for appointment to the post of (Downloaded on 23/02/2022 at 08:31:15 PM) (5 of 11) [CW-10619/2016] Lecturer, the said benefit was withdrawn by deletion of the provision contained in Rule 11 of the Rules of 1999 vide notification issued on 06.05.2002. It is next submitted that the explanation (Annexure-A4), communication A-10 and Schedule referrable to Clause 6.8.0 of the UGC Regulation, 2010 do not come to the aid of the petitioners because while instruction A-4 is merely administrative in nature and not referrable to any of the provisions or provisions of the U.G.C. Act, annexure A-10 is a communication, which specifically applies only in respect to the Central universities. As far as the Clause 9.0 of Schedule referrable to Clause 6.8.0 is concerned, the argument of learned Additional Advocate General is that it is applicable in respect of the Central universities and has no application to the colleges which are affiliated to the State Universities. Therefore, it is contended that there is no statutory mandate to the State to necessarily and compulsorily provide incentives to those who are possessing Ph.D./M.Phill.
Learned counsel for the State would further submit that as far as allegation of discrimination is concerned, the teachers who are imparting education in medical institutions form a distinct class and the petitioners cannot claim parity with them as their qualifications are entirely different and they are governed by different sets of regulations in the matter of medical education.
Learned counsel for the university submits that except for the submissions, that Regulations as framed by the UGC are mandatory and applicable to all, he would submit that no relief has been claimed against the university on the basis of provision contained in UGC Act and Rules framed thereunder. (Downloaded on 23/02/2022 at 08:31:15 PM)
(6 of 11) [CW-10619/2016] We have heard learned counsel for the parties and the perused the record.
Undeniably, prior to 06.02.2002, the Rule 11 of the Rules of 1999 provided for grant of incentives those who were possessed of Ph.D./M.Phill which reads as below:-
"Incentives of Ph.D./M.Phil:
(i) During the period from 01.01.1996 to 26.07.1998 The candidates who at the time of recruitment as Lecturer in the pay scale of 8000-13500 if possessed Ph.D. or M.Phil degree, shall be allowed three or one advance increment(s), repectively, as the case may be. Lecturers acquiring such degrees after entering into Government Service as Lecturer would not be entitled for any advance increments.
(ii) From 27.07.1998 and onwards:
(a) Four and two advance increments will be admissible to those who hold Ph.D. and M.Phill degrees, respectively, at the time of recruitment as Lecturers.
(b) One increment will be admissible to those teachers with M.Phil who acquire Ph.D. within two years of recruitment".
However, later on, in the course of time, the State carried out an amendment vide notification dated 06.02.2002 by which the provision relating to grant of incentives was omitted. The said notification reads as follows:-
"Government of Rajasthan FINANCE DEPARTMENT (RULES DIVISION) NOTIFICATION Jaipur, dated May 6, 2002.
No.F.13(2) FD(Rules)/98 Subject : Revision of Pay Scales of Teachers including Librarians and PTIs of Government Colleges.
In exercise of the powers conferred by the Provision to Article 309 of the Constitution of India, the Governor of Rajasthan is pleased to make the following rules to amend further the Rajasthan Civil Services (Revised pay Scales for Government College Teachers including Librarians and PTIs) Rules, 1999, namely -(Downloaded on 23/02/2022 at 08:31:15 PM)
(7 of 11) [CW-10619/2016] These rules may be called the Rajasthan Civil Services (Revised Pay Scales for Government College Teachers including Librarians and PTIs) (First Amendment) Rules, 2002.
They shall come into force with immediate effect.
In the aforesaid rules the existing rule 11. Incentive for Ph.D./M.Phill shall be deleted.
By Order of the Governor, (M.D. Kaurani) Principal Secretary, Finance"
In its return, the State has placed history as also the justification for withdrawing such benefits as part of incentives, on the statements that earlier very few persons were holding higher qualification and there was a presumption the person holding higher qualification than requisite required will be able to discharge his work in better manner and further grant of increment will lure the persons to join Government service and it was in consonance with this idea that as per the Revised Pay Scales Rules, 1998 the posts, the details whereof were provided under Schedule B of the Rules of 1998 were granted the benefit of advanced increment/higher scale based on higher qualification with effect from 01.09.1996. It has further been stated in para 3 of the reply to the writ petition that there were cases wherein disparity was much apparent, inasmuch as persons junior were having higher pay than the seniors and the issue of step up arose time and again. However, with passage of time the scope of education and literacy rate changed and the people were opting for higher education and large number of persons with higher qualification were available for undertaking the job under the Government services and thus it was found feasible that henceforth for appointment made, no such benefit of higher pay /advanced increment will be granted to persons holding higher qualification. On the basis of such consideration, the matter was (Downloaded on 23/02/2022 at 08:31:15 PM) (8 of 11) [CW-10619/2016] examined by the cabinet and a decision was taken to withdraw such benefits which culminated in issuance of notification dated 06.05.2002, omitting the benefits of incentive on the basis of teachers possessing higher qualification of Ph.D./M.Phill.
We also find that the petitioners are those who have been appointed during the years 2009 to 2012 and not at the time when the provisions were in existence, until it was omitted vide notification dated 06.05.2002. The petitioners were not even in service when such incentive was part of the Rules. In that view of the matter, it cannot be said that the petitioners were benefited by accrued incentives which was illegally withdrawn, altering the terms and conditions of the services to their disadvantage.
The next issue for consideration by this Court is whether these exists a statutory mandate contained under the UGC Act and the regulations framed by the UGC which oblige the State to grant incentive to those teachers possessing higher qualification of Ph.D./M.Phill. Petitioners have placed reliance upon an instruction Annexure 4. Learned counsel for the petitioner could not satisfy this Court as to what was the source of issuance of such instruction. University Grants Commission is an authority constituted under the provisions of the UGC Act to perform certain duties and functions in exercise of power assigned to it under the Act. While none of the substantive provisions contained in this Act confers power on the UGC to issue such instructions, power to make regulations is provided in Section 26 of the University Grants Commission Act. Therefore, if the UGC intends to issue a command having the force of law, it is required to frame a regulations which will have the force of law. When such (Downloaded on 23/02/2022 at 08:31:15 PM) (9 of 11) [CW-10619/2016] regulations are framed, the regulations become mandate of law binding on all and required to be complied with.
Learned counsel for the petitioners has failed to point out from the pleadings or documents which were filed along with the petition to convince us that UGC had framed regulations issuing such mandate containing statutory guidelines in the matter of grant of incentives to the teachers who possessed Ph.D./M.Phil. However, during the course of arguments, learned counsel for both the parties, in order to better assist the Court have placed before us UGC Regulations, 2010. These Regulations framed by the UGC in exercise of the powers conferred under Section 26 of the Act, definitely have the force of law. As to whether there is any provision contained in these regulations which entitled the petitioners to get incentives / advance increments, as claimed by them, we have gone through various provisions of the regulations. While learned counsel for the petitioners places reliance upon Clause 9 of the Schedule referrable to Clause 6.8.0 of the regulations, a clarificatory argument is made by learned Additional Advocate General that Clause 6.8.0 is applicable only in respect of Central universities. This argument of the learned Additional Advocate General has force because Clause 6.8.0 provides for pay-scales, designations and stages of promotions under career advancement scheme. Clause 6.8.0 reads as under:-
"The Schedule annexed to these Regulations outlines the Pay scales, Designations and stages of promotions under CAS of incumbent and newly appointed teachers and equivalent positions in the Library and Physical Education and Sports cadres in Central Universities and colleges thereunder and (Downloaded on 23/02/2022 at 08:31:15 PM) (10 of 11) [CW-10619/2016] institutions deemed to be Universities whose maintenance expenditure is met by the UGC".
The schedule which has been referred to by the learned counsel appearing for the petitioners containing Clause 9, provides for incentives for Ph.D/M.Phil and other higher qualification. It is, therefore, clearly referrable to Clause 6.8.0 and is not applicable in respect of the colleges where the petitioners are teaching, which colleges are admittedly affiliated to the privileged State Universities. Reference has also been made to communication Annexure-A-10. Reliance on that is also misconceived because its opening part shows that it is applicable only to Central Universities and its institutions.
It would thus be seen that there are no materials on record nor any other material placed before us during the course of arguments to establish that under the UGC Act, there is any provision with regard to grant of incentives to the petitioners, on the ground that they are possessing Ph.D./M.Phil. Therefore, no statutory mandate lies in favour of the petitioners under the UGC Act and regulations framed therein so as to command the State to extend the benefits of incentives on the ground that petitioners are possessing such qualification.
Lastly, the learned counsel takes us to the argument with regard to discrimination. Undeniably, the State has come out with grant of incentives which is confined only to the teachers in medical colleges. This is clear from the order dated 28.06.2013 (Annexure-A8). The benefits have been confined only to the teachers who are engaged in medical education which is a professional course. Medical education is governed by the provisions of the Medical Council of India Act. Regulations and the (Downloaded on 23/02/2022 at 08:31:15 PM) (11 of 11) [CW-10619/2016] Rules framed thereunder. The qualifications required for appointment to various teaching posts in medical education are also entirely different. Therefore, the petitioners' contention that the petitioners who are teaching in academic institutions in the State are similarly situated and are at par with teachers who are imparting education in medical colleges, which are professional institutions, cannot be accepted. Therefore, for that reason, we are not inclined to hold in favour of the petitioners that they have been subjected to unreasonable classification so as to hold that the State's action is discriminatory and violative of Article 14 of the Constitution of India.
In the result, we find no force in this petition and the same is dismissed.
(MADAN GOPAL VYAS),J (MANINDRA MOHAN SHRIVASTAVA),J 52-Ravi Kh/-
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