Tripura High Court
Dr. Hari Sankar Chakraborty vs Union Of India on 12 May, 2017
Author: S. Talapatra
Bench: Chief Justice, S. Talapatra
IN THE HIGH COURT OF TRIPURA
AGARTALA
W.P.(C) 478 of 2014
Dr. Hari Sankar Chakraborty,
son of late Dr. Phani Bhusan
Chakraborty, resident of Matri
Bhawan, Bhati Abhoynagar, West
Para, P.S. West Agartala, P.O.
Agartala, District - West Tripura,
PIN-799001
......... Petitioner
-Versus-
1. Union of India,
through its Secretary, Ministry of
Human Resource Development,
having his office at Shastri
Bhawan, New Delhi-110001
2. University Grants Commission,
through its Secretary having his
office at Bahadur Shah Zafar
Marg, New Delhi-11002
3. Tripura University,
through its Registrar having his
office at Suryamaninagar,
Agartala, Tripura, 799020
4. Vice Chancellor,
Tripura University, having his
office at Suryamaninagar,
Agartala, Tripura, 799020
........ Respondents
BEFORE HON‟BLE THE CHIEF JUSTICE THE HON‟BLE MR. JUSTICE S. TALAPATRA For the petitioner : Mr. D.P. Kundu, Sr. Advocate Ms. R. Guha, Advocate Mr. A. Kar, Advocate For the respondents : Mr. P. Dutta, Advocate Mr. T. Debbarma, Advocate Date of hearing : 08.12.2016 Date of delivery of Judgment & Order : 12.05.2017 Whether fit for reporting : YES NO √ [2] JUDGMENT & ORDER (S. Talapatra, J) The petitioner who joined in the Tripura University as Deputy Librarian on 01.02.1989 and after serving the said university for 22 years and 2 months retired on superannuation on 31.03.2011. He filed this writ petition urging for the principal reliefs which are as under:
"Release of one increment at `420/- in the pre- revised scale of `12000-18300/- as on 01.01.2006 and 3(three) non-compounded increments for obtaining the degree of Ph.D. in terms of the UGC regulations w.e.f. 01.09.2008, to fix the pay of the petitioner at `53,700/- as on 01.01.2006 after adding one increment on 01.01.2006 and with his pay 3(three) non-compoundable increments for Ph.D. w.e.f. 01.09.2008.
For purpose of having the other consequential or ancillary reliefs further urged in this writ petition, the relevant part of the writ petition is extracted hereunder:
In the facts and circumstances stated herein above the petitioner humbly prays that let-
A) A Rule be issued out of an under the seal of this Hon‟ble Court commanding the Respondents and each one of them to show cause why a writ of or in the nature of Mandamus should not be issued directing all the Respondents and each one of them to issue a Pension Payment Order forthwith in favour of the petitioner.
B) A Rule be issued out of an under seal of this Hon‟ble Court commanding the Respondents and each one of them to show cause why a writ of or in the nature of Certiorari should not be issued directing all the Respondents and each one of them to produce before this Hon‟ble Court all relevant documents and/or records relating to the subject matter of this case, so that conscionable justice may be administered after perusing the same.
C) A Rule be issued out of and under seal of this Hon‟ble Court commanding the Respondents and each one of them to show cause why of or in the nature of Mandamus should not be issued W.P.(C) No.478 of 2014 Page 2 of 42 [3] directing the respondents and each of them to quantify forthwith the amount in respect of (1) fixation of pay, (2) pension, (3) commutation of pension, (4) leave encashment, (5) gratuity strictly in accordance with law as narrated in this petition and pay the same to the petitioner without any further delay."
[2] The crux of the grievance that the petitioner as unfolded in this writ petition can further be availed from Para-4 of the writ petition, where the petitioner has averred that, embarking on wrongful, illegal, arbitrary and malicious action, the respondents No.3 and 4 have withheld the petitioner's legitimate due in respect of (a) increment of `420/- in the pre- revised scale of `12000-18300/- as on 01.01.2006 and (b) 3(three) numbers of non-compounded increments as the Ph.D. incentive. As a result, the petitioner has not received the due and further, as consequence thereof, the petitioner has suffered for the arbitrary acts of the respondents. The respondents No.3 and 4, according to the petitioner, with mala fide intention did not deliberately fix his pay, to which he was entitled to, after taking into account the non-compounded 3(three) increments for his Ph.D. degree which he received on 11.07.1999 and one increment at `420/- in the pre-revised scale of `12000-18300/-. [3] Before we appreciate the averments, the records produced with the writ petition and the affidavits supplementary to the averments of the writ petition or for brining the subsequent event on record and submission made for the petitioner, it would be expedient to record the reply filed by the W.P.(C) No.478 of 2014 Page 3 of 42 [4] respondents No.3 and 4, the University-respondents. Those respondents have categorically asserted that on 28.03.2011 the University accorded sanction for final withdrawal of his accumulation in the GPF with interest as accrued thereon. On 01.11.2011, the University sanctioned the provisional pension in favour of the petitioner along with sanction of cash payment in lieu of unutilized Earned Leave. On 04.11.2013 the University accorded sanction of DCRG. On 20.12.2012, the University sanctioned commuted value of pension in favour of the petitioner. Thereafter, on denying the claim of one increment on 01.01.2006, the university-respondents have asserted that before the 6th CPC came into force, the date of yearly increment of the petitioner was 1st February. In terms of the memorandum issued by the Ministry of under No.F.1(1)/2008-1C, dated 22.05.2013, Annexure-P/7 to the writ petition, the petitioner was entitled of one increment on 01.01.2006 in the pre-revised pay scale as one time measure and the next increment in the revised pay structure on 01.07.2006. Thus, it has been alleged that the petitioner was entitled to one increment, but that has not been accorded and he was denied re-fixation of pay in terms thereof. The university-respondents have categorically stated that the petitioner has suppressed the material facts that he was given one stagnation increment on 01.02.2005 on pre-revised pay as in accordance with the clarification at Serial No.5 of the office memorandum No.1/1/2008-IC dated 29.01.2009 of W.P.(C) No.478 of 2014 Page 4 of 42 [5] Ministry of Finance, GOI to the effect that when increment is granted whether normal annual increment or stagnation increment after 01.01.2005, no increment will was allowed to him on 01.01.2006. The office memorandum dated 29.01.2009 has elaborately dealt with certain points of doubt and to repel such doubt, the said clarification was provided by the office memorandum dated 29.01.2009. The relevant point of doubt and its clarification is extracted for purpose of reference hereunder:
Sl. Point of Doubt Clarifications
No.
* * *
5 Grant of stagnation
increment :
In all cases, where a
Whether the employees Government servant has been
who have been granted granted an increment
stagnation increment (whether normal annual
between February 2005 increment or stagnation
or thereafter are to be increment) after January 1,
granted additional 2005, no increment will be
increment w.e.f. allowed on 1.1.2006 at the
1.1.2006, while fixing the time of fixation of pay in the
pay or not? Since they revised pay structure.
have reached at the
maximum of the existing
pay scale.
[4] The university-respondents have further asserted
that according to the Fitment Table as provided by CCS (Revised Pay) Rules, 2008 both the pre-revised basic pay of `18,300/- and `18,700/- [before and after addition of one increment] came to the same stage of pay in the Pay Band `43,390/-. The corresponding revised basic pay came to `52,390/- pay in the Pay Band of `43,390/- + AGP `9,000/-. The petitioner's pay was W.P.(C) No.478 of 2014 Page 5 of 42 [6] accordingly fixed on 01.01.2006. The university-respondents have also annexed the fitment table where the petitioner's name appears at Sl. No.18 and in respect of the petitioner there is no special note for purpose of elucidation. It would be apposite to reproduce the relevant part of the fitment table:
Sl. Name & Un- Revised Basic Basic Basic Basic Basic Basic Pay No. Designation revised Pay & Pay on Pay Pay Pay Pay on Basic AGP/GP on 1.1.06 on on on on 1.7.2010 Pay on 1.1.06 or 1.7.06 1.7.07 1.7.08 1.7.09 1.1.06 as applicable 18 Dr. H.S. 18300 43390+9000 52390 53970 55590 57260 58980 60780 Chakraborty, Dy. Lib [5] In respect of withholding of 3(three) non-
compounded increments from 01.09.2008 for having the Ph.D. degree in Library and Information Science, the university- respondents have stated that the petitioner was awarded Ph.D. from Andhra University on 11.07.1999, but he informed the university authority on 17.05.2007 and thus, he took about 8 years to inform the university. Even the petitioner had enclosed an unattested copy of the certificate. When the petitioner intimated to the university authority, the UGC notification No.F.3-1/94(PS) dated 24.12.1998 was in force. In his communication, the petitioner referred the clause 6.4.0 of the said notification and requested to re-fix his pay by awarding 2(two) advance increment accordingly. But according to the university-respondents, the clause 6.4.0 of the said notification are for the teaching staff and the petitioner as the Deputy Librarian was not covered by the said notification and thus, the W.P.(C) No.478 of 2014 Page 6 of 42 [7] petitioner was not entitled to any increment. For purpose of reference, the relevant clause 6.4.0 is extracted hereunder:
"6.4.0 A teacher will be eligible for two advance increments as and when she/he acquires a Ph.D. degree in her/his service career."
[6] The university-respondents have also annexed the letter dated 17.05.2007 written by the petitioner to the Registrar, Tripura University. For purpose of reference the entire text of the said letter is reproduced hereunder:
"To The Registrar, Tripura University, Suryamaninagar, Ref : UGC letter No.F.3-1/94(PS)-7, Dt. 19.10.06 & F.3- 1/94(PS) Dt.24.12.1988 Sub : Prayer for refixation of my as on 1.1.1996 & 2(two) advance increments for Ph.D. w.e.f. 11.07.1999.
Dear Sir, With reference to my prayer dated 23.11.2006 for refixation of my pay at the Minimum Basic of Rs.14,940/- w.e.f 1.1.1996 under revised pay scale of Rs.12000/- - 18300/- as per UGC notifications cited above, [Clause-1(v)(b) at page-17 of notification dated 24.12.1988], I did not receive any thing still now. Kindly arrange to process my case early.
2. Further, I have completed my Ph.D. (Lib. & Inf. Sci.) from Andhra University on 11.07.1999. Copy of the Certificate and the Notification dated 11.07.1999 of the A.U is enclosed for kind perusal. As per UGC notifications cited above, I am entitled to get 2(two) advance increments for Ph.D. (UGC notification dated 24.12.1998-Clause 6.4.0 at page-7). So, kindly arrange to give me two advance increments w.e.f. 11.07.1999.
Thanking you.
Dated, Suryamaninagar, The 17.05.2007 Yours faithfully Sd/-
Illegible (Dr. H.S. Chakraborty) Deputy Librarian Enclo : 1) Copy of Ph.D. Cert.
2) Copy of Notification of A.U dated 11.07.1999"W.P.(C) No.478 of 2014 Page 7 of 42 [8]
In view of the clause 6.4.0 the university was not in a position to grant the petitioner non-compounded increments for his acquiring the degree of Ph.D. The petitioner also did not insist for that but after his retirement, he had approached the university authority to release his Ph.D. incentive as per notification No.F.1-32/2006-V.11/U/I(i) dated 31.12.2008 of the Ministry of Human Resource Development, MHRD in short. The university-respondents have admitted that the UGC has given effect to the said notification dated 31.12.2008 by way of framing a regulation called 'UGC (Minimum Qualification for Appointment of Teachers and Other Academic Staff in University and Colleges and other Measures for the Maintenance of Standard in Higher Education) Regulations, 2010'. The said regulation was published under notification No.F.3-1/2009 dated 28.06.2010 which inter-alia includes the said notification of the MHRD as Appendix-1. Apart from the faculties, provision has been made to award Ph.D. incentive to Librarians. In the meantime, in 2009 the UGC also modified the Ph.D. regulations and in that modified regulation the course-work for Ph.D. was introduced by the notification No.F.1-1/2002(PS)Exemp dated 01.06.2009. According to the university-respondents, the Ph.D. incentive can be given only to those persons who were awarded Ph.D. on complying the mode as prescribed by the UGC in respect of registration/enrolment, the course-work and W.P.(C) No.478 of 2014 Page 8 of 42 [9] evaluation. The petitioner had not undergone the course work in Ph.D. and hence, the university-respondents cannot grant him 3(three) non-compounded increments as the Ph.D. incentive. The university-respondents have further asserted that even the faculties who have not conformed to the said mode for obtaining the Ph.D. had not been favoured with the said incentive. The relevant part of the notification dated 31.12.2008, Annexure-P/8 to the writ petition, is required to be excerpted:
"* * *
(ix) Five non compounded advance increments shall be admissible to Assistant Librarian/ College Librarian who were recruited at entry level with Ph.D. degree in the discipline of library science from a university complying with the process prescribed by the UGC in respect of enrolment, course-work and evaluation process for the award of Ph.D. in library science.
(x) Assistant Librarian/College Librarian and other Library personnel acquiring the degree of Ph.D. at any time while in service in the discipline of library science from a university complying with the process prescribed by the UGC in respect of enrolment, course-work and evaluation shall be entitled to three non-compounded advance increments.
(xi) However, persons in posts of Assistant Librarian/College Librarian or higher positions who have been awarded Ph.D. in library science at the time of coming into force of this Scheme or having been enrolled for Ph.D. in library science have already undergone course-work, if any, as well as evaluation, and only notification in regard to the award of Ph.D. is awaited, shall also be entitled to the award of three non compounded increments even if the university awarding such Ph.D. has not yet been notified by the UGC as having complied with the process prescribed by the Commission.
(xii) in respect of other case of persons in the posts of Assistant Librarian/College Librarian or higher positions who are already enrolled for Ph.D. shall avail the benefit of three non-compounded increments only if the university awarding the Ph.D. has been notified by the UGC to have complied with the process prescribed by the Commission for the award of Ph.D. in respect of either course-work or evaluation or both, as the case may be.
(xiii) Assistant Librarian/College Librarian and others in higher Library positions in service who have not yet enrolled for Ph.D. shall therefore derive the benefit of three non-compounded increments on award of Ph.D., while in service only if such enrolment is with a W.P.(C) No.478 of 2014 Page 9 of 42 [10] university which complies with the entire process, including that of enrolment as prescribed by the UGC.
(xiv) Two non-compounded advance increments shall be admissible for Assistant Librarian/College Librarian with M. Phil degree in Library Science at the entry level. Assistant Librarian/College Librarian and those in higher positions acquiring M. Phil degree in Library Science at any time during the course of their service, shall be entitled to one advance increment." [7] There is no dispute that there are other incentives for the persons who have acquired Ph.D. such as exemption from NET/SLET/SET but that aspect is not very material in the present context. The minimum qualification for appointment to the post of Deputy Librarian or for that matter for any post of Librarians under the University establishments, the degree of Ph.D. is not an essential qualification but desirable qualification. The UGC regulation in order to enhance the standard has declared the Ph.D. incentive. Under the schedule of the clause 6.8.0 which deals with pay scale etc. has provided as under:
"9.0. INCENTIVES FOR Ph.D./M. Phil. AND OTHER HIGHER QUALIFICATION TO TAKE EFFECT FROM 01.09.2008.
9.1. Five non-compounded advance increments shall be admissible at the entry level of recruitment as Assistant Professor to persons possessing the degree of Ph.D. awarded in a relevant discipline by the University following the process of admission, registration, course work and external evaluation as prescribed by the UGC.
* * * 9.8.1 (i) Assistant Librarian/ College Librarian acquiring the degree of Ph.D. at any time while in service, in the discipline of library science from a university complying with the process prescribed by the UGC in respect of enrolment, course work and evaluation shall be entitled to 3 non-compounded advance increments.
(ii), However, the persons in posts of Assistant Librarian/College Librarian or higher positions who have already been awarded Ph.D. in library science at the time of coming into force of these Regulations or having already undergone course-work as well as W.P.(C) No.478 of 2014 Page 10 of 42 [11] evaluation, if any, and only Notification in regard to the award of Ph.D. is awaited, shall also be entitled to the award of 3 non-compounded increments even if the university awarding such Ph.D. has not yet been notified by the UGC as having complied with the process prescribed by the Commission.
9.8.2. In respect of every other case of persons in the posts of Assistant Librarian/College Librarian or higher positions who are already enrolled for Ph.D. shall avail the benefit of 3 non-compounded increments only if the university awarding the Ph.D. has been notified by the UGC to have complied with the process prescribed by the Commission for the award of Ph.D. in respect of either course-work or evaluation or both, as the case may be.
9.8.3. Assistant Librarian/College Librarian and other in higher Library positions in service who have not yet enrolled for Ph.D. shall therefore derive the benefit of 3 non-compounded increments on award of Ph.D. while in service only if such enrolment is with a university which complies with the entire process, including that of enrolment as prescribed by the UGC. 9.8.4. Two non-compounded advance increments shall be admissible for Assistant Librarian/College Librarian with M. Phil. Degree in Library Science at the entry level, Assistant Librarian/College Librarian and those in higher positions acquiring M. Phil degree in Library Science at any time during the course of their service shall be entitled to one advance increment.
9.9. Five non-compounded advance increments shall be admissible to Assistant Director of Physical Education and Sports/College Director of Physical Education and Sports who are recruited at entry level with Ph.D. degree in the discipline of Physical Education from a university complying with the process prescribed by the UGC in respect of enrolment, course work and evaluation process for the award of Ph.D. in Physical Education.
9.10. Notwithstanding anything in the foregoing clauses, those who have already availed the benefits of advance increments for possessing Ph.D. /M. Phil.
at the entry level under the earlier Schemes/Regulations shall not be entitled to the benefit of advance increments under these Regulations.
9.11. Teachers, Library and Physical Education cadres who have already availed the benefits of increments as per the then existing policy for acquiring Ph.D./M. Phil while in service, shall not be entitled to advance increments under these Regulations.
9.12. For posts at the entry level where no such advance increments were admissible for possessing Ph.D./M. Phil under the earlier Schemes/Regulations, the benefit of advance increments for possessing Ph.D./M. Phil shall be available to only those appointments which have been made on or after the coming into force of these Regulations."
W.P.(C) No.478 of 2014 Page 11 of 42 [12] [8] The university-respondents have given the clarification and explanation in respect of payments made to the petitioner on various dates. According to the records, the petitioner had an outstanding balance of an amount of `50,000/- . Against the said amount, `44,500/- was adjusted from his balance GPF account and the remainder thereof, `5,500/- was adjusted from the DCRG. There is no dispute that the petitioner had retired from the service on 31.03.2011 when he was paid a sum of `9,70,515/- from his GPF account. On 22.07.2011 withdrawal to the extent of `8,73,464/- was made by the petitioner keeping a balance of `97,051/- along with interest of `7,654/-. After adjusting the outstanding due of `44,500/-, the petitioner was paid the balance of `60,205/- on 13.01.2013. The university authority paid the petitioner leave salary for 300 days of un-utilized Earned Leave amounting to `9,17,330/-. The petitioner has been paid a sum of `10,00,000/- as DCRG on 28.03.2014. The petitioner had received commuted pension value and arrear of pension for the period from 01.04.2011 to 31.10.2011. The petitioner is regularly receiving the pension. The delay in releasing the DCRG was for a pending litigation. When the litigation was over on 06.06.2013, the due to the petitioner has been paid without delay.
[9] The petitioner in response to reply filed by the respondents No.3 and 4 by filing the rejoinder on 24.05.2011 W.P.(C) No.478 of 2014 Page 12 of 42 [13] has disputed the statements made in the said reply by the respondents No.3 and 4. It has been contended by the petitioner that the UGC Regulations, 2010 has come into force in suppression of UGC Regulations, 2000 w.e.f. 28.06.2010 where the minimum qualification for appointment and other service conditions of the library personnel has been provided. The petitioner has extensively quoted from the said regulation including clause 6.8.0 which provides that incumbents to the post of Deputy Librarian/Assistant Librarian (Selection Grade)/College Librarian (Selection Grade) who have completed three years in the pre-revised pay scale of `12000-18300/- on 01.01.2006 shall be fixed at an appropriate stage in the Pay Band of `37000-67000/- with an AGP of `9,000/-. Despite that they shall continue to be designated as Deputy Librarian/Assistant Librarian (Selection Grade)/College Librarian (Selection Grade). Even though, these provisions have extensively been reproduced in the rejoinder but those are remote to the relief as prayed by the petitioner. [10] Having referred to the Paragraph 3(g) of the reply filed by the respondents No.3 & 4, the petitioner has stated that those respondents have clearly admitted that the petitioner is entitled to one increment on 01.01.2006 in the pre-revised scale as a one time measure and the next increment in the pre- revised pay structure on 01.07.2006. Accordingly, it is asserted that the petitioner is entitled to one increment which has not W.P.(C) No.478 of 2014 Page 13 of 42 [14] been accorded. The consequential re-fixing of pay is needed. The substantive part of the said paragraph has been quoted but the relevant part has been omitted. The respondents No.3 & 4 have categorically stated in the said paragraph 3(g) that "....But, the petitioner concealed the fact that he was given one stagnation increment on 01.02.2005 on pre-revised pay and in accordance with the clarification at Sl. No.5 of the office memorandum No.F.1/1/2008-IC dated 29.01.2009 of Ministry of Finance, GOI when an increment is granted whether normal annual increment or stagnation increment after January, 01, 2005, no increment be allowed on 01.01.2006." [11] According to the fitment table in respect of the CCS (Revised Pay) Rules, 2008 both the pre-revised basic pay of `18,300/- and `18,700/- [before and after addition of one increment] comes to some stage of pay in the Pay Band of `43,390/- and the corresponding revised basic pay comes to `52,390/- [pay in the Pay Band of `43,390/- + AGP of `Rs.9,000/-] which has been given to the petitioner on the basis of fixation on 01.01.2006. Reproduction of one part leaving aside the other part as well amounts to distortion by tearing aside. By means of the stagnation increment of `420/- which was released on 01.02.2005 the basic pay of the petitioner in the pay scale of `12000-18300/- became `18,720/- [`18,300+ `420/-]. The claim of the petitioner as adverted is that another increment of `420/- shall have been released on 01.01.2006 in W.P.(C) No.478 of 2014 Page 14 of 42 [15] the pre-revised pay scale in terms of the paragraph-4 of the office memorandum No.F.10/2/2001-E.III(A) dated 04.07.2014, Annexure-P/30 to the rejoinder affidavit. For purpose of reference, the referred Para-4 of the said memorandum dated 04.07.2014 is extracted hereunder:
"4. The matter has been considered and the President is pleased to decide that, in partial modification of this Ministry‟s aforesaid OM No.1/1/2008-IC dated 29.01.2009, the increment on 1st January, 2006, as envisaged under the first proviso to Rule 10 of the CCS (RP) Rules, 2008, shall be allowed to those employees also who had reached the maximum of the applicable pre-revised pay scale more than one year before 01.01.2006 and were in receipt of stagnation increment(s) in the applicable pre-revised pay scale as admissible in terms of the orders in vogue prior to 01.01.2006, provide their pay in the revised pay structure was fixed on 01.01.2006 with reference to the same pre-revised pay scale exactly as per the Fitment Table prescribed in this Ministry‟s OM No.1/1/2008-IC dated 30th August, 2008."
[12] According to the petitioner, those respondents with mala-fide motive have suppressed the office memorandum dated 04.07.2014. There is no dispute regarding release of stagnation increment on 01.02.2005. In this regard, the periodical increment certificate dated 15.02.2008, Annexure- P/29 to the rejoinder, issued by the Registrar (Officiating) has been referred by the petitioner. If another increment of `420/- in the pre-revised pay scale in terms of the office memorandum dated 04.07.2015 is released on 01.01.2006, the basic pay of the petitioner will be `19,140/-. Therefore, the petitioner after revision ought to have been fitted in the Pay Band of `44,700/- with AGP of `9,000/- meaning `53,700/- as per Fitment Table No.4 as provided by the communication under No.F.3-1/2009- W.P.(C) No.478 of 2014 Page 15 of 42 [16] U.I. dated 04.05.2009, Annexure-P/15 to the writ petition. According to the petitioner, he is entitled to that revised basic pay as he has been holding the post of Deputy Librarian with more than three years of service but the respondents by way of suppressing the office memorandum dated 04.07.2014 have denied him the said revised basic pay. In defiance to the said memorandum, the revised basic pay of the petitioner has been fixed without adding one additional increment on 01.01.2006 in the pre-revised pay of `18,700/-. Thus, the petitioner's pay was revised to `52,390/- on Pay Band of `43,390/- with AGP of `9,000/- on 01.01.2006. The petitioner has categorically stated that by way of denying the Pay Band of `44,700/- with AGP of `9,000/-, the petitioner has been denied the revised pay of `53,700/- to which he is entitled according to the fitment principle as adopted by the said Table-4.
[13] In response to the paragraph-3(h) of the reply filed by the respondents No.3 and 4, where they have stated that the petitioner was awarded the Ph.D. from Andhra University and he took nearly 8 years to inform the employer and that too forwarding an unattested photocopy of the certificate, the petitioner has stated that such statement is mala fide and reflection of 'falsehood' inasmuch as in the Annual Performance Reports [APRs in short] for the year 2000-2001, 2001-2002, 2002-2003 and 2003-2004 under seal and signature of the Registrar, Tripura University, the petitioner has been referred as W.P.(C) No.478 of 2014 Page 16 of 42 [17] Dr. Hari Shankar Chakraborty or Dr. H.S. Chakraborty. Those APRs have been annexed with the rejoinder. Even the petitioner has referred a sheaf of communications, Annexure-P/33 collectively of the rejoinder, where the petitioner has been addressed as Dr. Hari Shankar Chakraborty or Dr. H.S. Chakraborty. Thus, the petitioner has strongly asserted that the respondents No.3 & 4 were well aware of his Ph.D. degree. Since the petitioner did his Ph.D. without the course work, the respondents No.3 & 4 in the paragraph-3(h) of their reply have asserted that under the modified regulation as published by notification No.F.1-1/2002(PS)Exemp dated 01.06.2009, it has been provided that under the UGC Regulation, 2010, the Ph.D. incentives can be given to those persons who have been awarded Ph.D. on compliance of the prescribed process of UGC in respect of enrolment, course work and evaluation. As the petitioner has not done the course work for the Ph.D., the University cannot grant him three non-compounded increments as the Ph.D. incentives. The petitioner, to counteract such averment, has stated that when the UGC prescribed the course work for Ph.D. by the notification dated 01.06.2009 that had taken place prospectively, inasmuch as there was no UGC regulation in existence earlier to that notification dated 01.06.2009 prescribed the course work for purpose of Ph.D. In this regard, the petitioner has referred to the paragraph-9.0 of W.P.(C) No.478 of 2014 Page 17 of 42 [18] the clause 6.8.0 of UGC Regulations, 2010 which provides as under:
"9.0. Incentives for Ph.D./M.Phil. and other higher qualification to take effect from 01.09.2008."
[14] Even the petitioner has referred the paragraph-9.8.1
(ii) of the said clause 6.8.0, for purpose of asserting that the said provision has clearly laid down that the person in the post of Assistant Librarian/College Librarian or higher positions who have already been awarded Ph.D. in Library Science at the time of coming into force of these regulations or having already undergone course-work as well as evaluation, if any, and only notification in regard to award of Ph.D. is awaited shall also be entitled to the award of three non-compounded increments even if the university awarding such Ph.D. has not yet been notified by the UGC as having complied with the process prescribed by the commission. It has been also asserted by the petitioner that the first part has been disjointed from the second part by 'or' in the said paragraph 9.8.1 (ii) of the Schedule for Clause 6.8.0 of UGC Regulation, 2010. The petitioner has asserted that he would be governed by the first part of the said paragraph 9.8.1 (ii) and thus, he is clearly entitled to have three non-compounded increments as the Ph.D. incentives w.e.f. 01.09.2008 inasmuch as the said clause providing the Ph.D. incentive, in the Schedule for Clause 6.8.0 of the UGC Regulation, 2010, has been given effect from 01.09.2008. Thus, the petitioner has again asserted the denial of the benefit is mala fide, illegal and absolutely to W.P.(C) No.478 of 2014 Page 18 of 42 [19] cause harm to the petitioner as the petitioner has received the consequential retiral benefits, so far received, much less than what is entitled to him.
[15] The respondents No.3 & 4 have filed one additional counter affidavit purportedly in response to the said rejoinder submitted by the petitioner. They have reiterated their stand that on 04.11.2013 they had sanctioned and released all pensionary benefits including gratuity to the petitioner. In respect of suppression of the memorandum dated 04.07.2014, Annexure-P/30 to the rejoinder filed by the petitioner, they have stated as follows:
"Later on, the Office Memorandum clarifying allowing one increment to even the persons in receipt of stagnation increment(s) was issued by the Government of India, Ministry of Finance vide No.F.10/2/2011-E-III(A) dated 04.07.2014 (Annexure-P-30 in the Rejoinder Memo dated 24.11.2015 of the petitioner) but, on scrutiny, it has also been observed that, according to prescribed Fitment Table-4 of the Ministry both the pre-revised basic pay Rs.18,300/- and Rs.18,720/-(before and after addition of one increment) comes to same stage of pay in the Pay Band Rs.43,390/- and corresponding revised basic pay comes to Rs.52,390/- (Pay in the Pay Band Rs.43,390/- + AGP Rs.9,000/-), which has been accorded to the petitioner on the basis of fixation on 01.01.2006. Hence, it is clear that, even if in accordance with office Memorandum No.F.10/2/2011-E-III(A), dated 04.07.2014 (Annexure-P-30 in the Rejoinder Memo dated 24.11.2015 of the petitioner) further increment in the pre-revised pay on 01.01.2006 is allowed there will be no subsequent change in revised pay. Hence, there is no need of re-fixation sought for."
[16] For purpose of laying the perspective of the dispute, the regulation 9.12 is reproduced hereunder:
"9.12. For posts at the entry level where no such advance increments were admissible for possessing Ph.D./M. Phil under the earlier Schemes/Regulations, the benefit of advance increments for possessing Ph.D./. Phil shall be available to only those W.P.(C) No.478 of 2014 Page 19 of 42 [20] appointments which have been made on or after the coming into force of these Regulations."
[17] It is an admitted position that in the entry level of the Librarians, no such Ph.D. incentive by way of three non- compounded increments or otherwise was admissible in this university. According to the respondents No.3 & 4, by Regulation 9.12, the Ph.D. incentive has been restricted for those appointments which have been made on or after the coming into force of the UGC Regulations, 2010.
[18] The petitioner by filing a reply-affidavit on 02.08.2016 in response to the additional counter affidavit filed on 22.04.2016 by the respondents No.3 & 4 has contended that the said statement of the respondents No.3 & 4 that earlier there was no such Ph.D. incentive for the post of Librarians at the entry level is grossly incorrect. The petitioner has referred to clause 7 of the Appendix-II of the Ministry of Human Resources Development (Department of Education) letter No.F.I.21/87 dated 22.07.1988 regarding the Revision of Pay Scales of Librarians and Physical Education personnel of Universities and Colleges, Annexure-P/38 to the said affidavit-in reply. In the said letter dated 22.07.1988, the following policy decision is available:
"Candidates who, at the time of their recruitment as Assistant Librarians and Assistant Director of Physical Education in Universities, and Librarians and Directors/Instructors of Physical Education in Colleges, possess M.Phil or Ph.D. degrees in Library Science or Physical Education, as the case may be, will be sanctioned one and three advance increments W.P.(C) No.478 of 2014 Page 20 of 42 [21] respectively in the scale of Rs.2200-4000/- along with the benefit of corresponding years of service for the purpose of promotion. The existing incumbent without research degrees and those similarly situate recruited in future, will be eligible for a similar benefit in service for the purpose of in service for the purpose of promotion as and when they acquire research degrees, but will not be eligible for advance increments. Existing incumbents with research degrees will also be eligible for a similar benefit."
[Emphasis added] Thus, the petitioner has contended that the basis for denying the Ph.D. incentive is unsustainable inasmuch as the existing library personnel with Ph.D. degree are eligible to get 3(three) non-compounded increments. The petitioner has further referred to the Clause 7.1.5 of the UGC Regulations, 1998 which provided as under:
"7.1.5. The existing scheme of Career Advancement for non-academic staff namely, Assistant Director of Physical Education, Assistant Registrar, Assistant Librarian would continue".
The above provision from the UGC Regulation has been referred by the petitioner for showing continuum of the policy of granting Ph.D. incentives to the Library personnel. [19] The respondents No.3 & 4 have filed another additional counter affidavit in response to the said additional reply dated 02.08.2016 on 05.12.2016 and averred as under:
"That the petitioner in his submission at para 5 has admitted that the State Government of Tripura did not implement the UGC Regulation relating to granting of three non-compounded increments at the material point of time. Yet claim for grant of three increments during his service in the State University period. Moreover, claim of Appendix II of MHRD letter No.F.1- 21/871 dated 22.07.1988 provided for the benefit of Ph.D. increment in favour of Assistant Librarian at entry point of service only in the scale of Rs.2000- 4000/- whereas the writ petitioner was born in the scale of pay of Rs.3700-5700/-. It is also pertinent to point out that the benefit of Ph.D. increment to W.P.(C) No.478 of 2014 Page 21 of 42 [22] existing increments acquiring Ph.D. Degree while in service shall be applicable on a prospective basis w.e.f. 01.01.2006."
[20] In the said additional counter affidavit dated 05.12.2016, the respondents No.3 and 4 have in great details provided how they have paid all the pensionary benefits to the petitioner and they produced the statement of accounts to show how the petitioner has been receiving the pension and he has received all other benefits. That apart, the respondents No.3 & 4 have produced before this court the following records:
(i) Service Book of the petitioner w.e.f.
01.02.1989 and
(ii) One register for issuance of Pension
Payment Order.
The Pension Payment Order of the petitioner is still lying with the said register for issuance of Pension Payment Order having not been received by the petitioner. But the respondents No.3 & 4 did not forget to observe that in all cases where a government servant granted an increment whether normal annual increment or stagnation increment after 01.01.2005, no increment can be allowed on 01.01.2006 at the time of fixation of pay in the revised pay structure and the pay of the petitioner was fixed on 01.01.2006 as per Fitment Table No.4 in the revised Pay Band of `37400-67000/- with AGP `.9,000/- and his pay was thus, fixed at `43,390/- with AGP `9,000/- form the corresponding unrevised maximum pay of W.P.(C) No.478 of 2014 Page 22 of 42 [23] `18,300/-. Thereafter, those respondents have clarified their action in the following manner:
"As per office memorandum bearing No.10/02/2011- E.iii/A dated 19.03.2012 issued on the subject of Central Civil Services (Revised Pay) Rules, 2008 the writ petitioner has claimed one increment as his increment date falls between 1st February to July, 2006 but as he has already reached the range of regulation in 2003, and he was given stagnation increment after every two years as per norms his next stagnation increment could not be granted in 2006. Thereafter another office memorandum issued bearing No.F.No.1/1/2008-IC dated 22.05.2013 regarding grant of 1 increment in pre revised pay scale - OM dated 19.03.2012 -clarification regarding in which has been clearly mentioned that as per fitment table, the stage of revised pay in the pay band has been mentioned at the same stage in respect of two consecutive pre-revised stages of pay in cases of certain pre-revised scales. The fitment table provides for the same revised stage in case of two consecutive stage in a particular pre revised scale of pay the benefit of bunching is admissible after granting of one increment in the pre revised pay scale in which it is to be strictly followed for fixation of pay in the revised structure without any deviation in the OM dated 30.08.2008. It also clarified that no further bunching will be allowed in such cases and no re-fixation of pay will be admissible in the revised pay as on 01.01.2006."
[21] In the office memorandum dated 19.03.2012, the following has been provided:
"In accordance with the provisions contained in Rule 10 of the CCS (RP) Rules, 2008 there will be a uniform date of annual inclement, viz. 1st July of every year. Employees competing 6 months and above in the revised pay structure as on 1st July will be eligible to be granted the increment. The first increment after fixation of pay on 01.01.2006 in the revised pay structure will be granted on 1.7.2006 for those employees for whom the date of next increment was between 1st July, 2006 to 1st January, 2007.
2. The Staff Side has represented on this issue and has requested that those employees who were due to get their annual increment between February to June during 2006 may be granted one increment on 01.01.2006 in the pre-revised scale.
3. On further consideration and in exercise of the powers available under CCS (RP) Rules, 2008, the President is pleased to decide that in relaxation of stipulation under Rule 10 of these Rules, those central government employees who were due to get their annual increment between February to June during 2006 may be granted one increment on 1.1.2006 in W.P.(C) No.478 of 2014 Page 23 of 42 [24] the pre-revised pay scale as a one time measure and thereafter will get the next increment in the revised pay structure on 1.7.2006 as per Rule 10 of the CCS (RP) Rules, 2008. The pay of the eligible employees may be re-fixed accordingly."
[22] The respondents No.3 & 4 have also brought to our notice the clarificatory office memorandum dated 22.05.2013 issued by the Ministry of Finance, Department of Expenditure, whereby the following clarification has been provided:
"The undersigned is directed to invite a reference to this Ministry‟s Office memorandum of even No. dated 19.3.2012 which provides that those Central Government employees who were due to get their annual increment between February to June during 2006, may be granted once increment as on 1.1.2006 in the pre-revised pay scale as a one time measure and, thereafter, will get the next increment in the revised pay structure on 1.7.2006."
[23] From the Periodical Increment Certificate dated 15.02.2008 issued by the Registrar, Tripura University, Annexure-P/29 to the rejoinder filed by the petitioner, it is apparent that the date of yearly increment of the petitioner was on 01.02.2007 before the revision of pay given effect to. This is a very relevant date for assessing the consequence of the clarification as referred.
[24] Mr. D.P. Kundu, learned senior counsel assisted by Ms. R. Guha, learned counsel and Mr. A. Kar, learned counsel having extensively referred to the factual aspects from the averments of the petitioner and the respondents No.3 & 4 has submitted that the Tripura University has been constituted by the Tripura University Act, 2006 which was given effect from 02.07.2007 and the revised pay scale came into operation with W.P.(C) No.478 of 2014 Page 24 of 42 [25] that date. In order to provide emphasis, Mr. Kundu, learned senior counsel has submitted that from the service book as produced by the respondents No.3 & 4, it would be apparent that the petitioner was entitled to `19,140/- and thus, according to the Fitment Table, his revised pay would have been fixed at `53,700/- [`44,700/- + Academic Grade Pay(AGP) of `9,000/-]. In this regard, he has referred a decision of the apex court in V.K. Rama Rao vs. National Bank for Agriculture and Rural Development, reported in 1990 (Supp) SCC 100, where the apex court approvingly reproduced D.S. Nakara vs. Union of India, reported in (1983) 1 SCC 305 to place reliance on the following passage [part of para-12] which reads as under:
"12. ......When revised pay scales are introduced from a certain date, all existing employees are brought on to the revised scales adopting a theory of fitments and increments for the past service. The benefit of the revised scales is not limited to those who enter service subsequent to the date fixed for introducing the revised scales but is extended also to those in service prior to that date. These observations would also make it clear that it is a general practice recognized even by this court that when new pay scales are introduced, the salaries of the old employees have to be adjusted and fitted into the new scales by adopting formula of fitments and increments for past service. In fact, if such fitment is not made, the old employees would get no benefit for the service rendered by them in the past, and they would be placed on par with those who enter the service after the date of the revision of scales. That would be a case of unequals being treated equally. It is, therefore, an absence of fitments and adjustments and not their application which results in discrimination."
[25] In V.K. Rama Rao (supra), the apex court has enunciated the law by stating that the salaries of the old employees cannot be brought on to the new or revised pay W.P.(C) No.478 of 2014 Page 25 of 42 [26] scales by not providing them fitment increment. In fact, in such a case to refuse to fix the salaries of the old employees in the new scale of pay by denying them the necessary fitment and adjustment increment is to deny them equality of treatment. That amounts to ignoring their past service and to treating them on par with the new entrants which would be unjust in itself. The adjustment increment granted to the old employees on such occasions automatically achieved the dual purpose of rewarding them for their past service and of adjusting their salaries in the new scale. The adjustment fitment and increments, therefore, are not discriminatory but eminently just and valid. According to this court, this ratio has got hardly any relevance inasmuch as the controversy has sprung up from the interpretation of the provisions and the subsequent clarification in respect of effecting the fitment table, so far the question of adding one advance increment with the pre-revised pay on 01.01.2006 in the backdrop that the petitioner was given stagnation increment in terms office memorandum dated 22.07.1988 issued by the Ministry of Finance, Department of Expenditure where the following had been provided:
"2. In partial modification of the recommendations and in suppression of all previous orders on the subject, the President is pleased to decide that all Central Government employees who have opted for the revised scales of pay in terms of the Central Civil Services (Revised Pay) Rules, 1997, and who may reach the maximum of the revised scales of pay shall be granted one stagnation increment on completion of every two years at the maximum of the respective scales. The stagnation increment shall be equal to the rate of increment last drawn by them in their pay scales. A maximum of three such increments shall be W.P.(C) No.478 of 2014 Page 26 of 42 [27] allowed subject to the condition that the grant of stagnation increments shall be restricted to all posts the maximum of the pay scale of which does not exceed Rs.22,400/-."
[Emphasis added] [26] Thereafter, Mr. Kundu, learned senior counsel has submitted that the UGC [Minimum Standards and Procedure for Award of M. Phil/ Ph.D. Degree] Regulation, 2009 has not been given retrospective effect and thus, it cannot have any application in respect of incentive for Ph.D./M. Phil or higher other qualification. The said incentive scheme has taken effect from 01.09.2008, as mentioned in the paragraph-9.0 of the Schedule for Clause 6.8.0. This court has come appreciated the contention of the petitioner in this regard as placed under Para- 67 of this rejoinder. Thus, no other view is possible and as such, the other view is excluded according to Mr. Kundu, learned senior counsel in view of the legal principle [maxim] Expressum facit cessare tacitum. It means where there is express mention of one thing implies the exclusion of the other. To buttress such submission, Mr. Kundu, learned senior counsel has referred to Competition Commission of India vs. Steel Authority of India Limited (SAIL), reported in (2010) 10 SCC 744, where the apex court has held as under:
"60. Expressum facit cessare tacitum - express mention of one thing implies the exclusion of other. (Expression precludes implication). This doctrine has been applied by this Court in various cases to enunciate the principle that expression precludes implication [Union of India vs. Tulsiram Patel]. It is always safer to apply plain and primary rule of construction. The first and primary rule of construction is that intention of the legislature is to be found in the words used by the legislature itself.W.P.(C) No.478 of 2014 Page 27 of 42 [28]
The true or legal meaning of an enactment is derived by construing the meaning of the word in the light of the discernible purpose or object which comprehends the mischief and its remedy to which an enactment is directed. [State of H.P. vs. Kailash Chand Mahajan and Padma Sundara Rao vs. State of T.N.] [27] As referred in the above cited passage of Competition Commission of India (supra), Union of India vs. Tulsiram Patel, reported in (1985) 3 SCC 398, had extended the following observation:
"70. The position which emerges from the above discussion is that the keywords of the second proviso govern each and every clause of that proviso and leave no scope for any kind of opportunity to be given to a government servant. The phrase „this clause shall not apply‟ is mandatory and not directory. It is in the nature of a Constitutional prohibitory injunction restraining the disciplinary authority from holding an inquiry under Article 311 (2) or from giving any kind of opportunity to the concerned government servant. There is thus no scope for introducing into the second proviso sonic kind of inquiry or opportunity by a process of inference or implication. The maxim „expressum facit cessare tacitum‟ („when there is express mention of certain things, then anything not mentioned is excluded‟) applies to the case. As pointed out by this Court in B. Shankara Rao Badami v. State of Mysore (1969) 3 SCR 112 : (AIR 1969 SC 453 at P. 459). This well-known maxim is a principle of logic and common sense and not merely a technical rule of construction."
[28] Mr. Kundu, learned senior counsel has further contended that the basis of denying the Ph.D. incentive to the petitioner, as advanced by the respondents No.3 & 4, that there was no Ph.D. incentive earlier in the entry level post, cannot be sustained inasmuch as in terms of the said UGC Regulation, 2010, particularly in view of the regulation 4.5.0 which lays down the nomenclature of the post of Library cadre, 'the post at entry level' is Assistant Librarian, Deputy Librarian is not 'the W.P.(C) No.478 of 2014 Page 28 of 42 [29] post at entry level'. Therefore, the regulation 9.12 has no application so far the petitioner is concerned. [29] Mr. P. Dutta, learned counsel appearing for the respondents No.3 & 4 has reiterated the stand of the university- respondents as reflected in their reply at various phases and further stated that as the petitioner was given the stagnation relief increment, he was not entitled to one time increment on 01.01.2006 and for this purpose, he has referred to the office memorandum dated 29.01.2009 which clarified that when an increment is granted whether normal annual increment or stagnation increment after 01.01.2005, no increment will be allowed on 01.01.2006 but he has not explained to this court what would be the impact of the Para-3 of the office memorandum dated 19.03.2012 whereby the Ministry of Finance has relaxed of the stipulation under Rule 10 of the Central Civil Services (Revised Pay) Rules, 2008 by stating that the Central Government Employees who were due to get their annual increment between February to June during 20-06 may be granted one increment on 01.01.2006 in the pre-revised pay scale as a onetime measure and thereafter, they will get the next increment in the revised pay structure on 01.07.2006 as per Rule 10 of the CCS (RP) Rules, 2008. It has been directed by the said office memorandum dated 09.03.2012 that the pay of the eligible employee may be re-fixed in terms of the above. However, Mr. Dutta, learned counsel has referred to the W.P.(C) No.478 of 2014 Page 29 of 42 [30] memorandum dated 22.05.2013 which further clarified the office memorandum dated 19.03.2012. Mr. Dutta, learned counsel in particular has referred to the following passages from the said office memorandum dated 22.05.2013:
"2. As per this Ministry‟s OM No. F. No.1/1/2008-IC dated 30th August, 2008, fitment tables have been prescribed in Annexure-1 thereto, specifying the stages of revised pay in the revised pay band with reference to each stage of pre-revised pay in various pre-revised pay scales. As per the fitment tables, the stage of revised pay in the pay band has been mentioned at the same stage in respect of two consecutive pre-revised stages of pay in cases of certain pre-revised scales.
3. This Ministry has been receiving references as to whether in cases where the fitment table provides for the same revised stage in case of two consecutive pre-revised stages in a particular pre-revised scale of pay, the benefit of bunching is admissible after grant of one increment in the pre-revised pay scale by virtue of this Ministry‟s OM dated 19.03.2012.
4. The matter has been considered and it is clarified that Fitment Table contained in the aforesaid OM dated 30.08.2008 is to be strictly followed for fixation of pay in the revised structure without any deviation.
5. In cases where the stages of fixation of pay in the revised pay band as per fitment table contained in the aforesaid OM dated 30.08.2008 provides for the same revised stage in the Pay Band with reference to two consecutive stages of pre-revised pay in the corresponding pre-revised scales, then in such cases due to application of this Ministry‟s OM dated 19.03.2012, there will be no change in the revised pay as on 01.01.2006, if the revised stage with reference to the pre-revised pay after accounting for one increment in the pre-revised scale does not undergo any change as per the Fitment Table. It is also clarified that no further bunching will be allowed in such cases and no re-fixation of pay will be admissible in the revised pay as on 01.01.2006.
[Emphasis added] [30] Further Mr. Dutta, learned counsel appearing for the university-respondents has submitted that since there was no Ph.D. incentive for the entry level post of the library cadre, the petitioner will not be entitled to the Ph.D. incentive w.e.f. W.P.(C) No.478 of 2014 Page 30 of 42 [31] 01.09.2008 in the form of three non-compounded increments for his having the Ph.D. degree from Andhra University on 11.07.1999, even if the belated communication is not taken as the impediment in the process.
[31] From the rival contention after churning out the records, the averments and the submission of the learned counsel appearing for the petitioner and the respondents No.3 & 4 as the remaining respondents despite due notice from this court preferred not to represent in the case, this court finds that the pertinent questions which emerged for decision of this court may be formulated as under:
(i) Whether the petitioner is entitled to one increment on 01.06.2016 in terms of Rule 10 of the Central Civil Services (Revised Pay) Rules, 2008 for his getting the stagnation increment in terms of the office memorandum dated 22.07.1998 issued by the Ministry of Finance and if he is entitled whether his revised pay shall be higher in terms of the Fitment Table No.4? and
(ii) Whether in terms of the clause 9.8.1 of the Schedule for Clause 6.8.0 of the University Grants Commission (Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and other Measures for the Maintenance of Standards in higher Education) Regulations, 2010, the petitioner is entitled to get three non-
compounded increments for having the Ph.D. at the time of coming into force of the said regulation? [32] As already discussed that the Rule 10 of the CCS (RP) Rules, 2008 provides the date of next increment in the revised pay structure. It has introduced uniform date of annual/ yearly increment i.e. 1st July of every year. The first increment after fixation of pay on 01.01.2006 in the revised pay structure will be granted on 01.07.2006 for those employees for whom W.P.(C) No.478 of 2014 Page 31 of 42 [32] the next date of increment was between 01.07.2006 to 01.01.2007. However, in the case of the person who had been drawing the maximum of the existing scale for more than a year as on 01.01.2006, the next increment in the revised pay structure shall be allowed on 01.01.2006 and thereafter, that provision will be applied. It has been further provided that in case where an employee reached the maximum of his pay band shall be placed in the next higher pay band after one year of reaching such a maximum. At the time of placing in the higher pay band, the benefit of one increment will be provided. Thereafter, he will continue to move in the higher pay band till his pay in the pay band reaches the maximum of Pay Band-4, after which no further increment will be granted. The petitioner is not concerned with 2nd proviso to Rule 10 of CCS (RP) Rules, 2008. But the controversy has its fundamental genesis in the first proviso inasmuch as the petitioner's date of increment falls between 01.01.2006 and 01.07.2006 by way of stagnation increment in the pre-revised scale. Whether in such circumstances, the petitioner in view of the subsequent clarification would be entitled to get one advance increment on 01.01.2006 or not? It appears from the office memorandum dated 22.07.1998 that the stagnation increment used to be granted on completion of every two years at maximum of the respective scales in terms of the office memorandum dated 22.07.1998. The stagnation increment shall be 'equal to the rate W.P.(C) No.478 of 2014 Page 32 of 42 [33] of the increment last drawn by them in their pay scale and maximum of three such increments shall be allowed subject to the condition that the grant of stagnation increments shall be restricted to the post, the maximum of pay scale of which does not exceed `22,400/-. There is no dispute that the petitioner received the stagnation increment as is apparent from the Periodical Increment Statement issued by the Registrar, Tripura University. By the office memorandum dated 19.03.2012 it has been clearly stated that in relaxation of the stipulation under Rule 10 of the CCS (RP) Rules, 2008 the Central Government employees who were due to get their annual increment between February to June during 2006 may be granted one increment on 01.01.2006 in the pre-revised pay scale as a 'one time measure'. But thereafter his increment should be on 01.07.2006 as per the said Rule 10 of CCS (RP) Rules, 2008. In that memorandum, the reference has been made to the annual increment not to the stagnation increment. Whether the stagnation increment can be treated as the annual increment or not, is not available in the said memorandum dated 19.03.2012. In the office memorandum dated 22.05.2013 on having considered the office memorandum dated 09.03.2012 vis-à-vis the office memorandum dated 30.08.2008 which contained the fitment table it has been observed that there will be no change in the revised pay on 01.01.2006 even if OM dated 19.03.2012 is applied. In the circumstances, if after accounting for one W.P.(C) No.478 of 2014 Page 33 of 42 [34] increment in the pre-revised pay, the revised pay does not undergo any change as per the fitment table it would difficult for the petitioner to claim the revised pay in the next above scale. It has been also clarified that no further bunching will be allowed and no re-fixation of pay will be admissible in the revised pay as on 01.01.2006, meaning thereby that after adding one additional increment in terms of the office memorandum dated 19.03.2012, no further bunching would be provided and there will be no change in the revised pay as on 01.01.2006 if the revised stage on accounting one increment in the pre-revised scale, the pay does not undergo any change as per the fitment table. This clause has been seriously pressed by the respondents No.3 & 4 during their argument. But subsequently further relaxation has been made by the memorandum dated 04.07.2013, Annexure-P/30 to the rejoinder filed by the petitioner. For purpose of reference, the said memorandum dated 04.07.2013 is entirely extracted hereunder:
"Office Memorandum Subject : Central Civil Services (Revised Pay) Rules, 2008- application of the first proviso to Rule 10 in case of those who had been granted stagnation increment(s) in the pre-revised pay scales The undersigned is directed to invite a reference to the first proviso to Rule 10 of the CCS (RP) Rules, 2008, which provides that in the case of persons who had been drawing at the maximum of the existing scale for more than a year as on the 1st day of January, 2006, the next increment in the revised pay structure shall be allowed on the 1st day of January, 2006.
2. Attention is also invited to the Clarification No.5 contained in the Ministry‟s OM No.1/1/2008-IC dated 29.01.2009, clarifying that in all cases where a Government Servant has been granted an increment (whether normal annual increment or stagnation increment) after January, 2005, no increment will be W.P.(C) No.478 of 2014 Page 34 of 42 [35] allowed on 01.01.2006 at the time of fixation of pay in the revised pay structure.
3. It has now been brought to the notice this Ministry that the pay of those employees who had reached the maximum of their pre-revised pay scale and had also been granted stagnation increment(s) prior to 1.1.2006 in the applicable pre-revised pay scales, came to be fixed at a lower stage vis-à-vis the employees who had drawn pay at the maximum of the same pre-revised pay for a period of more than one year as on 1.1.2006 and had been allowed one increment in the revised pay scale as on 1.1.2006 as per the first proviso to Rule 10 of the CCS (Revised Pay) Rules, 2008.
4. The matter has been considered and the President is pleased to decide that, in partial modification of this Ministry‟s aforesaid OM No.1/1/2008-IC dated 29.01.2009, the increment on 1st January, 2006, as envisaged under the first proviso to Rule 10 of the CCS (RP) Rules, 2008 shall be allowed to those employees also who had reached the maximum of the applicable pre-revised pay scale more than one year before 01.01.2006 and were in receipt of stagnation increment(s) in the applicable pre-revised pay scale as admissible in terms of the order in vogue prior to 01.01.2006, provided their pay in the revised pay structure was fixed on 01.01.2006 with reference to the same pre-revised pay scale exactly as per the Fitment Table prescribed in this Ministry‟s OM No.1/1/2008-IC dated 30th August, 2008.
5. In so far as persons serving in the Indian Audit and Accounts Department are concerned, these orders issue after consultation with the Comptroller and Auditor General of India.
6. Hindi version of this Office Memorandum is attached.
Sd/-
Illegible (Amar Nath Singh) Deputy Secretary to the Government of India"
[33] When a particular development brought to the notice of the Ministry of Finance that the pay of those employees who had reached the maximum of their pre-revised pay scale and had also been granted stagnation increment prior to 01.01.2006 in the applicable pre-revised pay scale, came to be fixed at a lower stage vis-à-vis the employees who had drawn pay at the maximum of the same pre-revised pay for a period of more than W.P.(C) No.478 of 2014 Page 35 of 42 [36] one year as on 01.01.2006 and had been allowed one increment in the revised pay scale as on 01.01.2006 as per the first proviso to Rule 10 of the CCS (RP) Rules, 2008, it was decided that in partial modification of the office memorandum dated 29.01.2009 the increment on 01.01.2006 as envisaged under first proviso to Rule 10 of the CCS(RP) Rules, 2008 shall be allowed to those employees who had reached in the maximum of the applicable pre-revised pay scale more than one year before 01.01.2006 and were in receipt of stagnation increment in the applicable pre-revised pay scale as in vogue prior to 01.01.2006 provided that their pay structure was fixed on 01.01.2006 to the same pre-revised pay scale as per the fitment table provided by the office memorandum dated 30.08.2008. This memorandum clinches the issue related to the controversy on one time increment on 01.01.2006. The illustrated case in office memorandum dated 04.07.2014 exactly similar to that of the petitioner. As such, this court is of the considered view that on 01.01.2006 in terms of the first proviso to Rule 10 of the CCS(RP) Rules, 2008 the petitioner is entitled to get one increment on 01.01.2006. Thereafter, it is required to be seen whether on accounting that increment the petitioner's revised stage would change in terms of fitment table or not.
If one increment is added on 01.01.2006 which was denied earlier to the petitioner, the petitioner was in receipt of `18,300/- in the pre-revised pay scale of `12000-18300/- as on W.P.(C) No.478 of 2014 Page 36 of 42 [37] 01.01.2006 without adding any increment in the pre-revised scale. If one increment was added it should come to `18,720/-
as on 01.06.2006 and with one increment having released on 01.02.2007 as per the previous rule it would have come to `19,140/-. As such, if one increment is added on 01.01.2006 in the pre-revised scale the pay of the petitioner for purpose of the revised pay would be `19,140/- as per the service book-1(page-
10). But the respondents No.3 & 4 have stated in their counter affidavit that the petitioner would have been getting `18,700/-
which is beyond records. If the petitioner's pay thus fixed at `19,140/- as accounted as per the memorandum dated 22.05.2013, the revised pay of the petitioner as per fitment Table-4 would be `53,700/-. Thereafter, one increment shall be released in favour of the petitioner on 01.07.2006. In this way, the petitioner would continue to get the increment till the petitioner reached the saturation point in the Pay Band-4. Accordingly, the respondents No.3 & 4 are directed to refix the revised pay of the petitioner on 01.01.2006 in terms of the above, refix all pensionary benefits in terms thereof and make payment within a period of three months from today subject to the general condition that would be laid in the latter part of this judgment.
[34] Whether the petitioner would be entitled to the Ph.D. incentive in terms of the clause 9.8.1 of the Schedule for Clause W.P.(C) No.478 of 2014 Page 37 of 42 [38] 6.8.0. There is no dispute that the Deputy Librarian of the Universities are entitled to receive the Ph.D. incentive w.e.f. 01.09.2008 but the respondents No.3 & 4 denied him the said incentive basically for three reasons viz. (i) that in the entry post of the library cadre earlier there was no such incentive available as it is prospective in nature, (ii) the petitioner did not do his Ph.D. after course works and external evaluation as prescribed by the UGC and (iii) the petitioner disclosed that he had been awarded the Ph.D. after 8 years.
[35] From the records the petitioner has successfully established that at least from 2000 the respondents had knowledge that the petitioner was awarded the degree of Ph.D. His formal information made to the respondents on 15.05.2007 was only for releasing two non-compounded increments for Ph.D. in terms of the UGC notification dated 24.12.1998, Clause 6.4.0. True it is that at that time the petitioner was not entitled to get the said incentive as Tripura University was a State University and the State Government did not implement that part of the HRD/UGC notification for the library cadre. The fundamental objection that has been raised by the respondents No.3 and 4, has been attended by the petitioner by stating that there was Ph.D. incentive for the entry post [the Assistant Librarian] in the library cadre by the UGC notification dated 14.12.1998 notwithstanding the fact that that was withheld by the State Government. Further the petitioner has stated that the W.P.(C) No.478 of 2014 Page 38 of 42 [39] petitioner did not belong to the entry post as he was the Deputy Librarian from the very inception. In this regard, this court would like to refer a decision of the apex court in Kalyani Mathivanan vs. K. Jeyaraj and others, reported in (2015) 6 SCC 363, where the apex court has held as under:
"27. From the aforesaid provisions, we find that the University Grants Commission has been established for the determination of standard of Universities, promotion and co-ordination of University education, for the determination and maintenance of standards of teaching, examination and research in Universities, for defining the qualifications regarding the teaching staff of the University, maintenance of standards etc. For the purpose of performing its functions under the UGC Act (see Section 12) like defining the qualifications and standard that should ordinarily be required of any person to be appointed in the Universities [see Section 26(1)(e)(g)] UGC is empowered to frame regulations. It is only when both the Houses of the Parliament approve the regulation, the same can be given effect. Thus, we hold that the U.G.C. Regulations though a subordinate legislation has binding effect on the Universities to which it applies; and consequence of failure of the University to comply with the recommendations of the Commission, the UGC may withhold the grants to the university made out of the Fund of the Commission."
[Emphasis added] Therefore, this court does not have any hesitation to hold that the UGC Regulations has got binding effect on the universities. Thus, when it has been shown to the court that in the library cadre including its entry post, the Ph.D. incentive was earlier available the objection in this regard as raised by the respondents No.3 and 4 cannot be sustained.
[36] The clause 6.8.0 is regarding the pay scale and other benefits of the incumbent and the newly appointed persons in the library cadre and other. Para-9.0 of the said Schedule for Clause 6.8.0 provides incentive for Ph.D./ M. Phil W.P.(C) No.478 of 2014 Page 39 of 42 [40] and other higher qualification to take effect from 01.09.2008. Clause 9.12 provides that for post at the entry level where no such advance increment were admissible for possessing Ph.D./M. Phil under the earlier scheme/regulation, the benefit of advance increment for possessing Ph.D./ M.Phil shall be available to only those appointments which have been made on or after the coming into force of the UGC regulation, 2010. Admittedly, neither the petitioner was in the entry level post nor claiming the Ph.D. incentive for his appointment before the scheme came into force. Para-9.8.1 provides as under:
(i) Assistant Librarian/College Librarian acquiring the degree of Ph.D. at any time while in service, in the discipline of library science from a university complying with the process prescribed by the UGC in respect of enrolment, course-work and evaluation shall be entitled to 3 non-compounded advance increment.
(ii) However, persons in posts of Assistant Librarian/College Librarian or higher positions who have already been awarded Ph.D. in library science at the time of coming into force of these Regulations or having already undergone course-work as well as evaluation, if any, and only Notification in regard to the award of Ph.D. is awaited, shall also be entitled to the award 3 non-compounded increments even if the university awarding such Ph.D. has not yet been notified by the UGC as having complied with the process prescribed by the Commission.
[37] The objection thus, as raised by the respondents No.3 & 4 for denying the petitioner the Ph.D. incentive is that did not do the Ph.D. following the process of admission, registration, course-work and external evaluation as prescribed by the UGC. According to them, unless the Ph.D. is obtained by following that process the person awarded with the degree of W.P.(C) No.478 of 2014 Page 40 of 42 [41] Ph.D. and holding a post for where such incentive is available would not be able to secure it.
[38] This Court is in agreement with the submission made by Mr. Kundu, learned senior counsel that Para-9.8.1 clearly covers the petitioner's case inasmuch as the petitioner had obtained Ph.D. degree in Library Science before the UGC Regulation, 2010 came into force and he would be covered by the first part of the clause-9.8.1 (ii) not by the latter part which is disjointed by 'or'. The first part is definitely separate for achieving one object having no relation to the second part. First part provides that the person in the post of Assistant Librarian/College Librarian or higher position who have already been awarded Ph.D. in Library Science at the time of coming into force of these regulations whereas the second part provides that or having already undergone course-work as well as evaluation, if any, and only Notification in regard to the award of Ph.D. is awaited, shall also be entitled to the award of 3 non- compounded increments even if the university awarding such Ph.D. has not yet been notified by the UGC as having complied with the process prescribed by the Commission. Thus, the petitioner is entitled to get three non-compounded increments w.e.f. 01.09.2008 as the said Ph.D. conforms to para-9.8.1(i). The said Ph.D. also in the relevant discipline of the employment and has been awarded by a university with the extant process prescribed by the UGC. Having held so, the respondents are W.P.(C) No.478 of 2014 Page 41 of 42 [42] directed to release 3(three) non-compounded increments in favour of the petitioner w.e.f. 01.09.2008 and pay the consequential benefits to the petitioner within a period of 3(three) months from today.
Further, the respondents No.3 and 4 are directed to prepare the calculation sheet accounting one time increment on 01.06.2006 and three non-compounded increments w.e.f. 01.09.2008 and furnish a copy thereof to the petitioner for having his comments within a week from the date of receipt of such calculation sheet about his entitlements in terms of the judgment. Thereafter, the final decision has to be taken on the entitlement of the petitioner. It is made further clear that the payment in terms of the said calculation shall invariably be made by the stipulated time as above.
[39] In the result, the writ petition stands allowed.
The records as produced be returned to Mr. P. Dutta, learned counsel appearing for the respondents No.3 & 4 under a sealed cover.
There shall be no order as to costs.
JUDGE CHIEF JUSTICE
Sujay
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