Rajasthan High Court - Jaipur
Dr Madan Mohan Trigunanyat vs State Of Raj And Ors on 13 August, 2019
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 13566/2010
Dr. Madan Mohan Trigunanyat Son Of Shri Harish Chandra
Sharma, 221, Swarn Jayanti Nagar, Bharatpur Rajasthan
----Petitioner
Versus
1. State Of Rajasthan Through Secretary To The
Government Of Rajasthan, Department Of Higher
Education, Jaipur Rajasthan
2. Commissioner, College Education Rajasthan, Shiksha
Sankul, Jaipur Rajasthan
3. Principal, Government Rameshwari Devi Girls College,
Bharatpur Rajasthan
----Respondents
For Petitioner(s) : Mr. Rajendra Prasad, Sr. Adv. assisted by Mr. Deepak Sharma, Adv.
For Respondent(s) : Mr. Aditya Sharma, Dy.G.C. HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI Order 13/08/2019
1. The petitioner has preferred this writ petition claiming the following prayers:-
"i. to quash and set aside the impugned order dated 13.9.2010 (Annex.5) and order dated 2.3.2010 (Annex.4) as well as all actions taken in pursuance thereof.
ii. to direct the respondents to grant all consequential service benefits in view of grant of the prayer(i) above; iii. To direct the respondents to allow interest at reasonable rate on arrears if any;
iv. to issue any other appropriate relief which this Hon'ble Court may deem fit, just and proper in the facts and circumstances of the case in favour of the petitioner; v. to allow the cost of the writ petition in favour of the petitioner."(Downloaded on 29/08/2019 at 11:46:43 PM)
(2 of 7) [CW-13566/2010]
2. The brief facts giving rise to the present writ petition are that the petitioner was appointed as Lecturer in Zeology in 1984 and was granted senior scale on completion of 8 years of regular service. The petitioner on acquisition of degree of Ph.D. was granted two advance increments w.e.f. 27.9.1997 and his pay was fixed at 10975/-. The petitioner was granted selection scale thereafter w.e.f. 17.12.1999 and his two advance grade increments were protected.
3. Counsel for the petitioner Shri Rajendra Prasad, Sr. Advocate submits that in case the petitioner shall opt for option to have two advance increments, then the same option should have been implemented in 1997 as it was more beneficial to him and an alternate he submitted that if Rule 11(c) is read, then that shall be strictly applicable to the present controversy and the two advance increments ought to have been given on the selection scale itself w.e.f. 17.12.1999. Counsel for the petitioner to buttress his submission has submitted a judgment of this Hon'ble Court in Dr. Amita Agarwal Vs. State of Raj. & Ors. passed in S.B.Civil Writ Petition No.14877/2010 decided on 25.08.2014. The relevant portion is para 7 to para 10, the same reads as under:-
"7. The fact that the petitioner availed of the benefit of four advance increments, is not in dispute. The petitioner has made an effort to justify the grant of four advance increments by stating that the benefit of all the four advance increments was not in view of the Ph.D. Degree acquired by her. She was granted the benefit of two advance increments as Lecturer and two further advance increments at the time of grant of selection scale as per the statutory provisions as contained in Rule 11 of the Rules of 2001 and therefore, there is no illegality in grant of advance increments. At this juncture, it will be gainful to consider the text of Rule 11 of the Rules of 2001, which reads thus:-(Downloaded on 29/08/2019 at 11:46:43 PM)
(3 of 7) [CW-13566/2010] "Rule 11 - Incentives for Ph.D./M.Phil: (a) Four and two advance increments will be admissible to those candidates who hold Ph.D. and M.Phil Degree respectively at the time of recruitment as Lecturers.
(b) Once increment will be admissible to those teachers with M.Phil who acquired Ph.D. within two years of recruitment.
(c) A Lecturer with Ph.D. will be eligible for two advance increments when she/he moves into selection scale.
(d) A teacher will be eligible for two advance increments as and when he acquires a Ph.D. degree in his service career provided that he/she has not availed the advance increment admissible for possessing M.Phil degree at the time of recruitment".
8. A glance at the text of Rule 11 (supra), of the Rules of 2001, would reveal that four advance increments are admissible to those candidates who hold Ph.D. and M.Phil Degree respectively at the time of recruitment as Lecturers. Once increment is admissible to those teachers with M.Phil who acquired Ph.D. within two years of recruitment. Clause
(c) of Rule 11 specifically stipulates a condition to the effect that a Lecturer with Ph.D. will be eligible for two advance increments when she/he moves into selection scale. Clause
(d) of Rule 11 contemplates eligibility for two advance increments as and when he acquires the Ph.D. degree in his service career provided that he/she has not availed the advance increment admissible for possessing M.Phil degree at the time of recruitment. Thus, it is evident that the case of the petitioner falls within clause (c) of Rule 11 of the Rules of 2001 as she acquired Ph.D. Degree after her recruitment as Lecturer in the year 1997 and was accorded two increments while she was granted the benefit of selection scale with effect from 7th July, 1997 vide order dated 6th August, 2003 (Annexure-2).
9. The petitioner could not substantiate her claim for grant of four advance increments by any logic or materials available on record. The opinion of the Coordinate Bench of this Court in the case of Dr. Kanti Kumar Bora and others v. State of Rajasthan and others: WLC 2011 (2) 396; has no application to the facts of the present case for the reason that in the case of Dr. Kanti Kumar Bora (supra), the Coordinate Bench of this Court dealt with the issue of grant of two advance increments to the Teachers of both the Universities i.e., Rajasthan Agriculture University, Bikaner and Maharana Pratap University of Agriculture & Technology, Udaipur, in the backdrop of the order dated 11th June, 2001, which was issued by the State Government and therefore, the Teachers of two Universities could not be discriminated for grant of two advance increments. In the instant case at hand, the controversy is within the ambit of Rule 11 of the Rules of 2001. Admittedly, the petitioner was not a candidate in possession (Downloaded on 29/08/2019 at 11:46:43 PM) (4 of 7) [CW-13566/2010] of Ph.D. Degree at the time of entry into service and therefore, she is entitled for grant of only two advance increments as per stipulation of Rule 11(c) of the Rules of 2001.
10. Having considered the facts, circumstances and materials available on record in totality, the moot question is, whether the failure to observe the principles of natural justice, ipso-facto, would render the action illegal? The closely related with this question is the question whether failure to observe the principles of natural justice, does at all matter, if the observance would have made no difference, in view of the admitted and indisputable facts, speaking loud and clear. If in view of the admitted and indisputable facts, the conclusion that can be arrived at is only one and the same even in the event of affording an opportunity of hearing, in my opinion, the theory of "useless formality", can be pressed into service. In a catena of judgments, the Hon'ble Supreme Court has declared that one could not complain of a failure of non-compliance of principles of natural justice unless he could show the prejudice caused. In the case at hand the petitioner has failed to show the prejudice caused for not affording an opportunity of hearing."
Counsel for the petitioner also cited Division Bench judgment affirming the judgment of Dr. Amita Agarwal Vs. State of Rajasthan & Ors. passed in D.B. Special Appeal (W) No.2005/2014 decided on 18.12.2014. The relevant portion of the Division Bench judgment reads as follows:-
"The minimal facts, available on record, which can be noticed and undisputed, are that the appellant joined service as Lecturer on 07/07/1984 and while in service, she acquired Ph.D. degree in the month of March, 1997. While serving as Lecturer, she was accorded two advance increments and further two additional advance increments at the time of grant of selection scale on account of Ph.D. degree under the provisions of the Rajasthan Civil Services (Revised Pay Scale for Government College Teachers including Librarians & PTIs) Rules, 2001 (for short, 'Rules of 2001') and when this fact came to notice after audit objection was raised, order dt.02/03/2010 was passed by the authority informing the appellant about recovery of an amount of Rs.1,30,646/- to be recovered from her account of excess payment made to her.
The existing Rule 11 of the Rajasthan Civil Services (Revised Pay scales for Government College Teachers including Lecturers and PTIs) Rules, 1999 has (Downloaded on 29/08/2019 at 11:46:43 PM) (5 of 7) [CW-13566/2010] been amended by the Government Vide notification dt. 19/02/2001, which came into force w.e.f. 1st day of January, 1996 and the amended Rule 11 of the Rules, 1999, which is relevant for the present purpose, is quoted ad-infra:-
"11.Incentive for Ph.D./M.Phil :
(a)Four and two advance increments will be admissible to those who hold Ph.D. And M.Phil degree 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,
(c)A Lecturer with Ph.D. will be eligible for two advance increments when she/he moves into Selection Scale.
(d) A Lecturer will be eligible for two advance increments as and when he acquires a Ph.D. Degree in his service career provided that he/she has not availed the advance increment admissible for possessing M.Phil degree at the time of recruitment.
The notification, referred to supra, clearly indicates that two advance increments are in the form of incentive for Ph.D. & M.Phil. and as per clause (b), one increment will be admissible to those teachers with M.Phil., who acquire Ph.D. within two years of the recruitment and as per clause (c) such of the Lecturer with Ph.D. will be eligible for two advance increments when she/he moves into Selection Scale and as per clause (d), the teachers will be eligible for two advance increments as and when acquires a Ph.D. degree in his service career provided that he/she has not availed the advance increment admissible for possessing M.Phil degree at the time of recruitment.
A conjoint reading of the incentive scheme shows that providing advance increments to a lecturer either at the stage when qualified Ph.D. or enters/moves into selection scale, is to give proper recognition to the Ph.D. degree which has been acquired by a teacher while in service."
4. Dy. G.C. Aditya Sharma, however submits that the petitioner was not entitled to a choice of implementation of the two advance grade increments and the respondents were bound by the existing Rule 11 of Rajasthan Civil Services (Revised Pay scales for Government College Teachers including Lecturers and PTIs) Rules, 1999 (hereinafter to be referred as the 'Rules of (Downloaded on 29/08/2019 at 11:46:43 PM) (6 of 7) [CW-13566/2010] 1999'). Counsel for the respondents also submitted that in accordance with the Notification dated 7.5.1999 issued by the respondents if there was any issue, the Finance Department decision was to be final.
5. After hearing Counsel for the parties, this Court is of the opinion that Rule 11 of the Rules of 1999 has been amended by the Government Vide notification dt. 19/02/2001, which came into force w.e.f. 1st day of January, 1996 and the amended Rule 11 of the Rules, 1999 is directly applicable in the present controversy. The precedent law cited deals with the issue of rule 11 for granting two advance grade increment to the government lecturers. The Hon'ble Court reached to the conclusion that the lecturers of 2001 will be eligible for two advance increment when he moves into selection scale as stipulated in Condition No.C of Rule 11. There is no reason to differ from the aforementioned precedent law. The Rule 11 of Rules of 1999 reads as follows: -
"11.Incentive for Ph.D./M.Phil :
(a)Four and two advance increments will be admissible to those who hold Ph.D. And M.Phil degree 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,
(c)A Lecturer with Ph.D. will be eligible for two advance increments when she/he moves into Selection Scale.
(d) A Lecturer will be eligible for two advance increments as and when he acquires a Ph.D. Degree in his service career provided that he/she has not availed the advance increment admissible for possessing M.Phil degree at the time of recruitment.
Rule 11(c) clearly applicable in the present case. This has also been held to be applicable in the same set of situation (Downloaded on 29/08/2019 at 11:46:43 PM) (7 of 7) [CW-13566/2010] where another candidate doing PG became entitled but was given the same benefit from the date of grant of selection scale.
6. In light of aforesaid observations, the present writ petition is allowed and the respondents are directed to give all consequential benefit while applying rule 11(c) and computing two advance increments to the petitioner w.e.f. his entering into the selection scale i.e. 17.12.1999.
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