Andhra HC (Pre-Telangana)
Dr. M.V. Ramkumar Ratnam And Others vs Govt. Of A.P., Dept. Of Higher Edn., Hyd. ... on 5 November, 1998
Equivalent citations: 1999(1)ALD279
JUDGMENT
1. In these cases once again it came to light how public monies are being squandered away due to various commissions and omissions made by the Executive without application of mind at all.
2. In these two writ petitions a very important question which arises for consideration of this Court is whether the Merit Promotion Scheme introduced during the 6th five year plan to relieve stagnation and also to provide reasonable opportunities for professional advancement of the teachers which came to an end by 31-12-1985, can be operated even now, more so when the scheme was replaced by Career Advancement Scheme propounded by the University Grants Commission for the benefit of the teachers working in Central Universities, Colleges and other institutions financed by the Central Government on the basis of the report of Mehrotra's Committee with effect from 1-1-1986 and the career advancement scheme formulated by the State Government in G.O. Ms. No.520, Education, dated 15-12-1988 with effect from 1-1-1986 for the benefit of the teachers working in the Universities under the control of the State of Andhra Pradesh and Degree Colleges affiliated to various Universities that are functioning in the State.
3. Dr. V. Krishnamuchari presently working as Reader in the Osmania University filed writ petition No.22031 of 1995 seeking a direction to the Osmania University to promote him as Professor under Merit Promotion Scheme pursuant to the interview held on 23-11-1994 along with Mr. Manohar Rao who also appeared for the interview along with him on 23-11-1994 and who now stands promoted as Professor. The respondent-University in it s counter contended that as the petitionerdid not put in the minimum required service of 8 years after he was promoted as Reader, his case could not be considered for promotion as Professor. Dr. V. Krishnamachari, appeared in person in this writ petition and argued his case.
4. During the course of arguments it came to light that the merit promotion scheme came to an end by 31-12-1985 and in fact the State Government issued G.O. Ms. No.2297, dated 30-12-1991 ratifying the promotions given under the scheme till 17-6-1987 in consonance with the orders issued by the U.G.C. Hence I decided to probe into the matter and directed the learned Government Pleader to file counter and to what extent th directions given in this G.O. were implemented.
5. For a long time the case underwent adjournments to enable the Government to file its counter. While the proceedings are pending here, the petitioner brought to my notice two G.Os. (I) G.O. Ms. No.242, dated 1-8-1994 extending the merit promotion scheme upto 1-1-1994 and (2) G.O. Rt. No.589, dated 5-5-1998 extending the merit promotion scheme upto 31-12-1995. As these two orders run counter to the spirit of the career advancement scheme as well as G.O. Rt. No.2297, Education, dated 30-12-1991, I directed the State Government to instruct all the Universities not to effect promotions under these G.Os., until the issue is finally adjudicated.
6. Having been affected by this order, 16 Readers of Sri Venkateswara University filed WP MP No.29661 of 1998 seeking permission of the Court to implead themselves as party respondents and also filed WP MP No.29662 of 1998 for modification of the said orders. Likewise the Andhra Pradesh of University Teachers' Association filed \VP MP No.29039 of 1998 to implead them as party respondents and filed another petition for modification of the orders. Thirdly 9 Readers of Sri Krishnadevaraya University also filed WP MPs seeking permission of the Court to get themselves implcaded as party respondents and also filed another petition for modification of my order dated 24-9-1998. In the meantime, some of the Lecturers and Readers filed WP No.20580 of 1998 to declare the action of the Government in fixing the cut-off date as 31-12-1995 as arbitrary and illegal.
7. Before considering the facts of the case 1 would like to refer to the salient features of various schemes that are under examination in these writ petitions. Initially, the University Grants Commission introduced merit promotion scheme to give recognition and encouragement for the outstanding work done by the University teachers and also to provide opportunities to them for professional advancement. Under this scheme there is no mention about the scales of pay and it has to be presumed that the persons who earn promotion under the scheme shall be paid the existing UGC scales of pay that came into force on 1-1-1976. Though the scheme came to an end on 31-12-1985, by virtue of the orders issued by the UGC on 1-1-1986, the scheme was in force up to 17-6-1987 till the career advancement scheme was announced. As the same is admitted by all the concerned, I am not referring to the orders issued by the UGC from time to time. The scheme as envisaged by the University Grants Commission was communicated to all the State Governments in its D.O. No.F1-87 (C.P. Part-I) November, 1982. Under this scheme the Commission agreed to contribute Rs.600/-per annum for each of the persons appointed as Lecturers/Professors in accordance with the guidelines till the end of the 6th five year plan and thereafter the expenditure involved under the scheme has to be borne by the University/State Government concerned. If any of the Universities are having a scheme of this nature and promotions were effected, those Universities will not be eligible for the University Grants Commission's assistance.
8. The guidelines for implementation of the merit promotion scheme for University teachers to the extent required are being referred hereunder. The objectives of the scheme as envisaged in Para-1 of the guidelines was already referred supra.
Method of Implementation:
2(a) The University teachers engaged in advanced teaching and research and whose contribution and achievements are such as to merit recognition have to be considered under merit promotion scheme in the first instance, after completing 8 years of continuous service in their respective cadre.
(b) Any teacher who was not selected for merit promotion can submit his work for re-consideration only after a lapse of two years.
(c) Teachers who are desirous of availing this benefit should submit their work to the University through their department before 31st December of each year.
(d) The University should generally take a decision before the beginning of the next academic year, so that such promotions can become effective from the date of the beginning of the next academic session.
9. Though the Universities have to follow the normal procedure contemplated under the statutes for selecting the candidates, under this scheme atleast two Professors in the subject/discipline concerned should be referred to and the merit promotion shall be given by the appointing authority to a teacher only on the recommendation of the Selection Committee. In case of promotion of Readers atleast there should be two outside Experts. Under Sub-Clause 'f' the promotion given to a Lecturer as Reader and from Reader to the Professor shall be personal to the incumbent and even the resultant vacancy cannot be filled up. Under sub-clause 'g' a teacher can be considered for promotion under the scheme purely on the basis of the work done by him as specified in clause V and seniority has no place. The most important clause of this merit promotion scheme. It says that:
"Not more than 1/3rd of the number of total permanent position of Lecturers or Readers within a department may hold such merit promotions at next higher level at any given time. Further, not more than two readers may be given such merit promotion as Professor within a department for the duration of plan period. The persons holding such merit promotions would not count for determining the total posts in the cadre of readers for purposes of merit promotion to Professors.
It would be desirable for a department not to fully utilise the merit Promotion Scheme at one time, but to phase it out so that the full quota could be readied in the plan period."
10. From the above it is seen that merit promotion is not an automatic affair after completion of 8 years service, but on the basis of an evaluation of the work of an individual including research work done by him etc., by subject experts as well as the Selection Committee constituted under the statutes framed by the Executive Council of the University concerned. Nextly the promotion given to a teacher shall bo treated as personal to him without corresponding increase in the cadre strength in the promoted category and the resultant vacancy in the cadre from which he was promoted. Again this scheme contemplates that the promotions given under the scheme shall not exceed 1/3rd of the total cadre strength of the category from which the teacher has been promoted. Yet another condition imposed was that at no point of time more than two Readers can be promoted. Lastly the concerned was advised not to make all the appointments at a time but to phase out them spreading the plan period.
11. It is not in dispute that this scheme came to an end by 31-12-1985. But on a clarificalion sought by the Vice-Chancellor of Andhra University, the University Grants Commission in D.O. No.F.1/87-78 CP (Part-Ill) February, 1986 informed that the University Grants Commission decided to continue the scheme till the report of the Committee on revision of Pay Scales of Teachers headed by Professor R.C. Mehrotra is received and accepted for implementation. The Government of India having accepted Professor Mehrotra's report, issued proceedings in No.F.1-21/87-UI, dated 17-6-1987 revising the pay scales of the teachers under Career Advancement Scheme. This scheme is limited to Central University Teachers and Colleges and other institutions financed by the Central Government with effect from 1-1-1986. As far as the institutions under the administrative control of the State Governments are concerned, the Central Government expressed its willingness to extend assistance if they adopt this scheme on revision of pay scales subject to the conditions stipulated in para 4 of the letter dated 17-6-1987.
"The scheme is being implemented in the Central Universities and other institutions fully financed by the Central Government. The Government of India have also decided to assist the State Governments, who wish to adopt and implement the scheme of revision of pay scales, subject to the following terms and conditions:
(i) The Central Government will provide assistance to the State Governments to the extent of 80% of the additional expenditure involved in giving effect to the revision of scales of pay;
(ii) The Central assistance to the extent indicated above will be available for the period 1-1-1986 to 31-3-1990;
(iii) The State Governments will meet the remaining 20% of the expenditure from their own resources and will not pass on the liability or any portion thereof to the Universities or the managements of private colleges;
(iv) The State Governments will take over the entire responsibility for maintaining the revised scales of pay with effect from 1-4-1990."
12. Under para 5 of the same letter the State Governments have been given the discretion to introduce scales of pay different from those mentioned in the scheme of the basis of the conditions prevailing in the State and may give effect to the revised scales of pay from 1-1-1986 or from a later date. After the approval is accorded by the Central Government, the State Governments will receive the Central assistance on the same terms and conditions indicated in para 4, provided, if the modified scales of pay are not higher than those approved under the Scheme. The Scheme as envisaged by the UGC is given in the appendix of this letter. Subsequently, the Central Government modified the scheme in its letter No.F.1-21/ 87-U.1, dated 22-7-1988 on the basis of certain representations received by the UGC. The present Central Scheme came into force after the amendments/modifications made to the original scheme which was given in Appendix-I of the said letter. Thereafter the Government issued G.O. Ms. No.520, Education, dated 15-12-1988 and they are termed as the Andhra Pradesh Revised UGC Scales of Pay, 1986. A comparison of both the schemes makes it abundantly clear that the State Government simply adopted the modified scheme of the Central Government which was communicated as Appendix to their letter dated 22-7-1988. Hence, instead of extracting the clauses of both the schemes I decided to refer to the salient features of both the schemes:
13. Under this new scheme the lecturers are given hike in pay after completion of 8 years of service subject to fulfillment of the conditions laid in the scheme without promotion to a superior post, again after completion of another 8 years of service a further jump in the pay was provided. In other words a lecturer on completion of 8 years of service is designated as lecturer in senior scale and placed in the corresponding scale, again a senior scale lecturer on completion of another 8 years of service is designated as selection grade with corresponding hike in pay. As far as Readers, Professors and Principals of the colleges are concerned, they were only given the time scale of pay without reference to any qualifying service. From this it is seen that while lecturers alone were given senior scale on completion of 8 years and selection grade after completion of 16 years of service, the holders of other posts are given only the time scale of pay mentioned therein:
SCHEDULE - I Scales of Pay of Teachers in Universities and Colleges Sl. No Designation Existing Scales of Pay Revised Scales of Pay Rs.
Rs.
1.
Lecturers 700-1600 3200-75-2800-100-4000
2. Lecturers (Senior Scale) Not Existing 3000-100-3500-125-5000
3. Lecturers (Selection Grade)
-do-
3700-1254950-150-5700
4. Reader 1200-1900 3700-125-4950-150-5700
5. Professor 1500-2500 4500-150-5700-200-7300
6. Principals of Colleges
(i) 1200-1900 3700-125-4950-150-5700
(ii) 500-2500 4500-150-5700-200-7300
7. Vice-chancellors 3000 (fixed) 7600 (fixed)
8. Tutors/ Demonstrators (Existing incumbents only) 500-900 1740-60-2700-EB-75-300 P.K. Doraiswamy Principal Secretary to Government Sd/-
Section Officer.
While the Central Scheme is known as Career Advancement Scheme, the State Scheme is termed as A.P. Revised UGC Scales of pay of 1986 (for short 'A.P. Scales of Pay'). Both the schemes came into effect from 1-1-1986.
In para 6 of A.P. Scales of Pay an option is given to the employees covered by the scheme either; (a) to remain in the existing UGC Scale of Pay, 1976; or
(b) to draw pay in the Revised UGC Scales of Pay, 1986; or
(c) to draw pay in A.P. Revised Scales of Pay, 1986; either from 1-1-1986 or from the date on which he earns his increment in the existing scales of pay after 1-1-1986, but not beyond 31-12-1986.
14. Clause-b becomes redundant as the A.P. Scales of pay has been formulated by the State Government on the same lines as UGC Revised Scales of Pay, 1986 in the light of the discretion given to the respective State Governments in Para 5 of Government of India's letter dated 17-6-1987, and this scheme also came into effect from 1-1-1986. Though the Central UGC Revised Scales of Pay are applicable to the teachers working in Central Universities and Colleges and other institutions financed by the Central Government, the A.P. Revised Scales of Pay are applicable only to the teachers working in the Universities and the State Government formulated another scheme to the lecturers working in the Government and private aided degree colleges in G.O. Ms. No.169, dated 7-7-1990.
15. Though it is categorically stated in the state scheme that those who are benefited under the Merit Promotion Scheme satisfying the eligibility criteria prescribed by UGC shall alone be considered for eligibility to the Revised Scales of Pay and Merit promotions accorded not inconfirmity with such criteria shall be ignored for this purpose. The Central Government validated Merit Promotions that were effected upto 17-6-1988, the day on which orders were issued introducing Career Advancement Scheme without knowing or even examining, the effect of its decision by meakly surrendering to the pressures brought it by the educated elite of the society. This aspect will be discussed at a later stage.
16. Under Clause 19 of the Central Government Scheme an option is given to the existing teachers who availed the benefits under the merit promotion scheme or any other scheme that was in operation earlier either to continue to be informed by the provisions of those schemes or opt for the new scheme and the options have to be exercised in writing prior to pay fixation under that scheme. Those who opt to remain in Merit Promotion Scheme shall remain in the existing UGC Scales of Pay of 1976 and they cannot avail the benefit under Career Advance Scheme. In other words they shall continue to draw the same old scales of pay and their promotions to higher cadres shall be considered under the Merit Promotion Scheme only. To the same effect is clause 13 of the A.P. Scheme. Both the clauses made it very clear in unambiguous terms by stating that they have to draw the same scales of pay under the Merit Promotion Scheme i.e.;
(i) Lecturers Rs.2200-4000 (ii) Reader/Lecturer (Selection Grade) Rs.3000-5000 (iii) Professor Rs.4500-5700
17. Clause 14 of the A.P. Scheme states that in case of promotion given under Merit Promotion Scheme between 1-1-1986 and 17-6-1987, the benefit of pay revision will be available only from the date of their promotion. It is also made clear that from the promotions ordered in contravention of UGC norms whether before or after 1-1-1986 will be reviewed as laid down in Para 4 of the order. It is useful to extract the last sub-para of Para 4 of G.O. Ms. No.520, Education, dated 15-12-1988 and Para 14 of the appendix of A.P. Revised Scales of Pay; and they are hereunder respectively;
"In respect of those who are benefitted by the Merit Promotion Scheme, such promotions satisfying the eligibility criteria for merit promotions outlined by UGC shall alone be taken into account for eligibility to the revised scales of pay. Merit promotions accorded not in conformity with such criteria shall be ignored for this purpose."
In cases of promotions ordered after 1-1-1986 but, before 17-6-1987, the benefit of pay revision will be available to them only from the dates of promotions. However, Merit Promotions ordered in contravention of UGC norms whether before or after 1-1-1986 will be reviewed as laid down in Para 4 of the order."
18. While the Career Advancement Scheme is applicable to all the existing teachers and the teachers to be appointed subsequent to 1-1-1986, the Merit Promotion Scheme or any scheme which is in operation and availed by the existing teachers is applicable only to the teachers appointed prior to 1-1-1986.
19. As per the clause 7 of G.O. Ms. No.520, dated 15-12-1988, the employees who are entitled to exercise their option were given three months time to do so in writing in the proforma prescribed in Annexure-1 appended to the G.O., and they have to communicate the same in triplicate to the concerned i.e., in case of teachers working in the University to the Registrar; and in case of teachers working in colleges to the Director of Higher Education. It is also made clear that when once options exercised shall be final and if any employee fails to exercise option within the stipulated time, he is deemed to have opted for revised UGC Scales of Pay of 1986 with effect from 1-1-1986. It is needless to repeat that even the hike in pay contemplated under these schemes shall be not only on completion of the prescribed number of years but also on the basis of regular and systematic appraisal of the performance of a teacher. On the basis of the guidelines formulated by the UGC for evaluation of the performance of the teachers taking into account the statements contained in National Policy of Education, 1986.
20. Now, in this writ petition we are concerned with the implementation of Career Advancement Scheme in the State of A.P. Though this scheme clearly envisages exercises of options by the existing teachers both working in the Universities as well as colleges whether they intend to continue under the Merit Promotion Scheme or any other scheme that was in operation till the revised scales of pay came into effect or they wish to avail the benefit of revision of pay scale under the Career Advancement Scheme. But for reasons best known to them, neither the Registrars of various Universities functioning the State and the Director of Higher Education ever called for option nor the teachers ever exercised the options as contemplated. It is also on record now that both the schemes are being simultaneously operated in the State and the teachers are availing the benefit under both the schemes.
21. While matters are going on in this manner, the Government seemed to have received complaints about the arbitrary implementation of the schemes and the Government appointed a high level committee in G.O. Rt. No.539, Education, dated 28-3-1990 with the Chairman of the Andhra Pradesh State Council of Higher Education as the Chairman and the Vice-Chancellors of Osmania, Andhra and Kakatiya Universities as the Members of the Committee to review the merit promotions made in the Universities in the State and submit its report within six months. The Committee having reviewed the promotions made in the Universities in the State seemed to have submitted its report on 23-10-1990. As the report of the Committee is not available either with the Chairman or with the Government, the Court is handicapped to know the recommendations made by the Committee. But, at the same time, in the note file of the Government in paragraph 21, it is stated as herennder:
"On analysing the date the following were observed:
(i) Variations in implementing the following by different Universities;
(a) Grouping of subjects for calculating 1/3rd number of vacancies for promotions (Column 3 of tables in Chapter III of the Report).
(b Criteria for date of appointment (Column 6 of tables in Chapter III of the Report).
(c)Annual monetary benefit on promotion (Column 9 of tables in Chapter II of the Report).
(ii) Deviations in adherence to guidelines:
(a) Non-adherence of service requirement of eight years (clause 2(a) of the UGC Guidelines).
(b) Two promotions to the same person under Merit Promotion Scheme in Sri Krishnadevaraya University.
(c) Promotion of teachers who are not selected by Selection Commission within a gap of one year in Kakaliya University.
(d) Promotions made after 17-6-1987 in JNTU, KU and SVU.
(iii) Others:
Selecting the senior teachers under Merit Promotion Scheme and juniors in the regular vacancies. After careful consideration and discussions on the date available on the subject, the following recommendations were unanimously agreed upon.(1)
The members felt that item i(c) may be ignored.
(2) To furnish all the deviations from UGC guidelines in the implementation of Merit Promotions in various Universities in the State.
(3) In view of the different cut off dates and different norms observed by the Universities in appointing teachers in the Merit Promotion Scheme, the Government and UGC may take a liberal view to consider the cases who have become eligible by 17th June, 1987 the date finally suggested by the UGC. If agreed upon the following conditions are to be observed for implementing the scheme by the Universities.
(a) To the extent of the vacant positions as on 17-6-1987 as per original guidelines after taking into account teachers already appointed earlier.
(b) by strictly adhering to guidelines.
(4) Regarding the Government and affiliated Colleges Merit Promotion Scheme was not implemented. As such there is no need for review or to make recommendations."
22. Considering the report of the Committee, the Government issued G.O. Rt. No.2297 Education, dated 30-12-1991 wherein a decision was taken to cancel the illegal promotions and to extend the benefit to those teachers who are eligible for promotion with monetary benefit from the date of issuance of the Government order.
23. From the above factual narration the following issues are framed for consideration by this Court:
(1) Whether the Merit Promotion Scheme can be extended after 1-1-1986 and the effect of extending the cut off date on the exchequer;
(2) Whether the decision of the State Government as found in G.O. Rt. No.2297, dated 30-12-1991 is in accordance with law; and whether the Government implemented the decisions taken in this G.O., (3) Can the teachers be permitted to exercise options - whether to remain in the Merit Promotion Scheme or to switch over to Career Advancement Scheme and in case of teachers who availed benefits under both the schemes after 1-1-1986, what should happen to the excess amounts drawn by them.
(1): It is an admitted fact that Merit Promotion Scheme came to an end on 31-12-1985 with the end of sixth Five-Year Plan and the Central Government appointed a committee under the Chairmanship of R.C. Melhotra to recommend on the revision of pay scales of teachers. There seemed to have been some delay in considering the effect of the report by the Central Government. Ultimately, the Central Government issued orders on 17-6-1987 revising the scales of pay in Central Universities and other institutions fully financed by the Central Government with effect from 1-1-1986 and the object of hike in scales of pay was given as maintenance of standards in higher education. In other words, the Governmental authorities are under the impression that if the pay of the teachers is increased, the talent in teaching will be increased as maintenance of highest standards in education is desired and to have uniform service conditions throughout the country, and the teachers may concentrate in imparting education to the student community to the best of their ability. If an inquiry is instituted it is known to what extent the Government succeeded in achieving the desired objective. Be that as it may, the Central Government gave liberty to the individual State Governments either to adopt the revised scales of pay of UGC or to formulate their own schemes taking the local conditions into consideration and to introduce different scales of pay with effect from 1-1-1986 or from a subsequent date. The Government of Andhra Pradesh introduced "A.P. Revised Scales of Pay, 1986" in G.O. Ms. No.520 Education, dated 15-12-1988, with effect from 1-1-1986.
24. From the above it is seen that no scheme is in operation from 1-1-1986 to 17-6-1987 till the Melhotra Committee's report was accepted by the Central Government. In the meantime, when clarifications are sought by some of the Universities, the UGC informed them that the commission decided to continue the merit promotion scheme till Melhotra Committee's report is accepted. One such communication was dated 8-3-1986, addressed to the Vice-Chancellor, Andhra University, which was already extracted while stating the facts of the case. With the result the merit promotion scheme was in force till 17-6-1987 and whether such an action on the part of the UGC can be considered as valid when Career Advancement Scheme (UGC revised scales of pay) was introduced with effect from 1-1-1986. As stated supra, under Merit Promotion Scheme the total promotions given under the scheme shall not extend l/3rd of the total strength of the cadre from which the promotions were given. Further, not more than two Readers can be promoted under Merit Promotion Scheme as professors within a department for the duration of the plan period. The third rider imposed by UGC is that it is not desirable to fully utilise the Merit Promotion Scheme at one time in any department but to phase it out so that the full quota could be reached in the plan period. Under the Career Advancement Scheme, the question of promoting a teacher to a superior cadre does not arise but a lecturer is entitled for a pay hike on completion of eight years subject to fulfillment of the qualifications prescribed under the scheme and for further hike in pay after completion of 16 years of service. On receiving the hike in pay after eight years he is designated as lecturer (senior grade) and after 16 years as lecturer (selection grade). For other cadres, only the time scale of pay was given. If the Merit Promotion given to a teacher between 1-1-1986 and 18-6-1987 as per the UGC guidelines is upheld, let us see what would happen from the example that are given hereunder.
25. A lecturer in the scale of pay of Rs.2200-4000 on promotion as Reader under merit promotion scheme will be fitted in the scale of pay of Rs.3,000-Rs.5,000. If he wants to avail benefits under merit promotion scheme he can aspire for promotion as Professor subject to the conditions mentioned supra. If that person wants to avail the benefit under Career Advancement Scheme which came into force with effect from 1-1-1986, the question of getting promotion as reader does not arise but he will be allowed to draw the scale of pay of Rs.3000-5000 on completion of 8 years of service as Lecturer and he will be designated as senior lecturer. As the promotions under merit promotion have been continued after 1-1-1986 he can get himself promoted as Reader and then claim the hike in pay attached to the post and once again claim for the post of Professor on fulfilment of the conditions stipulated in the scheme where as the question of himself becoming a Professor under Career Advancement Scheme does not arise as the teachers governed by that scheme are not given any promotion in higher cadre except hike in pay. He can think of becoming Professor only in the regular course i.e., as and when vacancy in the post of Professor arises but not otherwise. Had he continued in the merit promotion scheme he can claim promotion to the post of Professor on fulfillment of the conditions stipulated therein with the scale of pay attached to that post under the Merit Promotion Scheme. His promotion is purely personal and there would not be corresponding increase in the cadre strength of the posts to which he was promoted. That is the reason why clause 19 of the Central Scheme as well as clause 13 of the State Scheme gave option to the teachers working as on 1-1-1986 either to continue under merit promotion scheme or opt for Career Advancement Scheme. It is useful to extract the clause;
"The existing teachers in Universities and colleges where Merit Promotion Schemes formulated by UGC in 1983 or in other similar schemes are in operation will have an option to continue to be governed by the provisions of those schemes provided that they exercise the option in writing prior to their pay fixation under the scheme. They will also be entitled to the designations envisaged for various categories of teachers in those schemes but the scales of pay will be as follows:
Lecturer : Rs.2200-4000 Reader/Lecturer (selection grade) : Rs.3500-5700 Professor : Rs.4500-5700
26. In nutshell, the teachers who are in service as on 1-1-1986 and who are desirous of having the designations should be prepared to draw the old UGC scales of 1976 attached to those designations and they cannot have the benefit of steep hike in pay in the posts in which they are working as on 1-1-1986 as envisaged under Career Advancement Scheme. Likewise, a teacher who is in the cadre of lecturer and who has not completed eight years as on 1-1-1986 by not exercising option as contemplated in the Career Advancement Scheme is deemed to have opted for Career Advancement Scheme. In other words, after 1-1-1986 on completion of 8 years of service his pay has to be revised and refixed in the higher scales of pay that are contemplated to each of the cadres in the University. So after taking the benefit under the Career Advancement Scheme after 1-1-1986, as the Merit Promotion Scheme is also in force as per the orders of the UGC, after completion of 8 years he can also claim promotion to the post of a reader on fulfilment of the requirements under the scheme. As both the schemes are being operated simultaneously, it is not known whether he has drawn the scale of pay attached to the reader under the Mcrif Promotion Scheme i.e., Rs.3000-5000 or under Career Advancement Scheme i.e., Rs.3700-5700. If he is claiming the later scale of pay, he is getting benefit with both right and left hands. Perhaps the State Government might have kept in mind this fact while formulating the scheme and in paragraph 4 of the Government Order it is stated that, "promotion satisfying the eligibility criteria for merit promotion scheme outlined by UGC shall alone be taken into account for eligibility to the revised scales of pay." But, somehow thereafter it lost sight of this stipulation. Hence, I am of the view that as Career Advancement Scheme itself contemplated continuation of the Merit Promotion Scheme on option by the concerned teacher, the question of validating the promotions under Merit Promotion Scheme between 1-1-1986 and 17-6-1987 does not arise. As the Career Advancement Scheme came into force from 1-1-1986, he has to choose whether he wants to avail the benefit under Merit Promotion Scheme or the Career Advancement Scheme from 1-1-1986 itself but not from any other subsequent date, i.e., Merit Promotion Scheme upto 17-6-1987 and thereafter Career Advancement Scheme. As the UGC itself permitted the Universities to effect Promotions under Merit Promotion Scheme till Melhotra Committee's report is accepted, i.e., upto 17-6-1987 if a person who availed the benefit under the Merit Promotion Scheme between 1-1-1986 and 17-6-1987 is allowed to opt for Career Advancement Scheme it amounts conferring double benefit. Hence the teachers who are benefitted under merit promotion scheme after 1-1-1986 either should continue to be governed by the merit promotion scheme or should give up the benefits under it and opt for Career Advancement Scheme. But he cannot be permitted to avail the benefit under the both the schemes with both hands causing loss to the exchequer. Hence, the clarification given by the UGC should be read as permitting the teachers working as on 1-1-1986 to continue under merit promotion scheme and avail the benefits under that scheme without allowing them to come to Career Advancement Scheme. Or, the instructions given by the UGC should not be given effect to as the same runs counter to the provisions of Career Advancement Scheme apart from causing loss to the exchequer which may not be the objective to be achieved by introducing these schemes.
(2): As stated supra, the Vice-Chancellors of various Universities in the States were operating both the schemes simultaneously, at times to confer undue favour of their supporters and to settle their scores with the teachers who are opposed to them. When these irregularities are brought to the notice of the Government, the Government appointed a committee in G.O. Rt. No.539 Education, dated 28-3-1990. Having gone through the report wherein the committee pointed out turdy implementation of the schemes, the Government issued G.O. Rt. No.2297, dated 30-12-1991. As per the said Government Order, the Government has taken the following decisions, (1) to cancel all the merit promotions made in deviation of UGC guidelines and to refix their salary on the basis of the pay drawn in their original post prior to their appointment under the merit promotion scheme. However, it has decided not to recover the payments already made upto the date of order; (2) those teachers who are eligible for merit promotion before 17-6-1987 and who could not be considered due to administrative reasons or otherwise shall be allowed the benefit notionally from the date of promotion with monetary benefit from the date of issuance of the Government Order. The effect of the above decision of the Government is that though the salary of the teachers who are promoted in deviation of the UGC guidelines has to be refixed, the extra pay drawn by them need not be recovered and the teachers who are really eligible for promotion but denied the promotion althrough for various reasons are to be given promotion from the date he has to get promotion but their monetary benefit is restricted from the date of issuance of the Government Order. In other words, they are denied arrears of salary on the basis of the promotion they earned while persons who got promoted illegally have been allowed to retain the benefit they obtained. Such a decision of the Government resulted in undue favour on the persons who secured promotion illegally and hostile discrimination towards those who lost their promotions though eligible under the scheme for no fault of theirs or perhaps by incurring the wrath of the Vice-Chancellor and the discrimination shown against them has no rationale whatsoever and such an action is opposed to Article 14 of the Constitution of India. Further, the action of the State Government runs counter to the legitimate expectation of the individual teacher concerned who is eligible to get promotion but was denied on some extraneous considerations. Hence, it can safety be held that the orders of the Government in G.O. Rt. No.2297, Education, dated 30-12-1991, run counter to the constitutional scheme as envisaged under Article 14 of the Constitution of India. It is further astonishing to note that even this faulty decision of the Government was not implemented. On the other hand the executive which is entrusted with the duty of safeguarding public monies continued to squander away the public monies by extending the cut off date for effecting promotions under the Merit Promotion Scheme without knowing the effect of their actions on the public exchequer.
(3) : It is an admitted fact that neither the authorities concerned directed the teachers to exercise their option nor the teachers chose to exercise their option as required under G.O. Ms. No.529. But, both the schemes are being pressed into service as per the convenience of teacher concerned with the active connivance of the higher ups., and they are availing the benefits under both the schemes simultaneously resulting in the drain of public monies, perhaps in crores of rupees, as the schemes are being operated not only by the Universities but also by the Colleges under the management of the State Government's well as aided ones. When the Court pointed out this anamoly the Counsel appearing for the teachers in one voice submitted that the teachers cannot be found fault with, for the failure on the part of the administrators in not obtaining the options as contemplated under the Government Order. It is their case that the appointing authority has to communicate the proforma in triplicate directing the concerned individual to exercise his option in three months. As the administrator has failed to ask for the options, the question of exercising options does not arise and the teachers cannot be penalised for not exercising the option, more so, in the light of the orders of the Government issued from time to time extending the cut off date for the Merit Promotion Scheme. It is true that the Government issued G.O. Ms. No.242, dated 1-8-1994 extending the cut off date upto 1-1-1994 and the same was again extended upto 31-12-1995 by G.O. Rt. No.589, dated 5-5-1998. Though there is some force in the contention, the Court cannot lose sight of the fact that it is dealing with the highly educated elite who are involved in imparting education at the higher levels and they cannot simply throw the blame on the administrator as if they are not aware of the conditions of the scheme. If really they are not aware of the conditions of the scheme, how representations are being made to UGC to extend the Merit Promotion Scheme is beyond my comprehension.
27. The Government Pleader for Higher Education strenuously contended that the merit promotion scheme contemplated under these two Government orders has nothing to do with the merit promotion envisaged by UGC and it is a scheme propounded by the State Government itself without reference to the Central scheme. Such an argument is nothing but placing the cart before the horse. G.O. Ms. No.242 categorically stated that those who opt to continue under Merit Promotion Scheme are entitled to have the designations envisaged under the scheme and they will be allowed to draw the old UGC scales of pay of 1976 attached to the designation but not under Career Advancement Scheme. Further, G.O. Ms. No.2297 was issued on the basis that the Merit Promotion Scheme came to an end on 17-6-1987. The Government having taken note of the fact that none of the Universities obtained option from the teachers, in paragraph 2 of G.O. Ms. No.242 stated as hereunder:
"The UGC clarified vide their letter 3rd cited, that the Merit Promotion Scheme was discontinued in the Revised Pay Scales of 1986 and the cut-off date is 17-6-1987. Based on several requests received from various Universities in the State requesting for issue of clear orders on the implementation of Merit Promotion Scheme, the Government after careful consideration issue the following order....."
Thereafter all the conditions stipulated in the Merit Promotion Scheme of the year 1983 were reiterated. Hence, the question of treating it as a separate Merit Promotion Scheme does not arise. As the Government is only extending the cut off date from time to time i.e., from 17-6-1987 to 1-1-1994 and thereafter upto 31-12-1995. Even assuming that the Government Pleader is right in his contention, the question of implementation of two schemes simultaneously i.e., Merit Promotion Scheme and the Career Advancement Scheme does not arise. Hence, there is no force in the contention of the Government Pleader.
28. Now, the question that falls for consideration of the Court would be whether the teachers can be allowed to exercise option at this stage. Counsel appearing for the teachers again started contending that they have not derived any benefit under the Career Advancement Scheme and the legitimate expectation of any teacher would be to retire in a higher post; hence, the Court may consider the request of the petitioners to extend the date for exercising options by giving a reasonable time.
29. I feel that as both the parties are at fault and the Government was issuing orders from time to time without knowing what it was doing, with the result several teachers were promoted under Merit Promotion Scheme contrary to the terms and conditions of Career Advancement Scheme. To my mind that is the only way to save the promotions that are being given all through under Merit Promotion Scheme after 1-1-1986. Otherwise, all these promotions have to be set at naught. By extending the date for exercise of the options only some adjustment in the pay that is being drawn by them has to be effected and refixed which may result in recovery of the excess monies paid to them. At the same time, they may have the satisfaction of retaining higher designation with some monetory benefit. Hence, I am of the view that one more opportunity may be given to the teachers who are in service as on 1-1-1986 to exercise their option whether they intend to be governed by Career Advancement Scheme or by the Merit Promotion Scheme as envisaged in 1983 with the reduced scales of pay by getting higher designations. Accordingly, I direct all the Universities to direct the teachers to exercise options within three months from the date of receipt of a copy of this order and review all the promotions that were made after 1-1-1986 on the basis of the options exercised by the concerned teachers. The teachers who wish to continue under Merit Promotion Scheme should necessarily be governed by the conditions under Merit Promotion Scheme. During the course of the arguments, Dr. Krishnamachary, party-in-person and all other Counsel appearing for the teachers admitted the fact that no University is observing the principle of restricting the promotions to 1/3rd of the total cadre strength and promotions are given as and when they acquire the eligibility without reference to the ceiling fixed in the scheme. It is made clear that once a teacher, on exercise of the option, to be governed by Merit Promotion Scheme, his case should be considered all through as per the guidelines given in the Merit Promotion Scheme and he is entitled to draw only the scales of pay of 1976, but not the scales of pay of 1986. The State Government is directed to issue necessary instructions to all the Universities not to take any action for extending any benefit under either of the schemes till the process of review of the promotions given earlier is completed in terms of the judgment.
30. At this stage, Sri C. V. Nagarjuna Reddy, and Sri P.'S. Sastry learned Counsel appearing for some of the teachers, having realised what is in stores, started contending that the Universities may be directed to obtain options for each of the cadres. In other words no teacher can get the benefit under both the schemes in one cadre. They request the Court to interpret the schemes in such a way that a teacher who availed the benefit under Career Advancement Scheme in a particular cadre shall not be allowed to have the benefit under Merit Promotion Scheme in the same cadre and a teacher who availed the benefit of Career Advancement Scheme in the lower post may not be denied his promotion in the higher cadre under Merit Promotion Scheme. The question of applying two schemes simultaneously to an individual teacher does not arise. The University Grants Commission made it clear time and again that Merit Promotion Schemes came to an end with 6th Five-Year Plan and Career Advancement Scheme came in its place. So a teacher has to avail the benefits of either Merit Promotion Scheme or Career Advancement Scheme but, not one Scheme at one stage in one cadre and one scheme in another cadre merely because it works out to his benefit. Such an action per se is illegal under Article 14 of the Constitution of India. If such a contingency is allowed to take place, the whole exercise made by this Court to unearth the fraud will end up as a futile exercise as the Court wants to put an end to this sort of mischief played by the teaching community who are expected to impart value based education to their pupils i.e., to maintain morality, honesty, integrity, hard work, national spirit, so or and so forth. Accordingly, I reject the contention of the Counsel in this regard.
31. Lastly, all the Counsel appearing for the teachers pleaded that a direction should be given to the Government not to recover the excess amounts drawn by the individual teachers after exercising their options if they are found to have drawn more amounts than what they are entitled to. I feel that this is not a case where equity can either be pleaded nor can be granted as public monies are involved in this case. The Court should not forget the fact that the common man is subjected to heavy dose of taxation for the faulty policies pursued by the executive. Any number of decisions of the Apex Court as well as this Court can be cited to establish that this is not a case where equities can be granted.
32. I need not refer to the entire case law on this aspect and it is suffice to refer to the judgment of the Supreme Court in Gurudeep Singh v. Stale of Jammu and Kashmir, . In this judgment his Lordships were considering the validity of the admission of the 6th respondent in the medical course who was given seat in the sports quota on the basis of recognition given by the Sports Council of India, for mountaineering, an additional sports activity, long after the Sports Council announced the selections. Their Lordships, having accepting the contentions of the appellant that the whole exercise was gone through for the benefit of one candidate namely the 6th respondent, quashed the selection and appointment of the 6th respondent by observing:
"What remains to be considered is whether the selection of respondent No.6 should be quashed. We are afraid, unduly lenient view of the Courts on the basis of human consideration in regard to such excesses on the part of the authorities, has served to create an impression that even where an advantage is secured by stratagem and trickery, it could be rationalised in Courts of law. Courts do and should take human and sympathetic view of matters. That is the very essence of justice. But considerations of judicial policy also dictale that a tendency of this kind where advantage gained by illegal means is permitted to be retained will jeopardise the purity of selection process itself; engender cynical disrespect towards the judicial process and in the last analyses embolden errant authorities and candidates into a sense of complacency and impunity that gains achieved by such wrongs could be retained by an appeal to the sympathy of the Court. Such instances reduce the jurisdiction and discretion of Courts into private benevolance. This tendency should be stopped. The selection of respondent No.6 in the sports category was, on the material placed before us thoroughly unjustified. He was not eligible in the sports category. He would not be entitled on the basis of his marks, to a seat in general merit category. Attribution of eligibility long after the selection process was over, in our opinion is misuse of power. While we have sympathy for the predicament of respondent No.6, it should not lose sight of the fact that the situation is the result of his own making. We think in order to uphold academic processes, we should quash the selection and admission of respondent No.6. We do so though, however, reluctantly."
33. But, in view of the persistent requests made by the Counsel, I am inclined to leave this issue to the discretion of the Executive i.e., whether to realise the excess amounts paid to the individual teachers after reviewing the promotions given till this date on the basis of the options given by them or not. I am sure that the executive which is raising hue and cry as and when directions are given by the Courts to regularise the services of a low paid employee after he has put in ten to fifteen years of service by receiving paltry sum, will take appropriate decision keeping in mind the interests of the teachers as well as the increase in burden on the tax payer.
34. Nextly, they contended that no one has questioned the validity of any of the schemes, even Sri Krishnamachary who filed writ petition is seeking benefit under Merit Promotion Scheme. Hence, the Court may not be justified in going into the merit of the schemes and in giving the above directions. In fact, on the very first day when Sri Krishnamachary filed this writ petition i.e., WP No.22031 of 1995, stating that his case is not being considered for promotion as Professor under Merit Promotion Scheme, I questioned him how the Merit Promotion Scheme that came to an end with the 6th Five-Year Plan can be operated at this length of time. His answer was that all the Universities have been following the same procedure. Hence, on that day itself, I made it clear in my order that 1 would like to go deep into the matter and see whether the actions of the Government as well as the University authorities are in consonance with the schemes or they are distributing public funds at their whims and fancies without knowing the purport and scope of these two schemes. When certain illegality is taking place in the Government, more so affecting the exchequer, I feel it is the bounden duty of the Court to mould the relief in such a way that the draining of public funds can be put to an end. Way back in 1952 itself the Supreme Court held that it is within the competence of the Court to mould the relief though not asked for on the facts and circumstances that came to the notice of the Court. Hence, I have taken pains of going through both the schemes for rendering the above judgment in the interest of the public at large.
35. As far as the case of Sri Krishnama Chary is concerned he was appointed as a Lecturer in the year 1971 in Law faculty. After introduction of the Merit Promotion Scheme on 7-12-1985 the third respondent and himself were interviewed for promotion as Reader under Merit Promotion Scheme and while 3rd respondent was promoted as Reader his appointment was kept in abeyance on the ground of non-availability of vacancy. It is only on 7-12-1986 the petitioner was promoted as Reader. Again on 8-6-1994 both of them seemed to have applied for Professorship under Merit Promotion Scheme and they were interviewed on 23-11-1984. Again while the 3rd respondent was promoted as a Professor on 5-12-1984 the case of the petitioner was deferred on the ground that he has not completed 8 years of service in the cadre of Reader. Questioning the said action he filed the present writ petition. His contention is that had he been promoted as a Reader on 7-12-1985 along with 3rd respondent he would have completed 8 years of service in the cadre of Reader and he would have also been promoted as a Professor along with the 3rd respondent. Hence, he seeks a direction to the respondent-University to consider his case for promotion as Professor under Merit Promotion Scheme. I have dealt with the Merit Promotion Scheme as well as Career Advancement Scheme in depth and issued guidelines to all the concerned. The only question to be seen is whether the petitioner can got promotion after 31-12-1985 as a Reader as well as Professor under Merit Promotion Scheme, even if he is allowed to exercise option at mis stage as the promotions are restricted to l/3rd of the total strength of the lecturers. Instead of dwelling the issue by myself I feel it better to refer the matter to the University by stating the facts that came to the notice of the Court. According to the University the total cadre strength of lecturers in Law faculty is about 15 and Sri Krishnamd Chary submits two lecturers were given promotion as Reader prior to 1-1-1983 under 'Hard Cases' as per the directions given by the Government. But, neither the Government nor the University could place any scheme of that nature before me. But, the fact remains that 2 of the 15 lecturers were promoted as Readers prior to 1-1-1983. The Vice-Chancellor may after application of mind, decide the cadre strength of Lecturers as on 1-1-1983 and to promote 1/3 rd of them as Readers under merit promotion scheme. Likewise, he shall also take regular cadre strength in the category of Readers and decide how many of them can be promoted as Professors under the scheme. As per Krishnamachary the cadre strength of Readers is only 4 but 6 Readers seemed to have been promoted as Professors. It has also now come to light that Sri Krishnama Chary on his appoinlment as Reader on 7-12-1986 was fifted in the scale of Rs.3,700 to 5,700. Had his case been considered under Merit Promotion Scheme he is entitled for the scale of Rs.3,500 to 5,700 1 am sure that all other promotions might have been implemented in this manner. As far as his claim for Professorship is concerned there is only one regular post of Professor and two more persons were already acting as Professors while some others have retired on attaining the age of superannuation. Hence, whatever sympathy I may have for him, it is difficult for this Court to give any direction to promote him as Professor. Accordingly, the claim of the petitioner for Professorship is rejected.
36. The WP No.22031 of 1995 is accordingly closed. No costs.
37. In the light of the view taken by me the question of fixing any cut-off date under Merit Promotion does not arise, if an individual teacher wants to be governed by the Merit Promotion Scheme by exercising his option within the time is stipulated above. Hence, no cause survives for adjudication in the 2nd writ petition.
38. Accordingly, the Writ Petition No.205802 is also closed.
39. With the experience I had for over 30 years with the administration of the affairs of the State, if I leave this matter at this stage, I am afraid that the judgment will not be implemented in its true spirit and tenor. Hence, I would like to monitor the implementation of the Scheme myself and also to see that the unfortunate teachers who could not get their promotions because of lack of pull, to get their promotions at the earliest possible time.
40. Accordingly, a direction is given to the Registry to summarise all the directions given in this judgment and register the same as a taken-up writ petition by showing Secretary, Higher Education, Government of Andhra Pradesh, Secretary, (Finance), Government of Andhra Pradesh, Commissioner, Higher Education and all the Vice-Chancellors in the State of Andhra Pradesh as party respondents to it.
41. Post the writ petition on 2-4-1999 after service of notices to all the above mentioned officers.
42. By that time the Government shall inform this Court what action they have taken with regard to the excess amounts paid to the individual teachers under the illegal promotions given to them. They should also see that all the Vice-Chancellors call for options of the individual teachers and on the basis of the options exercised by the individual teachers, review the promotions effected from 1-1-1986 till this date within the time stipulated in the judgment and take action as per the directions of the Government with regard to the recovery of the excess amounts paid to the teachers concerned. The Vice-Chancel lors shall also report to this Court the action taken by them on receipt of a copy of the judgment. The Commissioner, Higher Education shall also review the promotions given to the teachers working in the Government Colleges, as well as Aided Colleges as per this judgment and report to this Court within the time prescribed above.