Punjab-Haryana High Court
Raj Kumar Goel vs State Of Punjab & Ors on 17 November, 2014
Author: Mahesh Grover
Bench: Mahesh Grover
CWP no.4793 of 2013 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP no.4793 of 2013 (O&M)
Date of Decision : 17.11.2014
Dr. Raj Kumar Goel
....Petitioners
Versus
State of Punjab and others
...Respondents
CORAM : HON'BLE MR.JUSTICE MAHESH GROVER
1)Whether reporters of local newspapers may be allowed to see
the judgment?Yes
2) To be referred to the Reporters or not? Yes
3) Whether the judgment should be reported in the Digest?Yes
Present : Mr. Harinder Sharma, Advocate for the petitioner
Mr. Harkesh Manuja, Addl. AG, Punjab
Mr. Ashok Kumar, Advocate for respondent no.2.
MAHESH GROVER, J.
The petitioner has filed the instant petition making a grievance of the notification which limits the benefit of grant of additional increments for having acquired a Ph.D/M.Phil to only those incumbents who have acquired this qualification subsequent to the year 2006 while declining a similar benefit to the incumbents who had acquired it prior to 2006.
The facts of the case would indicate that petitioner is a holder of Ph.D degree in the subject of commerce. He has been working in a college since 1997 and this qualification has been acquired by him while in service but prior to 2006. The relevance of the year 2006 has to be understood. The sixth pay commission was introduced w.e.f 1.1.2006 and the notification issued by the UGC on 2.9.2009 contemplated the grant of REKHA 2014.12.20 10:53 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP no.4793 of 2013 (O&M) 2 additional increments as incentives for Ph.D/M.Phil incumbents. Annexure II to the notification of 2009 would be necessary to be extracted herebelow:-
"7. Incentives for Ph.D/M.Phil and other higher qualifications:-
(i)Five non-compounded advance increments shall be admissible at the entry leave of recruitment as Assistant Professor to persons possessing the degree of Ph.D awarded in the relevant discipline by a university following the process of registration, coursework and external evaluation as prescribed by the UGC.
(ii)M.Phil degree holders at the time of recruitment to the post of Assistant Professor shall be entitled to two non-
compounded advance increments.
(iii)Those possessing Post Graduate degree in a professional course such as LL.M/M.Tech etc. recognized by the relevant Statutory Body/council, shall also be entitled to 2 non- compounded advance increments at the entry level.
(iv)Teachers who complete their Ph.D degree while in service shall be entitled to three non-compounded increments if such Ph.D is in the relevant discipline and has been awarded by a university complying with the process prescribed by the UGC for enrolment, course work and evaluation etc.
(v)However, teachers in service who have been awarded Ph.D at the time of coming into force of this Scheme or having been enrolled for Ph.D 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 REKHA 2014.12.20 10:53 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP no.4793 of 2013 (O&M) 3 award three non-compounded increment 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.
(vi)In respect of every other case, a teacher who is 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.
(vii)Teachers 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 university which complies with the entire process, including that of enrolment as prescribed by the UGC.
(viii)Teachers who acquire M.Phil degree or a post graduate degree in a professional course recognized by the relevant Statutory Body/Council, while in service, shall be entitled to one advance increment, if post graduate qualification in a particular subjects not a mandatory requirement at the entry level of recruitment, acquisition of such a qualification for in service candidates shall also entitle them to one advance increment.
(ix) to (xx) xxxxxx REKHA 2014.12.20 10:53 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP no.4793 of 2013 (O&M) 4 Clause (xxi) and (xxiii) would also be necessary to be extracted herebelow:-
(xxi)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 scheme shall not be entitled to the benefit of advance increments under this Scheme.
(xxiii) Teachers, Library and Physical Education cadres who have already availed the benefits of increments as per existing policy for acquiring Ph.D/M.Phil while in service, would not be entitled to benefits under the Scheme."
Clause (xxi) is offensive to the petitioner. Learned counsel for the petitioner contends that this has created an artificial distinction between the persons who had acquired doctorate qualification prior to 2006 and subsequent thereto. It also introduces an element of acute discrimination as persons who might be juniors to the petitioner but having acquired doctorate qualification after 2006 may steal a march over the petitioner even though he is senior and equally qualified for the reason that post 2006 Ph.D/M.Phil incumbents would get more increments i.e. three whereas the petitioner would be getting two as per the old policy.
The respondents in turn justify the notification to contend that there is absolutely no discrimination since a benefit has been granted after 2006 in terms of the sixth pay commission and has been uniformly applied to all.
Learned counsel for the petitioner places reliance on the decision of High Court of Bombay in case titled as 'Sudamrao Keshawrao REKHA 2014.12.20 10:53 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP no.4793 of 2013 (O&M) 5 Aher and others vs. The State of Maharashtra and others' decided on 21.11.2013 where in an absolutely similar circumstances and while dealing with the same notification, the Court has held the same to be discriminatory and hit by Article 14 of the Constitution of India. For the purposes of reference the relevant portion i.e paras 15 and 16 of the judgment referred above, extracted herebelow:-
15.In present matter, according to us, the incentives while implementing 6th Pay Commission for Ph.D cannot be so given so as to give a junior teacher more pay than the senior who is otherwise equally qualified. Rather he has more experience and is senior even in the acquisition of the Ph.D Degree. All things given to be the same at a given point of time, junior teacher could not be getting more salary than the senior only because the junior has just acquired the Ph.D degree. The Constitution has goal under Article 39(d) that there should be equal pay for equal work. If the arguments as raised on behalf of the respondents are accepted, the same would amount to discriminating to teachers only on the basis of junior teacher having acquired Ph.D Degree recently under new Pay Commission. This would be violative of the principles as enunciated in Article 16 of the Constitution and such position cannot be allowed to be maintained. It is different when one person is having higher qualifications.
However, it would be discriminatory when both are having similar qualifications and a person not only senior in service but also equally qualified is so discriminated so as to be put REKHA 2014.12.20 10:53 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP no.4793 of 2013 (O&M) 6 in disadvantageous position as if it was a fault to have acquired Ph.D Degree earlier. It is not a case of keeping the incentive separate and not part of pay. If pay fixation of petitioner No.1 (as at page 60-61 in paper book) is seen, on 1st July, 2008, his basic pay is shown as Rs.57260/- while that of Shri S.S.Nighut (See page 107) was Rs.55870/-. Then in the proforma of Pay Fixation entry on 22nd September 2008 for Shri S.S.Nighut showns his basic pay as "55870+5030= 60900". Thus the increments were merged in the basic. This would be discriminative between Senior Teacher and Junior Teacher. Note 5 below Appendix I of the G.R. Needs to be so applied that such discrimination is removed.
16.For the above reasons both the petitions need to be allowed with directions that respondents shall take necessary action to step up the pay of the petitioners in both the petitions so as to be at par with juniors where all the things given are same and shall not discriminate only because the junior teacher has acquired Ph.D Degree in the course of 6th Pay Commission. The salaries of the petitioners in both the petitions may be refixed and arrears be paid within a period of three months. For petitioners who have already retired, the pension shall be refixed accordingly."
On due consideration, I find that the plea of the petitioner is sustainable considering the fact that the respondents have created an artificial distinction and discrimination between two sets of the employees REKHA 2014.12.20 10:53 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP no.4793 of 2013 (O&M) 7 and the operation of which would also result in acute prejudice to incumbents who are seniors but getting less pay than their juniors. Such a situation is absolutely hit by Article 14 of the Constitution of India as observed by High Court of Bombay in the aforesaid case. Thus, instant petition is accepted. Offensive portion of the notification is held to be violative of the Article 14 of the Constitution of India. Petitioner is held entitled to grant of 3 increments in terms of the notification as has been given to incumbents who acquired Ph.d/M Phil qualification after 2006. Since petitioner has already been given two increments as per old policy he would be entitled to one additional increment to bring him at par with the persons who have attained the qualification post 2006. Let needful be done within a period of six weeks from the date of receipt of certified copy of this order.
November 17, 2014 (MAHESH GROVER)
rekha JUDGE
REKHA
2014.12.20 10:53
I attest to the accuracy and
authenticity of this document
High Court Chandigarh