Kerala High Court
Dr.Serji vs Deputy Director Of Collegiate ... on 20 February, 2007
Author: T.R. Ramachandran Nair
Bench: T.R.Ramachandran Nair
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR
WEDNESDAY, THE 14TH DAY OF MARCH 2012/24TH PHALGUNA 1933
WP(C).No. 36882 of 2007 (N)
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PETITIONER(S):
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DR.SERJI, LECTURER (SELECTION GRADE),
DEPARTMENT OF CHEMISTRY, S.N.COLLEGE, KOLLAM.
BY ADV. SRI.S.MUHAMMED HANEEFF
RESPONDENT(S):
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1. DEPUTY DIRECTOR OF COLLEGIATE EDUCATION,
KOLLAM.
2. DIRECTOR OF COLLEGIATE EDUCATION,
THIRUVANANTHAPURAM.
3. STATE OF KERALA, REP. BY ITS SECRETARY
TO THE GOVERNMENT, HIGHER EDUCATION DEPARTMENT
SECRETARIAT, THIRUVANANTHAPURAM.
BY GOVERNMENT PLEADER SMT. LOWSY A
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
14-03-2012 ALONG WITH WPC. 20397/2008 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
DCS
WP(C).No. 36882 of 2007 (N)
APPENDIX
PETITIONER(S) EXHIBITS :-
EXT.P1 COPY OF THE ORDER NO. AC.FIII/2/32849/2006 DATED 20.02.2007
ISSUED BY THE UNIVERSITY OF KERALA
EXT.P2 COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER
BEFORE THE IST RESPONDENT 28.06.2007
EXT.P3 COPY OF THE COMMUNICATION NO. F1/UGC/6952/07 DATED 10-10-
2007
EXT.P3[a] COPY OF THE GO[P] NO.44/2001 H. EDN. DT. 29.03.2011
EXT.P4 COPY OF THE JUDGMENT IN WA NO. 1044/2005 DT.31.07.2006 OF THE
DIVISION BENCH OF THIS HON'BLE COURT
EXT.P3 COPY OF THE GO[MS] NO. 148/2006/H.EDN DT. 13.11.2006
RESPONDENTS' EXHIBITS :- NIL
/TRUE COPY/
P.A. TO JUDGE
DCS
T.R. Ramachandran Nair, J.
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W.P.(C) Nos. 36882/2007, 20397/2008, 28793/2009,
29333/2009, 30629/2009 & 12704/2010
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Dated this the 14th day of March, 2012
JUDGMENT
All these writ petitions concern a common issue. The petitioners in certain writ petitions are aggrieved by the proceedings whereby the advance increments consequent on acquisition of Ph.D. have been sanctioned in the lower scale. In the other writ petitions, the claims are yet to be granted.
2. In W.P.(C) No.36882/2007 the petitioner was appointed as Lecturer in Chemistry by the Management on 3.6.1996. He was placed as Lecturer Senior Scale and thereafter was placed as Lecturer Selection Grade with effect from 3.6.2005. He acquired Ph.D. prior to his entry in service. Claiming the benefit under G.O.(P) No.179/99/H.Edn. dated 21.12.1999 he filed Ext.P2 representation seeking two advance increments consequent on acquisition of Ph.D. prior to 1.1.1996. He is seeking for a direction to the first respondent for sanctioning the benefit.
3. In W.P.(C) No.20397/2008, the petitioner was appointed as a Lecturer in Commerce by the Management on 6.10.1993. He was placed as Lecturer Senior Scale on 24.10.1998 and thereafter he was placed as WPC.Nos.36882/2007, etc. 2 Lecturer Selection Grade with effect from 24.10.2003. He is also claiming the benefit of two advance increments consequent on acquisition of Ph.D. prior to 1.1.1996, and accordingly a direction is sought in the light of G.O. (P) No.179/99/H.Edn. dated 21.12.1999.
3. In W.P.(C) No.28793/2009, the petitioner is working as Lecturer in Commerce in S.D. College, Alappuzha. He was placed as Lecturer Senior Scale with effect from 18.11.1993 and thereafter as Lecturer Selection Grade with effect from 27.7.1998 which was approved by the University as per Ext.P1. He acquired Ph.D. on 22.5.1996. Similar reliefs are sought for in this writ petition also. Challenge is also against Ext.P5 order, in which it is held that the benefit is allowable only in the lower scale.
4. In W.P.(C) No.29333/2009, the petitioner was appointed as Lecturer in Politics by the Management of the College, in 1987. He was placed as Lecturer Senior Scale on 11.2.1995 and thereafter as Lecturer Selection Grade with effect from 27.7.1998. Ext.P1 is the order of approval granted by the University. He had acquired Ph.D. during 1996. The petitioner herein is also seeking similar reliefs. Challenge is also against Ext.P7 order, in which it is held that the benefit is allowable only in the lower scale of pay.
5. In W.P.(C) No.30629/2009 the four petitioners are respectively WPC.Nos.36882/2007, etc. 3 working in the cadre of Reader as well as Lecturer Selection Grade. They were appointed by the Management on 19.11.1994, 18.11.1994, 19.11.1994 and 3.6.1996 respectively. They were placed as Lecturer Senior Scale which was approved by the University and thereafter they were placed as Lecturer Selection Grade with effect from 19.11.2003, 18.11.2003, 19.11.2003 and 3.6.1993 respectively. They have acquired Ph.D. on 30.12.1993, 31.10.1993, 24.4.1993 and 15.2.1992 respectively. They are claiming the benefit of two advance increments with effect from the date on which they moved to Selection Grade. Challenge is also against Ext.P4 order, holding the view that the benefit is allowable in the lower scale.
6. In W.P.(C) No.12704/2010, the petitioner was appointed as Lecturer in Zoology by the Management of S.N. Colleges, on 30.7.1987. She acquired Ph.D. on 19.9.1996. The petitioner was placed as Lecturer Senior Scale with effect from 22.9.1997 and thereafter as Lecturer Selection Grade with effect from 22.9.1998. As directed by the University, the Management issued revised order placing the petitioner in the Selection Grade with effect from 30.7.2001. The same was approved by the University as per Ext.P3. Similar reliefs are sought for therein.
7. W.P.(C) No.28793/2009 was argued as the main case. The pleadings of the petitioner in W.P.(C) No.28793/2009 will show that by WPC.Nos.36882/2007, etc. 4 Ext.P2 proceedings the first respondent sanctioned two advance increments to the petitioner in the Senior Scale. This was challenged by the petitioner by filing W.P.(C) No.20507/2006. According to the petitioner, two advance increments are to be sanctioned on the date on which he was placed in the Selection Grade. The respondents relied upon Ext.P3 order passed by the Government. Ext.P4 is the judgment in W.P.(C) No.20507/2006 and connected writ petitions, whereby this Court directed the Government to reconsider the matter in the light of the findings in the judgment. Thereafter, the Government passed Ext.P5 order, relying upon Ext.P3 clarification which are under challenge in this writ petition.
8. In Ext.P5, the view taken is that advance increments cannot be granted in the Selection Grade as it will result in junior drawing higher pay as their seniors got this benefit in the lower post. Since the said question will have to be considered in the light of the U.G.C. Scheme as well as the Government Order implementing the U.G.C. Scheme, a reference to the Scheme itself is relevant.
9. The Government has adopted the U.G.C. Scheme for implementation as per G.O.(P) No.171/99/H.Edn. dated 21.12.1999. The petitioners are relying upon the relevant clauses providing for granting incentive on acquisition of Ph.D./M.Phil. The same are extracted in para 2 WPC.Nos.36882/2007, etc. 5 of the writ petition, which are reproduced below:
"6.16. Four and two advance increments will be admissible to those who hold Ph.D. and M.Phil degrees respectively at the time of recruitment as Lecturers. Candidates with D.Litt/D.Sc. should be given benefit on par with Ph.D. and M. Litt on par with M.Phil.
6.17. One increment will be admissible to those teachers with M.Phil who acquire Ph.D. within two years of recruitment. 6.18. A lecturer with Ph.D will be eligible for two advance increments when she/he moves into selection grade/Reader. 6.19. A teacher will be eligible for two advance increments as and when she/he acquires a Ph.D degree in her/his service career."
As per para 6.18, a lecturer with Ph.D will be eligible for two advance increments when she/he moves into Selection Grade/Reader. A reading of the said Government Order will show that the U.G.C. Scheme 1998 was implemented by the Government by the said order. Earlier, 1986 Scheme was in force. The U.G.C. Scheme as such permits for grant of incentives. Sub paragraph (ii) of para 1 of the Scheme, 1998 reads as follows:
"(ii) Incentives for Ph.D/M.Phil
(a) Four and two advance increments will be admissible to those who hold Ph.D and M.Phil degrees, respectively, at the time of recruitment as Lecturers.
WPC.Nos.36882/2007, etc. 6
(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 he moves into Selection Grade as Reader.
(d) A teacher will be eligible for two advance increments as and when he acquires a Ph.D degree in his service career."
10. Therefore, the Scheme as above will show that different considerations will arise as far as Ph.D. and M.Phil holders are concerned, depending upon the date of acquisition. Going by sub clause (a), four and two advance increments will be admissible to those who hold Ph.D and M.Phil degrees, respectively, at the time of recruitment as Lecturers and going by sub clause (b), one increment will be admissible to those teachers who acquire Ph.D or M.Phil within two years of recruitment. As per sub clause (c), a lecturer with Ph.D will be eligible for two advance increments when he moves into Selection Grade as Reader and sub clause (d) will show that a teacher will be eligible for two advance increments as and when he acquires a Ph.D degree in his service career.
11. The said scheme was adopted by the Government, as already noticed, and the relevant clauses are contained in paragraphs 6.16 to 6.19.
12. The petitioners' contention is that the scheme as above, gives incentive for such Ph.D/M.Phil holders and therefore they will have to get WPC.Nos.36882/2007, etc. 7 the monetary benefit out of the incentive granted and when the same is granted in the lower scale, they are being denied the consequential monetary benefit. The question thus raised herein, therefore will have to be understood in the light of the relevant clauses contained in the Government Order produced as Ext.P3 in W.P.(C) No.28793/2009 as it is contended that it goes against the scheme itself. After referring to the letters of the Accountant General, certain clarifications have been made and in para 2(5), it is mentioned as follows:
"The advance increment will be sanctioned in the lower scale for fixing the pay in the higher scale."
13. The question is whether the same runs counter to the U.G.C. scheme as well as the provisions of G.O.(P) No.171/99/H.Edn. dated 21.12.1999. We are only concerned with the above part of the clarification issued in Ext.P3. In fact, the said question itself was considered by this Court in Ext.P4 judgment, wherein in para 5 this Court held as follows:
"This situation has arisen consequent on the implementation of clause (5) of Ext.R2(a). In my view, Ext.R2(a) runs counter to clause 6.18 of G.O.(P) No.177/99/H. Edn. dated 29.12.99, which provides for incentives to Lecturers who acquired Ph.d/M.Phil. If incentive is to be given to Lecturers, necessarily it should result in monetary advantage to the beneficiaries. The effect of Ext.R2(a) is WPC.Nos.36882/2007, etc. 8 that what is provided by the Government Order referred to above is actually taken away from the Lecturers. In my view, necessarily, the situation calls for a re-examination."
The finding therein will show that this Court was of the view that when an incentive is given to lecturers, it should result in monetary advantage to the beneficiaries and the effect of the Government Order referred to as Ext.P3 herein (Ext.R2(a) therein) is that what is provided by the Government Order dated 21.12.1999 is taken away from the lecturers and accordingly a re- examination was directed.
14. Evidently, the Government in Ext.P5, was of the view that if the benefit is granted in the selection grade, it will result in junior drawing higher pay as their seniors got this benefit in the lower post.
15. In the counter affidavit filed by the second respondent, the eligibility of the petitioner for the benefit is not disputed. But reliance is placed on Ext.P3 Government Order. Reference is also made to G.O.(P) No.1510/2009/H.Edn. dated 19.9.2009. The contention mainly is that the Government has the power to issue the clarification, and hence it can be granted only in the lower scale.
16. Evidently, the point has been considered by this Court on the first occasion while rendering Ext.P4 judgment as already noticed. This Court WPC.Nos.36882/2007, etc. 9 was of the view that when an incentive is granted, that will result in monetary advantage to the beneficiaries. I respectfully agree with the same.
17. What is provided under the Scheme is an incentive for Ph.D/M.Phil holders. When an incentive is granted, it will definitely result in monetary advantage. In fact, the incentive is meant for persons having academic excellence and it is not depended upon the question whether a person is senior or junior in service. Therefore, the reasons stated by the Government in Ext.P5 that if it is granted in the selection grade, that will result in junior drawing higher pay as their seniors got the benefit in the lower post, cannot be accepted. If there was any grievance for the seniors they could have challenged the same and therefore it is not depended upon the way in which it was sanctioned to any other person. What is of importance to notice is that the whole concept under the scheme is to grant incentives and the Government Order dated 21.12.1999 has accepted the scheme framed by the UGC for granting incentive to Ph.D/M.Phil holders. When such a class of persons are sought to be granted the benefit, it will have to be implemented in true letter and spirit. Nowhere it is mentioned under the UGC scheme or in Government Order dated 21.12.1999 that the same can be granted only in a lower scale.
18. If the object sought to be achieved is to grant incentive, it should WPC.Nos.36882/2007, etc. 10 reflect in the grant of benefit also, otherwise the same will be clearly illusory. It is in that view of the matter, this Court in Ext.P4 judgment took the view that the effect of Ext.P3 order is to take away the benefit that is already granted as per the Government Order dated 21.12.1999. We are not on the question whether the Government has power to issue a clarification. Of course, the power is there. But the power will have to be exercised reasonably and in terms of the object of the entire scheme itself. When the scheme itself provides for two incentives without any reference to the grant of the same in the lower scale, the parties herein are entitled for the benefit when they move into selection grade itself. Otherwise, para 6.18 of the scheme will have to be re-read which is not permissible also. An interpretation which promotes the object of the scheme alone can be taken.
19. The stand taken in the counter affidavit is that the same may cause financial burden to the State exchequer. In para 2 of the counter affidavit filed by the third respondent in W.P.(C) No.20397/2009 it is stated that if the advance increment for acquisition of Ph.D is granted in the higher time scale, the same may cause anomalous situation in getting higher pay to a junior than the senior whose pay has been fixed taking into account the Ph.D obtained much earlier. As already noted, paragraphs 6.16 to 6.19 of the Scheme provides for grant of benefit at different stages in WPC.Nos.36882/2007, etc. 11 respect of different persons. Therefore, the circumstances regarding acquisition of Ph.D/M.Phil in respect of each lecturer, is important. In that sense, the scheme is not a uniform one which applies to everybody at the same point of time, as it is depended upon the dates of acquisition of qualification.
20. Therefore, I am of the view that by granting advance increments in the lower scale, actually the benefit itself is denied to the parties concerned. This Court in Ext.P4 judgment produced in W.P.(C) No.28793/2009 has clearly indicated so which was binding on the respondents, as no appeal has been filed from the said judgment. Therefore, the finding in para 5 of the said judgment has become final. What was directed by this Court is only a re-examination of the matter in the light of the findings therein, but the Government has reiterated the stand in the impugned order viz. G.O.(Rt) No.1510/2009/H.Edn. dated 19.9.2009, which is produced in W.P.(C) No.28793/2009, as Ext.P5, in W.P.(C) No.29333/2009 as Ext.P7 and in W.P.(C) No.30629/2009 as Ext.P4.
21. In that view of the mater, the writ petitions are allowed. Para 2(5) in Ext.P3 produced in W.P.(C) No.28793/2009 as regards the clause therein to the extent to which it provides for sanctioning of advance increment in the lower scale for fixing the pay in the higher scale, cannot be sustained WPC.Nos.36882/2007, etc. 12 and the said clause is declared as invalid. The impugned orders produced in W.P.(C) Nos.28793/2009, 29333/2009 and 30629/2009 are quashed. There will be a direction to the respondents to re-examine the eligibility of the petitioners in each writ petition for grant of advance increments in the light of the declaration of law made above and appropriate orders will be passed within a period of three months from the date of receipt of a copy of this judgment. No costs.
(T.R. Ramachandran Nair, Judge.) kav/