Madhya Pradesh High Court
Dr. Akhilesh Kumar vs Jawaharlal Nehru Vishwavidyalaya on 29 August, 2024
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
W.P. No.18920 of 2022
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 29th OF AUGUST, 2024
WRIT PETITION No.18920 of 2022
DR. AKHILESH KUMAR AND OTHERS
Vs.
JAWAHARLAL NEHRU VISHWAVIDYALAYA AND OTHERS
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Appearance
Shri R.N. Singh - Senior Advocate assisted by Shri Arpan J. Pawar -
Advocate and Shri Rishabh Singh - Advocate for the petitioners.
Shri Somesh Awasthi - Advocate for respondent No.1.
Shri S.K. Mishra - Advocate for respondent No.2.
Shri Dayaram Viswakarma - Panel Lawyer for respondent No.3.
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Reserved on : 07.08.2024
Pronounced on : 29.08.2024
ORDER
By this petition filed under Article 226 of the Constitution of India, the petitioners are claiming the following relief(s):-
'i. The Hon'ble Court may be pleased to direct the respondent No.1 to extend the benefit of 15 th Career Advancement Scheme (CAS) to the petitioners from the date of their eligibility together with arrears, consequential benefits and interest on delayed payment.
ii. The Hon'ble High Court may be pleased to direct the respondent No.1 to complete the exercise of grant of 15 th CAS 2 W.P. No.18920 of 2022 to the petitioners, before issuing the advertisement of 16 th CAS.
iii. The Hon'ble High Court may be pleased to call for the record of selection for 15th CAS from the respondent No.1.
iv. To grant any other relief deemed fit in the facts and circumstances of the case.'
2. In essence, the facts of the case are that respondent No.1 issued an advertisement dated 20.02.2010 for filling up of various posts of Assistant Professor, Subject Matter Specialist (SMS) and Scientist. According to the petitioners, not only the educational qualification and other eligibility criteria, but even the pay-scale of all the aforementioned posts were similar.
2.1 The selection for all three posts was held in the month of February/March, 2011 wherein the petitioners were selected for the post of SMS. According to the petitioners, though selection process for all the aforementioned posts was completed before 25.03.2011 and in fact, appointment orders in respect of Assistant Professor and Scientist were also issued on 25.03.2011, but for the petitioners, who indeed faced the same interview board and got selection for the post of SMS, the appointment orders in their favour got issued on 03.10.2011 because of some administrative glitches attributed to the respondents. However, the petitioners were placed on probation for a period of two years, which was completed by them and thereafter, their services got regularized with effect from the date of their joining. According to the petitioners, the probation period of all the candidates selected for the aforesaid posts came to an end on 27.08.2014.
2.2 According to the petitioners, vide order dated 04.11.2016 3 W.P. No.18920 of 2022 (Annexure-P/3), since the post of SMS was redesignated as Scientist, therefore, their cadre was also recognized as Scientist and hence, they are 'Teacher' within the meaning of Statute 36(5) of respondent No.1 (Annexure-P/14) and their entire salary shall be borne by respondent No.2.
2.3 As per the petitioners, an advertisement was issued on 01.09.2018 (Annexure-P/4) for granting the benefit of CAS to the Teachers, Equivalent Cadre, Administrative Posts in the Universities and also for the State Agriculture Universities (SAUs). The last date for submitting the application through proper channel was 05.10.2018. According to the petitioners, since the said benefit was not being extended to them, therefore, they made a joint representation (Annexure-P/4-A) before the authority. Thereafter, the authority though issued a letter on 10.02.2022 (Annexure-P/5) saying that the petitioners are unnecessarily raising demand for grant of 15th CAS, but no reason was assigned as to why the said benefit could not be extended to them. Thereafter, seeking information under the Right to Information Act, the petitioners preferred an application before the authority, but taking plea of unavailability of record of information sought by the petitioners, again no information was supplied to them.
2.4 As per the petitioners, vide communication dated 24.02.2020 (Annexure-P/7), the VCs of all the SAUs were apprised that the cut-off date for grade-pay Rs.6000/- is 29.03.2011 and as such, to get the benefit of CAS, the candidate should be appointed prior to 29.03.2011, meaning thereby persons appointed after 29.03.2011 shall not be granted the benefit of CAS.
2.5 According to the petitioners, the advertisement for granting the benefit of 15th CAS was issued on 01.09.2018 and the benefit thereupon was extended to certain persons, much prior to the order dated 24.02.2020 4 W.P. No.18920 of 2022 (Annexure-P/7). According to them, the respondents, for the posts of SMS/Scientist that too in the grade-pay of Rs.6000/- had made appointments in the years 2017 and 2019.
2.6 According to the petitioners, not granting the benefit of 15 th CAS to them is nothing but a discrimination on the part of the respondents. According to them, respondent No.3 issued a letter on 23.07.2021 to the Institute and in response to the said letter, the respondent/University issued a letter on 24.01.2022 (Annexure-P/11) to respondent No.1 mentioning therein that recruitment process of all three categories i.e. SMS, Scientist and Assistant Professor was similar and the grade-pay of Rs.6000/- and Rs.5400/- would be paid by respondent No.2 and remaining amount would be paid by respondent No.1.
2.7 According to the petitioners, respondent No.2 vide its letter dated 27.12.2021 gave its No Objection for shifting/transfer of the petitioners from Krishi Vigyan Kendra (KVK) to the vacant post of Scientist. According to the petitioners, when they were working on the redesignated post of Scientist, then they cannot be denied the benefit of 15 th CAS as has been extended to the Assistant Professors who were selected along with them in the month of March, 2011. According to the petitioners, they were being discriminated only on the basis of letter dated 24.02.2020 which was issued subsequent to the advertisement for granting the benefit of 15 th CAS and in fact, it cannot come in their way to get the said benefit. According to the petitioners, merely because appointment in their respect was issued on a subsequent date that too in the month of October, 2011, it is not fault on their part whereas it is the lapses on the part of the respondents. According to the petitioners, the reason assigned for not granting them the benefit of 15th CAS is unjustified and as such, in this petition it is claimed that the respondents may be directed to grant them the said benefit.
5 W.P. No.18920 of 20223. Respondent No.1 has filed reply to the petition stating therein that in respect of payment of salary to the petitioners, the entire burden is upon respondent No.2 and in fact, they have submitted that if respondent No.2 agrees to make payment and benefit to the petitioners, then they would have no objection. Respondent No.1 has further taken a stand that in pursuance of letter dated 24.02.2020 (Anneuxre-P/7), the benefit of 15 th CAS has been denied to the petitioners. It is further stated that if the SMSs were appointed in the grade-pay of Rs.6000/- that too before 29.03.2011, then they may continue to get related promotions and other benefits through 15th CAS. Relying upon a document Annexure-R/1, it is stated by respondent No.1 that since the appointments of the petitioners were made in the grade-pay of Rs.5400/-, therefore, in light of letter dated 24.02.2020, they are not entitled to get the benefit of 15th CAS.
4. Respondent No.2 has also filed reply to the petition mentioning therein that the benefit of 15 th CAS is available only for the Assistant Professors. According to respondent No.2, here in this case, the benefit of 15th CAS is not being extended to the Assistant Professors under the guise of letter dated 24.02.2020. It is further stated that in the relief clause of the petition, since no relief has been claimed against respondent No.2, therefore, it is clear that respondent No.2 has unnecessarily been implicated in the petition. As per respondent No.2, the Indian Council of Agricultural Research (ICAR) is an autonomous organization under the department of Agricultural Research and Education, Ministry of Agriculture and Farmers Welfare, Government of India. According to them, KVKs are established by ICAR under a scheme knowns as Strengthening of KVKs and these KVKs act as a single window providing Agricultural Technology, Diagnostic and Farms Advisory Services to the farmers and other stakeholders. KVKs, according to respondent No.2, are 6 W.P. No.18920 of 2022 established under the administrative control of a Host Organization. However, the sanctioned post of a KVK is shown in the chart made in the reply and financial liability of the ICAR is restricted to the pay-scale provided under the chart for the designated posts and they have also shown the funding structure of the posts working in the organization and also specified the limited liabilities of those organizations.
5. In response to the reply filed by the respondents, the petitioners have filed rejoinder stating therein that respondent No.2 cannot shift the responsibility upon respondent No.1. It is also stated in the rejoinder that despite the fact that the petitioners are being paid salary with grade-pay of Rs.6000/-, this fact has not been admitted by respondent No.1 on paper. In support of their claim, the petitioners have relied upon a document Annexure-P/18 dated 17.01.2012, in which, Rs.15600-39100+Rs.6000/- (AGP) has been shown the pay-scale of SMS. It is next stated by the petitioners that they were appointed on a pay-scale of Rs.8000-275-13500, which was later on, revised as Rs.15600-39100+6000/- (AGP) and to clear the said picture, they have enclosed the appointment order of petitioner No.2 (Annexure-P/15) showing the pay-scale initially granted to him and further relied upon a document dated 04.06.2009 (Annexure-P/16) showing the revised pay of existing incumbent, who was getting a particular pay-scale, in which, the grade-pay of existing basic pay i.e. Rs.8000-275-13500, has been revised as Rs.6000/-. That apart, the petitioners have also filed a document dated 27.08.2011 (Annexure-P/17) wherein it is shown that the SMS working in KVK will be treated under the Teaching Cadre and will also get the pay-scale of Rs.15600- 39100+6000 (AGP).
6. Considering the aforesaid facts and circumstances of the case and on perusal of record, I am of the opinion that there is no dispute with regard 7 W.P. No.18920 of 2022 to entitlement of the petitioners to get the benefit of 15 th CAS. The stand taken by the respondents that since the appointment of the petitioners were made after 29.03.2011, therefore, in pursuance of letter dated 24.02.2020 (Annexure-P/7), they are not entitled to get the benefit of 15 th CAS, is absolutely unjustified and unreasonable for the reason that selection on the posts of Assistant Professor, Scientist and SMS were made in pursuance of advertisement dated 20.02.2010 and admittedly, the process was completed on 25.03.2011, but the appointment letter was issued on different dates and as such, the same cannot be made basis and criteria for depriving the petitioners to get the benefit which is otherwise available to the persons appointed on 25.03.20211 in pursuance of the advertisement dated 20.02.2010. Simultaneously, the stand taken by the respondents that the grade-pay of Rs.6000/- was not available to the petitioners and as such, the benefit of 15th CAS is not available to them, is incorrect for the reason that from the documents available on record, it is clear that after revision of their pay, the petitioners were granted the grade-pay of Rs.6000/-.
7. Similarly, it is also not proper on the part of respondent Nos.1 and 2 to shift the liability of making payment of salary to the petitioners on each other and even this Court is also not concerned about the said fact because the issue with regard to entitlement of the petitioners for getting the benefit of 15th CAS has to be determined by the Court and undoubtedly, this Court has no hesitation to say that there is nothing against the petitioners which can justify the action of the respondents. It is also clear that it was the respondents, who issued the appointment orders in favour of the petitioners on 03.10.2011 whereas the selection process was already over on 25.03.2011 and in fact, for other posts, the appointment letters were issued on 25.03.2011 and as such, under the existing scenario, the respondents cannot take advantage of their own wrong. Dealing with 8 W.P. No.18920 of 2022 similar issue as involved in the present case, the coordinate Bench of this Court in Writ Petition No.6722 of 2017 [Lochan Singh Sanodiya Vs. State of M.P. and others] relying upon the judgment of the Supreme Court reported in (2007) 11 SCC 447 [Kusheswar Prasad Singh Vs. State of Bihar] has observed in the following manner:-
'6. x x x "commodum ex injuria sua nemo habere debet" (no party can take undue advantage of his own wrong).
The Apex Court in (2007) 11 SCC 447 (Kusheshwar Prasad Singh Vs. State of Bihar) considered the said legal maxim and opined as under :-
"It is a maxim of law, recognized and established, that no man shall take advantage of his own wrong; and this maxim, which is based on elementary principles, is fully recognized in courts of law and of equity, and, indeed, admits of illustration from every branch of legal procedure."
It is settled principle of law that a man cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law. It is sound principle that he who prevents a thing from being done shall not avail himself of the non- performance he has occasioned. To put it differently, " a wrongdoer ought not to be permitted to make a profit out of his own wrong."
It the opinion of this Court, the said legal principle will apply in this matter also with full force and Gwalior Development Authority cannot be permitted to take advantage of their inaction or belated action in reinstating the petitioner....' In view of the aforesaid enunciation of law, I am of the opinion that the respondents failed to produce any material before this Court to justify their action depriving the petitioners to get the benefit of 15 th CAS whereas from the record itself, it is clear that the petitioners fall within the definition of 'Teacher' and this fact was also not disputed by the respondents. However, after making comparison among both the posts i.e. Assistant Professor and Scientist, when in a document dated 24.01.2022 (Annexure-P/11) this fact came out that the educational qualifications of 9 W.P. No.18920 of 2022 both the aforesaid posts are equal, their recruitment authority is same and in fact, after revision of pay, their pay-scale is also similar i.e. Rs.15600- 39100+6000 (AGP), then discrimination between them for not granting the benefit of 15th CAS in any manner, cannot be said to be proper on the part of the respondents.
8. The petitioners have also filed a document i.e. Statutes of respondent No.1 (Annexure-P/14), in which, the liability of making payment of salary of Teachers working in the Vishwa Vidyalaya is borne by respondent No.2. From perusal of aforesaid document, I am of the opinion that the petitioners who fall within the definition of 'Teacher' are not only entitled to get all the benefits which are available to the Teachers, but also the benefit of 15th CAS. Resultantly, this petition is allowed, directing the respondents to grant the benefit of 15 th CAS to the petitioners from the date of their entitlement. In addition to that, the respondents are further directed to calculate arrears of salary and make payment of the same to the petitioners within a period of three months from the date of order, failing which, the delayed payment shall carry interest @8% till its actual payment made to the petitioners. It is made clear that merely because relief has not been claimed against respondent No.2, it does not mean that if liability of making payment of salary lies upon respondent No.2, then the said respondent cannot refuse to bear the same.
9. As a result of aforesaid discussion, the petition stands allowed. No costs.
(SANJAY DWIVEDI) JUDGE dm Digitally signed by DEVASHISH MISHRA DEVAS DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, 2.5.4.20=db02acf8752ec7d40d HISH 9c7b2706998aa1774d10503fed d8b615ae6aa42b0742c1, postalCode=482001, st=Madhya Pradesh, MISHRA serialNumber=BEDBFB3F19D3 D59DD8321BCADFBB1022C2B A335355DDF542C665C4209BF 8F691, cn=DEVASHISH MISHRA Date: 2024.08.30 10:58:01 +05'30'