Dr. Anil Kuruvila and Dr. P. Anitha v Union of India, University Grants Commission, State of Kerala, and Kerala Agricultural University (WP(C).No. 23169 of 2014 (U) with connected WPs 26236/2014 and 3855/2016)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 17TH DAY OF NOVEMBER 2016/26TH KARTHIKA, 1938 WP(C).No. 23169 of 2014 (U) ----------------------------** ## **PETITIONER(S)/PETITIONERS: -------------------------** ## **1. DR.ANIL KURUVILA** **ASSOCIATE PROFESSOR, DEPARTMENT OF AGRICULTURE ECONOMICS, COLLEGE OF AGRICULTURE, PADANNAKKAD, KASARAGOD - 671 314.** **2. DR. P. ANITHA,** **ASSOCIATE PROFESSOR, DEPARTMENT OF HORTICULTURE, COLLEGE OF AGRICULTURE, PADANNAKKAD, KASARAGOD - 671 314.** **BY ADVS.SRI.ELVIN PETER P.J. SRI.T.G.SUNIL (PRANAVAM) SRI.K.R.GANESH** ## **RESPONDENT(S)/RESPONDENTS:** **--------------------------** **1. UNION OF INDIA,** **REPRESENTED BY ITS SECRETARY, MINISTRY OF HUMAN RESOURCES DEVELOPMENT, DEPARTMENT OF HIGHER EDUCATION, NEW DELHI - 110 001.** **2. THE UNIVERSITY GRANTS COMMISSION, REPRESENTED BY ITS SECRETARY, NEW DELHI - 110 002.** **3. STATE OF KERALA** **REPRESENTED BY ITS SECRETARY, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **4. KERALA AGRICULTURAL UNIVERSITY REPRESENTED BY ITS REGISTRAR, VELLANIKKARA, THRISSUR - 680 656.** **R1 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R2 BY ADV. SRI.S.KRISHNAMOORTHY, CGC R4 BY ADV. SRI.BABU JOSEPH KURUVATHAZHA, SC, KERALA AGRICULTURAL UNIVERSITY R3 BY GOVERNMENT PLEADER SRI.BIJOY CHANDRAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-11-2016, ALONG WITH WPC. 26236/2014 & WPC 3855/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 23169 of 2014 (U)** ## **----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -----------------------** **EXHIBIT P1 : TRUE COPY OF NOTIFICATION DATED 26.07.2008 ISSUED BY THE 4TH RESPONDENT** **EXHIBIT P2 : TRUE COPY OF ORDER DATED 22.09.2009 ISSUED BY THE 4TH RESPONDENT** **EXHIBIT P3 : TRUE COPY OF ORDER DATED 22.09.2009 ISSUED BY THE 4TH RESPONDENT** **EXHIBIT P4 : TRUE COPY OF THE RELEVANT EXTRACT OF NOTIFICATION DATED 30.06.2010 ISSUED BY THE 2ND RESPONDENT** **EXHIBIT P5 : TRUE COPY OF THE RELEVANT EXTRACT OF G.O(P) NO.58/2010/H EDN. DATED 27.03.2010 ISSUED BY THE 3RD RESPONDENT** **EXHIBIT P6 : TRUE COPY OF THE PAY SLIP OF THE 1ST PETITIONER ISSUED BY THE SENIOR DEPUTY COMPTROLLER OF KERALA AGRICULTURAL UNIVERSITY** **EXHIBIT P7 : TRUE COPY OF PAY SLIP OF THE 2ND PETITIONER ISSUED BY THE SENIOR DEPUTY COMPTROLLER OF KERALA AGRICULTURAL UNIVERSITY** **EXHIBIT P8 : TRUE COPY OF THE LETTER DATED 26.08.2010 DOWNLOADED BY THE PETITIONERS FROM THE WEB SITE OF THE 1ST RESPONDENT** **EXHIBIT P9 : TRUE COPY OF THE LETTER DATED 13.03.2014 ISSUED BY THE 4TH RESPONDENT** **EXHIBIT P10 : TRUE COPY OF REVISED PAY SLIP OF THE 1ST PETITIONER ISSUED BY THE ASSISTANT COMPTROLLER OF KERALA AGRCULTURAL UNIVERSITY** **EXHIBIT P11 : TRUE COPY OF REVISED PAY SLIP OF THE 2ND PETITIONER ISSUED BY THE ASSISTANT COMPTROLLER OF KERALA AGRICULTURAL UNIVERSITY** **EXHIBIT P12 : TRUE COPY OF THE JUDGMENT DATED 23.06.2014 IN WP(C) NO.18255/2010 OF THE ANDHRA PRADESH HIGH COURT** **EXHIBIT P13 : TRUE COPY OF THE ORDER DATED 10.10.2014 IN WP(C) NO.26236/2014 OF THIS HONOURABLE COURT.** **RESPONDENT(S)' EXHIBITS : NIL** **-----------------------** **/TRUE COPY/** **P. A. TO JUDGE** **Pn** ## **ANU SIVARAMAN, J. ----------------------------------------------W.P(C).No. 23169 & 26236 of 2014 & W.P(C).No. 3855 of 2016** ## **----------------------------------------------Dated this the 17[th] November, 2016** ## **JUDGMENT** These writ petitions are filed by the Associate Professors of the Agricultural University. The documents and parties are being referred to as arrayed in W.P(C).No.3855 of 2016. 2. The contentions raised in these writ petitions are primarily with regard to the applicability of the UGC Regulations on Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2010. It is admitted that the said Regulations have been issued under Section 26 of the University Grants Commission Act, 1956 and are binding in nature. It is contended that the writ petitioners were persons appointed as Associate Professors in the Kerala Agricultural University during the period from 1.1.2006 to 30.6.2010. The UGC Regulations provided that Associate Professors regularly appointed shall be placed in the pay band of Rs.37400-67000 with annual grade pay of Rs.9000/-. The said Regulations were to take effect from 1.1.2006. It is contended by _**WP(C).23169/14 & connected cases**_ 2 the petitioners that persons appointed as Associate Professors after 1.1.2006 were entitled to be placed in the above pay band. They were actually placed in the said pay band by the University and were paid their emoluments accordingly. Later, it is contended that by Exhibit P9 communication dated 26.8.2010, the Government of India had issued what was termed as 'clarification' stating that entry pay of Readers appointed on or after 1.1.2006 till the issuance of the UGC Regulations, 2010, i.e., 30.6.2010 shall be fixed at Rs.23,890/- with an academic grade pay of Rs.8,000/-. It was stated that this would apply to the Lecturers (Selection Grade) promoted during the above period and that such Readers/Lecturers (Selection Grade) after three years will move to minimum of pay band-IV with academic grade pay of Rs.9,000/-. Purportedly, on the basis of Exhibit P9 communication, the Agricultural University issued orders stating that the fixation of the petitioners' pay in the scale of Rs.3740067000 with academic grade pay of Rs.9,000/- was erroneous. Since they were appointed as Associate Professors during the period between 1.1.2006 and 30.6.2010, they were held entitled to fixation only at Rs.23,890/- in pay band-III with academic grade _**WP(C).23169/14 & connected cases**_ 3 pay of Rs.8,000/-. Consequential revised pay slips were issued and recovery was proposed from the pay of the petitioners. 3. Heard learned counsel for the petitioners in these writ petitions, learned Government Pleader appearing for the State, learned Assistant Solicitor General of India appearing for the Union Government, learned Standing Counsel for the Agricultural University and the learned Standing Counsel for the University Grants Commission. 4. The contention of the petitioners, which is based on Exhibit P6 UGC Regulations, 2010, which have been made applicable with effect from 1.1.2006, is that Exhibit P7 order of the Government adopting the revision of scale of pay of teachers in Universities and affiliated Colleges with effect from 1.1.2006 is to the effect that they are eligible to be placed in the pay band of Rs.37400-67000 with academic grade pay of Rs.9,000/- at the time of their direct recruitment in service. It is further contended that Clause 6.1.13 of Exhibit P7 order of the Government adopting the said pay revisions provides that Associate Professors completing three years of service and possessing Ph.D degree in the relevant discipline are eligible to be appointed and designated _**WP(C).23169/14 & connected cases**_ 4 as Professor, subject to other conditions of academic performance as laid down by the University. 5. The learned Standing Counsel for the University would submit that the University had placed the petitioners in pay band4 with effect from the date of their appointment as Associate Professors. However, in view of the clarification issued by the Union of India, the petitioners were found eligible only for placement in pay band-3 with academic grade pay of Rs.8,000/-. This was the reason for the orders impugned. 6. The Assistant Solicitor General of India appearing for the 1[st] respondent would contend that the petitioners were appointed prior to 2010 and since Exhibit P6 Regulations dated 30.6.2010 were not in force, they could claim fixation of pay only on the basis of the earlier regulations. It is also contended that the Union of India is competent to issue orders in the nature of Exhibit P9, since UGC scale has been granted to eligible employees on the basis of the guidelines issued by the Ministry of Human Resources Development. It is, therefore, contended that the power of the Union of India to issue clarifications to Exhibit P6 guidelines is apparent even from a reading of Exhibit P6. _**WP(C).23169/14 & connected cases**_ 5 7. I have considered the rival contentions advanced. Learned counsel for the petitioners relied on Exhibit P12 judgment of this Court in W.P(C).No.18255 of 2010 and connected cases considering a similar clarification issued by the State of Andhra Pradesh. In the said judgment this Court held that the UGC Regulations being statutory in nature cannot be departed from by executive instructions or directions inconsistent with or in derogation of the same. Relying on a decision of the Full Bench of this Court in _**Radhakrishnan Pillai D. (Dr.) v. Travancore Devaswom Board and others**_ [2016(2) KHC 119], the learned counsel would contend that once the State has adopted the UGC Regulations, the affiliated Colleges are bound to comply with the said Regulations and no provisions of any University Act or Statutes much less of executive orders could be pleaded as reasons to depart from the same. 8. It is not in dispute before me that the UGC Regulations of 2010 specifically provided that directly recruited Associate Professors shall be placed in pay band-IV, i.e., in the scale of Rs.37400-67000 with academic grade pay of Rs.9,000/-. Exhibit P6 provides that the revision of pay and DA is to be effective from _**WP(C).23169/14 & connected cases**_ 6 1.1.2006 and other allowances were to take effect from 1.9.2008. In Exhibit P7 order of the Government adopting the revision of scale of pay of teachers in Universities as per Exhibit P6 also, it is stated that revised pay and DA under the scheme shall be effective from 1.1.2006. Clause 6.1.8 of Exhibit P7 Government order reads as follows: “ _6.1.8 Posts of Associate Professor shall be in the Pay Band of Rs.37400-67000, with AGP of Rs.9000. Directly recruited Associate Professors shall be placed in the Pay Band of Rs.37400-67000 with an AGP of Rs.9000, at the appropriate stage in the Pay Band in terms of the conditions of appointment.”_ ## 9. Further, at clause 6.1.13 it has been provided as follows: “ _6.1.13 Associate Professor completing 3 years of service in the AGP of Rs.9000 and possessing a Ph.D degree in the relevant discipline shall be eligible to be appointed and designated as Professor, subject to other conditions of academic performance as laid down by the UGC and if any by the university. No teacher other than those with a Ph.D shall be promoted, appointed or designated as Professor. The Pay Band for the post of Professors shall be Rs.37400-67000 with AGP of Rs.10000.”_ 10. A reading of the provisions of Exhibits P6 and P7 would be made it clear that the Associate Professors regularly appointed _**WP(C).23169/14 & connected cases**_ 7 shall be placed in pay band-IV with appropriate annual grade pay as provided therein. Exhibit P9 issued later by the Ministry of Human Resources Development Department of Higher Education to the Secretary, University Grants Commission states as follows: “ _.....(ii) Entry pay of Readers, appointed on or after 1.1.2006 till issue of the University Grants Commission Regulations on Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2010, i.e., 30.6.2010, be fixed at Rs.23,890 in PB-3 with an academic grade pay of Rs.8000. This will also apply to Lecturers (Selection Grade) promoted during the above period. Such Readers/Lecturer (Selection Grade) after 3 years will move to minimum of PB-4 with academic grade pay of Rs.9000.”_ 11 _._ Exhibit P9 at best can only be termed as a communication by the Ministry of Human Resource Development to the University Grants Commission. At the very best it could be termed only as an executive direction or communication issued by the Ministry. This definitely cannot serve the purpose of any amendment or clarification to Exhibit P6 scheme promulgated by the UGC. It is also not in dispute that the UGC Scheme is a statutory scheme which has the force of law. A departure from Exhibit P6, in my opinion, cannot be made by recourse to a _**WP(C).23169/14 & connected cases**_ 8 communication in the nature of Exhibit P9. This aspect has been repeatedly considered by the Apex Court as well as this Court in a catena of decisions and it has been held that executive directions or communications cannot have the effect of amending statutory Rules or Regulations. 12. In the above view of the matter, I am of the opinion that Exhibit P9 communication cannot have the effect of making any deviation from the UGC Regulations which have been made applicable with effect from 1.1.2006. The petitioners, who were appointed as Associate Professors in the Kerala Agricultural University after 1.1.2006, are therefore, entitled to placement in pay band-4 in the scale of Rs.37400-67000 with academic grade pay of Rs.9,000/-. With effect from the date of their appointment as Associate Professors. The orders passed by the University recalling such placement and revising their pay are accordingly quashed. The University shall, therefore, pass consequential orders granting the benefits as declared above to the petitioners. The amounts found due to the petitioners shall be calculated and disbursed to them within a period of three months from the date of receipt of a copy of this judgment. _**WP(C).23169/14 & connected cases**_ 9 13. The petitioners would be entitled for redesignation and placement as Professors in terms of Clause 6.1.13 of Exhibit P7 Government order dated 27.3.2010, provided they have acquired Ph.D and are otherwise eligible. The claim of the petitioners for placement and redesignation as Professors on completion of three years of service shall also be considered by the University and consequential orders passed within one month from the date of receipt of a copy of this judgment. 14. It is submitted by learned counsel for the petitioner in W.P(C).No.3855 of 2016 that pursuant to an interim order of this Court in the above writ petition, the petitioner's claim for designation as Professor has already been considered and Exhibit P20 score sheet is prepared in such consideration. In the above view of the matter, the respondent University is directed to take action forthwith on the basis of Exhibit P20 for designation of the petitioner as Professor within two weeks from the date of receipt of a copy of this judgment. The writ petitions are ordered accordingly. **ANU SIVARAMAN JUDGE** _vgs19/11_