Dr. Beena T. Abraham and others v. Government of India, Ministry of Human Resource Development (Department of Education), New Delhi; University Grants Commission; Government of Kerala; Director of Collegiate Education, Thiruvananthapuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 28TH DAY OF OCTOBER 2016/6TH KARTHIKA, 1938** **WP(C).No. 32933 of 2014 (N) ----------------------------** ## **PETITIONER(S):** **-------------** **1. DR. BEENA T.ABRAHAM, AGED 55 YEARS,** **W/O.DR.EBY THOMAS THACHIL,** **ASSOCIATE PROFESSOR IN CHEMISTRY, S.N.M.COLLEGE, MALIANKARA, RESIDING AT THACHIL HOUSE, 34/2564, THAMPURATTYPARAMBU ROAD, EDAPPALLY P.O, KOCHI-24.** **2. DR. SHEELAKUMARI ISSAC, AGED 54 YEARS, W/O.SHAJI GEORGE, ASSOCIATE PROFESSOR, U.C.COLLEGE ALUVA, RESIDING AT GILGAL HOUSE, CHAMAPARAMBU LANE, U.C.COLLEGE P.O, ALUVA-682 102.** **3. DR.VISWAMBHARAN A.M., AGED 55 YEARS,** **S/O.LATE MADHAVAN, ASSOCIATE PROFESSOR, ST.ALBERTS COLLEGE, ERNAKULAM, KOCHI-18, RESIDING AT 32/732C THIRUVONAM, PALLICHAMBAYIL ROAD, PALARIVATTOM, KOCHI-25.** **4. DR.A. BENNY CHERIAN, AGED 55 YEARS,** **S/O.CHERIAN, PRINCIPAL, U.C.COLLEGE, ALUVA, RESIDING AT AREEKAL HOUSE, KARIYAD, MEKKAD P.O, VIA.ATHANI ERNAKULAM DISTRICT, PIN-683 589** **5. DR.JEHOSHEBA P.MATHEWS, W/O.MATHEW JACOB, ASSOCIATE PROFESSOR IN BIOCHEMISTRY (RETD), S.N.M.COLLEGE, MALIANKARA RESIDING AT N-52 FEDERAL GARDENS, PULINCHODU, ALUVA- 683 101.** **BY ADVS.SRI.JOHN JOSEPH(ROY) SRI.MATHEW JACOB (KUNNATHU) SRI.TITUS JOSEPH** **RESPONDENT(S):** - **--------------** **1. GOVERNMENT OF INDIA, MINISTRY OF HUMAN RESOURCE DEVELOPMENT (DEPARTMENT OF EDUCATION), NEW DELHI, REPRESENTED BY ITS DIRECTOR CENTRAL SECRETARIATE - 110 001.** **2. UNIVERSITY GRANTS COMMISSION, BEHADUR SHAH ZAFAR MARG, NEW DELHI-110 002 REPRESENTED BY ITS SECRETARY** **.....2/-** **..2..** **WP(C).No. 32933 of 2014 (N) ----------------------------** **3. GOVERNMENT OF KERALA,** - **REPRESENTED BY ITS PRINCIPAL SECRETARY, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-PIN - 695 001.** **4. THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM-695 001.** **R1 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R2 BY ADV. SRI.S.KRISHNAMOORTHY, CGC R3 & 4 BY GOVERNMENT PLEADER SRI.BIJOY CHANDRAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/10/2016, THE COURT ON 28-10-2016, DELIVERED THE FOLLOWING:** **PJ** ## **WP(C).No. 32933 of 2014 (N)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -----------------------** **EXT.P1 - TRUE COPY OF THE ORDER NO.FI-22/97-UI DATED 27-7-1998 ISSUED BY THE 1ST RESPONDENT. EXT.P2 - TRUE COPY OF THE ORDER GO(P)NO.171/99/H.EDN. DATED 21-121999 BY THE 3RD RESPONDENT EXT.P3TRUE COPY OF THE JUDGMENT IN WPC.NO.24339 OF 2008 DATED 25-6-2009 ISSUED BY THIS HON'BLE COURT. EXT.P4 - TRUE COPY OF THE JUDGMENT IN WA NO.2067 OF 2008 DATED 1009-2012 OF THIS HON'BLE COURT. EXT.P5 - TRUE COPY OF THE GO(P) NO.58/2010/H.EDN DATED 27-3-2010 ISSUED BY THE 3RD RESPONDENT EXT.P6 - TRUE COPY OF THE GO(MS)NO.597/2013/H.EDN. DATED 03-092013 ISSUED BY THE 3RD RESPONDENT EXT.P7 - TRUE COPY OF THE LETTER NO.D6/3100/2014 DATED 18-10-2014 BY THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION , ERNAKULAM EXT.P7(A) - TRUE COPY OF THE ENGLISH TRANSLATION OF EXHIBIT P7 EXT.P8 - TRUE COPY OF THE LETTER NO.UGC.5/36387/2014 DATED 15-102014 EXT.P8(A) - TRUE COPY OF THE ENGLISH TRANSLATION OF EXHIBIT P8 RESPONDENT(S)' EXHIBITS ----------------------EXT.R1(A) TRUE EXTRACT OF CLAUSE 6.0.0. OF UGC NOTIFICATION 1998 AT 6.4.0 EXT.R1(B) TRUE COPY OF MHRD LETTER NO.FI-7/2010(U.II) ISSUED TO THE EDUCATION SECRETARIES IN CHARGE OF HIGHER EDUCATION OF ALL STATE GOVERNMENTS DATED 14/8/12 EXT.R1(C) TRUE EXTRACT OF CLAUSE 9.0 OF UGC REGULATIONS OF 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 SHOWING THE INCENTIVES OF PH.D/M.PHILL AND OTHER HIGHER QUALIFICATION TO TAKE EFFECT FROM 1/9/2008. EXT.R3(A) TRUE COPY OF THE JUDGMENT IN WA.1394/10 & CONNECTED CASES EXT.R3(B) TRUE COPY OF THE RELEVANT EXTRACT OF THE NOTIFICATION OF UGC / TRUE COPY /** **P.S. TO JUDGE** **PJ** ## **ANU SIVARAMAN, J.** = = = = = = = = = = = = = = = = = = = = = = = = = = ## **W.P.(C).No.32933 of 2014** = = = = = = = = == = = = = = = = = = = = = = = = = Dated this the 28[th] day of October, 2016 ## JUDGMENT ## 1. The writ petition is filed seeking the following reliefs:- - i. Call for the records leading to revision of pay scale under the 6[th] UGC Scheme covered under Exhibits P5 to P8 and to verify its legality, propriety, correctness and reasonableness in respect of its implementation. - ii. issue a writ of mandamus or any other writ, order or direction directing the respondents 2 to 4 to rectify the anomaly in fixing the revised scale of pay of the petitioners by taking into account of the revised rate of increment under 6[th] UGC Scheme to the petitioners also by revising their scale of pay and also the pension benefits of the 5[th] petitioner. - iii. Issue a writ of mandamus or any other writ or order or direction directing the respondents to rectify the anomalies pointed out by the petitioners inter-alia in respect of the revision of pay scales fixed under the 6[th] UGC Scheme and grant the difference of pay and other consequential benefits to the petitioners. - iv. Issue a writ of mandamus or any other appropriate writ or order or direction directing the third respondent to issue necessary orders to the effect that the advance increments in the revised rate on account of acquiring Ph.D as prescribed under the 6[th] UGC Scheme be extended to all the beneficiaries uniformly.” W.P.(C).No.32933/14 2 2.The petitioners are private college teachers who had acquired Ph.D prior to 01.01.2006 and were granted advance increments in accordance with the schemes in force. The Government of Kerala implemented the 6[th] UGC Scheme to be applicable from 01.01.2006. Exhibit P5 provides that “teachers who had acquired Ph.D while in service between 01.01.2006 and 31.08.2008 shall be eligible for two non-compounded advance increments in the revised pay scale, at the pre-revised rate of increment from the date of acquiring Ph.D till 31.08.2008 and at the revised rate of increment w.e.f. 01.09.2008“. Since this benefit was not extended to teachers like the petitioners who had acquired Ph.D before 01.01.2006, and since the rate of increment granted by Exhibit P5 was much higher than the rate of increment granted to the petitioners in pursuance of the prior scheme, this lead to an anomalous situation where juniors of the petitioners who had acquired Ph.D later than them drew higher pay than the petitioners. It is submitted that since the higher pay drawn by the juniors was a direct result of implementation of Exhibit P5, W.P.(C).No.32933/14 3 the petitioners had preferred representations before the respondents seeking the rectification of the anomaly. However, by Exhibit P7 dated 18.10.2014, the Deputy Director of Collegiate Education, Ernakulam, rejected the request of the Principal, UC College, Aluva raising the question of juniorsenior fixation stating that the difference in pay scale which arises due to grant of advance increment cannot be treated as an anomaly in pay requiring junior-senior fixation. - 3.Heard the learned counsel for the petitioners, the learned Assitant Solicitor General of India appearing for the 1[st] respondent, the learned counsel appearing of the 2[nd] respondent and the learned Government Pleader appearing for respondents 3 and 4. - 4.The learned counsel for the petitioners submits that the situation of juniors drawing a higher scale of pay was occasioned only due to the implementation of Exhibit P5 scheme and is therefore liable to be corrected in terms of the W.P.(C).No.32933/14 4 assurance contained in Exhibits P1 and P2. It is further contended that in an identical situation the Aurangabad Bench of the Bombay High court has in WPC No.10283 of 2012 and connected cases held that the incentives while implementing the 6[th] UGC Scheme cannot be given so as to give a junior teacher more pay than the senior, who is otherwise equally qualified. The pay of the seniors was, therefore, directed to be stepped up to be at par with juniors, who were drawing higher scale of pay. The learned counsel submits that the petitioners are limiting their prayers to grant of stepping up of pay to be at par with their juniors. The learned counsel would also rely on the decision of the Apex Court reported in **Gurcharan Singh Grewal and another v. Punjab State Electricity Board and others** [(2009) 3 SCC 94] to contend that the senior cannot be paid less than the junior even if the anomaly in the senior's pay is due to difference of incremental benefits. It is contended that the contention contained in Exhibit P7 is completely untenable. W.P.(C).No.32933/14 5 5.A counter affidavit has been filed by the 1[st] respondent in the instant case contending that teachers who had already availed the benefit of advance increment for possessing Ph.D/M.Phil under earlier schemes are not entitled to the benefit of advance increments under Exhibit P5. The third respondent has also filed a counter affidavit contending that the petitioners having already been granted advance increments in terms of the 5[th] UGC Scheme are not entitled to grant increments in terms of the 6[th] scheme also. It is also contended that a Division Bench of this Court has held that only those persons who were placed in selection grade on 01.01.1996 are eligible for higher pay as provided in the 5[th] UGC Scheme. - 6.I have considered the contentions advanced on either side. The petitioners are teachers in private colleges, who had availed the advance increments provided for possessing PHD/M.Phil before 01.01.2006. Consequent on the implementation of Exhibit P5- scheme, a situation has admittedly arisen where juniors of the petitioners are enabled W.P.(C).No.32933/14 6 to draw a higher pay on account of the fact that they are granted increments in terms of Exhibit P5. Though the 1[st] respondent attempts to explain the reason for juniors drawing a higher pay, it is not in dispute before me that the difference in pay is a direct consequence of the implementation of Exhibit P5. The petitioners being senior hands and who are equally qualified as their juniors who draw a higher pay, clearly cannot be denied the benefit of stepping up of pay at par with their juniors. Such provisions for stepping up of pay are available in the rules applicable to Government servants in both the State and Central Governments. In the instant case, it is not in dispute that the juniors are drawing higher pay on account of the grant of advance increments at the rates provided for in Exhibit P5. The contention of the 4[th] respondent that the difference in pay between a senior and junior due to sanction of advance increment cannot be considered as an anomaly which gives rise to a claim for stepping up of pay, is therefore legally unsustainable. This contention also runs counter to the W.P.(C).No.32933/14 7 dictum laid down by the Apex Court in **Gurcharan Singh Grewal's case** (supra). In view of the factual situation as noted above, I am of the considered opinion that the petitioners are entitled to stepping up of pay to be at par with their juniors. This is the only prayer which was pressed before me at the time of hearing. 7.In the result, Exhibit P7 is quashed. It is declared that the petitioners in this writ petition are entitled to stepping up of pay at par with their juniors who are drawing higher pay on account of advance increments granted to such juniors on the basis of Exhibit P5. To enable such stepping up of pay, the petitioners shall forward the details of the pay drawn by them as well as the higher pay drawn by the juniors to the 4[th] respondent through the Principals of their respective colleges. On receipt of such statements, the 4[th] respondent shall take effective steps for re-fixation of the petitioner's salary at par with their juniors within a period of six weeks from the date of receipt of such statements. The benefits due to the petitioners W.P.(C).No.32933/14 8 shall also be calculated and paid to them within a period of two months thereafter. This writ petition is ordered accordingly. sd/- **Anu Sivaraman, Judge** sj