Dr. Misha Hari v. State of Kerala and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V MONDAY, THE 21[ST] DAY OF FEBRUARY 2022 / 2ND PHALGUNA, 1943`** ``` WP(C) NO. 5285 OF 2018 ``` ## **`PETITIONER:`** ``` DR.MISHA HARI ASSISTANT PROFESSOR, DEPARTMENT OF PHYSICS, BASELIUS COLLEGE,KOTTAYAM-686001. RESIDING AT:VATTAMTHATTEL HOUSE, SOUTH OF PETTA,MUVATTUPUZHA.P.O, PIN-686661. BY ADVS. SRI.DEEPU LAL MOHAN SMT.S.LEENA SRI.K.S.PRENJITH KUMAR ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2THE DIRECTOR OF COLLEGIATE EDUCATION DIRECTORATE OF COLLEGIATE EDUCATION, VIKAS BHAVAN,THIRUVANANTHAPURAM-695033. 3THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION PALACE ROAD,KOTTAYAM-686001. 4THE PRINCIPAL BASELIUS COLLEGE,K.K.ROAD, KOTTAYAM-686001. ``` ``` WP(C) NO. 5285 OF 2018 ``` ``` 2 ``` ``` SMT SURYA BINOY SR GOVERNMENT PLEADER ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSION ON21.02.2022,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` ``` WP(C) NO. 5285 OF 2018 ``` ``` 3 ``` ## **JUDGMENT** The petitioner has approached this Court challenging Exhibit P8 order by which the entitlement of the petitioner for three non-compounded advance increments for acquiring PhD while in service as per the provisions of the University Grants Commission (Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and other Measures for the Maintenance of Standards in Higher Education) Regulations, 2010 (UGC Regulations 2010) stands rejected. 2. A thumbnail sketch of the facts are as under: After securing M.Phil Degree from Calicut University, the petitioner entered service as Assistant Professor in Physics on 1.3.2013 in the Baselius College, Kottayam. Before joining the College, the petitioner had registered for PhD Degree with the International School of Photonics, Cochin University of Science and Technology and while working as Assistant Professor he was awarded PhD Degree on 15.3.2016. 3. As per Section 26 of the University Grants Commission Act, ``` WP(C) NO. 5285 OF 2018 ``` ``` 4 ``` 1956, powers have been conferred on the UGC to make regulations. In pursuance of the directive dated 30.03.2001 issued by the Government of India under Section 20 of the Act, the UGC framed the UGC Regulations 2010. The Government of Kerala issued GO(P) No.392/10/H.Edn dated 10.12.2010 approving and implementing the Regulations with effect from 18.9.2010 and it was ordered that amendments required will be made to the Acts of the Universities to implement the Regulations. In view of the above, the University and affiliated colleges in Kerala State are bound to comply with the UGC Regulations, 2010. 4. The petitioner contends that as per Regulations of 2010, as the petitioner was having MPhil at the time of entry in service as Assistant Professor, he was granted two advance increments as is evident from Ext.P3. After the acquisition of PhD by the petitioner, which fact is evident from Ext.P5 certificate, the Principal of the College forwarded the proposal to the 3rd respondent for sanction of three advance increments to which the petitioner was entitled to as per clause 9.1. of the UGC Regulations 2010. The 3rd respondent however returned the proposal by Ext.P8 letter stating that the petitioner is eligible for only one advance increment as he has ``` WP(C) NO. 5285 OF 2018 ``` ``` 5 ``` already been granted two advance increments for MPhil. The petitioner states that the 3rd respondent has issued the said order based on Ext.P9 Government Order which states that teachers who have acquired PhD while in service between 1.9.2008 and 18.9.2010 and those who have registered for PhD Degree before 18.9.2010 and acquired the degree subsequently while in service shall be eligible for three non compounded advance increments in the revised scale of pay at the revised rate of increment from the date of acquiring PhD. In Ext.P9, it is also stated as per clause 7 that teachers who have acquired both MPhil and PhD shall be eligible for advance increments limited to that which is permissible for PhD. 5. The petitioner asserts that the reasons offered by the respondents for denying him 3 non compounded advance increments in the revised scale of pay at the revised rate of increment from the date of acquiring PhD cannot be sustained. It is in the afore circumstances that the ## petitioner is before this Court seeking the following reliefs: i) To issue a writ of certiorari or other appropriate writ, order or direction calling for the records leading to Exhibit P8 and quash the same. ii) To declare that the petitioner is entitled for three non compounded advance increments in the revised scale of pay at the revised rate of increment from 15.03.2016 for acquiring Ph.D in addition to the 2 increments granted for M.Phil. ``` WP(C) NO. 5285 OF 2018 ``` ``` 6 ``` iii) To issue a writ of mandamus or other appropriate writ, order or direction directing the respondents 1 to 3 to grant three non compounded advance increments to the petitioner for acquiring Ph.D while in service with effect from 15.03.2016, in addition to the 2 increments granted for M.Phil and refix the petitioner’s salary accordingly and grant consequential benefits. iv) To declare Clause 7 of Ext.P9 to the extent it is inconsistent with UGC Regulations, 2010 as void. ## Alternatively; v) to issue a writ of mandamus or other appropriate writ, order or direction directing the respondents 1 to 3 to grant three non compounded advance increments to the petitioner for acquiring Ph.D while in service from 15.03.2016 and refix the petitioner’s salary accordingly and grant consequential benefits. 6. Sri.Deepu Lal Mohan, the learned counsel would refer to clause 9 of the UGC Regulations 2010 and it is submitted that incentives are provided by the UGC to the candidates who have acquired PhD/MPhil before recruitment and to teachers who have acquired such qualification during the period of service. Five non compounded advance increments are to be granted for acquiring PhD at entry level and 3 non compounded advance increments for acquiring PhD while in service. A close reading of the regulations would reveal that the UGC has put a cap on the maximum number of increments that a recruited person is entitled to. According to the learned counsel, a Full Bench of this Court in **Radhakrishnan Pillai** ``` WP(C) NO. 5285 OF 2018 ``` ``` 7 ``` **(Dr.) v. Travancore Devaswom Board and Ors.** [2016 2 KLT 245], after surveying all the judgments of the Apex Court touching the subject, had occasion to hold that the Universities and affiliated Colleges are bound to comply with the UGC Regulations. The learned counsel would finally submit that a learned Single Judge of this Court had occasion to consider the very same issue and in judgment dated 24.11.2021 in W.P.(C) No. 14139/2019 had held that persons such as the petitioner who acquired PhD while in service would be entitled to three annual increments as per the UGC Regulations. 7. The learned Government Pleader stoutly opposed the submissions. It is submitted that the Government had considered the entire issue and had issued Ext.P9 stating in unmistakable terms that teachers who have acquired both MPhil and PhD shall be eligible for advance increments limited to that permissible for PhD only. It is contended that only three increments are permitted for PhD and two increments having been granted for MPhil the petitioner would only be entitled to one more increment. 8. I have carefully considered the submissions advanced. ``` WP(C) NO. 5285 OF 2018 ``` ``` 8 ``` ## 9. In **Radhakrishnan Pillai** (supra), a Full Bench of this Court had occasion to hold as follows in paragraph No. 17 of the judgment: 17. Therefore, irrespective of whether the University Acts enacted under Entry 25 of list III or the Statutes framed thereunder are amended in line with the UGC Regulations or not, in view of its adoption by the State of Kerala with effect from 18/09/2010 as per Government Order dated 10/12/2010, the Universities and affiliated colleges in Kerala State are bound to comply with the UGC Regulations, 2010. Viewed in that manner, the natural consequence is that the principles laid down by this Court in Raveendran's case cannot be sustained and are overruled. Under no circumstances can the Regulations issued by the UGC be bypassed. 10. As per UGC Regulations, 2010 incentives are granted for PhD/MPhil and other higher qualifications. Clause 9.1., 9.2. and 9.4 are relevant and the same are extracted below for convenience. - 9.1. Five non-compounded advance increments shall be admissible at the entry level of recruitment as Assistant Professor to persons possessing the degree of Ph.D. awarded in a relevant discipline by the University following the process of admission, registration, course work and external evaluation as prescribed by the UGC. - 9.2. M.Phil Degree holders at the time of recruitment to the post of Assistant ``` WP(C) NO. 5285 OF 2018 ``` ``` 9 ``` Professor shall be entitled to 2 non-compounded advance increments. ## XXXXX XXXX XXXXX - 9.4. (i) Teachers who complete their Ph.D.Degree while in service shall be entitled to 3 non-compounded increments if such Ph.D. is in a relevant discipline of the discipline of employment and has been awarded by a University complying with the process prescribed by the UGC for enrolment, course work, evaluation, etc. - (ii) However, teachers in service who have already been awarded Ph.D. by the time of coming into force of these Regulations or having been enrolled for Ph.D. have already undergone course-work as well as evaluation, if any, and only Notification in regard to the award of Ph.D. is awarded, shall also be entitled to the award of 3 non-compounded increments 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. 11. A reading of the Regulations would show that a person who is recruited at the entry-level as Assistant Professor and is possessing PhD awarded in a relevant discipline by the University would be eligible for 5 non compounded advance increments. If at the time of recruitment, the recruitee is only having MPhil Degree, then he would be entitled to two non compounded advance increments. 12. Clause 9.4 deals with teachers who complete their PhD while in service. The provision says that those teachers shall be entitled to 3 non compounded increments if such PhD is in a relevant discipline of the disciple ``` WP(C) NO. 5285 OF 2018 ``` ``` 10 ``` of employment and has been awarded by a University complying with the process prescribed by the UGC for enrolment, course work, evaluation etc. The petitioner would clearly come within the ambit of clause 9.4. 13. I find considerable merit in the submissions of Sri. Deepu Mohan that the ceiling fixed by UGC for the number of increments that can be sanctioned for acquiring higher qualification is a maximum of five. If the teacher at the time of entry into the service was having a PhD, he would be entitled to 5 non compounded increments. If on the other hand, the teacher acquires PhD while in service, he will have to be granted 3 non compounded increments if the conditions are satisfied. Under no circumstances can it be said that the petitioner having obtained two advance increments for having MPhil will be entitled only to one more increment for acquiring PhD while in service. This interpretation would do violence to the Regulations issued by the UGC. Clause 7 of Ext.P9 is found to be inconsistent with the UGC Regulations, 2010 and to that extent it is held void. 14. In view of the above discussion, I hold that Ext.P9 insofar as it states that teachers who acquired both Mphil and PhD shall be eligible for ``` WP(C) NO. 5285 OF 2018 ``` ``` 11 ``` advance increments limited to that permissible for PhD only cannot be sustained. The same view was taken by this Court in judgment dated 24.11.2021 in W.P.(C) No.14139/2019. Resultantly, the petitioner is entitled to succeed. Ext.P8 will stand quashed. There will be a direction to the respondents 1 to 3 to grant three non-compounded advance increments to the petitioner for acquiring PhD while in service with effect from 15.3.2016 in addition to the two increments granted for MPhil. There will be a further direction to the respondents to refix the salary and grant all consequential benefits. **Sd/-** **RAJA VIJAYARAGHAVAN V JUDGE** ``` ps ``` ``` WP(C) NO. 5285 OF 2018 ``` ``` 12 ``` ## **`APPENDIX OF WP(C) 5285/2018`** ## **`PETITIONER’S EXHIBITS:`** ``` EXHIBIT P1THE PHOTOCOPY OF THE UGC REGULATIONS,2010-INCENTIVES FOR PH.D./MPHIL AND OTHER HIGHER QUALIFICATIONS (CLAUSES 9.1 TO 9.12)UNDER THE UNIVERSITY GRANTS COMMISSION REGULATIONS, 2010. EXHIBIT P2THE PHOTOCOPY OF G.O(P)NO.58/2010/H.EDN.DATED 27.03.2010 ISSUED BY THE 1ST RESPONDENT. ``` - `EXHIBIT P3 THE PHOTOCOPY OF THE STATEMENT OF FIXATION OF PAY DUE TO INCENTIVE FOR M.PHIL DATED 17.09.2015 SUBMITTED BY THE 4TH RESPONDENT BEFORE THE 3RD RESPONDENT.` - `EXHIBIT P3(A) THE PHOTOCOPY OF THE ENDORSEMENT DATED 05.10.2015 REGARDING SANCTION OF FIXATION OF PAY DUE TO INCENTIVE FOR M.PHIL MADE BY THE 3RD RESPONDENT ON THE REVERSE SIDE OF EXT.P3.` - `EXHIBIT P4 THE PHOTOCOPY OF THE LETTER NO.AC.B2/15049/08/3389 DATED 09.12.2008 ISSUED BY THE REGISTRAR OF COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY TO THE PETITIONER` - `EXHIBIT P5 THE PHOTOCOPY OF THE CERTIFICATE DATED 10.06.2016 OF AWARD OF PH.D TO THE` - `PETITIONER ISSUED BY THE COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY.` - `EXHIBIT P6 THE PHOTOCOPY OF THE LETTER DATED 19.12.2016 SUBMITTED BY THE 4TH RESPONDENT BEFORE THE 3RD RESPONDENT.` - `EXHIBIT P7 THE PHOTOCOPY OF THE PROPOSAL FOR SANCTIONING INCENTIVE FOR PH.D DATED` - `19.12.2016 SUBMITTED BY THE 4TH RESPONDENT BEFORE THE 3RD RESPONDENT` ``` WP(C) NO. 5285 OF 2018 ``` ``` 13 ``` ``` EXHIBIT P8THE PHOTOCOPY OF THE LETTER NO.C2-12490/16 DATED 17.04.2017 OF THE 3RD RESPONDENT ADDRESSED TO THE 4TH RESPONDENT. EXHIBIT P9THE PHOTOCOPY OF G.O.(MS)NO.597/2013/H.EDN DATED 03.09.2013. ```