Dr. Philipose Omman v. Deputy Director of Collegiate Education, Kottayam; Director of Collegiate Education, Thiruvananthapuram; State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY, THE 22ND DAY OF MAY 2018 / 1ST JYAISHTA, 1940** **WA.No. 849 of 2018 IN WPC. 23409/2016** **(AGAINST THE JUDGMENT IN WP(C) 23409/2016 of HIGH COURT OF KERALA)** ## **APPELLANTS/RESPONDENTS 1 TO 3 IN W.P(C):** ## **1 DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOTTAYAM.** - **2 DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM 695 001.** **3 STATE OF KERALA, REPRESENTED BY ITS ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** ## **BY SRI. S. MUHAMMED HANEEF, GOVERNMENT PLEADER** ## **RESPONDENT/PETITIONER IN W.P.(C):** **DR. PHILIPOSE OMMAN, ASSOCIATE PROFESSOR, DEPARTMENT OF BOTANY, CATHOLICATE COLLEGE, PATHANAMTHITTA, HANIEL HOUSE, ANCHAKKALA JUNCTION, NANNUVAKADU, PATHANAMTHITTA-689 645.** ## **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 22-05-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ss ## **P.R. RAMACHANDRA MENON, J & R.NARAYANA PISHARADI, J** **-------------------------------** -------------- **W.A.No.849 of 2018** ------------------------------------------------------------------Dated this the 22[nd] day of May, 2018 ## **JUDGMENT** ## _**P.R.Ramachandra Menon, J**_ The verdict passed by the learned single Judge, whereby the claim mooted by the writ petitioner to grant the benefit of 'three' advance non-compoundable increments based on clause 10(4) of Ext.P2 Government Order dated 27.03.2010 has been accepted and allowed, repelling the submissions from the part of the Government/Department with reference to the G.O. dated 03.09.2013 (Ext.P3) issued in clarification of the position which governed the field; is under challenge in this appeal. 2. Heard Sri.P.N.Santhosh, learned senior Government Pleader on behalf of the appellants as well as Sri.S.Muhammed Haneef, the learned counsel who appeared on behalf of the respondent/writ petitioner at length. 3. The gist of the factual matrix is that, the respondent/writ petitioner entered the service as a Lecturer in Botany on 14.8.1995 and was later awarded Senior Grade on 2 ## **W.A.No.849 of 2018** 14.8.2000, followed by Selection Grade on 15.8.2005. While continuing in service as above, the respondent acquired Ph.D on 10.10.2006. By virtue of Ext.P1 G.O. dated 21.12.1999 implementing the UGC pay scale ( **5[th] UGC Scheme** ), two advance increments were provided (clause 6.1.9) as a measure of incentive/motivation for the teachers who acquire such doctoral degree which was very much beneficial for the student community at large. Subsequently, the Government issued Ext.P2 G.O. dated 27.3.2010 implementing the **6[th] UGC benefits** , which provided (under Clause 10.4) that the teachers who acquired Ph.D. while continuing in service will be provided the benefit of three advance non-compoundable increments. The respondent/writ petitioner submitted Ext.P4 representation seeking for the benefit of Ext.P2, which however was not positively acted upon, leading to the writ petition. 4. Denial of the benefit of Ext.P2 to the respondent/writ petitioner was based on Ext.P3 G.O. Dated 3.9.2013, allegedly issued in clarification of the position revealed from Ext.P2 and the three subsequent G.Os. dated 19.07.2012, 17.12.2012 and 19.01.2013 referred to at serial No.2 to 4 in Ext.P3. The learned Government Pleader submits that, by virtue of Ext.P3, the writ 3 ## **W.A.No.849 of 2018** petitioner is entitled to get only 'two' advance increments, which was not properly appreciated by the learned single Judge while allowing the writ petition and directing to extend the benefit flowing from Ext.P3 G.O. to the writ petitioner, which in turn is under challenge. 5. The learned counsel appearing for the writ petitioner points out that there is absolutely no basis for the challenge. There is no ambiguity or anomaly in so far as Ext.P2 is concerned. It is also pointed out that, by virtue of the wrong course/stand sought to be followed by the Government/Department, the writ petitioner who acquired the Ph.D on 10.10.2006 is made to receive only a lesser amount as pay, when compared with the juniors who acquired the Ph.D. only much later. Under no circumstances could the salary of a senior be lesser than that of the junior, if both the junior and the senior were drawing the pay in the same scale, prior to and after the pay revision, which is the law declared by the Supreme Court in _**Gurcharan Singh Grewal and another v. Punjab State Electricity Board and others** [(2009) 3 SCC 94]_ . It was accordingly, that the matter was considered by the learned single Judge who passed the verdict, which does not warrant any interference; submits the learned counsel. 4 ## **W.A.No.849 of 2018** 6. Since the factual particulars have been adverted to with reference to the relevant clauses in Ext.P2 and Ext.P3 G.Os, the observation made by the learned single Judge in paragraph 11 and 12 of the judgment under challenge will be worthwhile to be reproduced, so as to avoid repetition, as given below: _“11. The denial of 3 non-compounded advance increments to those who acquired Ph.D prior to 01.09.2008 while granting the same to those who acquired Ph.D subsequent to 01.09.2008 cannot be legal or proper. Classification of those who acquired Ph.D while in service on the basis of date of acquisition of Ph.D for the purpose of grant of non-compounded advance increments is without any justifiable reason or basis. The acquisition of Ph.D on an earlier date cannot be a reason for subjecting a teacher to a disadvantage and disparity. A teacher who acquires Ph.D while in service is entitled to get equal treatment as in the case of others who acquired Ph.D subsequent to her also._ _12. There will be an arbitrary and unscientific classification of teachers on the basis of date of acquisition of Ph.D for the purpose of granting incentives. Teachers like petitioners are subjected to a differential treatment, for acquiring Ph.D on an earlier date. On the other hand the juniors as well as those who acquired Ph.D subsequent to 01.09.2008, are able to enjoy more increments merely on the ground of later acquisition of Ph.D. Teachers senior to petitioner would also get the benefit in case the date of acquisition is subsequent to 01.09.2008 with an added incentive for the late acquiring of Ph.D. Such a classification_ 5 ## **W.A.No.849 of 2018** _on the basis of date of acquisition of Ph.D will defeat the very purpose for which the incentives are introduced. Once it is decided to grant incentive to those who acquired Ph.D while in service that benefit has to be granted uniformly, without subjecting the teachers to any disparity on the basis of date of acquisition. At any rate an earlier date of acquisition cannot put the teachers to disadvantage.”_ 7. The learned counsel for the respondent/writ petitioner submits that the course pursued by the Government/Department has resulted in wide difference in the pay packet between the seniors and the juniors who acquired the Ph.D. during their tenure. The seniors who were given the benefit under the **5[th] UGC Scheme** flowing from Ext.P1, were virtually paid only a lesser pay, when compared with their juniors, who got the benefit pursuant to implementation of the **6[th] UGC Scheme** (as per Ext.P2). This made the writ petitioner to challenge the adverse stipulations before this Court seeking for stepping up of the pay of the seniors, to the extent a higher pay was fixed in the case of juniors. A learned single Judge of this Court had occasion to consider this issue in W.P.(C) No.32933 of 2014. It was again considered elaborately by another learned Judge of this Court in W.P.(C) No.5682 of 2015. As per the common judgment dated 27.10.2016 passed along with the connected cases, the matter was independently considered and 6 ## **W.A.No.849 of 2018** almost a similar finding was rendered as in W.P.(C)No.32933 of 2014 and stepping up of the pay of seniors was ordered on par with the pay of the juniors, in rectification of the anomaly that had arisen, consequent to implementation of the 6[th] UGC Scheme. It was made clear that, only in such cases where the anomaly as noticed above (when the petitioners and their juniors were drawing pay in the same scale of pay before and after the implementation of the 6[th] UGC Scheme), would the benefit of stepping up become payable. 8. It is brought to the notice of this Court that, though appeals were preferred before the Division Bench of this Court against the said verdict, it was futile. Specific reference was made to the relevant G.Os, including the one which is now sought to be relied on from the part of the Government, besides placing reliance on the verdict passed by the Apex Court in _**Gurcharan Singh's**_ case (supra). After meticulous analysis of the facts and figures and the relevant provisions of law, a clear finding was rendered that the order impugned therein was not liable to be sustained and accordingly, the same was quashed (Ext.P7 therein). It was declared that the writ petitioners were entitled to have their pay stepped up on par with their juniors, who were drawing higher pay on account 7 ## **W.A.No.849 of 2018** of the advance increments granted to such juniors on the basis of the G.O. dated 27.3.2010 (Ext.P2 herein). The learned counsel for the respondent/writ petitioner submits that the said verdict was sought to be challenged by moving the Apex Court, where interference was declined; when, permission was sought for to file a review petition before this Court. As per the order passed by the Apex Court on 4.1.2018, the State/Department was permitted to withdraw the Special Leave Petition, with liberty to file a review petition, however making it clear point blank that the State/Department will not be at liberty to file a fresh proceeding before the Supreme Court, even if the review petition came to be dismissed. 9. By virtue of the course and events as above, it is obvious that the case now projected before this Court with reference to the scope of Ext.P3 G.O. and to deny the benefit of Ext.P2 to the writ petitioner, is rather wrong and misconceived. The challenge raised against the verdict passed by the learned single Judge is not sustainable either in law or on facts. We do not find any reason to call for interference. The appeal fails and the same is dismissed accordingly. 10. Considering the fact that the time stipulated by the 8 ## **W.A.No.849 of 2018** learned single Judge to disburse the monetary benefits is already over and in view of the submission made by the learned senior Government Pleader to grant reasonable time in this regard, we find it appropriate to grant three months' time to comply with the verdict. _Sd/-_ **(P.R.Ramachandra Menon, Judge)** _Sd/-_ **(R. Narayana Pisharadi, Judge)** _//True Copy//_ P.A. To Judge ss