Dr. Reemol Scaria A v. State of Kerala and Others

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT ``` ``` THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V MONDAY, THE 10 [TH ] DAY OF JANUARY 2022 / 20TH POUSHA, 1943 ``` ## **`WP(C) NO. 8555 OF 2020`** ## **`PETITIONER/S:`** ``` DR.REEMOL SCARIA A AGED 54 YEARS ASSOCIATE PROFESSOR, DEPARTMENT OF BOTANY, BHARATA MATA COLLEGE, THRIKKAKARA, ERNAKULAM DISTRICT-682021. ``` ``` BY ADV JOHNSON P.JOHN ``` ## **`RESPONDENT/S:`** ``` 1 STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, DEPARTMENT OF HIGHER EDUCATION, THIRUVANANTHAPURAM. 2 DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. 3 DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, ERNAKULAM. 4 THE MAHATMA GANDHI UNIVERSITY PRIYADARSHINI HILLS, KOTTAYAM, REPRESENTED BY ITS REGISTRAR. ``` ``` BY ADV SRI.ASOK M. CHERIAN, SC, M.G. UNIVERSITY ``` ``` SRI. SURIN GEORGE IPE, SC ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 8555 OF 2020 ``` ``` 2 ``` ## **JUDGMENT** The challenge in this writ petition is mounted against Exhibit P4 order as per which, the petitioner was denied advance increments as per the 6th U.G.C. Scheme. The petitioner has also sought for issuance of directions to the respondents to re-examine the case of the petitioner so as to enable her to obtain advance increments so that her salary can be stepped up and be made at par with her juniors in the College. 2. The petitioner contends that she joined the service of the Bharata Matha College, Thrikkakara affiliated with the 4th respondent University as a Lecturer in Botany in a permanent vacancy with effect from 10.9.1993 on the cover of Ext.P1 order. She was awarded PhD in Botany from Mahatma Gandhi University on 30.11.2004 as is evident from Ext.P2 certificate. While so, revised U.G.C. Scheme for college teachers was implemented in the State of Kerala with effect from 1.1.1996 and in accordance with the same, the petitioner was entitled to two advance increments at the time of moving into Selection Grade. Pursuant to Ext.P4 issued by the Deputy Director of Collegiate Education, the petitioner was granted two advance increments for PhD with effect from the date of acquisition of the said qualification. ``` WP(C) NO. 8555 OF 2020 ``` ``` 3 ``` 3. While so, the Government of Kerala implemented the 6th U.G.C. Scheme and the same was made applicable with effect from 01.01.2006. As per the said Scheme, persons who acquire PhD while in service were granted three non-compounded increments. Consequently, juniors in service to the petitioner, who had acquired PhD before 1.9.2008 were granted three non-compounded increments. The end result was that by the implementation of the 6th U.G.C. Scheme, the persons who are junior to the petitioner in service became entitled to and started drawing pay in excess of what was being drawn by seniors such as the petitioner. Some of the seniors, who are similarly placed as the petitioner, approached this Court and filed W.P(C.) No. 32933/2014. By judgment dated 28.10.2016, this Court after considering the facts and circumstances came to the conclusion that the seniors are entitled to stepping up of pay so that their pay is at par with their juniors. Directions were issued to the petitioners therein to forward the details of the pay drawn by them as well as the higher pay drawn by the juniors to the Director of Collegiate Education, through the Principal of the respective Colleges and the Director was ordered to take steps for refixation of the senior’s salary to be at par with the juniors. 4. The petitioner contends that though the judgment of the learned Single Judge was challenged in appeal, the appeal was dismissed by their ``` WP(C) NO. 8555 OF 2020 ``` ``` 4 ``` Lordships of the Division Bench by Ext.P10 judgment dated 06.06.2017 in W.A.No.488/2017. The Division Bench, while dismissing the appeal, held that the implementation of the 6th U.G.C. Scheme shall not result in a situation where the juniors in service draw more pay than the seniors when both are equally qualified and under the same sort of service. Though Ext.P11 review petition was filed, the same was dismissed by order dated 13.06.2018 in R.P.No.187/2018. Later, by Ext.12 order dated 11.9.2018, the Government issued orders directing the Director of Collegiate Education to comply with the directions in the connected and similar cases. 5. The petitioner contends that one Dr. Paul Issac, in the Department of Mathematics, who is junior to the petitioner and who was awarded PhD on 27.5.2006 is drawing a higher salary than the petitioner. Another teacher namely Dr. Laly Mathew, in the Department of English, acquired PhD on 13.12.2010 and she is getting a higher salary than the petitioner in terms of the 6th U.G.C. Scheme. This fact is evident from Ext.P7 order. The petitioner asserts that since both the teachers are working in the same institution with the same designation and qualification, there has arisen a situation wherein juniors of the petitioner are drawing a higher salary. It is contended that in view of Exts.P9 to P12, the petitioner is entitled to get her salary stepped up and be ``` WP(C) NO. 8555 OF 2020 ``` ``` 5 ``` made at par with her juniors. In the said circumstances, the petitioner is stated to have submitted Ext.P8 request before the 3rd respondent. However, by Ext.P13 order dated 19.6.2019, the Government has informed the 2nd respondent that the benefit of Ext.P10 judgment can be conferred only to those teachers working in the same management and under the very same department. In terms of Ext.P13 order, the request made by the petitioner was rejected by Ext.P14 communication. This has led the petitioner to approach this Court with this writ petition seeking the following reliefs. - i To issue a writ of certiorari or other appropriate writ or order calling for the records relating to Ext.14 and to quash those proceedings to the extent they deny the advance increments as per 6th U.G.C. Scheme to petitioner from the date of promotion to Selection grade Lecturer resulting in the petitioner’s juniors drawing higher pay than that of petitioner. - ii. To declare that Exhibits P13 and P14 as illegal, invalid and contrary to Ext.P9 and similar judgments as well as judgments of Hon’ble Supreme Court and Division Bench of this Hon’ble Court and to set aside them. - iii. to issue a writ of mandamus or other appropriate writ or order directing respondents to re examine the case of petitioner for granting advance increments as per 6th U.G.C. scheme enabling stepping up the salary of petitioner as proposed by the principal of Petitioner’s college in Ext.P8 on par with that of petitioner’s junior in the college as decided in the judgments referred to in this writ petition. - iv. To direct to disburse the arrears forthwith. ``` WP(C) NO. 8555 OF 2020 ``` ``` 6 ``` 6. I have heard Sri. Johnson P. John, the learned counsel appearing for the petitioner, the learned Government Pleader and the learned Standing Counsel appearing for the 4th respondent. 7. The petitioner was granted the benefits of career advancement for having acquired her PhD degrees as per the earlier UGC Scheme. The implementation of the 6th UGC scheme has resulted in a situation where the junior in service under the same management draws a higher salary than her. There is no dispute that the petitioner as well as her juniors in service are PhD holders and the qualification of the petitioner is not in any way inferior to that of her juniors. The nature of the work discharged by them is also similar. The incentives are meant to be granted to persons who have acquired PhD Degrees. Of course, the petitioner may not be entitled to claim the benefit of the 6[th ] UGC Scheme as she has already obtained the benefits of career advancement under the earlier Scheme. At the same time, implementation of the subsequent Scheme cannot result in a situation where juniors are permitted to draw more salary than the petitioner. The Apex Court in the **Gurcharan Singh Grewal and Another v. Punjab State Electricity Board and Others** ( 2009 (3) SCC 94) has held that the senior cannot be paid less even if the anomaly in the ``` WP(C) NO. 8555 OF 2020 ``` ``` 7 ``` seniors pay is due to a difference in incremental benefits. 8. I find that a learned Single Judge of this Court had occasion to consider the very same issue and in paragraph No. 6 of Ext.P9 judgment, it was held as follows: 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 to draw a higher pay on account of the fact that they are granted increments in terms of Exhibit P5. Though the 1st 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 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 ``` WP(C) NO. 8555 OF 2020 ``` ``` 8 ``` up of pay to be at par with their juniors. ………………. 9. The State had challenged the above judgment in appeal and by Ext.P10 judgment, the appeal was dismissed confirming the findings of the learned Single Judge. While confirming the findings, it was observed thus in para 7 of the judgment. We have given our anxious consideration to the contentions raised by the learned Government Pleader before us. Though it is true that respondents 1 to 5 are persons who have already been granted the benefits of career advancement for having acquired their Ph.D degrees, as per the earlier UGC Scheme, the implementation of the subsequent Scheme cannot justify a situation where their juniors draw higher salary than them. Though we wanted the learned Government Pleader as well as the learned counsel for the 7[th ] respondent to enlighten us on the rationale that forms the basis of the decision to grant three additional increments to persons who have acquired their Ph.Ds after 01.09.2008, we could not get an answer. Admittedly, all the persons are Ph.D holders. The incentives are meant to be granted to persons who have acquired Ph.D Degrees. It is not in dispute that, there is no difference in the qualifications of respondents 1 to 5 and their seniors. Nature of the work discharged by each one of them is also similar. Therefore, there is no justification for classifying them into persons who have acquired Ph.D before 01.09.2008 and subsequent to the said date, for the purpose of conferring a career advancement increment. It may be true that, respondents 1 to 5 are persons who are not entitled to claim the benefit of the 6[th ] UGC Scheme, they being persons who have already obtained ``` WP(C) NO. 8555 OF 2020 ``` ``` 9 ``` the benefits of career advancement under the earlier Scheme. However, implementation of the subsequent Scheme shall not result in a situation where their juniors are permitted to draw more salary than respondents 1 to 5. If such a situation is created, it is only appropriate that the said anomaly is corrected by having the pay of the seniors stepped up to that of their juniors. The above position has been settled by the Apex Court in the decision on which reliance is placed by the learned Single Judge. We find that the learned Single Judge has considered the issue in proper perspective and that, there are no infirmities warranting an interference with the judgment in appeal. 10. The principles laid down in Exhibits P9 and P10 will apply in full force to the petitioner as well. 11. I find that with a view to denying the benefit of the principles laid down in Exhibit P9 and P10 to the petitioner, the 3rd respondent has now issued Ext.P14 communication to the effect that the equalisation of salary could be considered only on the basis of salary of junior teachers working in the same department and under the very same management. However, I find that a learned Single Judge of this Court in common judgment dated 9.2.2021 in W.P. (C) No. 18616 of 2019 and connected cases have taken the view that there is no pay fixation formula for each department and subject in the colleges under the UGC scheme. This Court took note of the fact that even in the 5th UGC ``` WP(C) NO. 8555 OF 2020 ``` ``` 10 ``` scheme implemented in the State by order dated 25/12/2009 and clarified on 04/06/2000 there was no segregation of teachers subject-wise or department-wise for the purpose of junior-senior pay fixation. The only condition was that the teacher should belong to the same category. This Court also took note of the fact that in purported compliance of directions of this Court in the judgment dated 05/12/2019 rendered in W.P (C) No.33127 of 2019 and W.P (C) No. 18616 of 2019, the respondents had accorded the benefit of stepping up of pay to the level of juniors with all consequent benefits. I respectfully concur with the observations of the learned single judge. Resultantly, this Writ petition will stand allowed. Exhibit P14 order in so far as it denies advance increments to the petitioner from the date of promotion to selection grade lecturer will stand quashed. It is declared that the petitioner herein is entitled to stepping up of pay at par with her juniors who are drawing higher pay on account of advance increments granted to such juniors on the basis of 6th UGC scheme. To enable such stepping up of pay, the petitioner shall forward the details of the pay drawn by her as well as the higher pay drawn by the juniors to the 2nd respondent through the Principal of the said college. On receipt of such a statement, the 2nd respondent shall take effective steps for re-fixation of the petitioner salary to be made at par with her juniors ``` WP(C) NO. 8555 OF 2020 ``` ``` 11 ``` within a period of two months from the date of receipt of such statement. The benefits due to the petitioner shall be calculated and paid to her within a further period of two months thereafter. The Writ petition is ordered accordingly. ## **RAJA VIJAYARAGHAVAN V JUDGE** avs ``` WP(C) NO. 8555 OF 2020 ``` ``` 12 ``` ## **`APPENDIX OF WP(C) 8555/2020`** ## **`PETITIONER EXHIBITS`** |`EXHIBIT`|`P1`|`TRUE COPY OF THE ORDER OF APPROVAL DATED`| |---|---|---| |||`27.7.1994 ISSUED BY THE MAHATMA GANDHI`| |||`UNIVERSITY, PRIYADARSHINI HILLS, KOTTAYAM.`| |`EXHIBIT`|`P2`|`TRUE COPY OF THE CERTIFICATE DATE 4.11.2005`| |||`FOR THE AWARD OF DEGREE OF DOCTOR OF`| |||`PHILOSOPHY TO PETITIONER BY THE UNIVERSITY.`| |`EXHIBIT`|`P3`|`TRUE COPY OF THE RELEVANT PAGES (1,8,9,10,11)`| |||`OF GO(P) NO.171/99/H.EDN/DATED 21.12.99.`| |`EXHIBIT`|`P4`|`TRUE COPY OF ORDER NO. A3-8700/07 DATED`| |||`31.12.2007 ISSUED BY THE 3RD RESPONDENT,`| |||`DEPUTY DIRECTOR OF COLLEGIATE EDUCATION OF THE`| |||`PETITIONER.`| |`EXHIBIT`|`P5`|`TRUE COPY OF RELEVANT PAGES OF SAID`| |||`GO(P)NO.58/2010/H.EN DATED 27.03.2010.`| |`EXHIBIT`|`P6`|`TRUE COPY OF STATEMENT OF FIXATION OF PAY`| |||`UNDER THE REVISED U.G.C. SCHEME DATED`| |||`29.04.2010.`| |`EXHIBIT`|`P7`|`TRUE COPY OF ORDER NO.A3/4800/2015 DATED`| |||`5.1.2016 ISSUED BY THE 3RD RESPONDENT.`| |`EXHIBIT`|`P8`|`TRUE COPY OF REQUEST DATED 21.8.2019 SUBMITTED`| |||`TO THE DEPUTY DIRECTOR OF COLLEGIATE`| |||`EDUCATION, ERNAKULAM, THE 3RD RESPONDENT.`| |`EXHIBIT`|`P9`|`TRUE COPY OF JUDGMENT DATED 28.10.2016 OF`| |||`HON'BLE HIGH COURT IN WP(C) NO.32933/2014.`| |`EXHIBIT`|`P10`|`TRUE COPY OF JUDGMENT DATED 6.6.2017 IN WA`| |||`NO.488/2017`| ``` WP(C) NO. 8555 OF 2020 ``` ``` 13 ``` ``` EXHIBIT P11 TRUE COPY OF JUDGMENT DATED 13.06.2018 IN R.P NO.187/2018. EXHIBIT P12 TRUE COPY OF G.O(RT.) NO. 1691/2018 DATED 11/9/2018. EXHIBIT P13 TRUE COPY OF G.O NO. D1/375/2017/H.EDN DATED 19.06.2019. EXHIBIT P14 TRUE COPY OF COMMUNICATION DATED 12.12.2019 ISSUED TO PETITIONER BY THE 3RD RESPONDENT. ```