Dr. Sushama D. v. State of Kerala and Others

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT ``` ``` THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 9 [TH ] DAY OF FEBRUARY 2022 / 20TH MAGHA, 1943 ``` ## **`WP(C) NO. 2869 OF 2020`** ## **`PETITIONER/S:`** ``` DR.SUSHAMA.D AGED 56 YEARS W/O. SUKUMARAN, ASSOCIATE PROFESSOR, DEPARTMENT OF PHYSICS, M.S.M COLLEGE, KAYAMKULAM, KAYAMKULAM P O, ALAPPUZHA-690502. ``` ``` BY ADVS. P.B.SAHASRANAMAN SRI.T.S.HARIKUMAR ``` ## **`RESPONDENT/S:`** ``` 1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY, DEPARTMENT OF HIGHER EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM-695001. ``` ``` 2 THE DEPUTY DIRECTOR OF COLLEGIAGE EDUCATION KOLLAM-691001. 3 THE UNIVERSITY OF KERALA, REPRESENTED BY ITS REGISTRAR , UNIVERSITY OFFICE, THIRUVANANTHAPURAM-695034. 4 M.S.M COLLEGE, KAYAMKULAM, KAYAMKULAM P O, ALAPPUZHA-690502, REPRESENTED BY ITS PRINCIPAL. BY ADVS. SMT. SURYA BINOY, SR. GOVERNMENT PLEADER SRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 2869 OF 2020 ``` ``` 2 ``` ## **JUDGMENT** The challenge in this writ petition is raised against Exhibit P5 issued by the 2nd respondent finding that the petitioner is not entitled to pay parity with her juniors though they are equally qualified and discharging the very same duties. Exhibit P6 clarification order issued by the 1st respondent in so much as it prescribes that only teachers working in the same department in an institution would be entitled to pay parity with juniors is also under challenge. 2. The petitioner contends that she was appointed as a Lecturer in the M.S.M College, Kayamkulam, an institution affiliated with the 3rd respondent University, in the Department of Physics on 1.11.1995. While working as aforesaid, she acquired Ph.D Degree on 27.2.2008. While so, the 5th U.G.C. Scheme was implemented in the State of Kerala with effect from 21.12.1999. The petitioner contends that while implementing the UGC Scheme in the State, the State Government issued an order, whereby in respect of Lecturers who obtained Ph.D/M.Phil degree, they would be eligible for two advance increments as and when he/she acquired a Ph.D degree in his or her service carrier. As the petitioner fits the criteria fixed as above, she was granted two advance increments, on account of her acquiring the said ``` WP(C) NO. 2869 OF 2020 ``` ``` 3 ``` qualification. Consequent to the grant of advance increments, the pay of the petitioner was also fixed at the appropriate stage within the pay scale applicable. While matters stood so, the 6th UGC Scheme was implemented in the State of Kerala through a Government order. As in the case of the earlier Government order, the order based on the 6th UGC scheme also envisaged the grant of incentives for teachers having Ph.D/M.Phil qualification. However, in the said order, there was a specific clause which stated that teachers, library and physical education cadres, who have already availed the benefits of increments as per the existing policy for acquiring Ph.D/M.Phil while in service, would not be entitled to the benefits under the new order. As the petitioner in the instant writ petition had already been granted the benefit of advance increments under the Government order issued pursuant to the 5th UGC scheme, the petitioner was to be excluded from receiving the benefits flowing under the new Government order. The petitioners contend that Lecturers who are junior to her and in the very same cadre and who had obtained Ph.D qualification on dates later than when the petitioner obtained her Ph.D qualification, stood to get the benefit of incentives under the subsequent Government order. This, according to the petitioner, resulted in persons junior to the petitioner getting their pay fixed at a higher level in the revised pay scale, solely on account of their getting the benefit of advance ``` WP(C) NO. 2869 OF 2020 ``` ``` 4 ``` increments at a higher rate. It is the specific case of the petitioner herein that, the higher pay granted to the Junior in service, who obtained Ph.D on a date later than the petitioner, has resulted in an anomalous situation which was interfered with by this Court. The petitioner contends that a learned Single Judge of this Court in the judgment dated 27.10.2016 in W.P. (C) No.5682 of 2015 and connected cases has held that since the pay of the petitioners in the writ petition and their juniors were in the same pay scale, both before and after the implementation of the 6th UGC Scheme, the anomaly that has arisen consequent to the implementation of the 6th UGC Scheme can be rectified by directing the State Government to step up the pay of the petitioners to be at par with the pay fixed for their juniors in service. Though the matter was taken in appeal, the same was confirmed and was upheld by the Apex Court. In the said circumstances, the Government came out with Exhibit P1 Government order extending parity in the pay scale for all those persons who had approached this Court and also for similarly situated persons. The petitioner is also entitled to the benefit of the Government order. 3. Pointing out that various junior teachers in other departments in the very same college were getting more salary, the petitioner submitted Exhibit P2 representation before the 4th respondent. However, no action was ``` WP(C) NO. 2869 OF 2020 ``` ``` 5 ``` taken. Later, by Exhibit P5 communication, the 2nd respondent informed that the petitioner would not be entitled to parity of pay as the junior teachers referred to by the petitioner were working in other departments. It is submitted that persons similarly placed as the petitioner and working in the same college had approached this Court and by Exhibit P7 judgment dated 15.6.2017 in W.P. (C) 12927 of 2017 decided in their favour and after holding that those teachers were entitled to stepping up of pay and directed the consideration of their representation and to take a decision. The petitioner would also refer to Exhibit P8 order passed by the 2nd respondent granting parity of pay to other teachers. It is in the afore circumstances that the petitioner has approached this Court seeking the following reliefs. - i. To issue a writ of certiorari or other appropriate writ or order or direction to call for the records leading to Ext.P5 and quash the same. - ii. To declare that Exhibit P6 clarification to the extend of restricting the parity of pay with the juniors of the same department alone is illegal and arbitrary. - iii. Issue a writ of mandamus or other appropriate writ, order or direction by directing respondents 1 and 2 to reconsider Ext. P2 and P3 and to pass fresh orders by fixing the pay of the petitioner retrospectively at par with the juniors in service who have obtained the benefit of advance three increments on acquiring their PhD. - iv. Issue a writ of mandamus or other appropriate writ, order or direction by directing the respondents 1 and 2 to correct the ``` WP(C) NO. 2869 OF 2020 ``` ``` 6 ``` anomaly of fixing lesser pay to the petitioners than the juniors and further direct to step up the pay of the petitioner at par with the pay of her juniors. - v. Issue a writ of mandamus or other appropriate writ, order or direction by directing the respondents 1 and 2 to disburse the consequential benefits to the petitioner including the arrears consequential to the stepping up of the pay of the petitioners at par with that of the juniors within a time fixed by this Hon’ble Court; - vi. Such other reliefs prayed by the petitioner on the facts and circumstances of the case and the cost of this litigation. 4. I have heard Sri. T.S.Harikumar, the learned counsel appearing for the petitioner, Sri. Thomas Abraham, the learned standing counsel appearing for the Kerala University and the learned Government Pleader. 5. The petitioner was granted the benefits of career advancement for having acquired her PhD degree 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 Ph.D 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 ``` WP(C) NO. 2869 OF 2020 ``` ``` 7 ``` 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 seniors’ pay is due to a difference in incremental benefits. 6. I find that a learned Single Judge of this Court had occasion to consider the very same issue and in paragraph No. 6 of the judgment dated 28.10.2016 in W.P.(C) No.32933/2014, and 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 to 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 ``` WP(C) NO. 2869 OF 2020 ``` ``` 8 ``` 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 up of pay to be at par with their juniors. ………………. 7. The State had challenged the above judgment in appeal and by judgment dated 6.6.2017 in W.A.No. 488/2017, 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 PhD 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 PhDs after 01.09.2008, we could not get an answer. Admittedly, all the persons are PhD holders. The incentives are meant to be granted to persons ``` WP(C) NO. 2869 OF 2020 ``` ``` 9 ``` who have acquired PhD Degrees. It is not in dispute that, there is no difference in the qualifications of respondents 1 to 5 and their seniors. The 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 PhD 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 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 step 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 interference with the judgment in appeal. 8. The principles laid down in the above judgments will apply in full force to the petitioner as well. 9. I find that with a view to denying the benefit of the principles laid down in the judgments to the petitioner, the 1st respondent has now issued Ext.P6 clarification 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 the common judgment dated 9.2.2021 in ``` WP(C) NO. 2869 OF 2020 ``` ``` 10 ``` 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 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 P5 order 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 the 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 ``` WP(C) NO. 2869 OF 2020 ``` 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 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. **Sd/-** **RAJA VIJAYARAGHAVAN V JUDGE** ``` avs ``` ``` WP(C) NO. 2869 OF 2020 ``` ``` 12 ``` ## **`APPENDIX OF WP(C) 2869/2020`** ## **`PETITIONER EXHIBITS`** - `EXHIBIT P1 TRUE PHOTOSTAT COPY G.O(RT) NO.1691/2018/HEDN, DATED 11.09.2018` - `EXHIBIT P2 TRUE PHOTOSTAT COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT DATED 23.01.2019` - `EXHIBIT P3 TRUE PHOTOSTAT COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 12.11.2019` - `EXHIBIT P4 TRUE PHOTOSTAT COPY OF THE PROPOSAL FORWARDED BY THE 4TH RESPONDENT TO THE 2ND RESPONDENT , DATED 21.11.2019` - `EXHIBIT P5 TRUE PHOTOSTAT COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT, DATED 16.12.2019` - `EXHIBIT P6 TRUE PHOTOSTAT COPY OF THE CLARIFICATION LETTER VIDE NO.D1/375/HEDN ISSUED BY THE 1ST RESPONDENT ON 19.06.2019` - `EXHIBIT P7 TRUE PHOTOSTAT COPY OF THE JUDGMENT IN W.P(C) NO.1297 OF 2017, DATED 15.06.2017` ``` EXHIBIT P8 TRUE PHOTOSTAT COPY OF THE ORDER OF THE 2ND RESPONDENT, DATED 11.01.2019 ```