Dr. V. Anithakumari v. Principal, Sree Narayana College for Women Kollam & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **THURSDAY, THE 27TH DAY OF OCTOBER 2016/5TH KARTHIKA, 1938** ## **WP(C).No. 5682 of 2015 (I) ---------------------------** ## **PETITIONER(S): -------------** **DR.V.ANITHAKUMARI ASSOCIATE PROFESSOR, DEPARTMENT OF CHEMISTRY, SREE NARAYANA COLLEGE FOR WOMEN, KOLLAM 691001** ## **BY ADV. SRI.S.MUHAMMED HANEEFF** **RESPONDENT(S):** - **--------------** **1. PRINCIPAL, SREE NARAYANA COLLEGE FOR WOMEN KOLLAM 691001** **2. UNIVERSITY OF KERALA, REP. BY ITS REGISTRAR, UNIVERSITY CAMPUS, THIRUVANANTHAPURAM 695034** **3. DEPUTY DIRECTOR OF COLLEGIATE EDUCATION KOLLAM 691001** **4. STATE OF KERALA** - **REP. BY ITS SECRETARY TO THE GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695001** **R1 BY ADV. SRI.A.N.RAJAN BABU R3-R4 BY ADV. GOVERNMENT PLEADER SMT.MARY BEENA JOSEPH R2 BY ADV. SRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27-10-2016, ALONG WITH WPC. 5282/2015 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 5682 of 2015 (I) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **P1:A TRUE COPY OF THE RELEVANT EXTRACT OF GO.(P) NO.171/99/H.EDN DATED 21.12.1999** **P2:A TRUE COPY OF THE RELEVANT EXTRACT OF GO(P) NO.58/2010/H.EDN DATED 27.03.2010** **P3:A TRUE COPY OF THE SALARY DETAILS OF LECTURES WHO ACQUIRED PHD WHILE IN SERVICE PRIOR TO 01.10.2006** **P4:A TRUE COPY OF THE SALARY DETAILS OF LECTURES WHO ACQUIRED PHD WHILE IN SERVICE PRIOR TO 01.10.2006** **P5:A TRUE COPY OF THE GO(P) NO.44/2001/H.EDN DATED 29.03.2001** **P6:A TRUE COPY OF THE JUDGMENT DATED 09.03.2012 IN WP(C). NO.25962/2012 OF THIS HON'BLE COURT** **P7:A TRUE COPY OF THE JUDGMENT IN WA. NO.1888/2012 OF THE DIVISION BENCH OF THIS HON'BLE COURT** **P8:A TRUE COPY OF THE JUDGMENT DATED 12.11.2013 IN WPC NO.10283/2012 OF THE HIGH COURT OF MUMBAI** ## **RESPONDENT(S)' EXHIBITS:** **-----------------------** **EXT.R3(A): A TRUE COPY OF G.O.(M.S) NO.597/13/H.EDN DATED 03.09.2013** **//TRUE COPY//** **P.A TO JUDGE** ## **A.K.JAYASANKARAN NAMBIAR, J.** **............................................................. W.P.(C).Nos.5282, 5302, 5682, 5683, 26857 of 2015 & W.P.(C).Nos.19358, 31731 of 2016 ............................................................. Dated this the 27[th] day of October, 2016** ## **J U D G M E N T** As all these writ petitions involve a common issue, they are taken up together for consideration and disposed by this common judgment. For the sake of convenience, the reference to facts and exhibits is from W.P.(C).No.5682 of 2015. 2. The petitioner was appointed as a Lecturer in the Sree Narayana College for women with effect from 27.01.1982. The said appointment was approved by the Kerala University to which the College was affiliated. She was thereafter promoted as Lecturer (Selection Grade) with effect from 27.01.1998, and she acquired a Ph.D degree on 31.12.2004. The post of Lecturer was subsequently re-designated as Associate Professor, and it is in that capacity that the petitioner is stated to be working in the College. The facts in the writ petition would indicate that, while implementing the 5[th] -2- W.P.(C).Nos.5282 and connected cases. UGC Scheme in the State of Kerala, the State Government issued Ext.P1 Government order, wherein certain incentives were contemplated for persons who obtained Ph.D/M.Phil degree. In the case of those Lecturers who obtained the Ph.D degree, an incentive by way of two advance increments was envisaged when the said Lecturer moved into the Selection Grade/Reader. It was also envisaged that a teacher would be eligible for two advance increments as and when he/she acquired a Ph.D degree in his or her service carrier. It is not in dispute that the petitioner herein was granted two advance increments, on account of her acquiring the Ph.D qualification at the time when she was granted the Selection Grade. Consequent to the grant of advance increments in accordance with Ext.P1 Scheme, the pay of the petitioner was also fixed at the appropriate stage within the pay scale applicable. While matters stood so, the 6[th] UGC Scheme was implemented in the State of Kerala through Ext.P2 Government order. As in the case of Ext.P1 Government order, Ext.P2 Government order also envisaged the grant of incentives for teachers having Ph.D/M.Phil qualification. In Ext.P2 Government order, however, there was a specific Clause which stated that teachers, library and physical education cadres, who have already availed the benefits of -3- W.P.(C).Nos.5282 and connected cases. increments as per the existing policy for acquiring Ph.D/M.Phil while in service, would not be entitled to the benefits under Ext.P2 order. Inasmuch as the petitioner in the instant writ petition had already been granted the benefit of advance increments under Ext.P1 Government order, the effect of Ext.P2 Government order was to exclude the petitioner from receiving like benefits again under Ext.P2 Government order. The case of the petitioner in the writ petition, however, is that persons, who were junior to her in the cadre of Assistant Professor, 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 Ext.P2 Government order, and therefore, obtained the benefit of advance increments at the higher rates envisaged under the revised pay scales contemplated in Ext.P2 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 increments at a higher rate in Ext.P2 Government order. 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 -4- W.P.(C).Nos.5282 and connected cases. requires to be corrected, by stepping up the pay of the petitioners at least to the level of the pay drawn by their juniors. The prayer in the writ petition is, therefore, for a direction to the respondents to re-fix the petitioner”s pay at the level granted to her juniors in service consequent to the implementation of Ext.P2 Government order. The facts in the other writ petitions are also similar, as are the reliefs claimed therein. 3. A counter affidavit has been filed on behalf of the 3[rd] respondent wherein the stand taken is that, in view of the express provisions of Ext.P2 Government order, the petitioner, who had already been granted the benefit of advance increments by Ext.P1 Government order, could not be granted additional increments as contemplated in Ext.P2 Government order. The counter affidavit, therefore, proceeds on the assumption that what is claimed in the writ petition is the benefit of advance increments as contemplated in Ext.P2 Government order, over and in addition to what is already granted to the petitioner in Ext.P1 Government order. 4. I have heard the learned counsel appearing for the petitioners in all these writ petitions, the learned Government -5- W.P.(C).Nos.5282 and connected cases. Pleader appearing on behalf of the official respondents in all these writ petitions and also the learned counsel appearing for the respective Colleges and respective Universities. 5. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find that, both Exts.P1 and P2 Government orders have been issued in connection with the implementation of the 5[th] and 6[th] UGC Schemes in the State of Kerala. Both the Government orders envisaged the grant of incentives to teachers, who had acquired Ph.D degree during the course of their service. While Ext.P1 Government order contemplated the grant of two advance increments, to Lecturers who had obtained Ph.D qualification while in service, at the time of grant of Selection Grade/Reader to them, a similar benefit was also envisaged under Ext.P2 Government order, in the revised scale of pay that was contemplated under the said Government order. The petitioners herein are persons, who obtained the benefit of two advance increments under Ext.P1 Government Order when their salary was fixed at the lower pre-revised scale. The advance increments granted to them under Ext.P1 Government order where also -6- W.P.(C).Nos.5282 and connected cases. accordingly at a lower rate. No doubt, their pay was fixed at the appropriate level in the pre-revised scale after making the addition of two advance increments to their basic pay. Later, while revising their pay in the revised pay scale that was introduced through Ext.P2 Government order, their pay was fixed at the appropriate level in the revised pay scale also. It would appear, however, that persons who are junior to the petitioners, and who had obtained their Ph.D qualification subsequent to the coming into force of Ext.P2 Government order, obtained a similar benefit of two advance increments at the time of placement in the Selection Grade, at the higher revised rate of pay contemplated in Ext.P2 Government order. This resulted in an anomalous situation where juniors to the petitioners, obtained a higher pay in the higher pay scale contemplated under Ext.P2 Government order solely on account of the fact that, on account of their later acquisition of the Ph.D qualification, they became entitled to the higher rate of increment contemplated in Ext.P2 Government order. It is relevant to note at this stage that, Ext.P2 Government order envisaged the possibility of anomalies arising in the implementation of pay scales, as it is stated therein that if there is any anomaly the same should be brought to the notice of the -7- W.P.(C).Nos.5282 and connected cases. Department of Higher Education for clarification/decision in accordance with UGC orders and guidelines issued from time to time. The counter affidavit of the State Government, however, does not address the issue at all and maintains that the petitioners are not entitled to the benefit of advance increments under Ext.P2 Government order, and further, the State Government is not responsible for the alleged anomaly arising out of the implementation of Ext.P2 Government order. In my view, such a stand on behalf of the State Government cannot be legally countenanced. It is apparent that, the peculiar circumstances in the instant cases, where juniors in service to the petitioners are drawing higher pay than the petitioners pursuant to a revision of pay scales consequent to the implementation of the 6[th] UGC Scheme is an anomaly that arises on account of the implementation of the 6[th] UGC Scheme. The Supreme Court has in the decision in **Gurcharan Singh Grewal and Another v. Punjab State Electricity Board and Others [2009 (3) SCC 94]** indicated that, it is a settled principle of law that a Senior cannot be paid a lesser salary than the junior. The said decision was relied upon by the Bombay High Court in the judgment produced as Ext.P8 in W.P(C).No.5682 of 2015, wherein, on noticing that -8- W.P.(C).Nos.5282 and connected cases. there was an anomaly arising consequent to the implementation of the 6[th] UGC Scheme, whereby a junior was drawing Higher Grade than the Senior, the Bombay High Court directed the stepping up of the pay of the Senior so as to be at par with that of the junior in the revised scale of pay. Taking cue from the aforesaid decisions, and finding that under many of the service rules, the principle of stepping up of pay, for the purposes of curing an anomaly that has arisen out of the implementation of a pay revision, is recognised as an accepted practice, I am of the view that, in the instant case since the pay of the petitioners as well as the juniors was in the same pay scale, both before and after the implementation of the 6[th] UGC Scheme, the anomaly that has arisen consequent to the implementation of the 6[th] 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. Accordingly, I direct the State Government, and the competent among the official respondents, to pass fresh orders fixing the pay of the petitioners at par with their juniors in service, who have obtained the benefit of advance increments pursuant to Ext.P2 Government order. It is made clear that only in such cases where the anomaly referred to above is noticed when the -9- W.P.(C).Nos.5282 and connected cases. petitioners and their juniors were drawing pay in the same scale of pay, before and after the implementation of the 6[th] UGC Scheme, will the need arise for correcting the anomaly, and stepping up the pay of the petitioners to be at par with the pay of their juniors, The respondents shall pass appropriate orders as directed, within a period of three months from the date of receipt of a copy of this judgment and also disburse to the petitioners the consequential benefits, including in appropriate cases the retirement benefits computed on the aforesaid basis, within a further period of 4 months. Then writ petitions are disposed as above. Sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** mns/27.10.16