Kerala Agricultural University v. Dr. K. Rajmohan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** ## **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS** **THURSDAY, THE 23[RD] DAY OF MARCH 2023 / 2ND CHAITHRA, 1945 WA NO. 167 OF 2023** **AGAINST THE JUDGMENT DATED 30.06.2022 IN WP(C) 5529/2018** **OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS 1 & 2:** - **1 KERALA AGRICULTURAL UNIVERSITY, VELLANIKKARA, THRISSUR-680 654.** - **2 KERALA AGRICULTURAL UNIVERSITY, VELLANIKKARA, THRISSUR.** **BY ADV SRI.ROBSON PAUL, SC, KERALA AGRICULTURAL UNIVERSITY (KAU)** ## **RESPONDENT/PETITIONER:** **DR.K. RAJMOHAN, S/O.M.KARTHIKEYAN, RETIRED PROFESSOR, COLLEGE OF AGRICULTURE, VELLAYANI, THIRUVANANTHAPURAM, RESIDING AT SAIKRISHNA, K P A C LANE, VALLAKADAVU P.O., THIRUVANANTHAPURAM.** **BY ADV P.V.JAYACHANDRAN** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Writ Appeal No.167 of 2023 ## **C.R.** ## **P.B.SURESH KUMAR & SOPHY THOMAS, JJ. ----------------------------------------------Writ Appeal No.167 of 2023 ----------------------------------------------Dated this the 23[rd] day of March, 2023.** ## **JUDGMENT** ## **P.B.Suresh Kumar, J.** This appeal is directed against the judgment dated 30.06.2022 in W.P.(C) No.5529 of 2018. The appellants were respondents 1 and 2 in the writ petition. Parties and documents are referred to in this judgment for convenience, as they appear in the writ petition. 2. The petitioner was a teacher in the Kerala Agricultural University (the University). The matter relates to the claim made by the petitioner for stepping up of his pay in tune with the pay of one Dr.B.Balakirshnan, allegedly a teacher junior to him, with effect from 01.01.1986. The premise on which the aforesaid claim was made by the petitioner is that a 3 Writ Appeal No.167 of 2023 senior cannot be paid a lesser salary than his junior. The learned Single Judge who considered the writ petition along with an identical writ petition took the view that the issue is covered in favour of the petitioner by the decision of the Division Bench in **Kerala Agricultural University v. Elizabeth K. Syriac** , 2022 SCC OnLine Ker 1376 and consequently, allowed the writ petition and directed the University to step up the pay of the petitioner on par with the pay of his so called junior and disburse him the consequential monetary benefits. The officials of the University who are respondents 1 and 2 in the writ petition are aggrieved by the decision of the learned Single Judge and hence, this appeal. 3. Heard the learned Standing Counsel for the University as also the learned counsel for the petitioner. 4. The facts are not in dispute. The petitioner was appointed in the University as Junior Assistant Professor on 07.10.1977. While continuing so, he was appointed as Assistant Professor with effect from 20.04.1981. On completing ten years of service in the University, in terms of the pay revision order issued by the State Government viz, G.O.(P) 4 Writ Appeal No.167 of 2023 No.515/85/Fin. dated 16.09.1985, the petitioner was assigned non-cadre promotion to the post of Associate Professor with effect from 07.10.1987. While so, on 25.06.1990, the State Government adopted and implemented the 1986 Scheme of the University Grants Commission (the UGC Scheme) for the teachers of the University. While implementing the UGC Scheme, the University did not protect the non-cadre promotion given to the petitioner and similarly placed teachers in the post of Associate Professor. Nevertheless, with effect from 09.01.1990, the petitioner was appointed as Associate Professor in terms of the UGC Scheme in the scale of pay Rs.3,700 - 5,700. 5. Dr.B.Balakrishnan was appointed in the University like the petitioner as Junior Assistant Professor on 12.12.1975. He was, however, appointed as Assistant Professor only on 02.11.1982, as there was some delay on his part in acquiring the necessary qualifications for the said appointment. As in the case of the petitioner, Dr.B.Balakrishnan was also assigned non-cadre promotion to the post of Associate Professor in terms of the pay revision order of the State Writ Appeal No.167 of 2023 5 Government viz, G.O.(P) No.515/85/Fin. dated 16.9.1985 on completion of 10 years’ service in the University. There were two other teachers also in the University like Dr.B.Balakrishnan who entered service as Junior Assistant Professor prior to the entry of the petitioner as Junior Assistant Professor, but appointed as Assistant Professor only after the appointment of the petitioner as Assistant Professor. They are Dr.V.K.Raju and Dr.R.Pushpakumari. As in the case of Dr.B.Balakrishnan, the aforesaid teachers were also assigned non-cadre promotion to the post of Associate Professor prior to the conferment of noncadre promotion to the petitioner to the said post on completion of ten years. 6. The teachers of the University including the petitioner maintained the stand that they are entitled to the non-cadre promotion given to them to the post of Associate Professor in the UGC scale of Rs.3,700 - 5,700 with effect from the respective dates of grant of non-cadre promotion to them. Since the University did not accept the said stand of the teachers, they took up the matter before this court in W.P.(C) No.10496 of 2006 and connected cases, and this court declared 6 Writ Appeal No.167 of 2023 that the petitioners are entitled to the non-cadre promotion to the post of Associate Professor in the UGC scale of Rs.3,7005,700 with effect from the date of completion of ten years’ service in the University. The said judgment has become final. Thereupon, the University extended the benefit of the said judgment to all similarly placed teachers as well. Both the petitioner and the three teachers referred to in the preceding paragraph including Dr.B.Balakrishnan were accordingly conferred non-cadre promotion to the post of Associate Professor in the UGC scale of Rs.3,700 - 5,700 with effect from the date of completion of ten years’ service in the University. While the petitioner got the benefit of the said verdict with effect from 07.10.1987, Dr.B.Balakrishnan got the benefit of the same with effect from 01.01.1986. Similarly, the other teachers, Dr.V.K.Raju and Dr.R.Pushpakumari also got the benefit of the said verdict before the date with effect from which the petitioner got the same. As a result, all the three teachers referred to above, who were seniors to the petitioner in terms of the date of entry in the service of the University started receiving more emoluments than the petitioner. But, Writ Appeal No.167 of 2023 7 according to the petitioner, since he is senior to the three teachers referred to above in terms of the dates of appointment as Assistant Professor in the University, he is entitled to the same pay as that of Dr.B.Balakrishnan, who is senior among them. In order to show that the petitioner is senior to Dr.B.Balakrishnan and two others referred to above, the petitioner relies on Ext.P3 decision of the University to reckon seniority based on the cadre seniority in the directly recruited cadre at the time of induction to UGC Scheme. The petitioner therefore, raised a claim in this regard before the University on 27.11.2017. Ext.P6 is the representation preferred by the petitioner before the University in this regard. The writ petition was instituted thereafter seeking a direction to the University to step up the pay of the petitioner in tune with the pay drawn by Dr.B.Balakrishnan with effect from 01.01.1986 and to disburse him consequential monetary benefits with interest. It is alleged by the petitioner in the writ petition that in an identical case, in terms of the judgment in W.P.(C) No.16252 of 2012 dated 26.05.2015, this court has accepted an identical claim. 8 Writ Appeal No.167 of 2023 7. A counter affidavit has been filed on behalf of the University contending mainly that the claim raised by the petitioner on the premise that Dr.B.Balakrishnan and two other teachers referred to in the writ petition are juniors to him, is unsustainable inasmuch as they are seniors to him going by the dates on which they joined the service of the University as also going by the dates on which they were assigned non-cadre promotion to the post of Associate Professor in the UGC scale. It was also contended in the counter affidavit that in order to claim stepping up of pay based on seniority, the service particulars of the senior and junior shall be identical in all respects and the service particulars of the petitioner and the three teachers referred to by the petitioner in the writ petition as juniors, are not identical. It was also contended by the University that even though the petitioner was appointed earlier as Assistant Professor in the University, the same is of no consequence inasmuch as the three teachers referred to by the petitioner as his juniors in the writ petition were given noncadre promotion to the post of Associate Professor in the UGC scale earlier to the petitioner. 9 Writ Appeal No.167 of 2023 8. The learned Standing Counsel for the University asserted that inasmuch as the petitioner is junior to the three teachers referred to in the writ petition with reference to the dates of entry in the service of the University, and inasmuch as the said three teachers have been assigned non-cadre promotion to the post of Associate Professor in the UGC scale earlier to the petitioner, merely for the reason that the petitioner was appointed as Assistant Professor earlier to them, it cannot be said that the petitioner is entitled to the same pay as that of the said three teachers. It was also argued by the learned Standing Counsel that the judgment in **Elizabeth K. Syriac** has nothing to do with the case on hand. 9. Placing reliance on the fact that the petitioner is a person who was appointed as Assistant Professor earlier in point of time, the learned counsel for the petitioner contended that he is senior to the three teachers referred to in the writ petition and inasmuch as he is senior to the said three teachers, he should be paid at least the pay applicable to them. The learned counsel has relied on the decision of the Apex Court in **Gurcharan Singh Grewal v. Punjab SEB** , (2009) 3 10 Writ Appeal No.167 of 2023 SCC 94 to contend that a senior cannot be paid a lesser salary than his junior at all. 10. We have given our thoughtful consideration to the submissions made by the learned counsel for the parties on either side. 11. As noted, the learned Single Judge did not consider the question whether the claim raised by the petitioner for parity of pay is sustainable. Instead, the learned Single Judge took the view that the issue is covered in favour of the petitioner by the decision of the Division Bench in **Elizabeth K. Syriac** and consequently, allowed the writ petition on that basis. As such, the first and the foremost question to be considered is as to whether the decision of the Division Bench in **Elizabeth K. Syriac** has anything to do with the case on hand. 12. Dr.Elizabeth K. Syriac was an Assistant Professor in the University who got the benefit of two advance increments in terms of the 1996 UGC Regulations on acquiring Ph.D degree. Her junior, Dr.L.Girija Devi who acquired Ph.D while 2006 UGC Regulations were in force got the benefit of 11 Writ Appeal No.167 of 2023 three advance increments in terms of the said Regulations and consequently, she was able to draw a higher pay than her senior Dr.Elizabeth K. Syriac. Dr.Elizabeth K. Syriac contended that the aforesaid is an anomaly to be corrected by stepping up her pay in tune with the pay of her junior. The University contended that anomalies to be corrected in the aforesaid manner are only anomalies that arise due to pay fixation and not anomalies that arise on account of grant of advance increments in terms of the schemes of the University Grants Commission. It is seen that this Court in the said case took the view that inasmuch as the qualifications acquired by both the teachers being one and the same and there being no difference in the nature of work discharged by them, they cannot be treated differently and that such anomalies are also to be corrected by stepping up the pay of the senior up to that of the juniors. In the case on hand, the three teachers referred to in the writ petition as juniors to the petitioner were admittedly seniors to the petitioner in terms of the dates of entry in the service of the University as Junior Assistant Professor. All of them were granted non-cadre promotion to the post of 12 Writ Appeal No.167 of 2023 Associate Professor in the UGC scale of pay long before the petitioner was given the same. In the light of the contention taken by the petitioner in the writ petition, the question that arises for consideration in the case on hand is whether the petitioner is entitled to claim parity of pay with the pay of the aforesaid three persons merely for the reason that he was promoted as Assistant Professor before their promotion as Assistant Professor in the University. According to us, the facts of the case dealt with by the Division Bench in **Elizabeth K. Syriac** are neither identical nor similar to the facts of the present case and the decision in the said case cannot have any application to the facts of the present case. 13. Let us now consider whether the case dealt with by this Court in W.P.(C) No.16252 of 2012 has anything to do with the case on hand. We are constrained to consider this question also, as it is specifically pleaded by the petitioner in the writ petition that the case dealt with by this Court in the said writ petition is an identical one. W.P.(C) No.16252 of 2012 is a case instituted by one Dr.Sosamma Cherian. The grievance voiced by her in the said writ petition was that one 13 Writ Appeal No.167 of 2023 Dr.K.G.Padmakumar, who entered the service of the University as junior Assistant Professor like her much after the entry of the petitioner, was drawing more pay than the petitioner on account of the fixations given to him as on 01.01.2006. A close reading of the judgment does not indicate as to how an incumbent who entered service in the same post as that of the petitioner much after the entry of the petitioner and got identical advance increments, promotions, placements etc. after the petitioner was given such benefits, happened to draw more pay than the petitioner. Be that as it may, the fact remains that the petitioner in the said writ petition and Dr.K.G.Padmakumar were identically placed and Dr.K.G.Padmakumar was junior to the petitioner in all aspects. The said judgment also, according to us, cannot have any application to the facts of the present case. 14. Needless to say, the sustainability or otherwise of the claim of the petitioner needs to be considered independent of the decision of this Court in **Dr.Elizabeth K.Syriac** and in W.P.(C) No.16252 of 2012. Before considering the claim raised by the petitioner for stepping up of his pay in 14 Writ Appeal No.167 of 2023 tune with the pay of his so called juniors, it is necessary to understand the legal principle, on the basis of which such a claim has been raised by the petitioner. 15. It is trite that there cannot be a case of discrimination merely because of the fortuitous circumstances arising on account of the peculiarity of the facts of a particular case. Fact situations arising in a case may create advantages or disadvantages for one group or the other although in the earlier stages, they were more or less alike. If one class has not been singled out for special treatment, the mere circumstances of advantages accruing to one or the other cannot result in breach of Article 14 of the Constitution. It is so held by the Apex Court in **Union of India v. E.S. Soundara Rajan** , (1980) 3 SCC 125. The relevant portion of paragraph 4 of the judgment reads thus: “It is equally important to remember the well-established proposition that there cannot be a case of discrimination merely because fortuitous circumstances arising out of some peculiar developments or situations create advantages or disadvantages for one group or the other although in the earlier stages they were, more or less, alike. If one class has not been singled out for special treatment, the mere circumstances of advantages accruing to one or the other 15 Writ Appeal No.167 of 2023 cannot result in breach of Article 14 of the Constitution. On this basis we should agree with the reasoning of the High Court of Madras and so declare the law correctly.” The principle that a senior cannot be paid lesser salary than his junior is a principle based on the doctrine of equality. But it is not an absolute rule. Ordinarily grant of higher pay to a junior would ex facie be arbitrary, but if there are justifiable grounds in doing so, the seniors cannot invoke the equality doctrine. It is so held by the Apex Court in **State of A.P. v. G. Sreenivasa Rao** , (1989) 2 SCC 290. Paragraph 15 of the said judgment reads thus: “15. Equal pay for equal work” does not mean that all the members of a cadre must receive the same pay packet irrespective of their seniority, source of recruitment, educational qualifications and various other incidents of service. When a single running pay scale is provided in a cadre the constitutional mandate of equal pay for equal work is satisfied. Ordinarily grant of higher pay to a junior would ex facie be arbitrary but if there are justifiable grounds in doing so the seniors cannot invoke the equality doctrine. To illustrate, when pay fixation is done under valid statutory rules/executive instructions, when persons recruited from different sources are given pay protection, when promotee from lower cadre or a transferee from another cadre is given pay protection, when a senior is stopped at efficiency bar, when advance increments are given for experience/passing a test/acquiring higher qualifications or incentive for efficiency; 16 Writ Appeal No.167 of 2023 are some of the eventualities when a junior may be drawing higher pay than his seniors without violating the mandate of equal pay for equal work. The differentia on these grounds would be based on intelligible criteria which has rational nexus with the object sought to be achieved. We do not therefore find any good ground to sustain the judgments of the High Court/Tribunal.” (Underline supplied) As evident from the extracted portion of the judgment, when pay fixation has been made under a valid statutory rule/executive instruction, it is an eventuality where a junior could legitimately draw a higher pay than his senior, without violating the mandate of equal pay for equal work. Needless to say, the differentia on a ground of this nature would be based on intelligible criteria which has rational nexus with the object sought to be achieved. In other words, in such situations, grant of higher pay to a junior would not be arbitrary, but justifiable and seniors cannot invoke the equality doctrine. After referring to **G. Sreenivasa Rao** , the Apex Court in **State of W.B. v. Debasish Mukherjee** , (2011) 14 SCC 187 has held that the High Courts and tribunals should not, in an omnibus manner come to the conclusion that wherever and for whatever reasons, a junior is given higher pay, a doctrine of equal pay for 17 Writ Appeal No.167 of 2023 equal work is violated and a senior is entitled to the same pay, irrespective of the scope of the relevant rules and the reasons which necessitated fixing of higher pay for juniors. The relevant passage in the said judgment reads thus : “This Court held that the High Courts and Tribunals should not, in an omnibus manner come to the conclusion that whenever and for whatever reasons, a junior is given higher pay, the doctrine of “equal pay for equal work” is violated and the seniors are entitled to the same pay, irrespective of the scope of the relevant rules and the reasons which necessitated fixing of higher pay for juniors.” The statement of law made by the Apex Court in **Gurcharan Singh Grewal** that a senior cannot be paid lesser salary than his junior has to be understood in the light of the principles laid down by the Apex Court in **E.S. Soundara Rajan** , **G. Sreenivasa Rao** and **Debasish Mukherjee** , of which **Debasish Mukherjee** is a later decision. In other words, for claiming stepping up of pay of the senior, the service particulars of the junior and senior should be identical in all respects and the anomaly must be one arising on account of fixation of the pay of the junior as per his entitlement. 16. Now let us consider the question whether the 18 Writ Appeal No.167 of 2023 case on hand is a case where the petitioner could legitimately raise a claim for stepping up of the pay in tune with the pay of his juniors in the cadre of Assistant Professor. As already noticed, the three teachers referred to by the petitioner in the writ petition as his juniors, entered into the service of the University as Junior Assistant Professor prior to the entry of the petitioner as Junior Assistant Professor. It is not disputed that in the light of the decision of this Court in W.P.(C) No.10496 of 2006 and connected cases, which has become final, the University extended the benefit of the said verdict to the petitioner as also to the three teachers referred to above by granting them non-cadre promotion to the post of Associate Professor in the UGC scale on completion of ten years of service in the University. The said decision was taken by the University as it was found by the Apex Court in the case of similarly placed persons that they are entitled to the said benefit in the light of the pay revision order issued by the State Government. It is beyond dispute that it is by virtue of the decision of this Court in W.P.(C) No.10496 of 2006 and connected cases which was affirmed by the Apex Court and 19 Writ Appeal No.167 of 2023 later followed by the University, that the three teachers referred to by the petitioner as juniors in the writ petition happened to be given the benefit of non-cadre promotion in the post of Associate Professor from the respective dates on completion of ten years’ service before the petitioner had been granted the same benefit and it is on account of the said reason that they happened to draw more pay than the petitioner with effect from the date on which they got noncadre promotion in the post of Associate Professor. The pointed question is as to whether the petitioner is entitled to claim the same pay as that of Dr.B.Balakrishnan who is senior among the three of his so called juniors in a situation of this nature. According to us, even if they are considered as juniors to the petitioner in the cadre of Assistant Professor, the petitioner is not entitled to pay parity with them on the basis that he is senior to them inasmuch as it is by virtue of the lawful pay revision orders issued by the State Government, they got the benefit of the protection of the non-cadre promotion in the post of Associate Professor earlier to the non-cadre promotion given to the petitioner to the said post. In other words, the case on 20 Writ Appeal No.167 of 2023 hand is a case where grant of higher pay to a junior is justifiable being one granted under a valid executive order and the right of the junior to the said benefit has been upheld by the Court. In such situations, according to us, a senior cannot complain that his right to equality is infringed. If a situation of this nature is treated as one of a junior-senior anomaly so as to enable the senior to claim stepping up of the pay, the same will have the effect of the senior getting a non-cadre promotion to the post of Associate Professor on a date anterior to his entitlement to such a non-cadre promotion. 17. In the light of the discussion aforesaid, the claim of the petitioner for pay parity is unsustainable and is rejected. In the result, the writ appeal is allowed, the impugned judgment is set aside and the writ petition is dismissed. Sd/- ## **P.B.SURESH KUMAR, JUDGE.** Sd/- ## **SOPHY THOMAS, JUDGE.** YKB Writ Appeal No.167 of 2023 21 ## **APPENDIX OF WA 167/2023** ## **PETITIONER ANNEXURES** **Annexue A A true copy of the order No. GO(MS) No. 32/07/AD dated 19.03.2007 Annexue B A true copy of the order G.O.(Ms)No. 210/2022ffin dated 03.12.2022**