State of Kerala & Director of Collegiate Education v. Dr. Anitha, Dr. M.K Muraleedharan Nair & Dr. K.N Vijayakumari (OP(KAT) No.1 of 2018)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON &** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 9TH DAY OF JANUARY 2018 / 19TH POUSHA, 1939 OP(KAT).No. 1 of 2018 ---------------------AGAINST THE ORDER IN OA(EKM) 456/2016 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM ----------** **PETITIONER(S)/RESPONDENTS IN O.A** **---------------------------------** **1 GOVERNMENT OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, KERALA - 695 001.** - **2 DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, THIRUVANANTHAPURAM, KERALA - 695 033.** **BY GOVERNMENT PLEADER SRI P.N.SANTHOSH** **RESPONDENT(S)/APPLICANT IN O.A:** **-------------------------------** ## **1. DR. ANITHA 1,** **W/O. DR. K GIRISH KUMAR, AGED 52 YEARS, ASSOCIATE PROFESSOR OF CHEMISTRY, MAHARAJAS COLLEGE, ERNAKULAM RESIDING AT KAVYAM, K.K LANE, TOLL JUNCTION, EDAPPALLY P.O, KOCHI, KERALA - 682 024.** **2. DR. M.K MURALEEDHARAN NAIR,** **S/O. M.N KUTTAPPANPILLAI, AGED 51 YEARS, ASSOCIATE PROFESSOR OF CHEMISTRY, MAHARAJAS COLLEGE, ERNAKULAM RESIDING AT MANTHANATH, THAMARAMKUKANGARA, TRIPUNITHURA P.O, ERNAKULAM, KERALA - 682 301.** **3. DR. K.N VIJAYAKUMARI,** **W/O. D MURALI, PRINCIPAL, AGED 54 YEARS, GOVERNMENT ARTS AND SCIENCE COLLEGE, TRITHALA, PALAKKAD DISTRICT, RESIDING AT PADMALAYAM, C.M COURT - 13, CHERTHALA, ALAPPUZHA, KERALA - 688 524.** **BY ADVS. SRI.K.MADHUSOODANAN** **SRI.T.G.PAUL** **SRI.MATHEW JACOB (KUNNATHU) SRI.SYRIAC JOSEPH** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 09-01-2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.V.** **OP(KAT).No. 1 of 2018 () ------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-----------------------** **EXHIBIT P1 TRUE COPY OF O.A NO.456/2016 ALONG WITH ANNEXURES.** **EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT OF THE 2ND RESPONDENT IN O.A** **EXHIBIT P3 PHOTOCOPY OF THE ORDER DATED 15.02.2017 IN O.A NO.456/2016.** ## **RESPONDENTS EXHIBITS: NIL** **--------------------** **K.V. P.S.TO JUDGE** ## **CR** ## P.R.Ramachandra Menon & Devan Ramachandran, JJ. -------------------------------------------------- ## O.P.(KAT)No.1 of 2018 -------------------------------------------------- Dated this the 9[th] day of January, 2018 ## **JUDGMENT** ## **Devan Ramachandran, J.** This original petition has been filed by the State of Kerala and the Director of Collegiate Education, assailing the order of the Kerala Administrative Tribunal in O.A.(EKM)No. 456/2016 dated 15.02.2017, whereby directions have been issued to them to rectify the anomaly in the pay scales drawn by the respondents/applicants and that their pay scales be stepped up to be at par with their juniors. 2. The forensic issues raised in this original petition have, in fact, been answered against the State of Kerala by a Bench of this Court in W.A.No.488/2017, in which facts analogous to that of this case were presented. We will refer to the observations in the said judgment presently. 3. Before that, the sylloge of the most essential facts and circumstances is ut infra. OP(KAT) 1/18 2 4. We notice from the pleadings that first and second respondents/applicants are working as Associate Professors in the Maharaja's College, Ernakulam and that the third respondent is the Principal of the Government Arts and Science College, Trithala, Palakkad District. 5. The anomaly that the respondents faced, with respect to their pay scale in reference to the pay scales drawn by their juniors, was on account of the implementation of the VI UGC Scheme, which was introduced with effect from 01.01.2006. Prior to the VI UGC Scheme, the V UGC Scheme, which was brought into effect from 01.01.1996, was implemented with effect from 21.12.1999. The order implementing the V UGC Scheme has been appended on record as Annexure A2. In the said order, it has a clause in Appendix II, as Rule 4 Explanation 9, to step up the pay of the senior in case the pay fixed is at a scale lower than that of the junior on account of the implementation of the said pay revision. However, when the VI UGC Scheme was introduced, the Government issued Annexure A3 order implementing the same, but by omitting any provision with respect to the OP(KAT) 1/18 3 rectification of the anomaly in the pay scales drawn by the seniors and juniors. 6. On a comparison of the V and VI UGC Schemes, we notice that under the former, two advance increments are issued to persons who acquire Ph.D. on or before 01.01.2006, while under the VI UGC Scheme, three non-compounded increments are offered to persons who complete their Ph.D. on or before 01.09.2008. The difference in the increments offered and the manner in which it is implemented obviously leads to great disparity in the pay scales drawn by the juniors in comparison to the seniors. This was the case shown by the respondents/applicants before the learned Tribunal. 7. The learned Tribunal assessed the two Schemes in question and found that even though while implementing the V UGC Scheme the relevant Government Order had a provision to step up the salary of the seniors if theirs were fixed lower than their juniors, when it came to the implementation of the VI Scheme, this was conspicuously omitted when Annexure A3 order was issued by the Government. The learned Tribunal, therefore, took the view OP(KAT) 1/18 4 that the omission in Annexure A3 order of the provisions relating to the rectification of the anomaly of stepping up of the salary of the seniors to be par with the juniors, would not be a sufficient reason to deny such benefit to the admitted seniors who are drawing a lower scale of pay. The learned Tribunal relied upon the judgment of this Court in W.A.No. 488/2017, which we have mentioned above, wherein the judgment of the Hon'ble Supreme Court in **Gurcharan Singh Grewal and another v. Punjab State Electricity Board and others** ((2009) 3 SCC 94) had also been specifically adverted to. Paragraph 7 of the judgment in W.A.No.488/2017 contains the declaration of this Court, which is as under: “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 OP(KAT) 1/18 5 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 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.” ## 8. In **Gurcharan Singh Grewal** (supra), the Hon'ble Supreme Court in similar set of circumstances, concluded affirmatively that the contention placed before it, that the sanction of advance increment cannot be considered as an anomaly leading to a claim for stepping up the pay, is legally unsustainable. Their Lordships, thereafter, directed that the petitioners (who are admittedly seniors) are entitled to stepping up of the pay to be at par with the juniors. As we have already indicated, the Bench judgment in W.A.No. 488/2017 also concludes on identical lines and while OP(KAT) 1/18 6 dismissing the appeal filed by the State of Kerala, this Court held that implementation of a subsequent scheme shall not result in a situation where the juniors were permitted to draw more salary than them. On such reasoning this Court directed the State to rectify the anomaly and to fix the scale of pay to the seniors by stepping it up to be at par with their juniors. 9. We are in complete conformity and affirmation with the holding and conclusions of the Bench judgment in W.A.No. 488/2017 and see no compelling reason to deviate therefrom. We are, therefore, of the firm opinion that the directions contained in the said judgment would apply pari materia to the facts and circumstances that are impelled in these proceedings. We see that the facts stated are analogous to the facts that were noticed by the Division Bench in the judgment in W.A.No.488/2017 and therefore, it is only justified that the directions contained therein are made applicable to the case at hand also. In such circumstances and for the reasons that we have recorded afore, we see no reason to interfere in any manner with the directions of the learned Tribunal and we OP(KAT) 1/18 7 deem it appropriate to confirm the same by dismissing this Original Petition. We do so. In the factual purlieu noticed above, we, however, deem it appropriate not to make any order as to costs and leave the parties to suffer their respective costs. P.R.Ramachandra Menon, Judge Devan Ramachandran, Judge tkv