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2007 DIGILAW 1781 (PNJ)

Nirmala Mittal v. State Of Haryana

2007-10-03

ASHUTOSH MOHUNTA

body2007
Judgment Ashutosh Mohunta, J. 1. The petitioner has prayed that the respondents be directed to release three advance increments from the date of acquiring Ph. D. qualification and also to quash that part of circular Annexures P-3 and P-4, which denies such a benefit to the petitioner. 2. Learned counsel for the petitioner has submitted that the pay scale of the teachers in Universities and Colleges were revised w.e.f. January 1, 1986 by the Govt. of India on the recommendations of the University Grants Commission (Annexure P-3), which were also adopted by the Govt. of Haryana vide letter dated March 8, 1989 (Annexure P-4). In view of the said circulars, lecturers who possess research degrees i.e. Ph.D. or M. Phil. qualification at the time of recruitment on or after January 1, 1986 were entitled to three or one advance increment respectively. Whereas those lecturers who improved their qualifications before or after January 1, 1986, while in service were not entitled to such benefit. The relevant part of the circular is as under :- "In order to encourage research in continuation of post graduate studies, candidates who at the time of their regular appointment as lecturers possess Ph.D. or M. Phil. degree will be sanctioned three and one advance increments respectively in the scale of Rs. 2200-4000 along with one benefit and corresponding years of service for the purpose of promotion. The individuals shall have the benefit of weightage only once. The existing lecturers without research degrees and those similarly situate recruited in future will be eligible for similar benefit in service for the purpose of promotion as and when they acquire research degrees, but will not be eligible for advance increments. Existing lecturers with research degrees will also be eligible for a similar benefit." 3. The petitioner was appointed as a regular lecturer in college cadre in the Haryana State in the year 1971 and was sent on deputation to the Chandigarh Administration to serve in Govt. College in Sector-11, Chandigarh in the year 1973 and since then she has been working as such. At the time of her appointment as lecturer in 1971, she was post graduate in Hindi and Sanskrit. Thereafter, while in service, she improved her qualification and obtained degree of Ph.D. in the faculty of language (Hindi) from Punjab University, Chandigarh in the year 1990 (Annexure P-2). At the time of her appointment as lecturer in 1971, she was post graduate in Hindi and Sanskrit. Thereafter, while in service, she improved her qualification and obtained degree of Ph.D. in the faculty of language (Hindi) from Punjab University, Chandigarh in the year 1990 (Annexure P-2). The fact that she had improved her qualification was duly communicated to the concerned authorities (Annexure P- 1). 4. Haryana College Ph. D. Teachers Association approached the Haryana Govt. on October 11, 1991 (Annexure P-6) for release of benefit of advance increments for the teachers from the date of acquiring Ph.D. or M.Phil. qualification. The petitioner also made written requests on March 15, 1993, but failed to get the requisite relief, which resulted in filing of C.W.P. No. 299 of 1995, which was allowed by the Division Bench on September 13, 1996. The aforesaid orders of the Division Bench were challenged by the State of Haryana and University Grants Commission through separate S.L.P. No. 403 of 1997 and S.L.P. No. 3430 of 1997 respectively. The Honble Supreme Court of India granted Special Leave in both the appeals and the judgment of the Honble High Court was set aside and the following orders were passed on August 29, 1997 :- "ORDER : Special Leave granted in both the appeals. These appeals are directed against the judgment of the High Court of Punjab and Haryana dated September 13, 1996 whereby C.W.P. No.299 of 1995 filed by Dr. Nirmala Mittal, respondent No. 1 in both the appeals, has been allowed. It has been held that the benefit of the Circular of the Government of India Dated July 22, 1988 which provides for giving three advance increments to persons possessing Ph.D. degree and one advance increment to persons possessing M.Phil. degree at the time of appointment as lecturer should be extended to existing lecturers who have obtained or obtain the said qualifications while in service. According to the High Court the denial of such increments to the existing lecturers who obtain the qualifications after their appointment is violative of Article 14 of the Constitution in as much as it discriminates between persons belonging to the same cadre. We have heard Shri K.N. Bhatt, the learned Addl. According to the High Court the denial of such increments to the existing lecturers who obtain the qualifications after their appointment is violative of Article 14 of the Constitution in as much as it discriminates between persons belonging to the same cadre. We have heard Shri K.N. Bhatt, the learned Addl. Solicitor General appearing for State of Haryana and Shri Milon K. Banerjee, the learned senior counsel for the University Grants Commission, in support of the appeals and Shri R. Venkataramani, the learned senior counsel appearing for respondent No. 1 in both the appeals. In her writ petition in the High Court respondent No. 1 did not place necessary facts to challenge the validity of the said circular on the ground that it was violative of Article 14 of the Constitution. Shri Venkataramani submits that respondent No.1 may be afforded an opportunity to place the relevant facts on record to show that the circular suffers from the vice of arbitrariness in so far as it does not provide for increments for existing lecturers. The learned Addl. Solicitor General and Shri Banerjee do not object to respondent No. 1 being afforded an opportunity to place the relevant facts. In these circumstances, we consider it appropriate in the interest of justice to set aside the impugned judgment of the High Court and to remit the matter to the High Court for consideration of the question regarding the validity of the circular. The appeal is, therefore, allowed and the impugned judgment of the High Court is set aside. It will be open to respondent No. 1 to move the High Court for amendment of the writ petition so as to place on record relevant facts. The appellants may also file their counter to the amended writ petition. No order as to costs. New Delhi August 29, 1997 Sd/- S.C. Agrawal Sd/- G.T. Nanavati" 5. The petitioner, accordingly , amended the writ petition and challenged the aforesaid circulars being irrational and discriminatory. Writ petition was admitted. 6. It is contended that as per the impugned circulars the lecturers who possess research degrees i.e. Ph. D. or M.Phil. qualifications at the time of recruitment on or after 1.1.1996 are entitled for three advance increments or one as the case may be, whereas those lecturers who acquired such qualification while in service, before or after 1.1.1986 are not entitled for such benefit. D. or M.Phil. qualifications at the time of recruitment on or after 1.1.1996 are entitled for three advance increments or one as the case may be, whereas those lecturers who acquired such qualification while in service, before or after 1.1.1986 are not entitled for such benefit. It is submitted that the lecturers who possess Ph.D. or M.Phil. before 1.1.1986 and after 1.1.1986 are not in any way inferior to those who are appointed with Ph.D. or M.Phil. qualification on 1.12.1986 or thereafter. Rather both these categories belong to the same cadre and grade. Such a sub- classification within a class is hit by the vice of discrimination between the similarly situate and is violative of Article 14 of the Constitution of India. It is not based on any intelligible differentia. It has actually no nexus with the object to be achieved i.e. excellence of education. Therefore, that part of the circulars which deny the benefit of advance increments to the lecturers who acquire Ph.D. or M.Phil. qualification prior or after 1.1.1986 is illegal, arbitrary, ultra-vires the Constitution and is liable to be struck down. 7. Learned counsel further contends that the petitioner has been discriminated against as the petitioner is working as lecturer since 1971 and having acquired Ph.D. Qualification in April, 1990, has been treated worst than a newly appointed lecturer with Ph.D. qualification in April, 1990 itself as he will get three advance increments, whereas the petitioner will not get the increments despite having experience of 20 years on the date of acquiring Ph.D. Qualification i.e. April, 1990. 8. Learned counsel further submits that the case of the petitioner is fully covered by the decision of Division Bench of this Honble High Court in the case of Subhash Kumari v. State of Haryana reported as 1986(2) SLR 406 (Paras 8 and 10), which clearly says that it does not make any difference whether a person has acquired the qualification during the course of service or had the requisite qualification prior to entering into service. Similar view has also been taken by another Division Bench of this Honble High Court in the case of Rattan Singh and others v. State of Haryana reported as 1995(1) SLR 401 (Para 13). State of Haryana filed S.L.P. No. 9232 of 1994, which has been dismissed on July 12, 1994. 9. Similar view has also been taken by another Division Bench of this Honble High Court in the case of Rattan Singh and others v. State of Haryana reported as 1995(1) SLR 401 (Para 13). State of Haryana filed S.L.P. No. 9232 of 1994, which has been dismissed on July 12, 1994. 9. Similarly, in the case of P.K. Rama Chandra and others v. Union of India and others reported as 1983(1) SLR 495 (Paras 17 and 19), revised pay scale were given to newly recruited professors only while the old incumbents were left to languish in the old scale. The classification of existing incumbents as being distinct and separate from newly recruited hand with flimsy change in the essential qualifications was held to be wholly irrational and arbitrary. 10. Thus, the sub-classification in the same category or cadre of service is impermissible. 11. This very circular issued by the Govt. of India came up for consideration in the case of Ravinder Singh Saini and others v. State of Punjab and others, wherein Assistant Professors of Punjab Agricultural University, Ludhiana, who were having Ph.D. qualification and were appointed prior to the cut off date, were denied the benefit of three advance increments and being aggrieved, filed C.W.P. No. 17894 of 1991, which has been allowed on August 23, 1993, which is reported as 1993(6) SLR 314 (Para 4). LPA was filed by the State against the said judgment which was dismissed on January 10, 1993. Even SLP No. 9432 of 1994 filed by the State Govt. against the order in said LPA has been dismissed on July 12, 1994. 12. Not only this, Mr. Sutantar Jot Singh, Lecturer of Brigendra Govt. College, Faridkot filed C.W.P. No. 6366 of 1993, claiming similar benefit which was allowed by Division Bench of this Honble High Court on November 17, 1993 (Annexure P-8). The State Govt. filed SLP against this order, which has been dismissed by the Honble Supreme Court in 1996. 13. The matter is further covered by the decision of this Honble High Court in the case of Dr. Gurmit Singh and others v. State of Punjab and others in C.W.P. No. 18667 of 1995 decided on August 7, 1998. 14. The State Govt. filed SLP against this order, which has been dismissed by the Honble Supreme Court in 1996. 13. The matter is further covered by the decision of this Honble High Court in the case of Dr. Gurmit Singh and others v. State of Punjab and others in C.W.P. No. 18667 of 1995 decided on August 7, 1998. 14. Learned counsel for the Haryana State relied upon Para 8(i) of the written statement at page 38, which is as under :- "8(i) That in reply to para 8(i) of the petition are wrong and denied. It is further submitted that the Annexure P3 and P-4 are not discriminatory. It is clarified that this decision was taken by the State Govt. on the recommendations of the Govt. of India University Grants Commission. The Govt took this decision in order to encourage research in continuation of post graduate studies. It is further submitted that a teacher who obtains Ph.D. degree during his her services does so either on Govt. expenses (i.e. teacher fellowship) or by take long leave during which alternate arrangements by way of ad hoc or leave appointment have to be made. Hence, the candidates who are Ph.D.M. Phil. at the time of their regular appointment have been allowed the benefit of three and one advance increments along with benefit of corresponding years of service for the purpose of promotion. While lecturers who obtain such degrees are not given the benefit of advance increments, but they are eligible for benefit in service for the purpose of promotion as and when they acquire research degree. This is a reasonable classification and is permissible in the ambit of the Constitution of India. Hence, the petitioner is not entitled for the benefit of advance increments as she obtained her Ph. D. degree during her service. It is denied that this classification smacks of arbitrariness or is discriminatory." 15. It was next contended by the counsel for the respondents that the benefit of advance increment should not be given to the petitioner on the ground of delay and laches. 16. I have heard the learned counsel for the parties at length. 17. The object to acquire Ph.D.M. Phil. It was next contended by the counsel for the respondents that the benefit of advance increment should not be given to the petitioner on the ground of delay and laches. 16. I have heard the learned counsel for the parties at length. 17. The object to acquire Ph.D.M. Phil. qualification under faculty improvement programme is to provide opportunities to the teachers working in the colleges to keep themselves afresh with the development in the field of study and research and to enhance and their professional competency as teachers. Therefore, to acquire Ph.D.M. Phil. degree is related to maintain the standard of higher education. The respondent is over-emphasizing that the petitioner acquired Ph.D.M. degree on Govt. expenses and overlooked that it was under a scheme to retain the talent degree in the college teacher. The stand of the State is vague. It is also submitted that number of teachers who acquired Ph.D.M. Phil before entering service do so by enjoying the benefit of various fellowship and stipendiary programmes. Moreover, no condition was imposed when the petitioner was sent for Ph.D. course that on completion of the degree no financial benefits shall be granted. The State has tried to create distinction, which has no logic or justification. There is no reason why the petitioner and similarly situated teachers should be denied the benefit of three advance increments. 18. The plea of the State that the petitioner is not entitled to the benefit of advance increment because of delay and laches (sic) Haryana State adopted the aforesaid circular in May, 1989 and the petitioner acquired Ph.D. qualification in April, 1990. The Haryana College Ph.D. Teachers Association approached the Haryana Govt. in October 11, 1991 (Annexure P-6) for release of such benefit to he college teachers. The association followed the matter vigorously as is clear from Annexure P-7. Even the petitioner on its own made written request on March 15, 1993 (Annexures P-5), but failed to get the requisite relief which resulted in filing of C.W.P. No. 299 of 1995, which was allowed by Division Bench on September 13, 1996. Thus there is no delay on the part of the petitioner. 19. In view of the aforestated reasons, the writ petition is allowed, the circular letters reference whereof has been given above to the extent it disentitles the lecturers who have improved their qualifications by acquiring Ph.D. or M.Phil. Thus there is no delay on the part of the petitioner. 19. In view of the aforestated reasons, the writ petition is allowed, the circular letters reference whereof has been given above to the extent it disentitles the lecturers who have improved their qualifications by acquiring Ph.D. or M.Phil. before or after 1.1.1986 for increments is declared illegal being violative of Article 14 of the Constitution of India and is struck down. The petitioner is held entitled to be given three advance increments from the date of acquiring Ph.D. qualification along with arrears. Since, the petitioner has retired from service, therefore, the respondents are directed to refix the pay of the petitioner and release the revised retiral benefits accordingly forthwith.