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2018 DIGILAW 1154 (RAJ)

Suraj Mal Choudhary v. State of Rajasthan

2018-05-03

DINESH CHANDRA SOMANI, M.N.BHANDARI

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JUDGMENT M.N. Bhandari, J. By this bunch of writ petitions, a challenge is made to the Notification dated 06.05.2002, issued by the State of Rajasthan to delete existing Rule 11 for grant of incentive in the shape of increment to Ph.D/M.Phil degree holders. It is under the Rajasthan Civil Services (Revised Pay Scales for Government College Teachers including Librarians and PTIs) Rules, 1999 (for short "the Rules of 1999"). 2. Learned counsel for the petitioners submit that the University Grants Commission (for short "the UGC") issued Notification on Revision of Pay Scales, Minimum Qualifications for the Appointment of Teachers in Universities & Colleges and other Measures for the Maintenance of Standards, 1998 (for short "UGC Notification, 1998"). It even provides for pay scales and incentives. The Notification of 1998 is relevant for this case only for the purpose of incentives given to Ph.D and M.Phil degree holders under clause 6. It is reproduced hereunder for ready reference:- "6.0.0 Incentives For Ph.D./M.Phil. 6.1.0 Four and two advance increments will be admissible to those who hold Ph.D. and M.Phil degrees, respectively, at the time of recruitment as Lecturers. Candidates with D.Litt/D.Sc. should be given benefit on par with Ph.D. and M.Litt on par with M.Phil. 6.2.0 One increment will be admissible to those teachers with M.Phil who acquire Ph.D. within two years of recruitment. 6.3.0 A Lecturer with Ph.D. will be eligible for two advance increment when she/he moves into Selection Grade/Reader. 6.4.0 A teacher will be eligible for two advance increment as and when she/he acquires a Ph.D. degree in her/his service career." 3. The UGC provided advance increments to the Lecturers and Teachers who are in possession or acquired the qualification of Ph.D/M.Phil. The State of Rajasthan amended their Rules vide Notification dated 01.12.1999. It seems to be on a letter issued by the Ministry of Human Resource Development, Government of India, dated 27th July, 1998. The Ministry provided financial assistance to the extent of 80% if any University or College adopt UGC Notification 1998. 20% of the expenditure was to be borne by the State Government. The financial assistance was, however, given for the period between 01.01.1996 till 31.03.2000. The State Government took a decision to withdraw incentive and, accordingly, a Notification dated 06.05.2002 was issued to delete Rule 11 which was earlier inserted to provide incentives to Ph.D/M.Phil degree holders. 4. 20% of the expenditure was to be borne by the State Government. The financial assistance was, however, given for the period between 01.01.1996 till 31.03.2000. The State Government took a decision to withdraw incentive and, accordingly, a Notification dated 06.05.2002 was issued to delete Rule 11 which was earlier inserted to provide incentives to Ph.D/M.Phil degree holders. 4. It is also a fact that, subsequently, UGC came out with other Regulations on 30th June, 2010 called the "University Grants Commission (Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and other Measures for the Maintenance of Standards in Higher Education) Regulations, 2010" (for short the "Regulation of 2010"). It is to provide incentive, as was given earlier. The prayer of the petitioners is for adoption of those Regulations and, for it, reference of clause 9.4 of the Regulations has been given. 5. A reference of the Notification dated 12.10.2009 of the State Government has also been given, more specifically, of Rule 20. The State of Rajasthan came out with new Rules namely Rajasthan Civil Services (Revised Pay Scales for Government College Teachers including Librarians and PTI Rules), 2009 vide the aforesaid Notification. 6. Learned counsel for the petitioners submit that State Government has adopted UGC Regulations, 2010, thereby, the benefit of incentive scheme became applicable. The prayer is to allow benefit of incentive on adoption of UGC pay scales by the State Government vide their Notification dated 12.10.2009 (Annexure-66). The adoption of UGC pay scales has been admitted by the State Government in the information sought by the petitioners under the Right to Information Act, 2005 (for short "the Act of 2005"). 7. Once the State of Rajasthan amended the Rules to provide incentive to those who are holding Ph.D/M.Phil degrees or acquired the qualification aforesaid, it could not have been withdrawn by amending the Rules. In fact, doctrine of promissory estoppel applies in that case. In the light of the aforesaid, Notification dated 06.05.2002 deserves to be set aside. 8. The other issue is about mandatory application of UGC Regulations not only for the reason that it is a Central Legislation but in the light of the judgment of the Apex Court in the case of Kalyani Mathivanan v. K.V. Jeyaraj & Ors., (2015) 6 SCC 363 . 8. The other issue is about mandatory application of UGC Regulations not only for the reason that it is a Central Legislation but in the light of the judgment of the Apex Court in the case of Kalyani Mathivanan v. K.V. Jeyaraj & Ors., (2015) 6 SCC 363 . Therein, it is held that State Government is under an obligation to apply the Regulations of the UGC as they are mandatory. 9. A reference of the judgment in the case of D. Boopalan & Ors. v. Madras Metropolitan Water Supply and Sewerage Board & Ors., (2007) 12 SCC 569 has been given to support the argument of promissory estoppel. 10. The other ground taken by the learned counsel for petitioners is about discrimination between similarly placed employees. Those who have completed their Ph.D/M.Phil course prior to the impugned Notification dated 06.05.2002 would be getting benefit of advance increments, whereas, it would not be available to those who obtained it subsequently. Two groups have been created artificially though not permissible and, otherwise, violative of Article 14 of the Constitution of India thus on the aforesaid ground also, the impugned Notification dated 06.05.2002 deserves to be set aside. 11. It is lastly urged that even if none of the arguments is accepted, the petitioners are entitled to the same benefits as are given to others on the ground of "equal pay for equal work". Learned counsel for the petitioners has given reference of the judgment of the Apex Court in the case of Union of India v. Dineshan K.K., (2008) 1 SCC 586 . The prayer is, accordingly, to allow the writ petitions. 12. The writ petitions have been contested by learned counsel for the respondents. It is submitted that the Regulations of the UGC are not binding on the State Government, more specifically, on the colleges run by them under the State legislation. All the Government Colleges are governed by Rajasthan Educational Service (Collegiate Branch) Rules, 1986 (for short "the Rules of 1986"). The petitioners were also appointed as Lecturers under the Rules of 1986. 13. In view of the above and even as per the judgment in the case of Kalyani (supra), Regulations of the UGC are not applicable as they are directory in nature and not mandatory on the Colleges run by the State Government. The petitioners were also appointed as Lecturers under the Rules of 1986. 13. In view of the above and even as per the judgment in the case of Kalyani (supra), Regulations of the UGC are not applicable as they are directory in nature and not mandatory on the Colleges run by the State Government. It is further stated that Pay Scales Rules for Lecturers were amended from time to time and, for that, the first amendment was made vide Notification dated 01.12.1999. The said amendment was withdrawn vide Notification dated 06.05.2002 for grant of incentive under Rule 11. The State Government was competent to withdraw it. The doctrine of "promissory estoppel" does not apply against the statutory provisions. It is further stated that there is no provision under the UGC Regulations or elsewhere to hold that once Regulations are adopted by way of Notification, it cannot be withdrawn. 14. The argument regarding discrimination between similarly placed employees has been raised in reference to the benefit of incentive given to those who were holding the qualification of Ph.D/M.Phil acquired prior to 06.05.2002 while denying it to others, who obtained it after 06.05.2002. It is nothing but as a result of the amendment in the Rules. 15. To illustrate, it is submitted that an employee is appointed under particular set of Rules and he/she is made entitled for promotion based on same qualifications as were possessed by him at the time of appointment. The Rules are thereafter amended to provide higher qualifications for promotion and thereby he/she no more remains entitled for promotion though it may have been given to similarly placed employees prior to amendment. In those cases, the argument of existing right and discrimination was not accepted by the Supreme Court in the case of Dhole Govind Sahebrao & Ors. v. Union of India & Ors., (2015) 6 SCC 727 . The "vested right" has been defined to show that whoever has already given benefit, would be covered by the term "vested right". It would not be available to those who are aspirant to get the benefit. In those cases also, there would be two set of similarly placed employees. One set would be of those who got promotion prior to amendment and other could be of those who were debarred to get it in view of the amendment in the Rules, despite possessing the same qualifications. 16. In those cases also, there would be two set of similarly placed employees. One set would be of those who got promotion prior to amendment and other could be of those who were debarred to get it in view of the amendment in the Rules, despite possessing the same qualifications. 16. The other argument is in reference to the claim of "equal pay for equal work". It cannot be applied contrary to the legal provisions, more specifically, in regard to the incentive in the shape of increments. The prayer is, accordingly, to dismiss the writ petitions. 17. Learned counsel appearing for the UGC has supported the argument made on behalf of the State Government. It is, however, submitted that UGC Regulations are not binding on the colleges run by the State Government under their own legislation. To support the argument, reference of the judgment in the case of Kalyani Mathivanah (supra) has been given by referring para 62.4 and 62.5 of the judgment (supra). 18. A reference of the judgment in the case of Bangalore Development Authority & Ors. v. R. Hanumaih & Ors., AIR 2005 SC 3631 has also been given. Therein, a detailed discussion on the issue of promissory estoppel after placing reliance on the earlier judgment has been given. It has been held that doctrine of "promissory estoppel" would not apply against the statutory provisions. A reference of earlier judgment in the case of Motilal Padampat Sugar Mill Co. Ltd. v. State of Uttar Pradesh & Ors. (1979) 2 SCC 409 has been given which is otherwise referred by the Apex Court in the case of D. Boopalan (supra). The prayer is to dismiss the writ petitions. 19. We have considered rival submissions of the parties and perused the record. 20. The challenge to the Notification dated 06.05.2002 has been made on many grounds. It is not in dispute that the UGC Regulations, 1998 provides for minimum qualifications for appointment of Teachers in Universities and Colleges and measures for maintenance of standards. The benefit of incentive in the shape of increment was provided under Regulation 6 to those holding qualification of Ph.D/M.Phil. The Government of India came out with a letter to provide financial assistance up to 80% till 31.03.2002. The State Government issued Notification to amend the Rules of 1999 and, for that, Notification was issued on 01.12.1999. They provided incentives as per UGC Regulations. The Government of India came out with a letter to provide financial assistance up to 80% till 31.03.2002. The State Government issued Notification to amend the Rules of 1999 and, for that, Notification was issued on 01.12.1999. They provided incentives as per UGC Regulations. The aforesaid was withdrawn by the Notification dated 06th May, 2002 and has been challenged on the ground that once the UGC Regulations were adopted, it could not have been withdrawn. We are not impressed by the argument aforesaid. There is no bar to withdraw or amend the Rules. If the argument of the petitioners is accepted then no amendment in the provisions can be made or withdrawn. 21. The pay scales are otherwise governed by the Rules of 1999 framed by the State Government. The State Government is having power to frame the Rules. It is a settled law that an authority having power to make Rules would have competence to withdraw it also. It is as per General Clauses Act. 22. The second issue is of application of doctrine of "promissory estoppel". The doctrine of "promissory estoppel" does not apply against the statutory provisions. Amendment in the Rule 11 to provide incentive to those possessing qualification of Ph.D/M.Phil and, thereafter, its deletion is within legislative competence and, being a statutory provision, doctrine of "promissory estoppel" would not apply. To support the argument, reference of the judgment of the Apex Court in the case of Bangalore Development Authority (supra) would be relevant. Therein, earlier judgments on the issue have been referred and the proposition laid down therein has not been reversed by the Apex Court in subsequent judgment in the case of D. Boopalan (supra) thus we are not inclined to accept even the argument in reference to promissory estoppel. 23. Learned counsel for the petitioners has further made an argument in reference to Article 14 of the Constitution of India. It is stated that there are two sets of employees with similar qualifications. It is for the reason that those who did their Ph.D/M.Phil course prior to 06.05.2002 would be getting incentive in the shape of increments denying it to others who obtained the qualification after 06.05.2002. The argument aforesaid is not acceptable. Two sets of employees may exist on amendment in the Rules. It has already been explained earlier by referring a case of promotion. The argument aforesaid is not acceptable. Two sets of employees may exist on amendment in the Rules. It has already been explained earlier by referring a case of promotion. The judgment on the issue of existing right has also been referred. 24. It would be relevant to even refer the judgment of the Apex Court in the case of Kalyani Mathivanan (supra). Whether the Regulations of the UGC are mandatory and binding on the State Government or not, the Apex Court sum up the issue with certain directions in para 62. It is reproduced hereunder for ready reference:- "62. In view of the discussion as made above, we hold: 62.1 To the extent the State Legislation is in conflict with Central Legislation including sub-ordinate legislation made by the Central Legislation under Entry 25 of the Concurrent List shall be repugnant to the Central Legislation and would be inoperative. 62.2 The UGC Regulations being passed by both the Houses of Parliament, though a sub-ordinate legislation has binding effect on the Universities to which it applies. 62.3 UGC Regulations, 2010 are mandatory to teachers and other academic staff in all the Central Universities and Colleges thereunder and the Institutions deemed to be Universities whose maintenance expenditure is met by UGC. 62.4 UGC Regulations, 2010 is directory for the Universities, Colleges and other higher educational institutions under the purview of the State Legislation as the matter has been left to the State Government to adopt and implement the Scheme. Thus, UGC Regulations, 2010 is partly mandatory and is partly directory. 62.5 UGC Regulations, 2010 having not adopted by the State Tamil Nadu, the question of conflict between State Legislation and Statutes framed under Central Legislation does not arise. Once it is adopted by the State Government, the State Legislation to be amended appropriately. In such case also there shall be no conflict between the State Legislation and the Central Legislation." 25. As per para 62.4, the Regulations of 2010, which are brought subsequent to the Regulations of 1998, were held to be directory in nature for the Universities, Colleges and other Higher Educational Institutions under the purview of the State legislation and the matter has been left to the State Government to adopt and implement the scheme. As per para 62.4, the Regulations of 2010, which are brought subsequent to the Regulations of 1998, were held to be directory in nature for the Universities, Colleges and other Higher Educational Institutions under the purview of the State legislation and the matter has been left to the State Government to adopt and implement the scheme. When it has been left at the discretion of the State Government then UGC Regulations cannot be said to be binding on the State Government unless adopted. Para 62.5 quoted above also evolve same analogy. 26. In the instant case, service conditions of the petitioners are governed by the Rules of 1986 and, otherwise, their pay scales are governed by the Rules of 1999 and, subsequently, by the Rules of 2009. The State Government has come out with their own legislation to govern the colleges thus UGC Guidelines cannot be said to be mandatory. 27. At this stage, clarification in reference to Rule 20 of the Regulations of 2009 is also required to be given. The State Government has not adopted the UGC Regulations but certain subjects referred under Rule 20, that too, not in reference to the Regulations of 2010 but pursuant to a letter of the Ministry of Human Resource Development, Government of India dated 31.12.2008. 28. In the light of the aforesaid, even Rule 20 of the Rules of 2009 is of no assistance to the petitioners and, for that, even the information sought by the petitioners under the Act of 2005. It is for the reason that no Notification has been placed on record to show adoption of incentive scheme, as provided by the UGC under their Regulations. 29. Accordingly, we are unable to accept any of the arguments raised by the learned counsel for the petitioners. The writ petitions are, accordingly, dismissed. 30. A copy of this order be placed in each connected file.