University Vs. E.K.Jayachandran Etc.  INSC 745 (15 April 2009)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 2540-2542 OF 2009
[ARISING OUT OF S.L.P. (CIVIL) NOS. 15930-15932 OF 2008] KERALA AGRICULTURAL
UNIVERSITY ... APPELLANT Versus
S.B. SINHA, J.
respondents are entitled to obtain the benefit of Scale of Pay in terms of the
University Grants Commission (for short, "UGC") guidelines is the
question involved in these appeals. They arise out of a judgment and order
dated 3.4.2008 passed by a Division Bench of the High Court of Kerala at
Ernakulum in Writ Appeal Nos. 660, 680 and 748 of 2008, dismissing the appeals
preferred by the appellant herein against the judgment and order dated
14.11.2007 passed by a learned single judge of the said Court in Writ Petition
(Civil) Nos. 13572, 10496 and 13543 of 2006.
herein were appointed as Junior Assistant Professors on 14.08.1973, 21.1.1977
and 4.10.1977. They were appointed as Assistant Professors on, 02.12.1982 and
12.01.1983, 11.05.1979 respectively.
the year 1988, appellant - University issued an order whereby and where under
the decision taken by the State of Kerala upon accepting the recommendations of
the Fourth Pay Commission directing grant of time-bound grade promotion to the
teaching staff; pursuant whereto and in furtherance whereof, the scales of pay
of Assistant Professor and Associate Professor were revised to Rs.1500-2685/-
and Rs.1950-2950/- respectively. Clause VI of the Pay Revision Order provided
for grant of time bound higher grade promotion (Non-cadre) to those having
total ten years' of service in the first two grades taken together where there
are four levels from the entry cadre to the Professor Cadre. On or about
23.3.1988, appellant - University, in terms of the said direction, ordered for
grant of 1st higher grade non-cadre promotion as Assistant Professor (Higher
Grade) with pay of Rs.1950-2950/-, stating:
"The matter has
been considered by the Executive Committee and in consonance with the decision
of the 195th meeting of Exe. Committee held on 25.2.1988 the following orders
i) The clause (VI) of
para (10) of G.O. (P) 515/85/Fin dated 16.9.85 is made applicable to 3 the
Assistant Professors of Kerala Agricultural University subject to the condition
that while computing the combined length of 10 years service in the cadre, at
least two years should be in the cadre of Asst. Professor."
Pursuant to or in
furtherance of the said decision, concededly the designation of the Assistant
Professor (Higher Grade) was changed to that of Associate Professor
(Non-Cadre). They were placed in the pay scale of Rs.1950-2950/- by an order
dated 20.4.1988 subject to the conditions mentioned therein. By an order issued
by the appellant - University, thirty five Assistant Professors including the
contesting respondents herein were granted time bound higher grade non-cadre
promotion to the posts of Associate Professor (Non-Cadre) with effect from
04.10.1987, 01.04.1987 and 12.01.1987 respectively.
On or about
25.6.1990, a Scheme as recommended by UGC/Indian Council of Agricultural
Research ( for short, "ICAR") and approved by the Government of
Kerala was accepted by the University subject to the terms and conditions
mentioned therein with retrospective effect from 1.1.1986, the relevant
provisions whereof read as under:
revised scales (Appendix I) are inclusive of Basic Pay (as on 1.1.1986 in the
1973 U.G.C./I.C.A.R. Scale), the Dearness Pay, Dearness Allowances, Additional
Dearness Allowance and 4 Interim Relief if any, admissible to teacher as on
3.02. The existing
scale of pay of teachers in the University to whom the scheme is applicable and
the corresponding revised scale of pay for which they are entitled are given in
xxx xxx xxx 5.04
Promotion to the post of Associate Professor will be through a process of
selection by a selection committee to be set up under the Statutes/ Ordinance
of the University and in accordance with the guidelines laid down by the
I.C.A.R. from time to time. Posts of Associate Professors will be created for
this purpose wherever necessary by upgrading a corresponding numbers of posts
of Assistant Professors in the University.
xxx xxx xxx 5.06.
Teachers in the University will be placed at the appropriate stage in the
revised scales in accordance with the pay fixation formula under this scheme.
Existing Assistant Professors who have completed or will complete a total
period of sixteen years of service as on 1.1.1986 or thereafter will be
eligible for promotion to the post of Associate Professors in the selection
grade as per the provisions contained in para 5.03 to 5.05. They will also be
entitled to the relaxation in years of service by 3 years if they hold Ph.D. degree.
made before the announcement of the revised scales of pay on 1.2.1988 by the
I.C.A.R. will not be reopened. However, in such cases the 5 benefit of
revision will be available to teachers only from the date of promotion.
The existing merit
promotion scheme viz., Assessment, norms and Non-cadre promotion made after
1.2.1988 will be treated as cancelled. No such promotion schemes shall be in
vogue from the date of issue of these orders."
Appendix I referred
to in paragraph 3.01 provided for the following:
"Appendix - I
"University Grants Commission/Indian Council of Agricultural Research
(I.C.A.R.) Scales of Pay of Teachers in the Universities.
Existing Revised Scale No. Scale 1. ... .... .....
4. Associate 1200-
3700-125-4950- Professor 1900 150-5700 5. ....
. ..... .
Appendix II thereof
containing the scales of pay of teachers in University also provided for the
scales of pay of Associate Professor in the following terms:
6 "Sl. Designation
Existing Revised Scale of No. Scale of pay pay as (U.G.C./I.C.A.R.
on Scheme with
1.1.198 designation 6 1. .....
3. Associate 1950-
3700-125-4950- Professor 70- 150-5700 2100- 85-2950 5. ....
contesting respondents acquired their Ph.D Degrees in the years 1991, 1994 and
5. It is furthermore
not in dispute that a notification was issued by the appellant - University on
or about 21.3.1995 pursuant whereto or in furtherance whereof, inter alia the
following was provided:
"h) Teachers in
the University will be placed at the appropriate stage in the revised scales in
accordance with the pay fixation formula under this scheme. Existing Assistant
Professors who have completed or will complete a total period of sixteen years
of service as on 1.1.1986 or thereafter will be eligible for promotion to the
post of Associate Professor or placement in the selection grade as per
provisions contained in Clause II. They will also be entitled to the relaxation
in years of service by 3 years if they hold Ph.D. Degree.
i) Promotions made
before the announcement of the revised scales of pay on 7 25.6.1990 by the
ICAR will not be reopened.
However, in such
cases the benefit of revision will be available to teachers only from the date
of promotion. The existing merit promotion scheme viz., assessment, norms and
non-cadre promotion made after 25.6.90 will be treated as cancelled. No such
promotion schemes shall be in vogue after 25.6.1990. However all the service
conditions existed before the introduction of UGC/ICAR scheme will be available
to those teachers who opt out of ICAR Scheme."
Original Petition was filed by one K. Viswambharan, who was an Assistant
Professor questioning the aforementioned orders.
a Government Order No. G.O. (MS) 190/93 dated 22.9.1993 was issued granting
higher scale of pay to the teachers in the category of Assistant Professors.
validity of the said G.O. (MS) no. 190/93 dated 22.9.1993, several writ
applications were filed by Assistant Professors of other disciplines in the
said University before the High Court.
A learned Single
Judge of the said Court by his order dated 25.7.1994 while disposing of the
Original Petition Nos. 13624/1993-V, 15938/1993-V and 16337/1993-T filed under
Article 226 of the Constitution of India wherein two of the contesting
respondents, namely, 8 Dr. B.K. Jaychandran, and B. Balakrishnan had been
impleaded as respondents inter alia held that :
(i) the orders of the
University whereby Assistant Professors, including the contesting respondents
herein, were given non- cadre promotion as Associate Professor (Non-Cadre) was
without authority of law;
(ii) however, no
further directions was necessary to cancel such promotions; and (iii) the
Associate Professors who were promoted as Associate Professors (Non-Cadre)
would not be entitled to be placed in the UGC/ICAR scale of pay of Associate
Professors, namely, Rs.3700-5700/-, and they could only be placed in the
UGC/ICAR scale of pay of Assistant Professors.
appeals were preferred there against and by a judgment and order dated
11.9.2002, a Division Bench of the said court reversed the said judgment,
are of the opinion that the challenge to Ext. P 4 in so far as it protects the
salary to be given to the Associate Professor (non-cadre) who were getting
higher salary at the time of introduction of ICAR scale by Ext.
P.2 cannot stand. We
also note that as held by the Supreme Court in Dr. Rashmi Srivastava vs. 9
Vikram University (1995) 3 SCC 653, the non- cadre promotees will not get any
seniority because of their very placement in the non- cadre. Merit promotions
under the I.C.A.R. Scheme will be governed by the seniority in the cadre in
which they were appointed and not in the non-cadre post. In view of the above,
we are of the opinion that the learned Single Judge went wrong in not accepting
Ext. P 4 and holding that the creation of the post of Assistant Professor
(non-cadre) is illegal. We also note that since the Petitioners' right for
promotion and other benefits are not affected, no prejudice is caused to
is of some significance to note the stand taken by the appellant - University
in their counter affidavit filed in the said Original Petition No. 13624 of
1993V, which reads as under:- "Various grounds raised in the Original
Petition are neither legal nor sustainable in law. Non cadre promotions are
based on the IV Kerala Pay Revision orders extended to the teachers of the
Kerala Agricultural University. Promotions were made only after obtaining the
approval of the authorities of the University i.e. Executive Committee/General
Council. Further there are directions from UGC/ICAR to allow such promotions
before the cut off date specified in Government order implementing UGC/ICAR
package. Ext. P4 does not nullify the promotions, it only protects the
promotions made by the University upto 25.6.1990. The personnel to whom non
cadre promotions given were having the requisite general educational qualifications
prescribed in the statutes and also the length of service."
10 Reliance was also
placed on the resolution passed by the General Council at its meeting held on
28.11.1992; Clause (vi) whereof reads as under:
all Associate Professors (NC) as regular Associate Professors on Rs.3700- 5700
in UGC on the ground that the non cadre promotions were not out of way
promotions but it was part of IV Kerala Government Pay Revision Orders."
despite the aforementioned judgment the said scheme was not implemented in the
case of the respondents, they filed a Writ Petition in the High Court of Kerala
at Ernakulam, which was marked as Writ Petition (Civil) No. 26689/2004-B
praying inter alia for issuance of a writ of mandamus against appellant -
University to place them in the UGC/ICAR scale of pay of Rs. 3700-5700 with
effect from their respective dates of promotion as Associate Professors
(Non-Cadre) and to grant all consequential benefits including arrears of
By reason of a
judgment and order dated 24.09.2004, a learned single judge of the High Court
allowed the said writ petition directing appellant to take appropriate action,
11 "It is the
contention of the petitioners that in view of Ext. P 7 judgment of the Division
Bench of this Court in W.A. No. 1182/94, there is no impediment now in granting
the placement in the UGC scale of Associate Professors (Non Cadre) (Rs.
3700-5700) as per Ext.P.6. Learned standing counsel submits that the issue is
being actively considered by the Executive Committee of the University. Once
the sole impediment in the matter of implementation of the scale has been
cleared by the judgment in the Writ Appeal referred to above, there is no
justification in delaying justice to the Petitioners. In the above
circumstances, I dispose of the Writ Petition directing the Respondent to take
appropriate action in the light of the judgment dated 11.9.2002 in Writ Appeal
No. 1182/94, in the matter of implementation of Exts. P 5 and P 6 in the case
of the Petitioners, within a period of six weeks from the date of production of
a copy of this judgment along with a copy of the Writ Petition by the
Petitioners. The consequential benefits for which the Petitioner are found eligible,
including arrears, shall be disbursed within a period of four months
the appellant - University passed an order on or about 25.6.2005 rejecting the
said claim of the respondents in the following terms:
"1. The pay
drawn in the State Scale of Pay by those teachers, who were granted the time
bound higher grade for completing 10 years as per University proceedings read
as 1st paper above and re-designated as Associate Professor (non-cadre) as per
University proceedings read as 2nd paper 12 above, is protected in the UGC
scale of pay into which they are inducted.
2. Their pay will be
fixed at the corresponding stage in the UGC scale of pay into which cadre they
3. They will not get
any seniority in the cadre merely because of their drawing higher pay by way of
this pay protection.
4. The teachers, who
were senior to them in the cadre and drawing lower pay as a result of this
protection of pay to the juniors, are not eligible for any step up or
protection of pay on par with that of their juniors.
5. The Comptroller,
Kerala Agricultural University will fix the pay of the incumbents as per the
rules for pay fixation."
validity and/or legality of the said order was questioned by the respondents by
filing writ petitions before the High Court marked as W.P. (C) No. 10496 of
2006(Y), W.P. (C) No. 13543 of 2006 (K) and W.P. (C) No. 13572 of 2006 (N) and
by a judgment and order dated 14.11.2007, the same was allowed, directing:
considered the rival contentions in detail. May be there would be an anomaly as
contended by the learned standing Counsel for the University. But the question
is because of that anomaly, the Petitioners can be denied the benefits as per
Ext. P.4 itself, perhaps the persons, who drafted Ext. P 4 may have lost sight
of the fact that there are certain Associate Professors (non-cadre) existing in
the service for whom they failed to make provision while granting revised
scales of pay. However, when 13 a teacher is actually drawing the salary in a
particular scale of pay and scales of pay of all posts are revised as per Ext.
P 4, in view of Sub Clause 3.02 quoted above, the Petitioners would be entitled
to the scale of pay corresponding to the scale of pay which they are holding
although they may not be entitled to claim induction as Associate Professors.
It cannot be disputed that the scale of pay corresponding to Rs.1950-2950, as
per Ext. P 4 is Rs.3700-5700. Therefore, notwithstanding the anomaly noted
above, unless orders are passed to remove that anomaly, the Petitioners cannot
be denied the benefit of sub clause 3.02 read with Appendix II of Ext. P4. They
would be so entitled with effect from 1.1.86 or the date of promotion as
Associate Professors (non-cadre) whichever is later. Therefore, the Petitioners
in Writ Petition Nos. 10496/06, 13543/06, 13572/06 have become entitled to the
scale of pay Rs.3700- 125-4950-150-5700 with effect from 1.1.86, 12.1.87 and
4.10.87. It is so declared. The University shall pass appropriate orders in accordance
with the above finding and disburse monetary benefits thereof within three
months from the date of receipt of a copy of this judgment."
appeals preferred there against by the appellant have been dismissed by reason
of the impugned judgment.
B.V. Deepak, learned counsel appearing on behalf of the appellant in support of
these appeals would submit:
i. The UGC/ICAR
scales of pay had no application in respect of Associate Professor (Non-Cadre)
with effect from 1.1.1986 as the eligibility criteria laid down therein were
not fulfilled by the respondents.
ii. Having regard to
the scheme of the Act and the Statute governing the terms and conditions of
service of the respondent, purported promotion of the Assistant Professors to
the posts of Associate Professor (Non-cadre) must be held to be illegal.
iii. In view of the
fact that the respondent having not been appointed in a regular establishment
of the University, were not entitled to the UGC scale of pay, and, thus, the
High Court committed a serious illegality in following the earlier Division
Bench judgment passed in Writ Appeal Nos. 1102, 1400, 1430 and 1176 of 1994
that too without arriving at a finding that the respondents were entitled to
the grant of UGC scale of pay.
iv. In any event,
clause 3.01 being applicable to the case of appellant, the conditions laid down
in Appendix I was to apply and not those contained in Appendix II thereof which
was a surplusage. In any event, respondents having not fulfilled the criteria
of promotion as contained in clause 5.04, 5.05, 5.06 and 5.07 thereof, the
respondents were not eligible 15 for promotion as on 1.1.1986, the impugned
judgment cannot be sustained.
K. Rajeev, learned counsel appearing on behalf of the respondents, on the other
hand, would urge:
i. Appellant -
University itself having accepted the Scheme and having supported the case of
the respondents could not take a new stand in the writ petition filed by the
ii. In any event, in
terms of the Notification itself issued by the appellant - University the
promotion made upto 25.6.1990 having been protected, the impugned judgment does
not suffer from any legal infirmity.
iii. ICAR having
deposited the entire amount with University, it is not, in any event, a fit
case where this Court should exercise its discretionary jurisdiction under
Article 136 of the Constitution of India.
contesting respondents were appointed / promoted to the post of Associate
Professor (Non-Cadre). The Scheme did not exclude their cases. Indisputably,
they were promoted to the said posts on the basis of the decision taken by the
do not find any anomaly in clauses 3.01 and 3.02 of the Scheme. Clause 3.01
merely limits the starting scale of pay to be inclusive of the elements stated
therein; whereas clause 3.02 provides for substitution of one scale of pay by
another as contained in Appendix II thereto. It is, therefore, not correct to
contend that the scales of pay of teachers in University as substituted in
terms of the said Scheme were wrongly noted in Appendix II thereof.
is not in dispute that in terms of order dated 2.8.1988 the respondents were
promoted to the post of Associate Professor, with effect from 1987. The
conditions for promotion laid down in the Scheme were to apply to future
promotions and not to the promotions which had already been granted. Keeping
that fact only in view, the promotions made upto 1.2.1988 were protected in
terms of the UGC Scheme providing that the existing merit promotion scheme,
namely, Assessment, norms and Non-cadre promotion made after 1.2.1988 would be
treated as cancelled. We have noticed hereinbefore that in terms of the
aforementioned Notification dated 4.4.1995 such protection in regard to the promotion
was extended upto 25.6.1990 subject to the condition that 17 in such cases the
benefit of revision will be available to teachers only from the date of
learned single judge of the High Court by reason of its judgment and order dated
14.11.2007 categorically held that the respondents would be entitled to the
benefit of revised scale of pay with effect from 1.1.1986 or from the date of
promotion as Associate Professor (Non-Cadre), whichever is later. We,
therefore, are not in a position to agree with the contention of Mr. Deepak
that the criteria laid down in terms of the aforementioned UGC/ICAR Schemes
must be considered having regard to the cut off date specified therein, i.e.,
itself, as noticed hereinbefore, supported the case of the respondents. It
itself raised a contention that such promotions were made in terms of the
resolutions passed by the General Council.
may also notice that a similar stand was taken by the University in a letter
dated 1.1.93 addressed to the Secretary to Government, which is to the
"It may be noted
that the non cadre promotion as Associate Professor (NC) was not an out of way
promotion as it was part of the IV Kerala pay Revision Orders. It was specified
that where there exist 4 levels from entry cadre to Professors as in
professional Colleges, 10 years service in the lower two cadres put together
entails an incumbent to the third level viz.
Colleges and Calicut University, the non cadre promotions upto 28.2.1989 and
31.3.1990 respectively were reckoned. Therefore the Teachers of KAU demanded
that the non cadre Associate Professorship may also be reckoned and a scale to
scale induction may be granted placing them in the scale of Rs.3700-5700. It
was under these circumstances that the General Council resolved to request the
Government that all the Associate Professor in the scale of Rs.1950- 2750 (pre
revised) may be placed in the scale of Rs.3700-5700 irrespective of whether
they were cadre Associate Professor or non cadre Associate Professor."
By a letter dated
20.3.1991, it was stated:
"The meeting of
the Executive Committee on 13.3.1991 decided to recommend to the Government to
give permission to induct all Assistant professors both directly selected and
selected from among Junior Asst. Professors in senior scale as on 1.1.86 or the
date of their selection whichever is later and also to induct of Associate
Professor (NC) as Assoc. Professor in the Scheme. The induction of Asst.
Professor to senior scale is highly essential since protection of cadre
seniority would be difficult otherwise.
For instance, an
Asst. professor directly recruited in 1987 will become junior to Junior Asst.
Professor as on 1.1.86. It is evident that the former had been enjoying cadre
seniority as on date of appointment and till the date of induction. This may
cause much heart burns to the Asst. Professors who were recruited directly by
the University. It may go against the provisions of KSSR which protect cadre
I request that this
anomaly may be rectified by sanctioning senior scale to all directly recruit
Asst. Professors as on 1.1.86 or from the date of their recruitment whichever
to or in furtherance of the said request only the statutes were amended. Such
amendment in the statute was indisputably made pursuant to the recommendations
made by UGC/ICAR which was accepted by the appropriate authorities of appellant
- University. It is from that point of view only the Scheme framed by the UGC
should be taken into consideration.
cannot be any doubt whatsoever that the Associate Professors (Non Cadre) were,
in fact, included within the purview of the said Scheme. The amendments made by
the State in terms of the request made by appellant - University, in our
opinion, should be construed having regard to the grounds on the basis whereof
the request for amendment of statute was made.
of the respondents, therefore, having received the statutory protection and the
High Court having directed that the benefit of the revised scale of pay should
be extended to the contesting respondents only from the date of their
promotion, in our considered view, the impugned judgment does not suffer from
any legal infirmity.
appeals, therefore, being devoid of any merit are dismissed with costs.
Counsel's fee assessed at Rs.10,000/- to be paid to each of the counsel
appearing on behalf of the contesting respondents.
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