Vice Chancellor Chandra Shekhar ... vs Dr. Lallu Singh And Another
2022 Latest Caselaw 19274 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 29
 
AFR
 
Case :- SPECIAL APPEAL No. - 671 of 2022
 
Appellant :- Vice Chancellor Chandra Shekhar Azad Agricultural And Technical University And Another
 
Respondent :- Dr. Lallu Singh And Another
 
Counsel for Appellant :- Rakesh Kumar
 
Counsel for Respondent :- Siddhartha Srivastava
 
-Connected With-
 
Case :- SPECIAL APPEAL No. - 666 of 2022
 
Appellant :- Dr. Lallu Singh
 
Respondent :- The Chancellor Chandrashekhar Azad Agricultural And Technical University And 2 Others
 
Counsel for Appellant :- Siddhartha Srivastava
 
Counsel for Respondent :- Satyam Singh
 

 
Hon'ble Manoj Misra,J.

Hon'ble Vikas Budhwar,J.

1. As these two appeals are against a common judgment and order of the learned Single Judge dated 20.9.2022 in Writ-A No. 4194 of 2022, they are connected with each other and, with the consent of learned counsel for the parties, have been heard together and are being decided by a common judgment and order.

2. Writ-A No. 4194 of 2022 was filed by Dr. Lallu Singh (the appellant in Special Appeal No. 666 of 2022, who is also respondent no.1 in Special Appeal No. 671 of 2022) for quashing the orders dated 13.03.2020 and 16.07.2021 of the Director, Administration & Monitoring, Chandrashekhar Azad Krishi & Prodyogik Vishwavidyalay, Kanpur (for short the University) rejecting the claim of the writ petitioner (i.e. Dr. Lallu Singh) for stepping up his pay as to make it at par with his junior. The writ petitioner also prayed for a direction upon the University Authorities to step up the pay of the petitioner and make it at par with that of his juniors with effect from the date the juniors were given higher pay and to pay the arrears with interest.

3. The petitioner claimed for a step up in pay on the ground that by virtue of clause IV (ii) (d) of Indian Council of Agricultural Research (ICAR) circular letter dated March 3, 1999 two advance increments were to be awarded as and when a teacher of University acquires a Ph.D. Degree in his service career. On the basis thereof, the pay of many teachers, who obtained Ph.D degree during their service period, though junior to the writ petitioner, got raised and became higher than that of the petitioner therefore, on principle of pay parity, the writ petitioner was entitled to step up in pay. The University Authorities sought to justify rejection of the claim on following grounds: that the writ petitioner had entered service with Ph.D. degree and got its benefit as was available at that time for such additional qualification; whereas, the juniors with whom the writ petitioner claimed pay parity got Ph.D. degree during their service and, therefore, by virtue of ICAR circular dated March 3, 1999 they got two advance increments w.e.f. 27.07.1998 in the scale revised w.e.f. 01.01.1996; and that, the ICAR clarificatory circular, dated April 19, 2004, prohibited a claim by a senior for step up in his pay if, by such raise provided to his junior, the pay of the junior becomes higher than that of the senior.

4. What is undisputed is that the persons junior to the writ petitioner who were working on the same post were given higher pay only because they obtained Ph. D. degree during their service, which the writ petitioner held since the time of entry in service. It is also undisputed that the increment awarded to writ petitioner's junior was in light of ICAR circular letter dated March 3, 1999 which provided certain incentive for Ph.D./ M.Phil. The relevant clause of the Circular dated March 3, 1999 issued by ICAR is clause IV(ii)(d), which has been extracted below:

"A teacher will be eligible for two advance increments as and when he acquires Ph.D. degree in his service career."

5. The above part of the 1999 ICAR Circular was clarified by ICAR Circular dated April 19, 2004 in terms below: -

Sl No.

Points of Doubt

Clarifications

...

...

...

...

Whether the pay of seniors can be stepped up at par with the juniors who get more pay as a result of grant of 4/2 advance increments granted for qualifications

The pay of seniors can not be stepped up if a junior drawing more pay on account of advance increments for acquiring Ph.D. Degree/M.Phil Degrees.

..

...

...

6. The writ petitioner claimed that since the post on which he and his junior were working was same, the functions attached to the post were same, both got appointment through selection, the salary difference was not because any of them entered the cadre from a different stream, or with pay protection, there was no justification for the petitioner to be paid less than his junior only because the petitioner had obtained Ph.D. degree before entering service whereas, the juniors obtained after entering the service. In a nutshell the claim of the petitioner was based on the fundamental principle enshrined in Article 14 of the Constitution of India that there cannot be a class within a class and the differentiation in pay fixation has no rational basis.

7. The learned Single Judge after going through the record and pleadings of the parties took the view that the clarificatory cicular of the ICAR dated April 19,2004 is not to deprive the claim for pay parity by such seniors who hold Ph.D. degree/ M.Phil degree. Rather, it is to clarify that the senior would not have a right to claim pay parity if the junior gets the raise in pay on account of acquiring higher qualification.

8. Before we proceed further, it would be useful to notice legal principles governing pay parity. It is well settled that, ordinarily, grant of higher pay to a junior would ex facie be arbitrary unless there is an intelligible differentia justifying it. No doubt, if there are justifiable grounds for doing so, the seniors cannot invoke the equality doctrine. Justifiable grounds could be such as (i) when pay fixation is done under valid statutory rules/ executive instructions; (ii) when persons recruited from different sources are given pay protection; (iii) when a senior is stopped at efficiency bar; (iv) when advance increments are given for experience/ passing a test / acquiring higher qualifications or as incentive for efficiency (vide State of Andhra Pradesh and others v. G. Sreenivasa Rao and others, (1989) 2 SCC 290, reiterated in Govt. of A.P. & Ors. V. Veera Raghavan, (1999) 9 SCC 266); (v) where higher pay received by a junior is on account of his earlier officiation in the higher post because of local officiating promotion (vide Union of India & Anr. v. R. Swaminathan & ors., (1997) 7 SCC 690). In Calcutta Municipal Corporation & Anr. v. Sujit Baran Mukherjee & Ors., (1997) 11 463, the Supreme Court, in the context of stepping up pay of senior to match that of the junior, observed when all of them discharge the same duties and are under the same responsibility and not in different circumstances, the stepping up principle would apply.

9. In the instant case, there is no dispute that juniors to the writ petitioner were discharging the same duties and similarly circumstanced yet, admitted to higher pay only because they obtained Ph.D degree while in service whereas the writ petitioner held Ph. D. degree since before entry in service. This anomaly according to the learned single Judge was unjustified and discriminatory as there existed no intelligible differentia between the two. In our view, the learned single Judge is justified in taking the above view, because, a person who, in terms of qualifications, holds higher qualification from the very beginning i.e. since the time of entry in service cannot be put at a disadvantageous position qua the person who comes at par with him later. Nothing is shown either in the counter affidavit or in the order impugned in the writ petition that the junior drawing higher pay came from a different stream with pay protection or was discharging different duties or additional functions or had passed a test or was given increments out of additional experience, etc. Only ground taken is the ICAR circular dated March 3, 1999 and clarificatory circular dated April 19, 2004. In so far as 1999 circular is concerned, it provides that a teacher will be eligible for two advance increments as and when he acquires Ph.D. degree in his service career. This does not say that a teacher who is already Ph.D. is not entitled to the benefit. In so far as the clarificatory circular dated April 19, 2004 is concerned, in our view, it would bar a claim of such a senior who does not have Ph.D. degree but not of one who holds Ph.D degree. For the reasons above, we are in agreement with the view taken by the learned single Judge.

10. At this stage, Sri Rakesh Kumar, learned counsel for the University, submitted that the University derives its fund from the State Government as well as from ICAR, but neither the State Government nor the ICAR is a party in the writ petition therefore, the writ petition was liable to be dismissed for non-joinder of necessary parties. It has been submitted that even the University was not impleaded as opposite party. Only, the Vice-Chancellor of the University was impleaded as a party. For this reason alone, the petition was liable to be dismissed.

11. The aforesaid submission is hyper-technical. Had it been raised before the learned single Judge either in the counter affidavit or orally, it might have reflected in the impugned judgment and order. The counter affidavit filed by the opposite parties in the writ proceedings is on record. A perusal thereof does not reflect that any such ground was taken. Had it been raised, the defect could have been cured by seeking impleadment of proper parties. Otherwise also, the purpose of impleading a person as a party to a proceeding is to ensure that that person gets due opportunity to put its case in the proceeding. In the instant case, the Vice-Chancellor of the University, who is the principal officer of the University and is the best person to put forth the case of the University was party to the writ proceeding and it was his decision which was communicated to the writ petitioner. Notably, he as well as the other officer of the University represented the University and a counter affidavit was also filed putting forth the stand of the University. In such circumstances, we do not find a good reason to set aside the order of the learned Single Judge on that technical ground.

12. In so far as non-impleadment of the State Government and the ICAR is concerned, the writ petitioner was employed by the University and his salary was paid by the University. Wherefrom the University sources its fund is not the concern of the petitioner. In such circumstances, we do not find any justification to set aside the order of the learned Single Judge on that ground.

13. At this stage, Sri Siddhartha Srivastava, who appears for the writ petitioner (Dr. Lallu Singh), presses his Special Appeal No. 666 of 2022 by submitting that the learned Single Judge should have awarded interest on the arrears payable on account of step up in the pay directed by the learned Single Judge. 

14. We notice from the order of the learned Single Judge that he has directed step up in the pay of the writ petitioner with retrospective effect i.e. from the date when Dr. Hargyan Prakash, a junior to the writ petitioner, was first paid higher pay than the petitioner. From the submissions made at the Bar, we could assess that Dr. Hargyan Prakash was provided pay higher than what was paid to the writ petitioner from sometimes in the year 2007, may be from a back date. Although it is stated that the writ petitioner had been representing his cause since 2011 but the representation which was pressed was made in the year 2017. No doubt, since then the petitioner had been diligent in pursuing his claim but had been lethargic in pursuing his claim earlier. We, therefore, deny the prayer of the petitioner for interest on the dues from the back date.

15. In light of the discussion above, both the appeals fail and are dismissed. The judgment and order of the learned Single Judge is affirmed.

Order Date :- 1.12.2022

N.S.Rathour