Sudesh Kumar Gupta (Age 72 Years) vs Vice Chancellor
2023 Latest Caselaw 2362 j&K

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU


                                                      Reserved on 16.10.2023
                                                   Pronounced on 20.10.2023

SWP No. 1852/2016


Sudesh Kumar Gupta (Age 72 years)                  .....Appellant(s)/Petitioner(s)
S/o. Sh. Late Wazir Chand Gupta
R/o. H. No.-F-98, Lane-7,
Talab Tillo, Jammu

Q
                          Through: Mr. Rajiv K. Sharma, Adv.
                     Vs
1.    Vice Chancellor                                        ..... Respondent(s)
      University of Jammu, Jammu
2.    Registrar,
      University of Jammu, Jammu
                          Through: Mr. Anil Sethi, Adv.



    Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE


                                   JUDGMENT

1. The petitioner has sought a direction upon the respondents to place him

in the pay scale of Rs. 10,000-325-15,200 with effect from 01.01.2000, on the

ground that his juniors, namely, Mr. A. K. Mughal, Lab. Assistant now

designated as Scientific Officer, Mr. Bhawani Dutt, Photomicrographer now

designated as Scientific Officer and Dr. Ashok Sahni, Lab. Assistant now

designated as Scientific Officer, have been placed in the aforesaid pay scale

with effect from the aforesaid date without according consideration to the case

of the petitioner.

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2. As per the case of the petitioner, he was appointed as Museum-cum-

Lecturer Assistant on 20.04.1972 and he attained superannuation on 31.01.2005

as Museum-cum-Lecturer Assistant in the respondent-University. It is averred

that as per the seniority list of technical staff working in the Science

Departments of the University of Jammu, the name of the petitioner figured at

serial No. 8. It is further averred that in terms of order No. ATM/87/1780-1850

dated 05.02.1987 issued by the respondent-University, the pay scale of the

petitioner was revised from Rs. 875-1400 to Rs. 2100-3750. The petitioner

along with similarly situated employees of the respondent-University

approached this Court by way of a writ petition bearing SWP No. 1272/2000,

titled, Tejinder Singh and others vs Vice Chancellor, University of Jammu and

others seeking relief that instead of placing them in the pay scale of 2100-3750,

they should be granted pay scale of Rs. 2200-4000. During the pendency of the

writ petition, the respondent-University placed on record a Notification dated

30.04.2007 wherein it was provided that the employees under the scheme shall

be considered for promotion to senior scale post in the category concerned if he

has put in not less than 10 years consistent satisfactory service in the initial

scale. Similarly, an employee was to be considered for promotion to the

selection scale post in the category concerned if he has put in 18 years of

consistent satisfactory service. In view of the aforesaid stand of the respondent-

University, the said writ petition was dismissed as withdrawn.

3. It is being contended by the petitioner that vide Notification dated

05.06.2007 a clarification was issued that the Revised Career Advancement

Scheme to the technical staff of the Science Departments shall have prospective

SWP No. 1852/2016

effect, however, the pay shall be fixed notionally from the date an incumbent

becomes eligible subject to the screening of the individual cases by the

Screening Committee and such notional effect shall not entail any retrospective

financial benefit i.e. payment of arrears. According to the petitioner, after the

issuance of Clarification dated 05.06.2007 consideration was accorded by the

respondent-University to extend the benefit of Notification dated 30.04.2007 to

the eligible employees and vide order dated 18.01.2008, three employees,

namely, Mr. A. R. Mughal, Lab Assistant, Mr. Bhawani Dutt,

Photomicrographer and Dr. Ashok Sahni, Lab Assistant were placed in the pay

scale of Rs. 10,000-325-15,200 with effect from 01.02.2000.

4. It is being contended that though case of the petitioner was squarely

covered by the clarificatory Notification dated 05.06.2007 and he was entitled

to be placed in the pay scale of 10,000-325-15,200 from the date, above-named

junior officials were given the benefit of the said scheme, yet he was not

considered. It has been submitted that the petitioner made a number of

representations to the respondents but without any success. Hence the present

writ petition.

5. The respondent-University has filed its reply to the writ petition. In the

reply, it has been submitted that the petitioner was granted promotion and

placed in the pay scale of Rs. 875-1400 with effect from 27.02.1986 in terms of

order dated 28.10.1986. Upon implementation of the UGC prescribed pay

scales, the pay scale of the petitioner was revised to Rs. 2100-3750 in terms of

order dated 08.03.1988. It is further pleaded that on recommendation of the

Screening Committee, the petitioner was placed in the selection scale of Rs.

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8000-13500 with effect from 01.02.2001 in terms of Reorganization-Cum

Caderization scheme for technical staff of the Science Department.

6. It has been submitted that amended Reorganization-Cum Caderization

scheme was notified vide order No. Estab/07/1514-1613 dated 30.04.2007 and

a Clarification was issued to the said scheme vide No. Estab/07/3761-831 dated

05.06.2007. It was provided in the amended scheme that the amendment shall

have prospective effect and it shall be applicable to the employees who could

not avail promotion/ugradation in existing schemes. It has been claimed that the

petitioner was placed in the selection scale of Rs. 8000-13500 with effect from

01.02.2001 under the existing Reorganization-Cum Caderization scheme before

its amendment. According to the respondent-University, since the petitioner

had retired from service on 31.01.2005, therefore, he is not entitled for

placement in the pay scale of Rs. 10000-325-15200 in terms of amended

scheme. It is being pleaded that case of the petitioner is distinguishable from

the case of Sh. A. R. Mughal, Sh. Bhwani Dutt and Dr. Ashok Sahni as they

were in service when the higher pay scale was released in their favour in terms

of the amended scheme.

7. I have heard learned counsel for the parties and perused the record.

8. The case of the petitioner in brief is that as per the Clarification issued

vide Notification dated 05.06.2007 to the Notification dated 30.04.2007, the

Revised Career Advancement Scheme to the technical staff of the Science

Departments has to apply to the petitioner. In terms of the said Clarification,

the pay had to be fixed notionally from the date an incumbent becomes eligible

subject to screening of the individual cases by the Screening Committee,

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though such notational effect would not entail any retrospective financial

benefit i.e. payment of arrears. It is being contended by the petitioner that in the

case of his juniors, the notional effect of placement in higher pay scale in terms

of Revised Career Advancement Scheme was given retrospectively from a date

when the petitioner was still in service. On this basis, it is being contended that

notional effect was to be given to the Revised Career Advancement Scheme in

the case of the petitioner as he was ranking senior to Mr. A. R. Mughal and by

doing so, he would have been placed in a higher pay scale which in turn would

have resulted in fixing of higher pension in his favour. In short, the petitioner

contends that vide clarification Notification dated 05.06.2007, retrospective

effect had to be given to the Revised Career Advancement Scheme notified

vide Notification dated 30.04.2007 on notional basis.

9. In order to test the merits of the submissions made by the learned counsel

for the petitioner, it would be apt to quote the relevant clause of Notification

dated 30.04.2007 and the Clarification dated 05.06.2007. The relevant amended

clause 9 of Notification dated 30.04.2007 reads as under:

"9 An employee under this scheme shall be considered for promotion to the senior scale post in the category concerned only, if he has put in not less than 10(ten) years consistently satisfactory service in the initial scale. Likewise an employee shall be considered for promotion to the selection scale posts in the category concerned only, if he has put in total 18 years (both in the initial scale and senior scale taken together) of consistently satisfactory service."

It will also be apt to quote the conditions attached to the aforesaid

Notification dated 30.04.2007, which read as under:

"the above mentioned amendments in the Statutes/related Scheme shall be subject to the following conditions:-

i) The amendments shall have prospective effect.

ii) Both the revised Schemes shall be applicable to the employees of both the categories who could not avail

SWP No. 1852/2016

promotion/upgradation in their existing schemes due to one or the other reasons.

iii) There shall not be any change in the qualification prescribed in the scheme for placement in the senior/selection scale of the incumbent.

iv) The seniority of the incumbent shall remain intact on the respective cadre, class and category."

From a perusal of the afore-quoted clauses, it is clear that these

amendments are prospective in nature and do not have any retrospective effect.

10. The Clarification Notification dated 05.06.2007 reads as under:

"Subsequent to the representation made by the Non-Teaching Employees Union and the round of interaction they had with the Vice-Chancellor, and in continuity to this office notification No. Estab/07/1514-1613 dated 30.04.2007 clarification is issued to the extent that the revised Career Advancement Scheme for the Technical Staff of the Science Departments and for the isolated posts shall have prospective effect. However, the pay shall be fixed notionally from the date an incumbent becomes eligible subject to the screening of the individual cases by the Screening Committee and such notional effect shall not entail any retrospective financial benefit i.e. payment of arrears"

11. From a perusal of the aforesaid Notification, it is revealed that it has

been made clear that Notification dated 30.04.2007 which provides for Revised

Career Advancement Scheme to the technical staff of the Science Departments

will have prospective effect. It has, however, been provided that pay would be

fixed notionally from the date an incumbent becomes eligible and said notional

effect would not entail any retrospective financial benefit, meaning thereby,

that the Revised Career Advancement Scheme notified vide Notification dated

30.04.2007 would continue to have prospective effect, but while fixing the pay

of the eligible officials, notional effect would be given from the date they

become eligible.

12. The plain meaning of this is that the Revised Career Advancement

Scheme would apply only to those officials of the respondent-University who

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are in service as on date of issuance of Notification dated 30.04.2007 or

thereafter. Such officials, who are in service as on said date and are eligible

under the scheme that is if they have put in 10 years of consistent satisfactory

service in the initial scale or if they have put in 18 years of consistent

satisfactory service, would be entitled to pay scale under the Revised Career

Advancement Scheme from the date they actually become eligible under the

said scheme and not from the date of notification of the said scheme. However,

it has been made clear that such eligible officials shall not be entitled to any

financial benefits on the basis of fixation of their pay scale as per the Revised

Career Advancement Scheme from a date on which they actually become

eligible for said pay scale in terms of the scheme. There is no manner of doubt

in the language used in Notification dated 05.06.2007 that the Revised Career

Advancement Scheme would apply only prospectively to those employees who

are in service as on date of notification of the said revised scheme. The

retrospective notional effect to the revised scheme has been extended only to

those employees who were in service as on date of issuance of revised scheme.

13. The petitioner has admittedly retired on 31.01.2005 when the Revised

Career Advancement Scheme had not come into operation, therefore, he cannot

claim benefit under the said scheme. His case is clearly distinguishable from

the cases of Sh. A. R. Mughal, Sh Bhawani Dutt and Dr. Ashok Sahni, who

were admittedly in service at the time when the Revised Career Advancement

Scheme was notified by the respondent-University. Thus, the respondent-

University has rightly accorded the benefit of the revised scheme to

SWP No. 1852/2016

afore-named three officials from the dates they actually became eligible for

higher scales under the said scheme on notional basis.

14. For the foregoing reasons, I do not find any merit in the instant petition.

The same is dismissed accordingly.

(SANJAY DHAR) JUDGE

Jammu 20.10.2023 Rakesh Whether the order is speaking: Yes Whether the order is reportable: No