Kerala Agricultural University vs Dr.K. Rajmohan
2023 Latest Caselaw 3141 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                          PRESENT
        THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
                             &
         THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
THURSDAY, THE 23RD DAY OF MARCH 2023 / 2ND CHAITHRA, 1945
                    WA NO. 167 OF 2023
 AGAINST THE JUDGMENT DATED 30.06.2022 IN WP(C) 5529/2018
                  OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS 1 & 2:

    1     KERALA AGRICULTURAL UNIVERSITY,
          VELLANIKKARA, THRISSUR-680 654.
    2     THE COMPTROLLER,
          KERALA AGRICULTURAL UNIVERSITY,
          VELLANIKKARA, THRISSUR.
         BY ADV SRI.ROBSON PAUL, SC, KERALA AGRICULTURAL
         UNIVERSITY (KAU)

RESPONDENT/PETITIONER:

         DR.K. RAJMOHAN,
         S/O.M.KARTHIKEYAN, RETIRED PROFESSOR, COLLEGE OF
         AGRICULTURE, VELLAYANI, THIRUVANANTHAPURAM,
         RESIDING AT SAIKRISHNA, K P A C LANE,
         VALLAKADAVU P.O., THIRUVANANTHAPURAM.
         BY ADV P.V.JAYACHANDRAN


    THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
23.03.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Writ Appeal No.167 of 2023            2


                                                                C.R.


          P.B.SURESH KUMAR & SOPHY THOMAS, JJ.
              -----------------------------------------------
                   Writ Appeal No.167 of 2023
              -----------------------------------------------
           Dated this the 23rd day of March, 2023.


                              JUDGMENT

P.B.Suresh Kumar, J.

This appeal is directed against the judgment dated

30.06.2022 in W.P.(C) No.5529 of 2018. The appellants were

respondents 1 and 2 in the writ petition. Parties and documents

are referred to in this judgment for convenience, as they

appear in the writ petition.

2. The petitioner was a teacher in the Kerala

Agricultural University (the University). The matter relates to

the claim made by the petitioner for stepping up of his pay in

tune with the pay of one Dr.B.Balakirshnan, allegedly a teacher

junior to him, with effect from 01.01.1986. The premise on

which the aforesaid claim was made by the petitioner is that a

senior cannot be paid a lesser salary than his junior. The

learned Single Judge who considered the writ petition along

with an identical writ petition took the view that the issue is

covered in favour of the petitioner by the decision of the

Division Bench in Kerala Agricultural University v.

Elizabeth K. Syriac, 2022 SCC OnLine Ker 1376 and

consequently, allowed the writ petition and directed the

University to step up the pay of the petitioner on par with the

pay of his so called junior and disburse him the consequential

monetary benefits. The officials of the University who are

respondents 1 and 2 in the writ petition are aggrieved by the

decision of the learned Single Judge and hence, this appeal.

3. Heard the learned Standing Counsel for the

University as also the learned counsel for the petitioner.

4. The facts are not in dispute. The petitioner was

appointed in the University as Junior Assistant Professor on

07.10.1977. While continuing so, he was appointed as Assistant

Professor with effect from 20.04.1981. On completing ten

years of service in the University, in terms of the pay revision

order issued by the State Government viz, G.O.(P)

No.515/85/Fin. dated 16.09.1985, the petitioner was assigned

non-cadre promotion to the post of Associate Professor with

effect from 07.10.1987. While so, on 25.06.1990, the State

Government adopted and implemented the 1986 Scheme of

the University Grants Commission (the UGC Scheme) for the

teachers of the University. While implementing the UGC

Scheme, the University did not protect the non-cadre

promotion given to the petitioner and similarly placed teachers

in the post of Associate Professor. Nevertheless, with effect

from 09.01.1990, the petitioner was appointed as Associate

Professor in terms of the UGC Scheme in the scale of pay

Rs.3,700 - 5,700.

5. Dr.B.Balakrishnan was appointed in the

University like the petitioner as Junior Assistant Professor on

12.12.1975. He was, however, appointed as Assistant Professor

only on 02.11.1982, as there was some delay on his part in

acquiring the necessary qualifications for the said appointment.

As in the case of the petitioner, Dr.B.Balakrishnan was also

assigned non-cadre promotion to the post of Associate

Professor in terms of the pay revision order of the State

Government viz, G.O.(P) No.515/85/Fin. dated 16.9.1985 on

completion of 10 years' service in the University. There were

two other teachers also in the University like Dr.B.Balakrishnan

who entered service as Junior Assistant Professor prior to the

entry of the petitioner as Junior Assistant Professor, but

appointed as Assistant Professor only after the appointment of

the petitioner as Assistant Professor. They are Dr.V.K.Raju and

Dr.R.Pushpakumari. As in the case of Dr.B.Balakrishnan, the

aforesaid teachers were also assigned non-cadre promotion to

the post of Associate Professor prior to the conferment of non-

cadre promotion to the petitioner to the said post on

completion of ten years.

6. The teachers of the University including the

petitioner maintained the stand that they are entitled to the

non-cadre promotion given to them to the post of Associate

Professor in the UGC scale of Rs.3,700 - 5,700 with effect from

the respective dates of grant of non-cadre promotion to them.

Since the University did not accept the said stand of the

teachers, they took up the matter before this court in W.P.(C)

No.10496 of 2006 and connected cases, and this court declared

that the petitioners are entitled to the non-cadre promotion to

the post of Associate Professor in the UGC scale of Rs.3,700-

5,700 with effect from the date of completion of ten years'

service in the University. The said judgment has become final.

Thereupon, the University extended the benefit of the said

judgment to all similarly placed teachers as well. Both the

petitioner and the three teachers referred to in the preceding

paragraph including Dr.B.Balakrishnan were accordingly

conferred non-cadre promotion to the post of Associate

Professor in the UGC scale of Rs.3,700 - 5,700 with effect from

the date of completion of ten years' service in the University.

While the petitioner got the benefit of the said verdict with

effect from 07.10.1987, Dr.B.Balakrishnan got the benefit of the

same with effect from 01.01.1986. Similarly, the other

teachers, Dr.V.K.Raju and Dr.R.Pushpakumari also got the

benefit of the said verdict before the date with effect from

which the petitioner got the same. As a result, all the three

teachers referred to above, who were seniors to the petitioner

in terms of the date of entry in the service of the University

started receiving more emoluments than the petitioner. But,

according to the petitioner, since he is senior to the three

teachers referred to above in terms of the dates of

appointment as Assistant Professor in the University, he is

entitled to the same pay as that of Dr.B.Balakrishnan, who is

senior among them. In order to show that the petitioner is

senior to Dr.B.Balakrishnan and two others referred to above,

the petitioner relies on Ext.P3 decision of the University to

reckon seniority based on the cadre seniority in the directly

recruited cadre at the time of induction to UGC Scheme. The

petitioner therefore, raised a claim in this regard before the

University on 27.11.2017. Ext.P6 is the representation

preferred by the petitioner before the University in this regard.

The writ petition was instituted thereafter seeking a direction to

the University to step up the pay of the petitioner in tune with

the pay drawn by Dr.B.Balakrishnan with effect from

01.01.1986 and to disburse him consequential monetary

benefits with interest. It is alleged by the petitioner in the writ

petition that in an identical case, in terms of the judgment in

W.P.(C) No.16252 of 2012 dated 26.05.2015, this court has

accepted an identical claim.

7. A counter affidavit has been filed on behalf of the

University contending mainly that the claim raised by the

petitioner on the premise that Dr.B.Balakrishnan and two other

teachers referred to in the writ petition are juniors to him, is

unsustainable inasmuch as they are seniors to him going by

the dates on which they joined the service of the University as

also going by the dates on which they were assigned non-cadre

promotion to the post of Associate Professor in the UGC scale.

It was also contended in the counter affidavit that in order to

claim stepping up of pay based on seniority, the service

particulars of the senior and junior shall be identical in all

respects and the service particulars of the petitioner and the

three teachers referred to by the petitioner in the writ petition

as juniors, are not identical. It was also contended by the

University that even though the petitioner was appointed

earlier as Assistant Professor in the University, the same is of

no consequence inasmuch as the three teachers referred to by

the petitioner as his juniors in the writ petition were given non-

cadre promotion to the post of Associate Professor in the UGC

scale earlier to the petitioner.

8. The learned Standing Counsel for the University

asserted that inasmuch as the petitioner is junior to the three

teachers referred to in the writ petition with reference to the

dates of entry in the service of the University, and inasmuch as

the said three teachers have been assigned non-cadre

promotion to the post of Associate Professor in the UGC scale

earlier to the petitioner, merely for the reason that the

petitioner was appointed as Assistant Professor earlier to them,

it cannot be said that the petitioner is entitled to the same pay

as that of the said three teachers. It was also argued by the

learned Standing Counsel that the judgment in Elizabeth K.

Syriac has nothing to do with the case on hand.

9. Placing reliance on the fact that the petitioner is

a person who was appointed as Assistant Professor earlier in

point of time, the learned counsel for the petitioner contended

that he is senior to the three teachers referred to in the writ

petition and inasmuch as he is senior to the said three

teachers, he should be paid at least the pay applicable to them.

The learned counsel has relied on the decision of the Apex

Court in Gurcharan Singh Grewal v. Punjab SEB, (2009) 3

SCC 94 to contend that a senior cannot be paid a lesser salary

than his junior at all.

10. We have given our thoughtful consideration to

the submissions made by the learned counsel for the parties on

either side.

11. As noted, the learned Single Judge did not

consider the question whether the claim raised by the

petitioner for parity of pay is sustainable. Instead, the learned

Single Judge took the view that the issue is covered in favour of

the petitioner by the decision of the Division Bench in

Elizabeth K. Syriac and consequently, allowed the writ

petition on that basis. As such, the first and the foremost

question to be considered is as to whether the decision of the

Division Bench in Elizabeth K. Syriac has anything to do with

the case on hand.

12. Dr.Elizabeth K. Syriac was an Assistant

Professor in the University who got the benefit of two advance

increments in terms of the 1996 UGC Regulations on acquiring

Ph.D degree. Her junior, Dr.L.Girija Devi who acquired Ph.D

while 2006 UGC Regulations were in force got the benefit of

three advance increments in terms of the said Regulations and

consequently, she was able to draw a higher pay than her

senior Dr.Elizabeth K. Syriac. Dr.Elizabeth K. Syriac contended

that the aforesaid is an anomaly to be corrected by stepping up

her pay in tune with the pay of her junior. The University

contended that anomalies to be corrected in the aforesaid

manner are only anomalies that arise due to pay fixation and

not anomalies that arise on account of grant of advance

increments in terms of the schemes of the University Grants

Commission. It is seen that this Court in the said case took the

view that inasmuch as the qualifications acquired by both the

teachers being one and the same and there being no difference

in the nature of work discharged by them, they cannot be

treated differently and that such anomalies are also to be

corrected by stepping up the pay of the senior up to that of the

juniors. In the case on hand, the three teachers referred to in

the writ petition as juniors to the petitioner were admittedly

seniors to the petitioner in terms of the dates of entry in the

service of the University as Junior Assistant Professor. All of

them were granted non-cadre promotion to the post of

Associate Professor in the UGC scale of pay long before the

petitioner was given the same. In the light of the contention

taken by the petitioner in the writ petition, the question that

arises for consideration in the case on hand is whether the

petitioner is entitled to claim parity of pay with the pay of the

aforesaid three persons merely for the reason that he was

promoted as Assistant Professor before their promotion as

Assistant Professor in the University. According to us, the facts

of the case dealt with by the Division Bench in Elizabeth K.

Syriac are neither identical nor similar to the facts of the

present case and the decision in the said case cannot have any

application to the facts of the present case.

13. Let us now consider whether the case dealt

with by this Court in W.P.(C) No.16252 of 2012 has anything to

do with the case on hand. We are constrained to consider this

question also, as it is specifically pleaded by the petitioner in

the writ petition that the case dealt with by this Court in the

said writ petition is an identical one. W.P.(C) No.16252 of 2012

is a case instituted by one Dr.Sosamma Cherian. The grievance

voiced by her in the said writ petition was that one

Dr.K.G.Padmakumar, who entered the service of the University

as junior Assistant Professor like her much after the entry of the

petitioner, was drawing more pay than the petitioner on

account of the fixations given to him as on 01.01.2006. A close

reading of the judgment does not indicate as to how an

incumbent who entered service in the same post as that of the

petitioner much after the entry of the petitioner and got

identical advance increments, promotions, placements etc.

after the petitioner was given such benefits, happened to draw

more pay than the petitioner. Be that as it may, the fact

remains that the petitioner in the said writ petition and

Dr.K.G.Padmakumar were identically placed and

Dr.K.G.Padmakumar was junior to the petitioner in all aspects.

The said judgment also, according to us, cannot have any

application to the facts of the present case.

14. Needless to say, the sustainability or

otherwise of the claim of the petitioner needs to be considered

independent of the decision of this Court in Dr.Elizabeth

K.Syriac and in W.P.(C) No.16252 of 2012. Before considering

the claim raised by the petitioner for stepping up of his pay in

tune with the pay of his so called juniors, it is necessary to

understand the legal principle, on the basis of which such a

claim has been raised by the petitioner.

15. It is trite that there cannot be a case of

discrimination merely because of the fortuitous circumstances

arising on account of the peculiarity of the facts of a particular

case. Fact situations arising in a case may create advantages

or disadvantages for one group or the other although in the

earlier stages, they were more or less alike. If one class has not

been singled out for special treatment, the mere circumstances

of advantages accruing to one or the other cannot result in

breach of Article 14 of the Constitution. It is so held by the

Apex Court in Union of India v. E.S. Soundara Rajan, (1980)

3 SCC 125. The relevant portion of paragraph 4 of the

judgment reads thus:

"It is equally important to remember the well-established proposition that there cannot be a case of discrimination merely because fortuitous circumstances arising out of some peculiar developments or situations create advantages or disadvantages for one group or the other although in the earlier stages they were, more or less, alike. If one class has not been singled out for special treatment, the mere circumstances of advantages accruing to one or the other

cannot result in breach of Article 14 of the Constitution. On this basis we should agree with the reasoning of the High Court of Madras and so declare the law correctly."

The principle that a senior cannot be paid lesser salary than his

junior is a principle based on the doctrine of equality. But it is

not an absolute rule. Ordinarily grant of higher pay to a junior

would ex facie be arbitrary, but if there are justifiable grounds

in doing so, the seniors cannot invoke the equality doctrine. It

is so held by the Apex Court in State of A.P. v. G. Sreenivasa

Rao, (1989) 2 SCC 290. Paragraph 15 of the said judgment

reads thus:

"15. Equal pay for equal work" does not mean that all the members of a cadre must receive the same pay packet irrespective of their seniority, source of recruitment, educational qualifications and various other incidents of service. When a single running pay scale is provided in a cadre the constitutional mandate of equal pay for equal work is satisfied. Ordinarily grant of higher pay to a junior would ex facie be arbitrary but if there are justifiable grounds in doing so the seniors cannot invoke the equality doctrine. To illustrate, when pay fixation is done under valid statutory rules/executive instructions, when persons recruited from different sources are given pay protection, when promotee from lower cadre or a transferee from another cadre is given pay protection, when a senior is stopped at efficiency bar, when advance increments are given for experience/passing a test/acquiring higher qualifications or incentive for efficiency;

are some of the eventualities when a junior may be drawing higher pay than his seniors without violating the mandate of equal pay for equal work. The differentia on these grounds would be based on intelligible criteria which has rational nexus with the object sought to be achieved. We do not therefore find any good ground to sustain the judgments of the High Court/Tribunal."

(Underline supplied)

As evident from the extracted portion of the judgment, when

pay fixation has been made under a valid statutory

rule/executive instruction, it is an eventuality where a junior

could legitimately draw a higher pay than his senior, without

violating the mandate of equal pay for equal work. Needless to

say, the differentia on a ground of this nature would be based

on intelligible criteria which has rational nexus with the object

sought to be achieved. In other words, in such situations, grant

of higher pay to a junior would not be arbitrary, but justifiable

and seniors cannot invoke the equality doctrine. After referring

to G. Sreenivasa Rao, the Apex Court in State of W.B. v.

Debasish Mukherjee, (2011) 14 SCC 187 has held that the

High Courts and tribunals should not, in an omnibus manner

come to the conclusion that wherever and for whatever

reasons, a junior is given higher pay, a doctrine of equal pay for

equal work is violated and a senior is entitled to the same pay,

irrespective of the scope of the relevant rules and the reasons

which necessitated fixing of higher pay for juniors. The relevant

passage in the said judgment reads thus :

"This Court held that the High Courts and Tribunals should not, in an omnibus manner come to the conclusion that whenever and for whatever reasons, a junior is given higher pay, the doctrine of "equal pay for equal work" is violated and the seniors are entitled to the same pay, irrespective of the scope of the relevant rules and the reasons which necessitated fixing of higher pay for juniors."

The statement of law made by the Apex Court in Gurcharan

Singh Grewal that a senior cannot be paid lesser salary than

his junior has to be understood in the light of the principles laid

down by the Apex Court in E.S. Soundara Rajan, G.

Sreenivasa Rao and Debasish Mukherjee, of which

Debasish Mukherjee is a later decision. In other words, for

claiming stepping up of pay of the senior, the service

particulars of the junior and senior should be identical in all

respects and the anomaly must be one arising on account of

fixation of the pay of the junior as per his entitlement.

16. Now let us consider the question whether the

case on hand is a case where the petitioner could legitimately

raise a claim for stepping up of the pay in tune with the pay of

his juniors in the cadre of Assistant Professor. As already

noticed, the three teachers referred to by the petitioner in the

writ petition as his juniors, entered into the service of the

University as Junior Assistant Professor prior to the entry of the

petitioner as Junior Assistant Professor. It is not disputed that in

the light of the decision of this Court in W.P.(C) No.10496 of

2006 and connected cases, which has become final, the

University extended the benefit of the said verdict to the

petitioner as also to the three teachers referred to above by

granting them non-cadre promotion to the post of Associate

Professor in the UGC scale on completion of ten years of

service in the University. The said decision was taken by the

University as it was found by the Apex Court in the case of

similarly placed persons that they are entitled to the said

benefit in the light of the pay revision order issued by the State

Government. It is beyond dispute that it is by virtue of the

decision of this Court in W.P.(C) No.10496 of 2006 and

connected cases which was affirmed by the Apex Court and

later followed by the University, that the three teachers

referred to by the petitioner as juniors in the writ petition

happened to be given the benefit of non-cadre promotion in the

post of Associate Professor from the respective dates on

completion of ten years' service before the petitioner had been

granted the same benefit and it is on account of the said

reason that they happened to draw more pay than the

petitioner with effect from the date on which they got non-

cadre promotion in the post of Associate Professor. The pointed

question is as to whether the petitioner is entitled to claim the

same pay as that of Dr.B.Balakrishnan who is senior among the

three of his so called juniors in a situation of this nature.

According to us, even if they are considered as juniors to the

petitioner in the cadre of Assistant Professor, the petitioner is

not entitled to pay parity with them on the basis that he is

senior to them inasmuch as it is by virtue of the lawful pay

revision orders issued by the State Government, they got the

benefit of the protection of the non-cadre promotion in the post

of Associate Professor earlier to the non-cadre promotion given

to the petitioner to the said post. In other words, the case on

hand is a case where grant of higher pay to a junior is

justifiable being one granted under a valid executive order and

the right of the junior to the said benefit has been upheld by

the Court. In such situations, according to us, a senior cannot

complain that his right to equality is infringed. If a situation of

this nature is treated as one of a junior-senior anomaly so as to

enable the senior to claim stepping up of the pay, the same will

have the effect of the senior getting a non-cadre promotion to

the post of Associate Professor on a date anterior to his

entitlement to such a non-cadre promotion.

17. In the light of the discussion aforesaid, the claim

of the petitioner for pay parity is unsustainable and is rejected.

In the result, the writ appeal is allowed, the

impugned judgment is set aside and the writ petition is

dismissed.

Sd/-

P.B.SURESH KUMAR, JUDGE.

Sd/-

SOPHY THOMAS, JUDGE.

YKB

APPENDIX OF WA 167/2023

PETITIONER ANNEXURES Annexue A A true copy of the order No. GO(MS) No. 32/07/AD dated 19.03.2007 Annexue B A true copy of the order G.O.(Ms)No.

210/2022ffin dated 03.12.2022