Judgment:
G.S. Kulkarni, J.
1. Rule made returnable forthwith. By consent of the learned Counsel for parties, taken up for final hearing.
2. By this petition under Article 226 of the Constitution of India the petitioner challenges the order dated 11.12.2008 passed by the Director of Education, Maharashtra State, Pune to the extent it confers on the Petitioner date of promotion as Professor as 3.9.2005 and not 17.8.2004 as per the career advancement scheme purportedly applicable. The petitioner has further prayed for writ of mandamus against the respondents for fixing the petitioner's pay scale as a Professor from 17.8.2004 and for releasing arrears from the said date with 18% interest. By a prayer added on amendment to the writ petition, the petitioner seeks quashing of the order dated 17.8.2011 passed by the Joint Director, Higher Education Department, Mumbai Division, by which it has been held that the petitioner was not eligible for two advance increments availed by the petitioner after getting a Ph.D. when the petitioner was working on the post of a Reader.
The facts are:-
3. The petitioner who possessed the qualifications of having a B.Sc., M.Sc., Bachealor degree in Library Science and a Master degree in Library Science was appointed as a Lecturer in Library Science with the first respondent “ University on 20.6.1986. The petitioner belongs to the open category. In the year 1996 there was a vacancy in respect of a full time, permanent, open post of a Reader with the first respondent-University. This post was advertised. The petitioner appeared at the interview which was held on 1.8.1996. The petitioner claims that the qualification for the post of the Reader in the subject of Library Science was requirement of a good academic record with a Doctoral Degree or equivalent published work. The petitioner did not have a Ph.D. at that time and was yet to submit her thesis and was in the process of acquiring a Ph.D. It is the petitioner's case that she became eligible for the post of a Reader on the basis of her published work in the field of library science. It is Petitioners case that on being interviewed by a duly appointed selection committee she was found suitable for the post of a Reader in Library Science as her published work was considered equivalent to a Ph.D. Degree and accordingly she was selected. By an appointment letter dated 14.8.1996 the petitioner was appointed as a Reader on a probation for a period of two years with effect from 17.8.1996 in the SHPT School of Library Science of the respondent no.1-University. By a communication dated 23.9.1998, she was confirmed on the post of a Reader. The petitioner relies upon a Government Resolution dated 11.12.1999 by which a revised pay scales in pursuance of 5th Pay Commission's recommendations were implemented by the State Government, to assert that the minimum qualification for the post of a Reader was good academic record alongwith Ph.D. or equivalent academic work published in Journals.
4. After appointment of the Petitioner as a Reader she obtained a Ph.D. in the year 1997. The petitioner has averred that she was given two advance increments retrospectively from the date of acquiring Ph.D., on the basis of the communication of the University Grants Commission dated 24.7.2002. By this communication of the University Grants Commission (for short œUGC?) addressed to the Secretary, School Education Department of Government of Maharashtra, it was informed that the benefit of two advance increments was extended to the teachers who acquire Ph.D. during service prior to 1.1.1996 and who did not get the benefit of any advance increments as per earlier Career Advancement Scheme. It was stated that the advance increments were payable from 27.7.1998 to such category of teachers. Further it was clarified that the said two advance increments shall not be admissible to the teachers who are recruited / promoted to the post for which Ph.D. was an essential qualification.
5. It is the petitioners case that by a Government Resolution dated 11.12.1999, the State Government introduced a Career Advancement Scheme under which the petitioner was enrolled. Under this scheme a Reader would be granted the pay scale of the post of Professor upon satisfactory completion of eight years as a Reader. The petitioner states that under the Career Advancement Scheme, a Selection Committee was constituted comprising of 11 faculty members. This Committee interviewed the petitioner on 16.7.2007 and unanimously recommended that the petitioner be promoted to the scale of a Professor with effect from 17.8.2004, (the petitioner claims this to be the date she completed Eight years as a Reader.). That the recommendations of the Selection Committee were further confirmed by the Under Secretary of the UGC by a communication dated 4.6.2008. After the approval of the UGC, by a letter dated 25.6.2008 the petitioner was promoted as a Professor.
6. The first respondent-University thereafter submitted an application dated 30.5.2008 to the State Government seeking approval of the promotion of the petitioner to the post of Professor. The second respondent by an order dated 11.12.2008 granted approval to the appointment of the petitioner as a Professor, however, in the said approval order , the date of appointment of the petitioner as a Professor was recorded as 3.9.2005. It is the petitioner's case that the said approval has wrongly computed period of her service as a Reader from the date of obtaining Ph.D. rather than the date on which she was appointed as a Reader.
7. Thereafter by a letter dated 19.1.2009 of the first respondent, the Head of SHPT School of Library Science was requested to forward a pay fixation form to be submitted to the third respondent for release of arrears of the petitioner's backwages to be calculated on the pay scale of a Professor with effect from 3.9.2005. Accordingly, a proposal dated 13.3.2009 was forwarded to the third respondent claiming arrears payable to the petitioner. In response thereto, the third respondent by letter dated 13.7.2009 did not accept the proposal and put a remark for re-forwarding of the proposal after certain compliances. The following three requirements were insisted:-
œ(i) Pay fixation of the post of Reader be ascertained and done.
(ii) Two increments on clearing Ph.D. become applicable from 27.7.1998 and for which pay fixation be done. Only after such pay fixation is done, the pay fixation for the post of Professor would be undertaken.
(iii) In the main service book at page 12 it has been shown that pay fixation has been made and only the signature of the University Librarian appears, which is not acceptable. As also two Ph.D. increments have been shown with effect from 3.9.1997 and hence, recovery of additional increments be immediately made and only thereafter the proposal be forwarded.
8. On account of the said disapproval by the third respondent, on behalf of the petitioner, the University Librarian and Head by his letter dated 16.7.2009 sought a clarification from the Registrar of the first respondent on the issue. The petitioner also addressed a letter dated 18.7.2009 to the third respondent stating that as per the Government Resolution dated 11.12.1999 she was required to work on the post of Reader for eight years to get the benefits of Career Advancement Scheme. She, therefore, requested to grant sanction to the post and pay scale as a Professor from 17.8.2004 being eight years after appointment as Reader with effect from 17.8.1996.
9. Hence the petitioner's case was that the pay scale of the post of Professor be granted to her with effect from 17.8.2004 being the date she completed 8 years service as a Reader. It is the petitioner's case that the Government Resolution dated 11.12.1999 contemplates the grant of pay scale of Professor after eight years of working as a Reader as per the Career Advancement Scheme of the UGC.
10. The petitioner apprehended that in pursuance of the remarks of the third respondent in the said disapproval letter dated 13.7.2009 the advance increments availed by her would be withdrawn at the hands of the respondents. Hence being aggrieved by this disapproval the Petitioner filed Writ Petition No. 2318 of 2009 in this Court inter-alia praying for reliefs against the Respondents for a correct fixation of her pay scale as a Professor and a restraint against the third respondent from withdrawal of the amounts availed by the petitioner under the two advance increments. At the hearing of the writ petition before this Court a statement was made on behalf of the State Government that the impugned order as challenged in the said writ petition would not be given effect, unless a show cause notice was issued to the petitioner and only on considering the Petitioners explanation, a final order would be passed within a period of three months. On such statement being recorded the writ petition was permitted to be withdrawn by an order dated 6.8.2010.
11. The petitioner filed this writ present petition asserting that as the order dated 6.8.2010 passed by this Court in writ petition no. 2318 of 2009 was not complied within the prescribed time by the third respondent and has accordingly prayed that the Petitioner has rightly become entitled to the two advance increments as also to the pay scale of the post of professor with effect from 17-08-2004. The petitioner has stated that the two increments which were granted to her, were deducted from her salary with effect from August 2008 till January 2010 when she retired, being a period before the earlier writ petition was disposed of by this Court.
12. After filing the present petition, the third respondent called the petitioner for a hearing on 10.8.2011. In pursuance of which an order dated 17.8.2011 was passed by the Joint Director, Higher Education Department, Mumbai Division, who has held that two advance increments were not admissible to the teachers who were recruited / promoted to a post for which Ph.D. was an essential qualification. It was observed that by the communication of the UGC dated 24.7.2002, its decision dated 31.8.2001 was communicated that the benefits of two increments be extended to the teachers who had acquired Ph.D. during the service prior to 1.1.1996, who did not get the benefit of any advance increments as per earlier Career Advancement Scheme and that the advance increments were payable with effect from 27.7.1998. It was held that in pursuance to the decision of the UGC the petitioner was not entitled for the benefit of two advance increments on her acquiring a Ph.D and that unless the recovery of payment as availed by her is made her case cannot be processed further for fixation of the pay scale of the post of professor. The petitioner on this background amended the Writ Petition and has impugned the said decision of the said third respondent dated 17-08-2011 .
13. We have heard Mr.Mihir Desai, learned Counsel appearing for the petitioner and Mr.Rui Rodrigues, learned Counsel appearing for first respondent and Mr.Shekhar Ingawale, learned AGP appearing for respondent nos.2 to 4. With their assistance, we have gone through the record of the present petition.
14. Learned Counsel for the petitioner has principally raised two issues, Firstly, he submits that the petitioner was entitled for the two advance increments on her acquiring a Ph.D. as per the Government Resolution dated 11.12.1999 as a part of the career advancement scheme of the UGC and hence, the action of the respondents to recover the said amount was illegal. Secondly that the Petitioner could not have been assigned the date of 30.9.2005 as the date of appointment as a professor as contained in the Communication of the third respondent dated 11.12.2008.
15. In support of the first submission in regard to the entitlement of the Petitioner for the two advance increments on obtaining a Ph.D by the petitioner the Ld. Counsel for the petitioner relies on Government Resolution dated 11.12.1999 to submit that the Petitioner was entitled for the two advance increments on her obtaining Ph.D. As regards the second submission the Ld Counsel for the Petitioner submits that the State Government ought to have fixed the petitioner's pay scale on the post of Professor with effect from 17.8.2004 being the date on which the petitioner has completed eight years as a Reader which according to him was in consonance with the Career Advancement Scheme of the UGC as accepted by the State Government in Government Resolution dated 11.12.1999. It is submitted that the Petitioner should have been awarded the Professor's pay scale from 17.8.2004. It is submitted that the respondents had failed to consider that Ph.D. was not a minimum requirement for the post of Reader and that the petitioner's appointment to the post of Reader was approved and confirmed after the completion of probation of two years. He submits that the third respondent has misconstrued the said Government Resolution in as much as for the post of Reader the required qualification was either a Doctoral degree or equivalent published work and that the petitioner was appointed on the post on the basis of equivalent published work and not on the basis of Doctoral degree which she achieved in the year 1997. Ld Counsel for the Petitioner submits that that in fact, the appointment of the petitioner as a Reader has remain undisturbed. Ld Counsel submits that the appointment of the petitioner as a Reader was de hors acquiring the Ph.D. and that the petitioner was entitled for two increments independently on acquiring Ph.D.
16. On the other hand, the learned Counsel on behalf of the first respondent-University and the learned Assistant Government Pleader appearing on behalf of second to fourth respondents have opposed the present petition.
17. The learned Counsel for the first respondent submits that the writ petition as filed is per se misconceived and not maintainable and is liable to be dismissed as the petitioner has suppressed material facts. In support of his submissions, the learned Counsel for the first respondent relies on the affidavit of Dr.Madhu Madan, the Registrar of first respondent, to submit that the petitioner was not entitled for the two advance increments as per UGC Circular dated 24.7.2002 as the petitioner had obtained Ph.D. in the year 1997. It is contended that the petitioner was the in-charge University Librarian and Head of the SHPT School of Library Science and accordingly, illegally managed to withdraw the two increments to which the petitioner was not entitled. It is submitted that as per the Government of Maharashtra Notification dated 4.2.2003 and the communication dated 24.7.2002 of the UGC to the Secretary, School Education, Government of Maharashtra, it was clearly stated that the benefit of two advance increment would be granted to the teachers who have acquired Ph.D. during their service prior to 1.1.1996 and who did not get the benefit of any advance increments as per earlier Career Advancement Scheme (CAS) and that the said increments were payable with effect from 27.7.1998. He submits that it was clarified in the said Notification that payment of said two advance increments shall not be applicable to the teachers who are recruited / promoted to the post for which Ph.D. was an essential qualification. It is submitted that the petitioner obtained Ph.D. on 3.9.1997 and hence, the petitioner was clearly not entitled for the benefit of any advance increment. He submits that the Registrar of the first respondent had refused to sign the service book of the petitioner for the year 2003 and 2004 and raised queries in March,2004 in respect of said two increments which the petitioner had managed to withdraw. He further submits that accordingly a recovery statement of the petitioner was prepared and the Registrar of the first respondent on 25.3.2004 had raised an issue in respect of the petitioner's entitlement to the said two increments. He submits that further by a letter dated 18.4.2009, the first respondent-University had accordingly forwarded to the Joint Director of Technical and Higher Education, the petitioner's service book along with necessary documents for pay fixation. He submits that by a further letter dated 9.9.2009, the University Librarian and Head of SHPT School of Library Science was informed that the petitioner was not entitled to two advance increments and the same may be withdrawn and the excess amount may be recovered from the petitioner and be deposited with the State Government. In pursuance thereto, the University Librarian by a letter dated 16.12.2009 addressed to the petitioner forwarded the audited salary recovery statement to the petitioner which was duly received by the petitioner on 21.12.2009. Further a letter dated 28.5.2010 was addressed to the petitioner alongwith the audited salary recovery statement requesting the petitioner to settle the dues for clearance of her provident fund and other dues. It is submitted that the petitioner has retired from service in January, 2010 and was liable to refund the amount received by her in respect of two advance increments availed by her to which she was not entitled. It is further submitted that there are several instances where the employees have refunded the amount received by them to which they were not entitled or same was deducted from the Provident Fund and other dues payable to such employees.
18. On behalf of second to fourth respondents, learned Assistant Government Pleader submits that the decision of the State Government in rejecting the claim of the petitioner for entitlement for two advance increments is legal and proper and in accordance with the directives of UGC. Dated 31.8.2001. It is submitted that the advance increments were payable only with effect from 27.7.1998. It is submitted that the UGC has categorically stated in its communication dated 24.7.2002 that two advance increments would not be admissible to the teachers who were recruited or promoted to the post for which Ph.D. was essential qualification. It is submitted that the petitioner had obtained Ph.D. in the year 1997. That the letter appointing the petitioner as a Reader clearly shows that obtaining of Ph.D. was an essential requirement and that she was likely to submit her Ph.D. thesis by October,1996. It is submitted that the two increments were permissible only for those candidates who acquired Ph.D. during the service prior to 1.1.1996. He submits that qualification of Ph.D. is compulsory for the candidates seeking the post of Reader and that when the petitioner was appointed to the post of Reader, admittedly the petitioner did not possess a Ph.D. and the Selection Committee without taking into consideration the said requirement appointed the petitioner on the post of Reader. The petitioner was not entitled to two advance increments pursuant to UGC letter dated 24.7.2002 and that the petitioner would be required to be considered as legitimately appointed as a Reader from the day the petitioner has acquired Ph.D. The petitioners appointment as professor is also rightly fixed being with effect 3.9.2005 as the period after the Petitioner obtained the PhD qualification can only be considered as a valid period as a Reader.
19. Having considering the rival submissions, the issue which arises for consideration is whether the petitioner has rightly availed two additional increments on her attaining Ph.D. , and whether the action of the respondents seeking the recovery of two additional increments availed by the petitioner is legal and proper, and secondly whether the respondents are right in fixing the date of petitioner's appointment as Professor as 3.9.2005.
20. The Government of Maharashtra issued a Government Resolution dated 11.12.1999 thereby providing revision of pay scale to the teachers in non agricultural Universities, affiliated colleges, Government institutes etc. in the light of the recommendations of the University Grant Commission in regard to implementation of the pay-scales under the 5th Pay Commission. By this Government Resolution revised pay scales were implemented with effect from 1.1.1996. Clause 7 of the Government Resolution pertains to the Recruitment and Qualifications and states that for direct recruitment to the post of Lecturer, Reader and Professor in the University and Lecturers in colleges, it shall be on the basis of merit by an all-India advertisement and selection by a duly constituted Selection Committee to be set up as prescribed in UGC's Notification dated 24.12.1998. It was stated that minimum qualifications required for the post of Lecturer, Reader, Professor, Assistant Director of Physical Education, Deputy Director of Physical Education, Directors of Physical Education, Assistant Librarians, Deputy Librarians, Librarian, and Registrar will be those as ordered by the UGC and accepted by State Government from time to time. It was provided that Ph.D. shall be continued as a compulsory requirement for designation as a Reader. Clauses (11) and (12) of the said Government Resolution provide for incentives for Ph.D./ M.Phil and Career advancement respectively. Clauses (11) and (12) being relevant in the present context are extracted below :-
œ11. Incentives for Ph.D./ M.Phill.
Four and two advance increments will be admissible to those who hold Ph.D. and M.Phill. Degrees, respectively, at the time of recruitment as Lecturers. Candidates with D.Litt/ D.Sc. should do given benefit on par with Ph.D. and M.Litt. on par with M.Phil. One increment will be admissible to those teachers with M.Phill, who acquire Ph.D. within two years of recruitment.
A Lecturer with Ph.D. will be eligible for two advance increments when she/ he moves into Selection Grade/ Reader.
A teacher will be eligible for two advance increments as and when she/he acquires a Ph.D. degree in her / his service career. (emphasis supplied)
12. Career advancement.
Minimum length of service for eligibility to move into the grade of Lecturer (Senior Scale) would be four years, for those with Ph.D., five years for those with M.Phil, and six years for others at the level of Lecturer, and for eligibility to move into the Grade of Lecturer (Selection Grade) / Reader, the minimum length or service as Lecturer (Senior Scale) shall be uniformly five years.
For movement into grades of Reader and above, the minimum eligibility criterion would be Ph.D. Those without Ph.D. can go up to the level of Lecturer (Selection Grade).
A Reader with minimum of eight years of service of that grade will be eligible to be considered for appointment as a Professor.
The Selection Committee for Career Advancement shall be the same as those for Direct Recruitment for each category.
The existing scheme of Career Advancement for Assistant Director of Physical Education, Assistant Librarian would continue.? (emphasis supplied)
21. A plain reading of Clause (11) of this Government Resolution therefore indicates that a lecturer with Ph.D. would be eligible for two advance increments when she / he moves into Selection Grade/ Reader. The petitioner was already appointed as a Reader with effect from 17.8.1996 and subsequently acquired a Ph.D. in 1997 and hence, Clause 11 cannot apply to the petitioner so as to entitle her for two advance increments. The last para of this clause contemplates that a teacher will be eligible for two advance increments as and when she / he acquires a Ph.D. degree in her/his service career. The clause excludes a Reader for which the basic eligibility is of possessing a Ph.D. by a eligible candidate. This position was further clarified by the U.G.C. by its letter dated 24.7.2002 addressed to the Secretary, School Education Department, Government of Maharashtra, in which it was stated that the benefits of two advance increments would be granted to the teacher who had acquired Ph.D. during the service prior to 1.1.1996 and if she/he did not get benefit of any advance increment as per the earlier Career Advancement Scheme and that the advance increments were payable with effect from 27.7.1998. It was further stated by the UGC that these two advance increments shall not be admissible to the teachers who are recruited / promoted to a post for which Ph.D. is an essential qualification. In fact, the petitioner has made a categorical statement in paragraph (5) of the writ petition which reads that œOnce she obtained her Ph.D. finally in 1997, she was given two advance increments retrospectively from the date of acquiring Ph.D. This was based on a letter from U.G.C. dated 23.2.2000 which is at 'Exhibit E'?. The date 23.2.2000 is wrongly mentioned by the petitioner as is seen from œExhibit E? to the petition which is the letter of U.G.C. dated 24.7.2002. Hence, from the petitioner's own showing, she availed of the benefits of advance increment under this communication of U.G.C. dated 24.7.2002 which itself do not qualify the petitioner to avail the benefit of two advance increment for the reason that the U.G.C. holds that the two advance increments shall not be admissible to the teachers who are recruited/promoted to a post for which Ph.D was an essential qualification.
22. The fact that P.h.D was an essential qualification for the post of Lecturer is also clear from Clause (2) of the appointment letter dated 14.8.1996 issued to the petitioner appointing her as a Reader. Clause (2) reads as under:-
œKindly note that your appointment is on probation for two years. You will be considered for confirmation or otherwise at the end of two years from the date of your acceptance of appointment to this post. You are, however, requested to acquire Ph.D. within the probationary period, as you are likely to submit Ph.D. thesis by October, 1996.?
Further the Government Resolution dated 11.12.1994 also contemplates that for appointment to the post of Reader, Ph.D. is an essential qualification. This being the position, the petitioner could not have availed of the benefit of two advance increments as a Reader. The benefit of two advance increment appears to have been availed of and/or was granted to the petitioner on an erroneous interpretation and reading of Clause (11) of the Government Resolution, when factually the petitioner was not entitled to the same. This is clear from the petitioners own statements in the Petition. We are, therefore, of the view that the action of the respondents to recover the benefit of two advance increments awarded by the petitioner cannot be faulted with. In any event, such benefit has already been withdrawn between the period August 2009 till January, 2010 till the petitioner retired.
23. The next issue is as regards the effective date from which the petitioner should be treated to be appointed as a Professor. It is the petitioner's submission that the effective date ought to have been 17.8.2004 for the reason that on this date the petitioner completed eight years on the post of Reader. It is the petitioner's submissions that Clause (12) in the Government Resolution dated 11.12.1994 which contemplates Career Advancement is required to be taken into consideration to fix the period of eight years on the post of a Reader for eligibility to be appointed as a Professor. It is the submission of the petitioner that as she has completed eight years as a Reader on 17.8.2004, her appointment should be reckoned from this date and not from 17.8.2005 as has been done by the third respondent vide Communication dated 11.12.2008.
24. The contention of the petitioner is misconceived and deserve to be rejected for two fold reasons, firstly that the communication dated 11.12.2008 fixing the date of appointment of the petitioner as 3.9.2005 takes into consideration the period of petitioner's working as a Reader after obtaining Ph.D. which is the necessary qualification under the rules of the UGC for appointment as a Reader. The decision of the Government does not recognize the Petitioners tenure as a Reader prior to the petitioner achieving the qualification of the PhD which was essential for appointment as a Reader. This period is not treated as valid under the rules. If this be the position no fault can be found with the approval granted to the petitioner for the post of Professor with effect from 3.9.2005 which takes into consideration the fact that after the petitioner obtained Ph.D. in the year 1997 she actually became eligible to be appointed as a Reader, and hence, the retrospective date of appointment i.e. 3.9.2005 as approved by the State Government cannot be said to erroneous or arbitrary in any manner.
25. In the light of the aforesaid discussion we are of the view that the writ petition warrants no interference. Resultantly the writ petition fails and stands rejected. Having regard to the circumstances we make no order as to costs.