| SooperKanoon Citation | sooperkanoon.com/1040147 |
| Court | Madhya Pradesh High Court |
| Decided On | Aug-13-2013 |
| Appellant | Dr. Ramlala Shukla |
| Respondent | The State of Madhya Pradesh |
HIGH COURT OF MADHYA PRADESH : JABALPUR. Writ Petition No.17891/2012 Dr. Ramlala Shukla and others. Vs. State of M.P. and others. Writ Petition No.17382/2012 Prantiya Shaskiya Mahavidyalayeen Pradhyapak Sangh, Bhopal. Vs. The State of M.P. and others. PRESENT : Hon’ble Shri Justice K.K. Trivedi. J.Shri Rajendra Tiwari, learned Senior counsel assisted by Shri R.K. Tripathi, Advocate for petitioners. Shri R.D. Jain, learned Advocate General assisted by Shri Rahul Jain, learned Dy. Advocate General for respondent No.1. Shri Dharmendra Sharma, learned counsel for the respondent No.3. None for respondent No.2. ....(in W.P.No.17891/2012) Shri L.C. Patne, Advocate and Shri Abhay Pandey, learned counsel for the petitioner. Shri R.D. Jain, learned Advocate General assisted by Shri Rahul Jain, learned Dy. Advocate General for respondents No.1 to 3. Shri Dharmendra Sharma, learned counsel for the respondent No.5. None for respondent No.4. ....(in W.P.No.17382/2012) 2
ORDER(20.8.2013) These two writ petitions are filed against the order dated 14.9.2012 issued by the respondent No.1, therefore, both the writ petitions were heard together and are being decided by this order. However, the facts are taken from W.P.No.17382/2012(s). 2: The petitioner No.1 is an Association of all the Professors appointed in the Higher Education Department of Government of Madhya Pradesh. The petitioner No.1 and other petitioners in the connected writ petition are all promoted Professors working in the Government colleges of the State of Madhya Pradesh. The direct recruitment or promotion of Professors has been done under the provisions of M.P. Education Services (Collegiate Branch) (Gazetted) Recruitment Rules, 1990 (hereinafter referred to as Gazetted Rules for brevity). It is contended by the petitioners that the University Grants Commission (hereinafter referred to as UGC for brevity) has made a Scheme of revising the pay scales, prescribing the promotional prospects by way of a Career Advancement Scheme, as also the age of superannuation. The said Scheme has duly been approved by the Government of India, Ministry of Human Resources Development, Department of Higher Education, and has subsequently been formulated in the Regulations, made by the UGC. It is contended by the petitioners that since they have been given promotion on the post of Professor, the pay band revised and prescribed by the UGC in its Scheme and Regulations was duly made applicable to them by the State Government after taking a policy decision in its Cabinet of 3 Ministers. The order in this respect was issued on 16.4.2010 and the revised pay bands were made applicable with effect from 1.1.2006. After fixation of salary of the petitioners in such manner, the benefit was extended to them. However, all of a sudden, the impugned order dated 14.9.2012 has been issued reducing the Academic Grade Pay (hereinafter referred to as the AGP for brevity) granted to the petitioners, arbitrarily without even obtaining any approval from the Cabinet of Ministers, therefore, they are required to approach this Court by way of filing present petition. It is contended by the petitioners that since UGC is the regulatory body prescribed under a Parliamentary Act, if a regulation is made by the UGC, duly approved by the Central Government and published in the Gazette of India, it would became a law and is binding on the State Government. It cannot be unilaterally changed in exercise of whatsoever power available with the State Government as the State is bound by such Parliamentary Legislation and, therefore, the order impugned is bad in law. It is contended by the petitioners in both the writ petitions that the action on the part of respondent-State is arbitrary, malafide, bias and without any authority of law as in terms of the instructions issued by the Central Government coupled with the Regulations made by the UGC, no power was available to the State Government to reduce AGP available to the petitioners in such a manner. This being so, it is contended that the order impugned is bad in law and is liable to be quashed. 3: Per contra, by filing a return, the respondent-State has contended that the UGC norms have not been violated by the State. On the other hand, there was a mistake committed in understanding the decision taken by the Cabinet of Ministers, inasmuch as, persons like petitioners 4 who were not entitled to the grant of AGP at a higher rate prescribed by the UGC for the post of Professor as the petitioners were not getting the salary in the pre-revised scale indicated in the appropriate table appended with the Regulations of the UGC, therefore, the mistake committed in issuing the order pursuance to the decision taken by the Cabinet of Ministers was rectified by issuing the impugned order dated 14.9.2012. It is contended by the respondents in their return that since the respondents have not changed the decision made by the Cabinet of Ministers not have taken any steps which is not prescribed by the UGC or is in violation of the norms of the UGC, the entire stand taken by the petitioners in their petition is misconceived. It is contended that since the law is very clear on the point that the mistake committed in granting anything which is not provided by law, could be remedied at any stage, if by order dated 14.9.2012, it is directed that the petitioners would be entitled to grant of AGP @ Rs.9,000/- per month instead of Rs.10,000/- per month and excess amount paid to them is required to be recovered, no wrong is committed by the respondents. It is put-forth that in view of the settled law, such an action can always be taken by the State and no writ can be issued restraining such an action of the respondents. It is further put-forth that the petitioners cannot be treated as Professor as they are simply Assistant Professors who are getting the benefit of selection grade pay scale and any upgradation in the pay alone will not make them the full-fledged Professors. Thus, it is contended that both the petitions are based on misconceived and misleading facts and as the petitioners are harping on the wrong premises, the petitions are liable to be dismissed. 4: Heard learned Senior counsel Shri Rajendra Tiwari 5 and Shri L.C. Patne for petitioners and Shri R.D. Jain, learned Advocate General and Shri Sanjay K. Agrawal, learned counsel for interveners and perused the record. 5: The controversy in both the petitions boils round, the question whether the petitioners are to be treated as full fledged Professor said to be working in Higher Education Department of Government of Madhya Pradesh or not, and whether in terms of the revision of pay Scheme made by the UGC, the petitioners would be entitled to grant of a higher rate of AGP or No.?. Since the Scheme was formulated by the UGC, giving benefit of revision of pay with effect from 1.1.2006, and the said Scheme has been made applicable, after its becoming a part of the Regulations of the UGC, by the State of M.P., whether the departure from the said Scheme is permissible or No.?. And lastly whether the UGC has prescribed the pay bands according to the nomenclature of the posts or on the basis of pre-revised pay scales applicable to the posts ?. 6: First of all the effect of UGC Scheme and its regulations is to be considered. The UGC is established in terms of the provisions made in the Parliamentary Act known as University Grants Commission Act, 1956 (hereinafter referred to as UGC Act for brevity). The said Act is promulgated only with an object to prescribe an agency to keep a watch on the standards of higher education establishment of such Higher Educational Institutions, including the prescribing of service conditions of the teaching staff and other staffs in the said Colleges. The different States in the country have formulated the policies, enacted the Act for the purposes of establishing the Higher Education Institutions and Universities. To govern the services in the said institutions, Rules are made 6 in exercise of power conferred under the proviso to Article 309 of the Constitution of India by the different States. However, a safeguard is provided in the Parliamentary Act of UGC where it is prescribed that if a Regulation is made by the UGC, after its approval by the Central Government, and publication in the Gazette of India, it will become a law to be observed and followed by all States, in the matter of keeping the standard of institutions of Higher Education as also maintaining the service conditions of the teaching and other staffs in the said institutions. This particular aspect whether the norms prescribed by the UGC are binding on the States or not has already been dealt with by the Apex Court and it has been held that the Scheme prescribed under the Regulations by the UGC would prevail on any of the laws made on the strength of concurrent list III of Seventh Schedule to the Constitution of India, by the State Legislature. For the purposes of convenience, certain pronouncement made in this respect are referred to herein after. 7: The Apex Court dealing with such a situation in the case of University of Delhi Vs. Raj Singh and others [(1994) Suppl.(3) SCC 516.has categorically held considering the law laid down in the case of Gujarat University, Ahmedabad Vs. Krishna Ranganath Mudholkar [1963 Supp (1) SCR 11.: (AIR 196.SC 703)]. and in the case of Osmania University Teachers Association Vs. State of Andhra Pradesh [(1987) 3 SCR 949.(AIR 198.SC 2034.that the legislation done in exercise of power by the Parliament, as prescribed in Seventh Schedule to the Constitution of India, List I, entry 66 will prevail over Item 25 of List III, i.e. a concurrent list where the State Legislature can legislate with respect to certain functions relating to higher education or research 7 and scientific and technical education. It has categorically been held by the Apex Court in paras 11, 13 and 14 that the UGC legislation will prevail over the State legislation, which reads thus :-
“11. Following up on the Mehrotra Committee report the Department of Education, Ministry of Human Resources Development, Government of India wrote to the U.G.C. on 17th June, 1987 on the subject of revision of pay-scales in Universities and colleges & and other measures for the maintenance 'of standards in higher education. The letter stated that the Government of India had, after taking into consideration the recommendations of the U.G.C. (based upon the Mehrotra Committee report) decided to revise the pay-scales of teachers of the Central Universities. To enable the same to be done in the State, separate letter had been addressed. A scheme for the revision of pay-scales was appended to the letter, which would be applicable to teachers in all the Central Universities, the colleges in Delhi and the institutions deemed to be Universities whose maintenance expenditure was met by the U.G.C. The implementation of the scheme would be subject to acceptance of all the conditions attached to the scheme. The letter stated that the Universities should be advised to amend their Statutes and Ordinances before the revised Scales became operational. For our purposes, the relevant portion of the scheme reads thus : "Only those candidates who, besides fulfilling the minimum academic qualifications described for the post of lecturer, have qualified in the comprehensive test, to be specially conducted for the purpose, will be eligible for appointment as lecturers. The detailed schemes for conducting the test including its design, Content and administration will be worked out and communicated by the UGC."
13. In The Gujarat University, Ahmedabad v. Krishna Ranganath Mudholkar and Others, [1963]. Supp. 1 SCR 11.(AIR 196.SC 703), the central question was whether the Gujarat University could impose Gujarati or Hindi as the exclusive media of instruction and examination and whether State legislation authorising the Gujarat University to 8 impose such media was constitutiona11y valid in view of entry 66. As it then read, entry 11 of List II empowered the States to legislate in respect of education, including Univer-sities, subject to the provisions of entries 63, 64, 65 and 66 of List I and (Item) 25 of List Ill. Entry 63 of List I, as it then read, invested Parliament with the power to enact legislation with respect to the institutions known at the commencement of the Constitution as the Banaras Hindu University, the A1igarh Muslim University and the Delhi University and other institutions declared by Parliament by law to be institutions of national importance. By reason of entry 66. Parliament was invested with the power to legislate on 'coordination and determination of standards in institutions for higher education or research and scientific and technical institutions.' Item 25 of List III conferred power upon Parliament and the State legislatures to enact legislation with respect to 'vocational and technical training on labour'. A six-Judge bench of this Court observed that the validity of State legislation on the subjects of University education and education in technical and scientific institutions falling outside entry 64 of List I as it then read (that is to say, institutions for scientific or technical education other than those financed by the Government of India wholly or in part and declared by Parliament by law to be institutions of national importance) had to be judged having regard to whether it impinged on the field reserved for the Union under entry 66. In other words, the validity of the State legislation depended upon whether it prejudicially affected the coordination and determination of standards. It did not depend upon the actual existence of union legislation in respect of coordination and determination of standards which had, in any event, paramount importance by virtue of the first part of Article 254(1). Even if power under entry 66 was not exercised by Parliament, the relevant legislative entries being in the exclusive Union List, a State law entrenching upon the Union field would be invalid. Counsel for the Gujarat University submitted that the power conferred by entry 66 was merely a power to coordinate and to determine standard; that is, it was a power merely to evaluate and fix the standards of education, because the expression 'coordination' meant evaluation and "determination”. meant fixation. Parliament had, therefore, power to legislate only for the purpose of evaluation and fixation of standards in the 9 institutions referred to in entry 66. In the course of the arguments, however, it was admitted that steps to remove disparities which had actually resulted from adoption of regional media and the falling of standards might be undertaken and legislation for equalising standards in higher education might be enacted by Parliament. The Court was unable to agree with the argument. It held that entry 66 was a legislative head and in interpreting it, unless it was expressly or of necessity found conditioned by words used therein, a' narrow or restricted interpretation could not be put upon the generality of its words. Power to legislate on a subject was normally to be held to extend to all ancillary or subsidiary matters which could fairly and reasonably be said to be comprehended in that subject. Again, there was nothing either in entry 66 or elsewhere in the Constitution which supported the submission that the expression "coordination" meant, in the context in which it was used, merely evaluation. Coordination in its normal connotation meant harmonising or bringing into proper relation. In which all the things coordinated participated in a common pattern of action. The power to coordinate, therefore, was not merely a power to evaluate. It was a power to harmonise or secure relationship for concerted action. There was nothing in entry 66 which indicated that the power to legislate on coordination of standards in institutions of higher education did not include the power to legislate for preventing the occurrence of or for removal of disparities in standards. By express pronouncement of the Constitution-makers it was a power to coordinate and, of necessity, implied therein was the power to prevent what would make coordination impossible or difficult. The power was absolute and unconditional and in the absence of any controlling reasons it had to be given full effect according to its plain and expressed intention.
14. In Osmania University Teachers Association v. State of Andhra Pradesh, [1987]. 3 SCR 94.(AIR 198.SC 2034), the validity of the Andhra Pradesh Commissionorate of Higher Education Act, 1986, was in question. It was enacted to provide for the constitution of a Commissionerate to advise the State Government in matters relating to higher education and to oversee its development and perform all functions necessary for the furtherance and maintenance of excellence in the Standards of higher education. The legislation was upheld by the 10 High Court. This court on appeal held to the contrary. It observed that entry 66 of List I gave power to the Union to see that the required standard of higher education in the country was maintained. It was the exclusive responsibility of the Central Government to coordinate and determine the standards of higher education. That power included that power to evaluate, harmonise and secure proper relationship to any project of national importance. Such coordinate action in higher education with proper standards was of paramount importance to national progress. Parliament had exclusive power to legislate with regard to the matters included in List-I and the State had no power at all in regard to such matters. If the State legislated on a subject falling within List-I, the State legislation was void. The Court went on to say, 'The Constitution of India vests parliament with exclusive authority in regard to co- ordination and determination of standards in institutions for higher education. The Parliament has enacted the UGC Act for that purpose. The University Grants Commission has, therefore, a greater role to play in shaping the academic life of the country. It shall not falter of fail in its duty to maintain a high standard in the Universities. Democracy depends for its very life on high standards of general, vocational and professional education, Dissemination of learning with search for new knowledge with discipline all round must be maintained at all costs. It is hoped that University Grants Commission will duly discharge its responsibility to the national and play in increasing role to bring about the needed transformation in the academic life of the Universities.”
. This particular aspect was also considered by the Apex Court in the case of Annamalai University Vs. Secretary to Government, Information and Tourism Department and others [(2009) 4 SCC 590]. wherein it was recorded that the amplitude of the provisions of the UGC Act vis-a-vis other enactment of legislatures was no longer res integra. The law laid down in various pronouncement were considered and it was categorically held that the UGC Act having been enacted by Parliament in terms of Entry 66 of List I of Seventh Schedule to the 11 Constitution of India would prevail over the other enactments. In the case of Vaishno Devi Mahila Mahavidyalaya Vs. State of Uttar Pradesh and others [(2013) 2 SCC 617]., the Apex Court has considered the similar provisions made in respect of teachers training under the National Council for Teachers Education Act, 1993, and held that such norms prescribed by the Council will have the binding force and any other enactment will have to give way to the norms and regulations of such a Council. Similar is the situation with respect to the decisions rendered by different High Courts. In Writ Petition No.52/2010, a Division Bench of High Court of Uttarakhand at Nainital in the case of Pant University Teachers Association, Pant Nagar Vs. Chancellor, Govind Ballabh Pant University of Agriculture & Technology, Pant Nagar and others, has categorically held that the Regulations made by the UGC would have the binding effects and the service conditions of staff more particularly the teaching staff appointed in the higher education institutions would be governed only and only by the UGC Regulations. Anything contained in any of the law made by the State Legislature or the executive Government of State repugnant to the provisions of the Regulations of the UGC would have to give way to the UGC norms. This aspect has further been considered by the High Court of Jharkhand in bunch of writ petitions decided on 10.1.2011 and the similar is the consideration done in view of the law laid down by the Apex Court. Again dealing with similar circumstances, the High Court of Judicature at Patna has also made it clear that the norms prescribed by the UGC would have the binding effect. This aspect is also considered by this Court while rejecting the application for vacating the interim order passed in 12 W.P.No.21748/2011, Dr. J.S. Arora and others Vs. M.P. Pashu Chikitsa Vigyan Vishwavidyalaya & another. 8: not to consider other issues, it is to be examined whether the promotee Professors are to be treated as full fledged Professors for the purposes of grant of revision of pay in the pay band approved by the UGC in its Scheme duly transformed in regulation, or No.?. The State Government in exercise of its power conferred under the proviso to Article 309 of the Constitution of India, has made the Rules known as M.P. Educational Service (Collegiate Branch) Recruitment Rules, 1990 (hereinafter referred to as the Gazetted Rules for brevity). The Gazetted Rules are made applicable to the services in the Collegiate Branch including the teaching staff. The constitution of the service as per the Gazetted Rules shall consist of the persons who at the commencement of the said Gazetted Rules were holding substantively or in officiating capacity the post specified in Schedule-I, including the persons recruited to the service because of emergency on adhoc basis before the commencement of the Gazetted Rules and the persons recruited to the service in accordance with the provisions of the Rules. Schedule-I of the Gazetted Rules includes posts of Professor which according to the Schedule are classified as Class-I post in the pay scale of Rs.3700-5700/- which was prevalent at that time. Schedule-II of the Gazetted Rules prescribes the manner of filling the post. For the purposes of convenience, the relevant part of the Schedule, relating to the post of Professors is reproduced which according to the Schedule indicates that 100% posts are to be filled in by direct recruitment provided that : “Direct Recruitment shall be made on total number of substantive posts of professors sanctioned by Government. In addition to this on account of enforcement of new U.G.C. Pay-Scales from 1.1.1986. Promotion to the post of professors 13 shall be made on the basis of service record from amongst the Asstt. Professors of senior/selection grade pay scale after completion of prescribed period of service and prescribed qualification under provisions mentioned in Schedule-IV. These posts shall be filled up through departmental promotion committee. No definite number of these posts of professors shall be and number of these posts will vary on the basis of number of Assistant Professors having requisite seniority and qualification.”
. 9: Schedule-III of the Gazetted Rules prescribes the qualification which is not very much in dispute, therefore, the same is not referred to. Schedule-IV of the Rules prescribes the method of promotion which reads in so far as the promotion on the post of Principal degree College and the promotion on the post of Professor is concerned, as follows :- “Promotion to the post of Principal degree college shall be made on the basis of merit-cum- seniority from amongst those professors having atleast two years experience. Separate seniority list shall be prepared for directly recruited professors and promotion to the post of Principal, through the departmental promotion committee. The post of Principal shall be filled up from amongst these lists in such ratio which exists between the directly recruited professor and promoted professors at the commencement of the calendar year of meeting of promotion committee. While enquiring about the eligibility for promotion, there shall be no distinction between the time bound professors and other professors. The seniority list of promoted professors shall be made on the basis of the date of their regular appointed to the post of assistant professor. The absorbed professors of the taken over colleges shall be enlisted with directly recruited professors and shall be granted seniority from the date from which their college has been taken over by the government. The seniority of directly recruited professor shall be determined on the basis of seniority mentioned in the selection list issued by the Public Service Commission. 14 (3) Assistant Professors working in the Senior/ Selection grade pay scale shall be eligible for promotion to the post of Professors in the Pay- scale of Rs.3700-5700, if He/She has : (a) completed 8 years of service in the senior scale, provided that the requirement of 8 years will be relaxed if the total service of the Asstt. Professor is not less than 16 years for Ph.D. and M. Phil. Holders 13 and 15 years respectively; (b) obtained Ph.D. Degree or an equivalent published work; (c) made some mark in the areas of scholarship and research as evidence by self- assessment, reports of referees quality of publications, contribution to educational renovation, design of new courses and curricular, etc.; (d) participated in two refresher courses/ summer institutes each of approximately 4 weeks duration of engaged in other appropriate continuing eduction programmes of comparable quality as may be specified by the UGC, after placement in the Senior Scale; and (e) consistently good performance appraisal reports.”
. 10 : The Method of recruitment provided in Rule 6 of the Gazetted Rules, categorically prescribes that the recruitment in the service after the commencement of Gazetted Rules shall be by the following methods, namely :- “(a) by direct recruitment by competitive examination/selection; (b) by transfer of persons who hold in substantive capacity such posts in such service as specified in Schedule-II; (c) by promotion of members of the service as specified in column (2) of Schedule-IV; (d) by absorption in accordance with the procedure prescribed in rule 14, after the taken over of any college by the Government.”
. The direct recruitment is differently prescribes in Rul”
11. of the Gazetted Rules and a specific provision is made for promotion in Rule 17 of the Gazetted Rules. The appointment is to be made in service from the select list in accordance to Rule 21 of the Gazetted Rules. This makes it clear that there is a method of recruitment by promotion prescribed for appointment on the post of a Professor. It is also trite that where the sources of recruitment are prescribed in the Service Rules and the recruitment is done according to the method prescribed, the recruited person became part of one common cadre irrespective of source of or mode of their recruitment. Thus, it has to be seen that the promotion is a method of recruitment in the Gazetted Rules prescribed on the post of Professor in the Higher Education Department in all colleges of the State. The only condition is that the mode of recruitment should be in accordance to the provisions of the Regulations prescribed by the UGC. It is not that there is any inconsistency between the Regulations of the UGC and the Rules made by the State Government in the matter of promotion and appointment on the post of Professor. Thus, those who are promoted as Professor, become a full fledged Professor in the State services in Higher Education Department, and are not to be treated differently than a directly recruited Professor. 11 : The Scheme itself has been placed on record as Annx.P/2, said to be issued under the approval of Government of India in Ministry of Human Resources Development, Department of Higher Education on 31.12.2008. It is not in dispute that this Scheme has ultimately been transformed in a Regulation made by the UGC. The conditions mentioned generally in Class-I category prescribes that there shall be only three designation of the posts in respect of teachers in 16 Universities and Colleges, namely, Assistant Professor, Associate Professor and Professor. However, it is not made mandatory that the post of Associate Professor must be created. What is the intention that certain posts of Assistant Professor be earmarked for the purposes of grant of Senior pay scale/selection grade pay scale which according to Schedule appended to the Gazetted Rules is already available as in the Schedule-I of the Rules out of 7426 posts of Assistant Professor in Class-2 category, certain number of posts have been put in for grant of senior scale of pay to the Assistant Professor though no specific number of posts have been shown in Class-I category of the Assistant Professor in this respect. The provisions are made for grant of senior scale and selection grade pay scale in the Gazetted Rules in Schedule-IV after Note.(1) in sub clause (A) and (B) which are reproduced for the purposes of convenience :- “Note.-(1) The following qualifications will be essential for Assistant Professor, Sports Officers and Librarian for their placement in senior pay scale and selection grade pay scale :- (A) for Senior Pay-scale.- Asstt. Professor/ Librarian/Sports Officer will be placed in senior pay-scale of Rs.3000-5000 if he/she has (I) completed 8 years of service after regular appointment, or completed 5 yeas or 7 years of service in case of Ph.D. Or M.Phil degree holders, respectively, (ii) participated in one orientation and one refresher course/summer institutes, each of approximately 4 weeks duration or remained associated with appropriate continuing education programmes, or comparable quality as may be specified by UGC; and (iii) consistently satisfactory performance appraisal report. (B) for Selection Grade Pay-scale.- Every Assistant Professor/Sports Officer/Librarian working in senior pay-scale shall be eligible for placement in the Selection Grade Pay-scale 3700-5700, provided he/she (I) has completed 8 years of service in the senior scale. The condition of 8 years shall be relaxed in case of officers who have completed atleast 16 years and for Ph.D. and M.Phil holders 13 and 15 years respectively of 17 service on the post of Asstt. Professor/Sports Officer/Librarian, (ii) after posting in the senior scale has participated in two refreshers courses/summer institutes each of approximately 4 weeks duration, has remained associate with appropriate continuing education programmer, equivalent to standards approved by UGC; and (iii) has consistently good performance appraisal reports.”
. 12 : not the other issue is required to be considered, whether the UGC has prescribed the pay bands for revision of pay on the basis of pre-revised pay scale or not, and whether the intention of UGC is to give a particular pay band with AGP on different rates as per the nomenclature of post or No.?. It is to be seen that the object of the instructions contained in the Schemes Annx.P/2 in the writ petition is fulfilled, already in advance by the State by prescribing a post which could be designated as post of Associate Professor. Why this is held so because in the Scheme of the UGC different pay scales are prescribed for different posts. The post of Assistant Professor formally known as Lecturer in the senior scale which were given the pay scale of Rs.10,000-15,200/- have been given a revised pay band of Rs.15,600-39,100/- plus AGP of Rs.7000/-. The distinction is made between the two pay scales; one which was given to those lecturers who were having less than three years of service in selection grade, which was as per pre-revised pay scale of Rs.12,000-18,300/- and which post was also given the pay band of Rs.15,600-39,100/- with slightly higher AGP of Rs.8,000/-. This was categorically indicated in Table III. Table IV was made applicable for those readers and lecturers selection grade who were having three years of service and those who were working in the pay scale of Rs.12,000-18,300/- they were given the pay band of Rs.37,400-67,000 plus AGP of Rs.9000/-. not these posts are to be declared or treated as Associate 18 Professors. The specific pay scale was given to the post of Professors which according to the UGC were earlier given the pay scale of Rs.16,400-22,400/-. The revised pay band given to this post was Rs.37,400-67,000/- plus AGP of Rs.10,000/-, as was indicated in Table V. If the different pay scale mentioned in the different Tables referred to herein above are taken into consideration, those Assistant Professors, Lecturers or Readers working in the selection grade pay scale, who were given the benefit of pay scale of Rs.12,000-18,300/-, they were given the revised pay band of Rs.15,600-39,100/- with AGP of Rs.8,000/-, which was not comparable with the pay scale of the post of Professor as the post of Professor was not only independently shown, but it was further said that the pre-revised pay scale of the same was slightly higher than the pay scale of the aforesaid Readers, Lecturers and Assistant Professors. The Scheme specifically prescribes different standard for designating a Professor, but it nowhere prescribes that the said person should be working only in the pre-revised scale as mentioned in Table V, otherwise the revised pay band plus AGP would not be applicable. This leaves this Court with no option, but to accept that the post of Professor was separately designated and irrespective of the pre-revised pay scale, a pay band similar to the pay band of the Assistant Professors selection grade (or Associate Professors) with slightly higher AGP was sanctioned by the UGC to the said post. This has to be noted that in some other post, the incumbents who were working in the lesser pre-revised pay scale were given this revised pay band plus AGP as is referable from Table VI of the Scheme. 13 : In view of this, if the entire Scheme is looked into, no rider was put by the UGC in its Scheme that a particular 19 revised pay band with AGP would be applicable to a post only if the incumbent on the said post was getting the salary in the pre-revised pay scale indicated in the appropriate table appended to the Scheme. Different considerations were done by the UGC in the matter of prescribing the revised pay band, as it was categorically provided in paragraph 2 of the Scheme where the revised pay scales, Service conditions and Career Advancement Scheme was formulated by the UGC. It was categorically said that incumbents working as Assistant Professor, herein the case of State of Madhya Pradesh which post is treated to be equivalent to the post of Reader and Lecturers selection grade and those who have completed three years of service shall be placed in the pay band of Rs.37,400-67,000 with AGP of Rs.9,000/- and shall be redesignated as Associate Professor. This was for those who were not promoted to the post of Professor and were in fact working in the selection grade pay scale. The designation or redesignation of such a post as Associate Professor, would not change the status of the persons like petitioners as they have already been promoted as per the Scheme of the Gazetted Rules long back, before even coming into force of the Scheme formulated by the UGC. It will not be out of place to mention here again that though the Scheme was made applicable with effect from 1.1.2006 by the UGC, but it was formulated only on 31.12.2008 and subsequently converted into a Regulation in the year 2010. The right of designation as full fledged Professor accrued in favour of petitioners thus was not to be affected by such a Scheme which was applicable with effect from 1.1.2006 only. It was reiterated in the entire Scheme that the pay band for the post of Professor shall be Rs.37,400-67,000/- with AGP of Rs.10,000/-. There is no restriction put by the UGC that the said benefit would be available only to the 20 direct recruits Professors and not to the promotees. According to the law, it was rightly done so because once the recruitment is done by two different sources, the recruitees become a part of one cadre and there cannot be a distinction in the matter of grant of pay only on the basis of the source of recruitment of such incumbents. Further, it has to be seen that the UGC has not insisted on pre-revised scale for grant of specific pay band and AGP for a simple reason that there may be different pay scale prescribed by the State Governments of different States of the country looking to their financial capability, and if the post though higher in nomenclature has been given a lesser pay scale to the teaching posts in higher education institutes by a particular State in comparison to the pay scale given by the other States, an anomaly would be created in such a manner if any restriction is put for grant of revised pay band with AGP on the basis of pre-revised pay scale. If this is allowed, it would be squarely hit by Article 14, 16 and 39(d) of the Constitution of India and would be a hostile discrimination of a group within the group. A class within the class cannot be created without there being a reasonable nexus to achieve an object justifiedly. This particular aspect is also taken care of by UGC as would be clear from the memo sent by UGC to the Principal Secretary of the department which would be referred to herein after. 14 : As has been put-forth by learned counsel for the petitioners, this Scheme was taken note of by the State Government and in a Public Interest Litigation filed before this Court, a categorical statement was made that the decision is taken by the State Cabinet to implement the said Scheme and orders in this respect have been issued on 16.4.2010. Before issuing the said orders, certain policy decisions were taken by the Cabinet of Ministers, 21 pursuance to which an affidavit was filed before the Division Bench of this Court and these facts were categorically pointed out. Since such an aspect was considered by the Division Bench and this particular aspect was also noted down, the order dated 16.4.2010 was issued. not it is not proper for the respondent-State to say that there were no post of Associate Professor and therefore, the persons like petitioners who were in fact working in the lesser pay scale should not have been given the higher revised pay band of Rs.37,400-67,000/- plus AGP of Rs.10,000/-. It is tried to canvass by the learned Advocate General that in fact something was added in the Table appended to such an order which in fact was not prescribed by the UGC at all and, therefore, such a higher rate of AGP was not available to the persons like petitioners. This Court after examining such facts in the light of Scheme of UGC is not impressed by such submission of learned Advocate General. In fact, such note was not appended incorrectly or by mistake, but it was deliberately added because there was no distinction made by the UGC in the matter of grant of revised pay scale with higher AGP to the post of Professors, on the basis of source of their recruitment and, therefore, it cannot be said that it was a folly or a mistake crept in the order dated 16.4.2010 passed by the respondent-State. What in fact is intended by the impugned order dated 14.9.2012 is change of the AGP to the post of Professor which is not prescribed by the UGC. In terms of the specific instructions issued by the UGC, in fact such a change was not to be made as it would be completely in violation to the Scheme of revision of pay prescribed by the UGC. What in fact intended by the UGC while intimating the respondent-State vide memo dated 8.1.2010 was that a change can be made to introduce the scale of pay higher than those mentioned in the Scheme of 22 UGC, but not to reduce the pay scale or the AGP. For the purposes of convenience, the letter sent by the UGC to the Principal Secretary of the Department of Higher Education, Government of Madhya Pradesh on 8.1.2010 is reproduced in toto, which reads thus :- “not F.11-37/2009-U.II Government of India Ministry of Human Resource Development Department of Higher Education New Delhi,8th January 2010 To, The Principal Secretary, Higher Education Department, Government of Madhya Pradesh, Mantralaya, Bhopal. Subject :- Reimbursement of financial burden due to' implementation of U.G.C. Pay Scales on the basis of 6th Pay Commission recommendation to Teachers and equivalent Cadres in Universities and Colleges from 1.1.2006. Sir, I am directed to refer to your letter No.2558/PS/HE/09 dated 20.11.2009 requesting for re-imbursement of 80% of the additional requirement of the State Government consequent on revision of pay scales of the teachers in universities and colleges under the State Government, in pursuance of this Ministry's letter No.1-32/2006-U.II/U.1(i) dated 31.12.2008. In this context, the Notification not F.1-124/2009/1/38 dated 29.10.2009 issued by the State Government of Madhya Pradesh has been examined. It is observed that the State Government has not implemented this Ministry's Scheme of revision of pay of teachers and equivalent cadres in universities and colleges as contained in this Ministry's letter dated 31.12.2008 as a composite package. The following modifications have been 23 noted :- (a) Pay Band-4 (Rs.37,400-67000) plus Academic Grade Pay of Rs.9000 has been made applicable to teachers and equivalent positions after completing 5 years service in the Selection Grade (pre-revised scale of Rs.12000-18300). This is not in conformity with the provisions contained in this Ministry's letter not F.1-32/2006-U.II/U.1 (I) dated 31.12.2008, wherein 3 years service has been prescribed. (b) Designation of Associate Professor has not been mentioned for those who have been placed in Pay Bank-4 (Rs.37400-67000) with AGP of Rs.9000. (c) The provision for special allowance of Rs.2000 and Rs.3000 to the Principals of Under- graduate and Post-graduate colleges respectively as per guidelines, has not been implemented. (d) The State Government has also provided for pay scale of Rs.37,400-67,000 plus AGP of Rs.9,000 for the so called post of “Professors”. in colleges against the pre-revised scale of Rs.12,000-18,300. No such post of Professors in the pre-revised pay scale of Rs.12,000-18,300/- was prescribed by the Ministry of Human Resource Development.
2. The applicability of the scheme has been indicated in para 8(p) (v) of this Ministry's letter dated 31.12.2008, which, inter alia, provides that the Scheme may be extended to universities, Colleges and other higher educational institutions coming under the purview of the State legislatures, provided State Governments wish to adopt and implement the Scheme subject to the following terms and conditions : (a) Financial assistance from the Central Government to State Governments opting to revise pay scales of teachers and other equivalent cadre covered under the Scheme shall be limited to the extent of 80% (eighty percent) of the additional expenditure involved in the implemention of the revision. (b) The State Government opting for revision of pay shall meet the remaining 20% (twenty percent) of the additional expenditure 24 from its own sources. (c) Financial assistance referred to as (a) above shall be provided for the period from 1.1.2006 to 31.3.2010. (d) The entire liability on account of revision of pay scales etc. of university and college teachers shall be taken over by the State Government opting for revision of pay scales with effect from 1.4.2010. (e) Financial assistance from the Central Government shall be restricted to revision of pay scales in respect of only those posts which were in existence and had been filled up as on 1.1.2006. (f) State Governments, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme, and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006; however, in such cases, the details of modifications proposed shall be furnished to the Central Government and Central assistance shall be restricted to the Pay Bands as approved by the Central Government and not to any higher scale of pay fixed by the State Government(s). (emphasis supplied) (g) Payment of Central assistance for implementing this Scheme is also subject to the condition that the entire Scheme of revision of pay scales, together with all the conditions to be laid down by the UGC by way of Regulations and other guidelines shall be implemented by State Governments and Universities and Colleges coming under their jurisdiction as a composite scheme without any modification except in regard to the date of implementation and scales of pay mentioned herein above.
3. Thus as per the terms and conditions of the Ministry's letter dated 31.12.2008, the State Governments are required to implement the scheme as a composite one, including the age of superannuation (mentioned in para 8(f) of this Ministry's letter dated 31.12.2008), together with all the conditions to be laid by University Grants Commission (UGC) by way of regulations and 25 other guidelines. The UGC has not so far notified the Regulations in this regard. Therefore, the State Governments shall have to adopt the scheme including the regulations as may be prescribed by UGC, for being eligible for appropriate central assistance. However, it is mentioned that the various allowance applicable to teachers and equivalent cadres in State Governments shall be governed the respective State Government rules. The Central assistance of 80% covers only the additional requirements towards revision of pay and does not include any amount paid towards allowances.
4. It is provided in Para 8(p) (v) (f) of this Ministry's letter dated 31.12.2008, that the State Governments taking into consideration other local conditions may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme. This implies that State Governments cannot make modifications lowering the pay package prescribed by this Ministry. Also after adoption of the Central Scheme as a composite package, the State Government shall be required to furnish detailed calculations in support of its claim for central assistance, for which a proforma is being devised by this Ministry. (emphasis supplied) 5. Release of the central assistance shall be considered by this Ministry in accordance with the provisions of the Scheme only after the State Government have adopted and implemented the scheme as a composite scheme, including adoption of the age of superannuation, and have disbursed the salary based on revised pay scales, and after scrutiny of the detailed proposal as may be received from the State Government, Necessary rectifications may be made by the State Government in its notification dated 29.10.2009, before being eligible for central assistance.
6. This issues with the approval of Secretary, Department of Higher Education. Yours faithfully, 26 (Rajender Kalwani) Under Secretary to the Government of India”. 15 : With this background and the law, the controversy involved in the present petitions is to be examined. It is the case of the petitioners that the benefit of higher AGP was granted after due consideration by the State Government and the matter was finally decided by the Cabinet of Ministers. It is, thus, to be seen whether under the rules of business, such an order passed on the basis of approval of the Cabinet of Ministers was to be recalled or even modified by the respondent-State without placing the same before the Cabinet of Ministers. The rules of business of Executive Government have been made by Governot of the State in exercise of power conferred by Clause (ii) and (iii) of the Article 166 of the Constitution of India, which prescribe the matters to be placed before the Cabinet of Ministers. Rule 7 in Part-I of the Rules prescribes which cases are to be placed before the Cabinet of Ministers. It is categorically provided that in accordance with the general directions or by a special direction issued by the Chief Minister, the Minister Incharge of the case with the consent of the Chief Minister, or the Governot under Article 167-C are to be brought before the Cabinet of Ministers. Part-II of the Rules deals with the business or the cases which are normally to be placed before the Cabinet of Ministers. Clause (iv) of the said part specifically provided that any proposal affecting the finances of the State or for re-appropriation within a grant in which the Minister Incharge of the Finance Department has not concurred, are required to be placed before the Cabinet of Ministers. Similarly Clauses (viii) and (ix) deal with the cases where the proposal to vary or reverse a decision previously taken at the meeting of the council is to be 27 considered, or proposal involving any important change of policy and practice are to be placed before the Cabinet of Ministers. Similarly, Clause (xiv) specifically prescribes that Service Rules and their amendments when the General Administration Department has not agreed to such Rules or amendment and the concerned department deems it necessary to submit such cases before the Council, is required to be placed before the Council. Similarly Clause (xxvi) prescribes that cases where any circular embodying any important changes in the administrative system of the State is required to be issued, are to be placed before the Council for consideration. It is not in dispute as it is admitted by the respondents that the order dated 16.4.2010 was issued only after taking a policy decision by the state Government in the Cabinet of Ministers. That being so, it was necessary on the part of respondents to place such a matter before Cabinet of Ministers. If a decision is taken without placing such a matter before the Cabinet of Ministers, it would be a nullity as has been held by the Apex Court in the case of MRF Limited Vs. Manohar Parrikar and others [(2010) 11 SCC 374].. The Apex Court dealing with such a situation has categorically held in paragraphs 90 and 91 of the report, which read thus :-
“90. Before the High Court as also before us it was contended by the appellants herein, that, the Rules framed under Article 166(3) are only directory in character and failure to comply with them does not vitiate the decision taken by the State Government. The High Court after considering the various judgments cited before it has repelled the said contention to hold that the said Rules are mandatory and non- compliance thereof would be disastrous. The reasoning adopted by the High Court to arrive at such a conclusion is sound and in accordance with the constitutional mandate. The decisions of the State Government have to be in conformity with the 28 mandate of Article 154 an 166 of the Constitution as also the Rules framed thereunder as otherwise such decision would not have the form of a Government decision and will be a nullity.
91. The Rules of Business framed under Article 166(3) of the Constitution are for convenient transaction of the business of the Government and the said business has to be transacted in a just and fit manner in keeping with the said Business Rules and as per the requirement of Article 154 of the Constitution. Therefore, if the Council of Ministers or Chief Minister has not been a party to a decision taken by an Individual Minister, that decision cannot be the decision of the State Government and it would be non-est and void ab initio. This conclusion draws support from the Judgment of this Court in the case of Haridwar Singh Vs. Bagun Sambrui & ors (1973) 3 SCC 889.This Court in the said case was dealing with the Business Rules of the State Of Bihar framed under Article 166 (3) of the Constitution of India and the observations of this Court on the issue apply to the case on hand in all force. This Court observed:
“14. Where a prescription relates to performance of a public duty and invalidate acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, such prescription is generally understood as mere instruction for the guidance of those upon whom the duty is imposed.
15. Where however, a power of authority is conferred with a direction that certain regulation or formality shall be complied with, it seems neither unjust not incorrect to exact a rigorous observance of it as essential to the acquisition of the right or authority.
16. Further, Rule 10(2) makes it clear that where prior consultation with the Finance Department is required for a proposal, and the department on consultation does not agree to the proposal, the department originating the proposal can take no further action on the proposal. The Cabinet alone would be competent to take a decision. When we see that the disagreement of the Finance Department with a proposal on consultation, deprives the Department originating the proposal 29 of the power to take further action on it, the only conclusion possible is that prior consultation is an essential prerequisite to the exercise of power.”
. Thus, it has to be held that the order passed by the respondents without obtaining the approval from the Cabinet of Ministers cannot be said to be a valid order. 16 : The respondents have categorically admitted that they have issued the order impugned only to remedy the mistake committed in issuing the order dated 16.4.2010 and have further said that the order dated 14.9.2012 is not a new order making any change in the order passed by the State Government after taking a policy decision in the Cabinet of Ministers. Such a contention of the respondents cannot be accepted in view of the fact that there was a departure from the Scheme and the Regulations made by the UGC by proposing a lesser amount of AGP to the post of Professors, which was not permissible in terms of law laid down by the Apex Court and this was done even without placing the matter before the Cabinet of Ministers. The fact remains that Section 21 of the M.P. General Clauses Act, 1957, categorically prescribes that where under any Act, a power to issue Notification, orders, rules or bye-laws is conferred then that power includes a power, exercisable in the like manner and subject to the like sanctions and conditions, if any, to add, to amend, vary or rescind any notifications, orders, rules or bye-laws, so issued. Admittedly, the power was exercised by the State in making a policy under the executive Rules of business. The said Rules itself prescribe making of a policy as has been discussed herein above. If there was a mistake either in making the policy or issuing the order in consonance to the policy, amendment in the said policy or the consequential order was required to be made in the like manner. The 30 matter should have been placed before the Cabinet of Ministers indicating any such mistake if at all, crept in issuing the order dated 16.4.2010 and the Cabinet of Ministers was required to adjudicate whether there was a mistake committed in making the policy or with a purpose, the order was so issued after making of policy. It was not open to the Secretary of the department to propose something and to accept by the Minister Incharge of the department to make a change in the order so issued after making of policy. This Court has examined these aspects on number of occasions and in the case of Rajkumar Dawar Vs. State of M.P. [2001(1) MPLJ 368 . and in the case of A.K. Shrivastava Vs. Union of India and others [(2002) 3 MPHT 1 . and in the case of Kishore Samrite Vs. State of M.P. and others [I.L.R.(2013) MP 138]. has categorically held that such a power could not have been exercised in any other manner to amend an orderr, notification or rule without following the same procedure as was required to be followed for issuing such order or notification and making of a rule. The Apex Court has also looked into these aspects and has categorically held that power conferred under Section 21 of the Act aforesaid is only a rule of construction and cannot be construed to widen the statutory limit or the power given by the statute. This aspect has again been considered by the Full Bench of this Court in the case of Heavy Electrical Majdoor Trade Union Vs. State of M.P. [2006(1) MPHT 551 .(FB). Thus, it is clear that at any rate, even if there was a mistake committed in issuing the order dated 16.4.2010 prescribing any higher rate of AGP to the post of Professor, within the State, any change could have been done in the said grant of AGP after placing the same before the Cabinet of Ministers. This has already been held that there was a complete departure from the 31 Scheme made by the UGC duly formulated in regulations, giving a particular AGP to the post of Professor. As per the law laid down by the Apex Court discussed herein above, such a departure would be de horse the Scheme and Regulations of the UGC, which is not permissible, specially when this fact was brought to the notice of the respondents vide letter dated 8.1.2010, referred to herein above. 17 : In view of the discussions made herein above at length and in view of all these facts, that the petitioners are to be treated as Professor and that the revised pay band is granted by the UGC under its Scheme solely on the basis of post and not on the basis of pre-revised pay scale, as is generally done by the Pay Commissions, the stand taken by the respondents is to be repudiated outrightly, the writ petitions are bound to be allowed. 18 : Consequently, both these writ petitions are allowed. The order impugned dated 14.9.2012 Annx.P/20, in so far as it relates to reduction of the AGP to the Professors working in the Universities and Colleges in the State of Madhya Pradesh is concerned is hereby quashed. The petitioners will get the AGP of Rs.10,000/- per month from the date the Scheme of revision of pay has come in force. 19 : The writ petitions are allowed to the extent indicated herein above. There shall be no order as to costs. (K.K. TRIVEDI) Judge A.Praj. 32