Lakshmidevamma and Others vs The State of Karnataka and Others

K.N. Phaneendra, J.—1. The petitioners being aggrieved by the dismissal order passed by the Karnataka Appellate Tribunal, Bengaluru (for short ''Tribunal'') in Original Application Nos. 151 to 206/2014, c/w. 513 to 515, 657/2014, 1095 to 97/2014, 1232/2014 and 1301 to 1337/2014 have filed these writ petitions seeking setting aside of the common judgment passed in the above said cases and to grant the relief''s as prayed by them before the Tribunal.

We feel it just and necessary to have the factual matrix of the said cases placed before the Tribunal as well as before this court.

The Karnataka Public Service Commission (for short, ''KPSC'') issued a notification inviting applications for the posts of Lecturers and Assistant Professors, by direct recruitment in Government Engineering Colleges of the State, as per the provisions of the Karnataka Education Department Service (Technical Education Department) Recruitment (Amended) Rules, 2006 (for short, ''Recruitment Rules-2006), which came into force on 19.04.2007 and subsequently amended on 06.09.2008. The Recruitment Rules-2006 provided for three categories of teachers in the Engineering Colleges viz., Lecturers, Assistant Professors and Associate Professors, prior to amendment.

In these Writ Petitions, we are concerned with the selection to the posts of Assistant professors.

After amendment dated 06.09.2008, the qualification prescribed for the post of Assistant Professors, is Ph.D. with three years teaching experience or first class in M.Sc. with five years teaching experience. The candidates who secured first class in M.Sc. and have five years of teaching experience, should acquire Ph.D. within seven years, from the date their appointment, as per the notification. The pay scale attached to the Assistant Professors was Rs. 12,000 - Rs. 18,300/-.

The petitioners have applied for the post of Assistant Professors by direct recruitment and they were selected and appointed for the posts of Assistant Professors in between September-2010 to November-2010 on different dates. When the recruitment process of the petitioners for the posts of Assistant Professors was in progress, the AICTE has issued notification revising the pay scales, service conditions and qualifications for the teachers and other academic staff under AICTE Regulations, 2010. Under the said notification it revised the pay scales with effect from 01.01.2006 and restructured the designations in three cadres viz., Assistant Professors, Associate Professors and Professors. The posts of Assistant Professor was earlier known as ''Lecturer'' and Associate Professor was known as ''Assistant Professors''. There was no change in so far as the cadre of ''Professor'' is concerned. Therefore, vide notification dated 05.03.2010, the designations earlier in existence were re-designated. We are only concerned with the re-designated post of ''Associate Professors'' which was earlier known as ''Assistant Professors'', so for the cases of petitioners are concerned.

The petitioners were appointed and have been working in various Engineering Colleges as Assistant Professors with the above said conditions. The Government of Karnataka accepted to revise the pay scale as per AICTE notification dated 05.03.2011 and has passed an order giving effect to the said AICTE Pay Scales vide its notification dated 07.03.2011 to implement the said notification retrospectively from 01.01.2006. Subsequently, in order to remove the anomaly in the Recruitment Rules, the State Government has also pleased to amend the Recruitment Rules by substituting the grade regarding Assistant Professors as that of Associate Professors with applicable pay scales vide its notification dated 18.10.2012.

According to the petitioners, in view of the above said substitution or amendment to the Rules, the re-designation of the post of ''Assistant Professors'' as ''Associate Professors'', was with effect from 01.01.2006 itself.

Thereafter, the Accountant General, for the purpose of fixation of the pay and fitment, etc. sought clarification from the Government regarding designations and pay fixation to be given by virtue of the substitution of the Rules, for clarifying as to whether the said substitution by way of amendment was retrospective or prospective in nature, as there was no specific averment in the order dated 18.10.2012. The Government in order to remove the anomaly and doubt, issued another notification as per Annexure-A6 dated 11.03.2013. By virtue of the said notification, it clarified to read the amendment as,-

"Shall be and shall always be deemed to have been substituted".

Thus, it is clear that, by such notifications, retrospective effect was given to the amendment to the Recruitment Rules. The State Government has also issued another letter dated 20.03.2013 further clarifying the above notifications and amendments giving retrospective effect to the said pay scales from 01.01.2006. Hence, it is made abundantly clear that the persons who were working as ''Assistant Professors'', appointed by direct recruitment at different Engineering Colleges between 19.04.2007 to 07.03.2011, are re-designated as ''Associate Professors'' from the respective dates of their appointment.

On the basis of the above said clarification, the Accountant General issued Pay Fixation Orders to the petitioners (Assistant Professors) recognizing pay scale attached to the post of ''Associate Professors'', from the date of their appointment granting them the pay-band of Rs. 37,400 - 67,000/- with AGP of Rs. 9,000/- from the date of notification of the State Government, i.e., from 07.03.2011, but it was actually implemented from 01.04.2011. However, no arrears of salary was ordered to be paid prior to 01.04.2011, though the petitioners were appointed between September 2010 to November 2010. However, it was mentioned in the notification dated 07.03.2011 that the Government will issue orders in this behalf separately. The Accountant General has issued the pay slips accordingly. This act of the Accountant General could be gathered from Anneuxre-A8 dated 21.05.2013 (pay slip of one of the petitioners). By virtue of the above said transaction, the colleges in which petitioners have been working, had implemented the new pay scales and paid the arrears from 01.04.2011.

It is also worth to note here that the State Government vide its Notification dated 22.08.2013 has declared that the petitioners have also completed their probationary period satisfactorily.

When the facts stood thus, in the process of auditing, the Audit Officer attached to the office of the Accountant General, on 17.10.2013, has raised objection that the re-designation of Assistant Professors (Petitioners) (relevant to this case) as Associate Professors was erroneous and that the salary paid to them from the date of their appointment is also erroneous, as they are not entitled to become ''Associate Professors'' from the date of their appointment, but they are entitled only after three years of their service in the said post. It is noted in Annexure-A13 i.e., in the Audit report Enquiry No. 6 dated 17.10.2013, that the direct recruitees as ''Assistant Professors'' will become ''Associate Professors'' only after completion of three years, of their service, therefore, they are entitled for such pay scale from September 2013 to November 2013. The auditor recommended for recovery of withdrawal of arrears of salary from 01.04.2011 from the petitioner, on the ground that fixation of the salary from 01.04.2011 is erroneous. He suggested that this particular aspect has to be got clarified from the State Government.

The State Government, on the basis of the said audit objections, swiftly wrote a letter to the Director of Technical Education Department as per the notification dated 28.12.2013, Annexure A-12 to recover the difference amount from the salary of the Petitioners which was paid to them from 01.04.2011. Consequently, the Director of Technical Education Department has in turn directed the colleges vide its letter dated 03.12.2013 to recover the entire salary paid to the petitioners with effect from 01.04.2011.

Being aggrieved by the said action of the State Government, the petitioners have approached the Tribunal seeking remedy for quashing of the order dated 28-12-2013 (Annexure-A12) and for issue of further direction to the respondents to continue the pay scale as drawn by the petitioners from 01.04.2011 in the pay-band of Rs. 37,400 - Rs. 67,000/- with AGP of Rs. 9,000/- and to grant all consequential benefits.

Initially, the Tribunal has stayed the recovery process and the said stay order was extended from time to time till the final order passed by the Tribunal.

There is no dispute that, when these applications filed by the petitioners were pending before the Tribunal, the State Government has issued another Notification dated 29.01.2014 as per Annexure-A16, wherein the Government was pleased to retrospectively rescind the amendment made to the Recruitment Rules vide amendment dated 18.12.2012 and 11.03.2013 (as noted supra). The petitioners also questioned the said notification of the Government.

The above said factual aspects are not in dispute between the parties. However, the parties have taken different contentions with regard to the act of the Government in amending the rules giving retrospective effect to the Rules and conferring the designation of the Assistant Professors to all the petitioners from the date of their appointment. They also questioned the further conduct of the Government in giving go-by to its earlier acts and declining to continue the designation given to the petitioners as ''Associate Professors'' from the date of their appointment. In this background, the contentions of the parties also should be taken note of.

We have heard the arguments of Sri P.S. Rajagopal, the learned Senior counsel, Sri B.B. Bajantri, on behalf of Sri Vijaya Kumar, learned Advocate and Smt. Vaishali Hegde, learned counsel appearing for the petitioners in some of the petitions. Their contentions are briefly stated as under:-

Contentions of the counsels for the petitioners:

(a) Sri P.S. Rajagopal, learned Senior Counsel and others submitted that, the Government is a mighty institution having powers to make appropriate amendments to the Recruitment Rules and also to rescind the same. But the Government has to follow certain procedure and principles, when the act of the Government adversely affects the vested legal rights of the petitioners. He contends that the conduct of the Government in re-fixing the salary in the scale of Associate Professors from Assistant Professors and to recover the excess amount already paid to them, is against the principles of natural justice. The Government has not taken care of the fact that, the withdrawal of the amendment or rescinding of the amendment to the Recruitment Rules retrospectively would actually take away the accrued and vested rights of the petitioners.

(b) Secondly it is contended that the Government cannot blow hot and cold by merely saying that due to mistake, it made amendment to the rules vide order dated 18.12.2012 and 11.03.2013. The Government has not taken into consideration the correspondence that had taken place between the Government and the Accountant General, which concluded by way of clarification to the Accountant General by providing designations as Associate Professors and Professors, so far as the petitioners are concerned.

(c) The third contention raised by the learned counsel is that the Government could not have rescinded the earlier amendment to the Recruitment Rules by its specific order dated 29.01.2014 without providing opportunity to the petitioners and without following the legal procedure contemplated under law.

(d) Fourthly, the learned counsel has raised the contention that, the Government could not have passed any rescinding order when the petitioners have already before the competent court of law seriously questioning the act of the Government in ordering for recovery of the salary arrears from them.

(e) Last but not least, the learned counsel has contended that, the petitioners were designated as Associate Professors and in that capacity they have been discharging their duties. For the work done in the said post, the attached salary, has been paid to them. Therefore, there cannot be any recovery of salary on the ground of excess payment said to have been paid to the petitioners. More over there is no mala fide or wrongful act alleged against the petitioners.

(f) Smt. Vaishali Hedge, learned counsel appearing for the petitioners in W.P. No. 54406/2015 and other cases has submitted that, the petitioners in the said petition have already repaid the entire amount, therefore, in the event of the writ petitions were to be allowed, a direction may be issued to the Government that, the amount already recovered be paid back to the petitioners.

(g) Sri B.B. Bajantri, in addition to the above said arguments of the learned Senior Counsel, submitted that the prescribed qualification that the petitioners have to secure Ph.D. within seven years from the date of their appointment has not been disturbed by way of any amendments. Therefore, there cannot be any discrimination regarding salary and designation.

For the above said reasons, the counsels prayed for allowing the writ petitions.

Contentions of the Respondents:

(a) The learned HCGP has contended before the court in support of the act done by the State Government. It is argued that the petitioners were only appointed as Assistant Professors and not as Associate Professors. The Government Order dated 07.03.2011 itself clearly clarifies that, the Assistant Professors with less than three years of experience in pre-existing pay scale of Rs. 12,000/- to Rs. 18,000/- shall only be fixed with new Pay-bond of Rs. 15,600/- to Rs. 39,100/- and only after completion of three years, in the New Pay-bond, they shall be eligible to next Pay-bond of Rs. 37,400 to Rs. 67,000/- and then only they shall be entitle for re-designation as Associate Professors. The petitioners are not entitled to draw the salary as Associate Professors from 01.04.2011 itself, as they were appointed as Assistant Professors, when pre-revised AICTE Rules were in force. As per Clause (1)(a)(8 to 11) of AICTE Regulations, it is clear that the pay-band attached to the post of Associate Professors can be given only to the persons appointed by ways of direct recruitment or by way of promotion. In these cases, the petitioners are neither been directly recruited as Associate Professors nor they have been accorded placement as Associate Professors to be entitled for the said pay scale. Therefore, extension of pay scale of Associate Professors to the applicants is in contravention of the said clause. The said clause is the verbatim incorporated in the orders of the State Government dated 07.03.2011. Therefore, even accepting the order dated 07.03.2011 of the State Government, the petitioners are neither entitled for the pay-scale from the date of their appointment, nor they are entitled for any arrears.

(b) The learned Government Pleader has also contended that the State Government has got absolute powers to make amendments to the Recruitment Rules-2006 and rescind the same whenever it finds any irregularity, mistake or illegality committed by it; and that the mistake if any committed by state Govt. will not ensure to the benefit of the petitioners to take advantage of the same. Granting arrears and salary to the petitioners as per the pay scale of Associate Professors from 01.04.2011 causes great loss to the Exchequer of the State, which is the public money and that cannot be utilized in a whimsical manner. Therefore rightly the State Government has passed the subsequent order rescinding the earlier amendments, which is for the benefit of the public at large. Therefore, such an act of the State Government cannot be called as an act done with any mala fide intention.

The Tribunal after hearing the parties and looking to the materials on record, has come to the conclusion that the petitioners are not entitled for the reliefs claimed. The Tribunal has observed that the contentions of the petitioners that the Rule has been amended retrospectively from 2006 vide notifications of the State Government dated 18.12.2012 and 11.03.2013, are erroneous and the same cannot be done without bringing the same by way of amendment to the Cadre and Recruitment Rules. The petitioners by virtue of notification relating to the amendment of Recruitment Rules-2006 are not entitled to the arrears or salary attached to the cadre of Associate Professors.

The Tribunal has observed that the pay-scale is not a subject matter under Section 3 of the Karnataka Civil Service Act, 1978 (for short, KCS Act) and the pay fixation has to be done by way of amendment to C & R rules. The Tribunal has also relied upon the Government Order dated 07.03.2011 with reference to the adjustment of over payment, if any made, in future payments to the petitioners. Therefore, the Tribunal is of the view that, when there is a specific observation in the Government Order dated 07.03.2011, there is no need for giving any opportunity to the petitioners as it was well within their knowledge that if any over payment is made to them, the same is liable to be adjusted in their future payments. Tribunal has concluded that the petitioners'' view that they are entitled for the designation of Associate Professors from 07.03.2011 or from 01.04.2011 is erroneous and misconceived, and therefore, they are not entitled for any remedy, consequently the Tribunal has dismissed the petitions.

In view of the above said contentions, this court has to see whether the Tribunal is right in dismissing the petitions by making such observations.

From the date of appointment of the Petitioners till the date of Government ordering for recovery of the salary and arrears paid and vide its order dated 28.12.2013 and also rescinding the earlier amendments dated 18.10.2012 and 11.03.2013 to the rules vide its order dated 29.01.2014, the court has to see whether such contradictory conduct of the Government is proper and correct.

There is no doubt that the State Government has got absolute authority to pass appropriate orders and to amend or rescind the Rules or Provision of any law even retrospectively. But, such retrospective order can not be made without giving any opportunity to the affected parties. Such retrospective order can not be made in order to take away the accrued and vested interest or rights of the persons who were benefited by the earlier existing orders by the notifications or rules framed by it (Stage Government). In this regard it is Just and necessary to bear in mind the view taken by the Apex Court.

The Hon''ble Apex Court in a decision in the case of Raghava Rajagopalachari Vs. Union of India (1973 SLR 915) has in fact made an observation that,

"The Government by means of any mistake promulgated any Rule or Order if any benefit has been given, such orders cannot be allowed to be taken back without providing any opportunity to the interested persons. At Paragraph-17, the Hon''ble Apex Court has observed that, in case if the aggrieved parties have filed writ petitions before the Court challenging the order of the Government, in such an eventuality, the State Government cannot be allowed to attack its own order as a respondent."

The Hon''ble Apex Court in another case reported in , 1984 (3) SCC 281 between Ex. Capt. K.C. Arora and another Vs. State of Union has also categorically observed that.-

"The Government once passes the orders and it creates any rights in favour of the particular party, the Government by making amendment to those rules by retrospective effect cannot take away the accrued rights of the parties under the Rules or orders or notifications issued by the Government earlier".

The Hon''ble Supreme Court has also observed in yet another case reported in , 1994 (6) SCC 154 between Bhagavan Shukla Vs. Union of India, that,-

"The appellant obviously been visited with evil consequences, but he had not been granted an opportunity to show-cause against the reduction of his basic pay, he was not even put on notice before his pay was reduced by the department and the order came to be made behind his back without following any procedure known to law. There has, thus, been a fragrant violation of the principles of natural justice and the appellant has been made to suffer huge financial loss without being heard. Therefore, such orders cannot pass the test of judicial scrutiny."

The Apex Court has considered in detail the above said aspect at Para-3.

In view of the above said rulings and as could be seen from the factual aspects of this case, the learned Government Pleader has not produced any material before the court to show that, the Government has provided any opportunity to the petitioners before issuing notification dated 28.12.2013 as per Annexure-A12 directing the Department of Technical Education in turn to direct the Principals of respective colleges to recover the amount from the salary of the petitioners and also subsequently passing a notifications as per Annexure-A16 dated 29.01.2014 rescinding the amendment to the Recruitment Rules initially done on 18.10.2012 and 11.03.2013. The records also do not show that any opportunity was given to the petitioners to have their say in this regard. The Government ought to have provided an opportunity to the petitioners to have their in the matter before passing the said orders.

In this context the learned Government Pleader has also relied upon a Ruling reported in , (1997) 3 SCC 321 between the State off Haryana and others Vs. Ramkumar Mann, wherein the High Court has observed that,

"The High Court was wholly wrong in reaching conclusion that there was invidious discrimination. If we cannot allow a wrong to perpetrate, an employee, after committing mis appropriation of money, is dismissed from service and subsequently that circumstanced person claim equality under Section 14 for reinstatement? The answer is obviously "No". In a converse case, in the first instance, one may be wrong, but a wrong order cannot be the foundation for claiming equality for enforcement of the same order. As stated earlier, his rights must be founded upon enforceable right to entitle him to the equality treatment for enforcement thereof. A wrong decision by the Government does not give a right to enforce the wrong order and claim parity or equality. Two wrongs can never make a right".

Looking to the above observations of the Hon''ble Apex Court, in all the above said cases, it is clear that the rulings cited by the learned Government Pleader is not exactly applicable to the circumstances available on hand and that is only applicable to the cases of misappropriation, and wrong doers claiming equality. The acts referable to an offence by the party, who is sought to be reinstated by way of claiming parity on the ground that, a wrong doer was pardoned by the Court therefore he is also entitled for the same. But in this case no wrongful act is alleged to have been committed by the Petitioners. Therefore the said ruling cannot be applied to the present set of facts and circumstances of these cases.

What is clear from the above is, by virtue of adopting AICTE notifications dated 05.03.2010, the Government issued notification dated 07.11.2010 and 11.03.2013 giving retrospective effect. The Government by its acts has made the petitioners to believe that the said acts of the Government are based on due deliberations and also the Government was satisfied and properly understood the AICTE notifications giving pay scales with effect from 01.01.2006, as such, the necessary notifications have been issued by the Government. On the basis of clear clarification, the Accountant General issued pay fixation orders to the petitioners and thereafter the arrears were drawn by the petitioners from 01.04.2011. Therefore, there is absolutely no allegations are made against the petitioners that there was any mala fide intention on the part of the petitioners in drawing the arrears from 01.04.2011, or they have made misrepresentation to the Government or at their mistake the Government has passed any orders in this regard. Particularly, the notifications dated 07.03.2011 and 11.03.2011. As stated supra, the Government being the parent propriea in its wisdom considering the AICTE Regulation, 2010, dated 05.03.2010 has revised the pay scales and qualifications of the teaching staff in the technical institutions. Further the Government itself has with all deliberations with the concerned, has issued a clarificatory letter to the Accountant General dated 20.03.2013 as per Annexure-A7 and also declared the probation of the petitioners stating that they have satisfactorily completed probation vide its order dated 22.08.2013 as per Annexure-A. 10. From this it is clear that, it may be a mistake on the part of the Government in issuing such notifications. It is also to be taken note of that, in the objections filed to the writ petitions and as well the statement of objections filed before the Tribunal, it is very much clear that the stand taken by the Government is that, wrong was exclusively on the part of the Government in issuing such orders as noted supra. When the mistake is exclusively on the part of the Government and on the other hand absolutely no mistake or mala fides or any role alleged against the petitioners, the Government is not right in issuing directions to the Department of Technical Education for recovery of the amount paid to the petitioners from 01.04.2011.

(a) In this regard, we can gainfully rely upon a decision of the Hon''ble Apex Court reported in , (2015) 4 SCC 334 between the State of Punjab and others Vs. Raffiq Mashi (White Washer) and others, wherein the Hon''ble Apex Court at para-17 has observed in the following manner:-

"17. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances, the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation, the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him, but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances, the amount paid till the date may not be recovered from the appellant.

(b) Further, at Para-18, the Hon''ble Apex Court has quoted certain situations wherein the recoveries by the employees would be impermissible in law. The are quoted as under:-

i) Recovery from the employees belonging to Class-III and Class-IV service (for Group-C and Group-D service)

ii) Recovery from the retired employees, or the employees who are due to retire within one year of the order of recovery.

iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

v) In any other case, where the court arrives at the conclusion that, recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer''s right to recover.

Considering all the previous decisions on this point, the Hon''ble Apex Court is categoric in its observations with regard to the situations and under what circumstances the recovery should not be made by the employer. Applying the above said principle to this case, the Government either by mistake or by misinterpretation of the rules and as well the AICTE Regulation, extended the benefit to the petitioners in the Cadre of Associate Professors and paid the salary and arrears from 01.04.2011. As we have said above, there is no allegation of any sort with regard to any mala fides or misrepresentations or any wrongful act on the part of the petitioners, therefore, we are of the considered opinion that the instructions given by the Government for recovery of the amount paid to the petitioners (Associate Professors) vide its direction dated 28.12.2013 as per Annexure-A. 12, is not proper and correct, and the said order is liable to be quashed.

Sofar as it relates to the next important aspect that, whether the petitioners are entitled to the same pay scale. For the subsequent period has to be looked into. The learned Government Pleader has brought to our notice with regard to the qualifications for the post of Associate Professors as quoted in the notification dated 06.09.2008 by the Government of Karnataka i.e., Ph.D. First Class in any Bachelor Degree or Master Degree level or first class Master Degree in appropriate branch of engineering with five years of experience and that he required to obtain Ph.D. Degree within a period of seven years from the date of their appointment. Obtaining of Ph.D. within seven years though it is made as a mandate. In the notification dated 04.01.2016 issued by AICTE, at Item No. 53, it is clarified that what would be the consequences if the candidates (Associate Professors) of different departments do not earn Ph.D. degree within seven years, which reads as follows:-

In view of the above said clarification even if the candidates do no earn Ph.D. within seven years, they only lose increments until they earn Ph.D. Therefore, the designation and pay scale will not be impaired. Even otherwise, as could be seen from the records, the petitioners were appointed to the said posts of Assistant Professors during September, October and November of 2010 and they are entitle for time from September to November, 2017, to earn their Ph.D. Therefore, this is too premature to draw an inference against the petitioners in this regard. Therefore, the argument of the learned Government Pleader sofar as this aspect is concerned, is not tenable.

The learned Government Pleader has strenuously contended that, on reading of the notification dated 07.03.2011 issued by the Government in its proper perspective, it is clear that the persons who were appointed directly as Assistant Professors, they will only entitle for the designation of Associate Professors after completion of three years. He drawn our attention to the notification dated 07.03.2011 (Annexure-A4) (Clause - (ix) & (x) under the heading "Revised Pay Scales, Service Conditions and CAS for teaching and equivalent positions in the Government, aided and University Constituent Engineering Colleges shall be as indicated below:-

a) Assistant Professors/Associate Professors/Professors in Technical Institutions:

Clauses - (i) to (viii) are not applicable to these cases.

ix) Incumbent Assistant Professor and incumbent lecturers (selection grade), who have completed three years in the pre-revised pay scale of Rs. 12,000/- - Rs. 18,300/- on 01.01.2006 shall be placed in pay-band of Rs. 37,400/- - Rs. 67,000/- with AGP of Rs. 9,000/-and shall be re-designated as Associate Professor.

x) Incumbent Assistant Professor and incumbent lecturers (selection grade), who had not completed three years in the pay scale of Rs. 12,000/- - Rs. 18,300/- on 01.01.2006 shall be placed at the appropriate stage in the pay-band of Rs. 15,600 - Rs. 39,100/- with AGP of Rs. 8,000/- till they complete three years of service in the grade of lecturer (selection grade) and thereafter shall be placed in the higher pay - band of Rs. 37,400 - Rs. 67,000/- and accordingly re-designated as Associate Professor.

In support of this notification, the learned HCGP has also made submissions before the court which is recorded by this court on 20.01.2006, which reads as under:-

"During the course of arguments, learned Government Advocate does not dispute that as per the Government Order dated 7.3.2011 bearing No. ED 96 DTE 2010 in respect of revision of AICTE pay scales in respect of Teachers, Librarians and Physical Education Personnel of Government etc., the incumbent Assistant Professor and incumbent Lecturer (Selection Grade), who have completed three years of service in the pre-revised pay scale of Rs. 12,000/- - Rs. 18,300/- shall be placed in Pay Band of Rs. 37,400/- - Rs. 67,000/- with Academic Grade Pay (''AGP'' for short) of Rs. 9,000/- and shall be re-designated as Associate Professor.

In the matter on hand, it is not in dispute that the petitioner was appointed as Assistant Professor directly, in the months of September/October/November, 2010. They would complete three years of service in the months of September/October/November/December, 2013. Thus, Sri Mahesh, learned High Court Government Pleader submits that at the most, the petitioners are entitled to be re-designated as Associate Professor and entitled to the Pay Band of Rs. 37,400/- to Rs. 67,000/- with AGP of Rs. 9,000/-. After completion of three years from the date of their initial entry into the service i.e. with effect from September/October/November/December, 2013, they are otherwise eligible to be appointed as Associate Professor.

The said submissions made by the learned Government Pleader are recorded.

If it is so, at least the petitioners will have to be re-designated as Associate Profession with the Pay Band attached to the said post, after completion of three years from the date of their initial entry into service as Assistant Professor.

Additional Notes dictated on 22.1.2016:

Assistant Professors completing 3 years of teaching in the AGP of Rs. 8,000/- shall be eligible, subject to other conditions, that may be prescribed by AICTE as applicable, to move to" the Pay Band of Rs. 37,400-67,000 with AGP of Rs. 9,000/- and to be designated as Associate Professor."

In view of the above, there is no dispute as such by the Government that the petitioners were appointed as Assistant Professors during September to November of 2010 and according to the above said notifications and also the submission of the learned HCGP, that they are legally entitled to the designation of Associate Professors immediately about three years from the date of their appointment [September to November of 2013.] The Government has not produced any material before the court to show that the Government has given designation of Associate Professors to the petitioners as on September to November of 2013, if the petitioners are otherwise entitled to the said designation. It is also to be noted that when the matter is pending before the Karnataka Administrative Tribunal, the Government was in haste to pass an amendment to the Recruitment Rules-2006 rescinding its earlier amendment dated 18.10.2012 and 11.03.2013, vide its order dated 29.01.2014, without considering the above noted entitlement of the petitioners.

Looking to the above said circumstances, as the petitioners are legally entitled to the post of Associate Professors even according to the Government from September, October and November of 2013, the order of the Government dated 29.01.2015 becomes automatically in fructuous.

The learned Senior Counsel Sri P.S. Rajagopal has further contended before us that by virtue of the notification dated 07.03.2011 and 11.03.2011 and also clarification given to the Accountant General''s office, the petitioners have not only drawn the arrears of salary as Associate Professors from 01.04.2011, but they have been discharging their duties as Associate Professors. So far as this contention is concerned, the learned Government Pleader has not produced any material to show before this court as to what are the duties of Assistant Professors and Associate Professors and whether the petitioners have been discharging their duties as Assistant Professors or Associate Professors. When such contention has been taken, it is the duty of the State Government to produce sufficient materials to show that though the petitioners have drawn the salary as Associate Professors, but they have discharged their duties as Assistant Professors only. In the absence of such materials before the court, the court cannot draw any inference that the petitioners have committed any wrongful act or mistake on their part in drawing the salary and arrears as attached to the post of Associate Professors.

Last but not least, the learned Government Pleader has also drawn our attention to notification dated 07.03.2011 at Item No. 19 under the heading "Payment of Arrears of Pay Revision", and contended that, if there is any mistake on the part of the Government and if the Government has paid any excess payment of amount due to incorrect fixation of pay in the revised pay-band, the payment so made shall be adjusted against the future payments due or otherwise, to the beneficiary. However, the learned Senior Counsel appearing for the petitioners contended that the same is not tenable so far as the petitioners are concerned, because there is no undertaking as such taken by the Government in this regard. The said Item No. 19 in fact reads as follows:-

Payment of Arrears of pay revision:

Payment of arrears upto 40% of the total arrears shall be made immediately after receiving Government of India''s share from the AICTE/MHRD and the Government will issue orders in this behalf separately.

The option to the revised Pay Scales shall be executed in writing in the form as given in Appendix V.

An undertaking in the proforma given in Appendix VI Shall be taken from every beneficiary under this scheme to the effect that any excess payment made on account of incorrect fixation of pay in the revised Pay Bands or grant of inappropriate Pay Band/Academic Grade Pay or any other excess payment made shall be adjusted against the future payments due or otherwise to the beneficiary.

A careful perusal of the above said Item-19, in the notification, it makes abundantly clear that the 2nd part of the item only refers to the undertaking if any, given by the petitioners. It also further clarifies, that the undertaking shall be in the proforma given in Appendix VI, under this scheme. The undertaking is to the effect that any excess payment made on account of incorrect fixation of pay in the revised Pay Bands is incorrect, then such payment shall be adjusted against future payments. As we have observed, there is absolutely no material before the court to show that any such undertaking was taken by the Government from the petitioners. Therefore such argument is also not tenable before this court.

The Tribunal has committed a mistake in making an observation that under Section-3 of the Karnataka State Civil Services Act, 1978, (for short, ''KCS Act'') there cannot be any fixation of the salary, and that the pay fixation shall be on the basis of the cadre and recruitment Rules. This observation, in our opinion, is also not proper and correct. In fact, Section-3 of the KCS Act is the proper provision under which the Government is empowered to make rules to fix the pay by way of revision etc. Section-3 of the KCS Act, reads as under:-

Regulation of recruitment and the conditions of service.-

(1) Subject to the provisions of this Act, the State Government, may, by notification, make rules,-

(a) Specifying the different categories of posts in the different branches of public services of the State, the total number and nature of posts in each such category and the scale of pay admissible to each such category;

XXX XXX XXX XXX.

This court had an occasion to deal with Section-3 of Karnataka Civil Services Act, 1978 in , ILR 2004 Kar. 3802 between M.V. Dixit and others Vs. State of Karnataka and others, wherein this court has made an observation that,-

"Under Section 3(1)(2), amending of the Recruitment Rules not only includes the method of recruitment and also creation and abolition of posts by specifying different categories of posts in the different branches of public services of the State, the total number and nature of posts in each such category and the scale of pay admissible to each category. Therefore, the provision of Section-3 is not only for the purpose of creating posts designating and re-designating the posts and the State can modify or replace any notification or Government control relating to establishment of cadres or fixing the strength of the cadre or number and character of the posts only by the rules made in terms of this provisions and not by any Executive order under Article 162."

Therefore, it is clear that the Government by invoking the powers under Section-3 of the KCS Act is justified in amending the rules upgrading the designation of ''Assistant Professors'' to ''Associate Professors'' and given a retrospective effect to that from 01.01.2006. When such order is passed by virtue of two Amendments dated 07.03.2011 and 11.03.2011, the Government would not have passed the subsequent orders withdrawing the said notifications retrospectively vide its notification dated 29.01.2014, that too when the matter was sub-judice before the court, without any opportunity to the Petitioners.

In view of our above said observations, we proceed to pass the following order:-

ORDER

The writ petitions are hereby partly allowed. The order dated 16.09.2014 passed by the KAT, Bengaluru, in Application Nos. Original Application Nos. 151 to 206/2014, c/w. 513 to 515, 657/2014, 1095 to 1097/2014, 1232/2014 and 1301 to 1337/2014 are hereby quashed. Consequently, the order dated 28.12.2013 as per Annexure-A12 passed by the Government directing the Director, Department of Technical Education to recover the amount of salary drawn by the petitioners from 01.04.2011 in the post/capacity of Associate Professors is hereby quashed.

In view of the stand taken by Government that the petitioners are eligible for the post of Associate Professors from September to November, 2013, the order passed by the Government dated 29.01.2014 rescinding its earlier order dated 18.10.2012 and 11.03.2013 has become infructuous. Hence, there is no need to pass any order in this regard.

It is open for such petitioners in W.P. Nos. 51689-51692/2015 (S-KAT), W.P. Nos. 51960-51963/2015, W.P. Nos. 51964-51966/2015, W.P. No. 54406/2015 (S-KAT) to approach the appropriate authorities for their remedy to recover the amounts if any, already paid by them or recovered from them, by virtue of the Orders of the Government dated 01.04.2011.