Prof. S.K. Verma and Others vs State of U.P. and Another

R.A. Sharma, J.—Whether Professors promoted under Merit Promotion Scheme (hereinafter referred to as P.P.S. Professors) are entitled to the same pay scale which is given to the Professors appointed against the approved posts v through open selection (hereinafter referred to as the direct Professors), is the only question involved in this writ petition.

By two orders dated 25.5.1984 and 31.5.1994, the Government of U.P. Sanctioned Merit Promotion Scheme (commonly known as Personal Promotion Scheme hereinafter referred as P.P.S.), providing for merit promotions to the Readers and Lecturers of the Roorkee University (hereinafter referred to as the University), to the posts of Professors and Readers respectively. Upto 31.12.1985, both the categories of Professors and Readers were given the same pay scale. By order dated 17.10.1990, the Government revised the pay scale of the teachers of the University with effect from 1.1.1986. By that order, two pay scales were laid d6wn for the two categories of Professors, although the same pay scale was fixed for both the categories of Readers. The pay scales as fixed by the above Government order, are as follows:

-------------------------------------------------------------------------------- Post Existing pay scale Revised pay scale by G. O. dated (prior to 1.1.1986) 17.10.1990. w.e.f. 1.1.1986 -------------------------------------------------------------------------------- Reader-Direct Rs. 1,200-1,900 Rs. 3,700-5,700

Reader under P.P.S. do do

Professor (Direct) Rs. 1,500-2,500 Rs. 5,100-7,300

Professor do Rs. 4,500-5,700 (under P.P.S.) --------------------------------------------------------------------------------

12 P.P.S. Professors challenged the above order of the Government by means of Writ Petition No. 30092 of 1990. The Vice-Chancellor of the University also vide letter dated 23.4.1991 requested the Government to grant the same pay scale to both categories of the Professors. During the pendency of the above writ petition, Government of U.P. by order dated 21.1.1992 sanctioned the pay scale of Rs. 5,100-7,300 for those P.P.S. Professors also who were promoted before 19.4.1990. Petitioners who filed the aforesaid Writ Petition No. 30092 of 1990 were the Professors who were appointed before 19.4.1990 and they thus became entitled to the same pay scale of Rs. 5,100-7,300 which was sanctioned for the direct Professors. They, therefore, withdrew their writ petition. 20 P.P.S. Professors (Petitioners) who were promoted after 19.4.1990, filed representations before the Chancellor of the University as well as the State Government against the aforesaid two Government orders dated 17.10.1990 and 21.1.1992. There being no response from them, the Petitioners filed this writ petition against those orders praying for writ of mandamus directing the Respondents not to make any discrimination in the pay scale between the direct and P.P.S. Professors. Further prayer for writ of mandamus directing the Respondents to pay them the same pay scale which is being paid to the direct Professors, has also been made. Incidental and consequential reliefs in connection therewith including the relief for arrears, is also claimed.

The University has filed counter-affidavit and the Petitioners have filed rejoinder-affidavit in reply thereto. We have heard the learned Counsel for the parties.

Personal Promotion Scheme was sanctioned by the Government so as to remove the stagnation amongst the teachers of the University and to provide incentives to them. Promotion under this scheme is not as a matter of course. Only those Readers are promoted under this Scheme who have eligibility qualifications and have been selected by a Selection Committee. P.P.S. Professors perform the same duties which are performed by the Direct Professors. Details of the duties and functions which are discharged/performed by both the categories of professors have been given in Paragraphs 20 and 21 of the writ petition, which have not been disputed.

In the State of Rajasthan also, different pay scales were prescribed with effect from 1.1.1986 for the two categories of Professors. This was challenged before Rajasthan High Court by means of writ petition. The High Court allowed those writ petitions and quashed the Government order holding that both categories of Professors are similarly situated with regard to their status, designation, nature, quality and quantity of work and, therefore, both of them are entitled to the same pay scale. It was accordingly held that it was not open to the State to make discrimination between the two categories of Professors in the matter of pay scale. Against the above judgment of Rajasthan High Court, SLP was filed before the Hon''ble Supreme Court which was dismissed on 9.12.1988.

In Dr. Rashmi Srivastava and Dr. B.D. Srivastava Vs. Vikram University and others, , the Supreme Court held that P.P.S. Professors are the ex-cadre employees of the University who cannot claim any inter se seniority with the direct recruit3 forming regular cadre. Although the Supreme Court in the above case held that P.P.S. teachers cannot be included in the seniority list of the cadre teachers but it has specifically observed that it cannot be assumed that merit promotions are of no legal effect and accordingly it was laid down that excepting for the purposes of seniority, for all other purposes like pay, work and status, P.P.S. Professors and Readers are the Professors and Readers of the University. Relevant extract from Paragraph 44 of the said decision of Supreme Court, is reproduced below:

But it must be clarified at this stage that even though they may not be included in the seniority list of cadre employees, namely, Professors or Readers, it also cannot be held, as assumed by the High Court, that their merit promotions were of no legal effect at all. In this connection, we must keep in view the salient features of the merit promotion scheme. It cannot be disputed that with a view to avoid stagnation amongst University teachers, the Commission recommended a scheme of merit promotion. The very preamble of the Scheme shows that it is necessary to give reasonable opportunity for career advancement and recognition of merit and it is on the basis of competitive test for recognising outstanding work and merit that such merit promotions were given. Once a Lecturer is promoted on merit as Reader or a Reader as Professor even though the promotion may be personal to him, he can certainly continue to work as promotee Reader or Professor till he retires or otherwise ceases to be an employee of the University or till he is reverted for some valid reasons. There is no question of such a merit promotee being reverted otherwise to the lower cadre from which he came. He has to work as a Reader or Professor, as the case may be and share the workload with the cadre employees. In fact, as there is no vacancy created in the lower cadre from which he came on account of his promotion, he has also to share the burden of workload of the lower post. Consequently, it cannot be said that such a merit promotee is not the Reader or Professor so far as his work as Reader or Professor is concerned. He cannot claim to be fitted in the inter se seniority list and may remain outside the cadre of Reader or Professor, as the case may be. However, for all other purposes like pay, work and status, he is a Reader or Professor as the case may be.

(Emphasis supplied).

In Dr. Rashmi Srivastava v. Vikram University (supra), the aforesaid decision of Rajasthan High Court was distinguished by the Supreme Court on the ground that question of inter se seniority of the two categories of Professors was not involved therein.

Although there cannot be combined inter se seniority of both the categories of Professors, but in respect of other matters such as pay, status, etc., no discrimination can be made between them. P.P.S. Professors are, therefore, entitled to the same pay scale which is given to the direct Professors.

As the work, status and duties of the P.P.S. Professors, whether appointed before 19.4.1990 or thereafter, is the same, it is not open to the State to make any discrimination between them in the matter of their pay on the basis of their dates of appointments. Although it is open to the State to give different treatment by laying down cut-off date to different classes of persons, if there is rational basis for making the difference between them, but when two sets of persons are similarly placed, the State cannot make difference between them with regard to their pay and, pension. Reference may be made to D.S. Nakara and Others Vs. Union of India (UOI), . When two categories of persons under the same employer perform same work and discharge same duties under similar working conditions, they are entitled to the same pay scale. The doctrine of equal pay for equal work is applicable to such a case. Reference in this connection may be made to Jaipal and Others Vs. State of Haryana and Others, . In the instant case, both the categories of Professors are the employees of the University and they perform the same functions and discharge the same duties under similar working conditions. Therefore, there cannot be any discrimination between them as regards their pay scales. Supreme Court in Dr. Rashmi Srivastava v. Vikram University (supra) has laid down that there cannot be any difference in the matter of pay between the two categories of Professors. The impugned Government orders so far as they make discrimination amongst P.P.S. Professors on the basis of dates of their appointment and prescribe two different pay scales for two categories of Professors, cannot be sustained.

This writ petition is accordingly allowed with costs. Those parts of the Government orders dated 17.10.1990 and 21.1.1992 which prescribe two different pay scales for direct and PPS Professors and lay down two separate scales for P.P.S. Professors on the basis of the dates of their appointment, are quashed. The Respondents are directed to give to the Petitioners the same pay scale (Rs. 5,100-7,300) which has been sanctioned for direct Professors with effect from the date they were promoted as P.P.S. Professors. The arrears of difference between the pay which was paid to the Petitioners and the pay to which they will be entitled pursuant to this order, will be paid to them within a period of three months from the date of presentation of certified copy of this order before the Respondents.