IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Writ Petition No.5179 of 2010 Date of Decision : March 29, 2010. Dr.Sanjiv P.Singh Hanjraw and another .....Petitioners versus State of Punjab and others .....Respondents CORAM : HON'BLE MR.JUSTICE SURYA KANT. Present : Mr.Akshay Bhan, Advocate, for the petitioners. Mr.B.S.Chahal, DAG, Punjab. -.- 1. Whether Reporters of Local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? --- Surya Kant, J. (Oral) Notice of motion. Mr.B.S.Chahal, Deputy Advocate General, Punjab, accepts notice on behalf of the respondents. [2] In view of the nature of the order which I propose to pass, there is no necessity to seek any counter-reply from the respondents at this stage. [3] The petitioners are working as Associate Professors in the Post Partum Unit in the Government Medical College and Hospital, Patiala and Amritsar respectively. While the first petitioner teaches Statistics, the second respondent is in the subject of Demography (both non- C.W.P.No .5179 of 2010 2 professional). They are aggrieved at the orders dated 15.2.2007 (Annexure P-25) and 11.2.2010 (Annexure P-29) whereby their claim for the grant of promotion and consequential pay scales on completion of 8 years' service under the Post Partum National Programme, at par with the Associate Professors having the professional qualifications in Medical Science, has been turned down and in stead they are sought to be placed in the pre- revised pay scale of Rs.3000-4500 (revised pay scale of Rs.10,000-15,200) as against their claim of pre-revised pay scale of Rs.3700-5700 (revised pay scale of Rs.16350-20,100), which has been further revised to Rs.37,400-67,000. [4] There is indeed no dispute that the Post Partum Family Welfare Programme was initially sponsored by the Central Government which was later on made a joint venture of the Central Government and the State Government in terms whereof the Central Government agreed to provide 50% financial assistance to the State Government. Thereafter, vide office memorandum dated 2.5.2002 (Annexure P-17), the Government of India, Ministry of Health and Family Welfare decided to transfer the `Scheme of Post Partum Programme' to the State Government and stopped the financial assistance to run the said Scheme, which is now being run by the State Government only. [5] It may be mentioned here that vide Office Memorandum dated 5.3.1985 (Annexure P-5), the Government of India had decided that the University Grants Commission Scheme for Merit Promotion of the teachers shall be applicable to the staff working under the Post Partum C.W.P.No .5179 of 2010 3 Programme, the relevant extract whereof read as under:- “2. In order to strengthen the Post Partum Programme and thereby help in implementing effectively the Family Welfare Programme, it has been decided to make the University Grants Commission Scheme for merit promotion of Teachers applicable to the staff working under the Post Partum Programme to remove any disparity and dissatisfaction, with the following additional conditions:- i) No additional posts would be created and the existing persons on the basis of assessment would be promoted to the next higher level. ii) The position held by such incumbents would be personal to them. iii) No resultant vacancy is required to be filled. iv) The incumbent must have completed eight years of continuous service in the respective cadre as Readers/Lecturers in the Post Partum Programme. v) The procedure following by the University for promotion would be the same as applicable to similar posts of the same nature borne on the strength of the institute/university to which the University Grants Commission Merit Scheme is applicable. vi) No additional/extra staff can be provided in the category of posts from which a person has received merit promotion to the next higher post, consequent upon the implementation of this scheme. The work load should therefore, be adjusted suitably without seeking additional positions. vii) The institutions/University would furnish to the C.W.P.No .5179 of 2010 4 Department of Family Welfare, Ministry of Health and Family Welfare, necessary particulars of person (s) finally promoted each year.” [6] After the transfer of the Scheme to the State Government, the issue that has arisen for consideration is as to what pay scale be granted to the petitioners? Should there be a parity between the petitioners and the professionally qualified Teachers of the Medical Colleges or the petitioners be treated at par with those governed under the University Grants Commission's Scheme, namely, the Merit Promotion Scheme? [7] Relying upon the Memorandum dated 5.3.1985 (Annexure P- 5), the petitioners appears to have claimed that in terms of the University Grants Commission Promotion Scheme, 1983, which was extended by the Ministry of the Family and Health Welfare, Government of India to the Post Partum Scheme, they are entitled to and were rightly placed in the Senior Scale and after completion of 8 years' service also they are entitled to the consequential revised pay scale under the 1983 U.G.C. Scheme. The State of Punjab, on the other hand, has granted their revised pay scales as per the Merit Promotion Scheme notified by the University Grants Commission on 12.1.1988. This fact is apparent from one of the impugned order dated 15.2.2007 (Annexure P-25), the operative part of which reads as follow:- “In the light of the above facts, the orders issued vide ID No.11/42/2000-2H-JB-III/2378 dated 11.5.2001 and subsequent orders vide ID No.11/42/2000-HB- III/59-63 dated 2.1.2002 relating to the placement of C.W.P.No .5179 of 2010 5 Sh.Sanjiv Pal Singh and Smt.Daljit Kaur in the pay scale of Rs.16350-20100 are hereby rescinded. On reconsideration of the circumstances of the case and in view of the advice of the Finance Department vide ID No.5/30/2000-4FE/II/1272 dated 21.7.2003, the decision taken vide order dated 24.8.2005 is hereby confirmed and the officers are placed in the pay scale of Rs.3000- 4500 (unrevised), thereafter (revised) to Rs.10000- 15200.” [8] Aggrieved at the afore-stated order, the petitioners firstly represented the authorities and thereafter, approached this Court by way of Civil Writ Petition No.14462 of 2005 which was disposed of with a direction to the respondents to decide the pending claim of the petitioners. As the respondents did not assign any reason while declining the claim of the petitioners for higher pay scale, this Court again intervened vide order dated 217.2009 passed in Civil Writ Petition No.2870 of 2007 and set- aside the said order with a direction to pass afresh, well reasoned and speaking order in accordance with law. [9] Pursuant thereto, the second impugned order dated 11.2.2010 (Annexure P-29) has been passed declining the petitioners' claim for the grant of un-revised pay scale of Rs.3700-5700 which presently stands revised to Rs.37400-67000. While declining the claim of the petitioners, the State Government has observed that:- (i) the petitioners were appointed as Lecturers on 21.10.1991 and much before that, the University Grants Commission Promotion Scheme, 1983 had been rescinded and replaced with the new Merit Promotion Scheme notified on 12.1.1988. C.W.P.No .5179 of 2010 6 The petitioners, therefore, were not entitled to take any advantage of the Memorandum dated 5.3.1985 (Annexure P- 5) as the UGC Scheme mentioned therein was no longer in existence at the time of their appointment; (ii) There is no professional parity between the petitioners and the Doctors possessing medical qualifications, appointed on the posts having nomenclature like Lecturer, Reader etc.; (iii) Under the new Merit Promotion Scheme notified by the University Grants Commission on 12.1.1988, the petitioners are entitled to the following pay structures:- a) Lecturer :Rs.2200-4000 b) Reader Lecturer (Selection Grade) :Rs.3000-4500 c) Professor :Rs.4500-5700 The pay scale of Rs.2200-4000 was later on revised to Rs.7200-11660, therefore, Lecturers under the Post Partum Programme like the petitioners, who joined in 1991 can at the most be given the scale next higher to the above mentioned scale, namely, Rs.9200-13900 followed by the next permissible higher scale on completion of 8 years' service under the 1988 UGC Scheme; (iv) The petitioners cannot be granted any higher pay scale in isolation as such decision will effect other categories of State employees as well; (v) At the time when the UGC Scheme, 1983 was operative, there was no intermediate post of Lecturer (Senior Scale) and Lecturer (Selection Scale) between the posts of Lecturer and Professors, therefore, also the petitioners cannot claim the pay scale as demanded by them; (vi) Their claim for parity at par with the Medical Teachers is C.W.P.No .5179 of 2010 7 untenable for the reasons that promotion to the higher post for Medical Teachers is subject to the availability of post, qualifications, service record and clearance by the DPC. On the other hand, in the case of the petitioners, no post was ever created in the grade of Assistant Professor nor were they Ph.D. at the relevant time as the first petitioner completed his Ph.D. in the year 2003, nor any DPC was ever held to adjudge their eligibility or suitability to place them in the next higher pay scale. [10] The impugned order further reveals that during the course of personal hearing, the petitioners themselves stated before the Competent Authority that in case their claim for placement in the higher grade of Assistant Professor was not acceptable, they may be granted revised pay scale as per the University Grants Commission notification and may further be considered for promotion as per the U.G.C. Guidelines. The Competent Authority, however, did not comment upon the aforesaid alternative claim made by the petitioners on the plea that acceptance of such a claim requires concurrence of the Finance Department. [11] Aggrieved, the petitioners have approached this Court. [12] I have heard learned counsel for the parties at some length and perused the various documents on record. [13] In my considered view, the claim of the petitioners to treat them at par with the Medical Teachers for the grant of higher pay scale, is wholly misconceived as there is a fine distinction between the nature of qualifications and duties of the two sets of Teachers. Such a parity, if granted, would amount to treat the unequals as equals. Similarly, the C.W.P.No .5179 of 2010 8 University Grants Commission's Merit Promotion Scheme, 1983 was not in existence at the time of appointment of the petitioners and as such no benefit accruing therefrom can be claimed by them. The rejection of their claim to that extent vide the impugned order dated 11.2.2010 (Annexure P- 29) warrants no interference by this Court. [14] The petitioners, however, it appears, are entitled to the corresponding revised pay scale as has been granted to the Non-Medical Teachers in the State of Punjab from time to time under the Merit Promotion Scheme, 1988, which was in vogue at the time of their appointment and/or subsequent University Grants Commission Notification/Guidelines/Recommendations, if any, accepted by the Government of Punjab. Suffice it to say that keeping the basic pay scale granted to the petitioners at the time of their appointment, in view, further revision thereof deserves to be considered as per the pay structure recommended by the University Grants Commission and accepted by the State Government. The concurrence of the Finance Department in this regard, if so required, is an intera-departmental affair to which the petitioners have no concern. The revised pay scales, to which the petitioners are entitled to, cannot be denied for want of such like ministerial exercise. For the reasons aforestated, the writ petition is allowed in part; the impugned order dated 11.2.2010 (Annexure P-29) is modified to the extent that the first respondent is directed to consider the claim of the petitioners for the grant of new pay scales notified under the University C.W.P.No .5179 of 2010 9 Grants Commission Scheme, 1987 or subsequent corresponding revision thereto made by the State of Punjab in the higher Education Department. Needful, including the concurrence of the Finance Department, if required, shall be done within a period of four months from the date of receiving a certified copy of this order. Dasti. March 29, 2010 (SURYA KANT) Mohinder JUDGE +