* THE HON’BLE SRI JUSTICE DAMA SESHADRI NAIDU + WRIT PETITION Nos. 18255, 18256, 20544, 21883, 21894 and 25907 of 2010 % 23.06.2014 W.P.No.18255 of 2010 # Dr.A. Bhagwan and seven others. ..... PETITIONERs AND The Registrar, A.P. Horticulture University and Four others. .....RESPONDENTS ! Counsel for the petitioner : Sri J.R.Manohar Rao. ^ Counsel for respondents : Sri Deepak Bhattacharjee. < Gist: > Head Note: ? Cases referred: 1. (2007) 11 SCC 58. 2. 1992 Supp. (3) SCC 191. HON’BLE SRI JUSTICE DAMA SESHADRI NAIDU WRIT PETITION Nos. 18255, 18256, 20544, 21883, 21894 and 25907 of 2010 COMMON ORDER: All these Writ Petitions in the batch raise a common issue involving the interpretation of the provisions of a certain Governmental Order. All the petitioners are the teaching faculty in different universities, occupying the posts of either Associate Professor or Senior Scientist or Professor. Though in some of the Writ Petitions, the respondent universities are different, the issue raised by all the petitioners, however, is common and the adjudication required to be undertaken is also based on the same set of statutory provisions or administrative instructions. Accordingly, this Court proposes to dispose of all the Writ Petitions through a Common Order. For adjudicatory felicity, the facts in W.P.No.18255 of 2010 are taken as the basis. In any event, the details of the petitioners in all the Writ Petitions have been tabulated herein below to appreciate the issue comprehensively. THE GRAVAMEN: The issue in this Writ Petition concerns itself with the interpretation of certain provisions of G.O.Ms.No.14, Higher Education (UE.II) Dept., dated 20.02.2010 (‘G.O.Ms.No.14’ for brevity) issued by the Government of Andhra Pradesh, the second respondent, purportedly implementing the University Grants Commission (U.G.C) revised pay scales, 2006, to the benefit of the teaching staff in universities and colleges with effect from 01.01.2006. In fact, in the wake of implementing the said G.O., it appears that certain affected persons made a representation, ventilating their grievance, to the authorities of the respective universities. In turn, on the request of one of the universities, the second respondent issued certain interpretative directions concerning G.O.Ms.No.14, through Memo Dt. 6882/UE.II/2010-I, dt. 06.07.2010 (‘the impugned Memo’ for brevity), calling it a ‘clarification’ on the issue raised by the Andhra Pradesh Federation of University Teachers Association and also a letter said to have been addressed by the Director, State Audit, Andhra Pradesh, Hyderabad. Now, the petitioners, who are the teaching faculty in different universities, chiefly being Associate Professors, Senior Scientists a n d Professors, filed these Writ Petitions impugning the Memo dated 06.07.2010. Table Relating to the Designation of the Petitioners and the Names of the Respondents: SL. NO. CASE NO. DESIGNATION NAME OF THE RESPONDENT 01 WP 18255/2010 All are Associate Professors A.P. Horticultural University. 02 WP 18256/2010 Associate Professors: 2 to 4, 7 to 9,11,12,15,19,22 to 24, 27, 31, 37 and 38. Senior Scientists 1,5,6,10,13,14,16,17,18,20,21,25,26,28,29,30 32,33,34,35 and 36. Acharya N.G.Ranga Agricultural University. 03 WP 20544/2010 Associate Professors: 1,3,4,6,9 and 10. Professors: 2,5,7 and 8. Jawaharlal Nehru Technological University. 04. WP 21833/2010 All are Associate Professors. Andhra University. 05. WP 25907 of 2010 All are Associate Professors. Andhra University. 06. WP 21894 of 2010 All are Associate Professors. Jawaharlal Nehru Technological University. THE FACTS: The facts in brief are that the petitioners, who are a part of the teaching faculty in different universities, secured their employment either as Associate Professors or Senior Scientists or Professors in their respective universities. Now, confining the reference to W.P.No.18255 of 2010, it is seen that all the eight petitioners therein are the Associate Professors working in the Andhra Pradesh Horticultural University, Thadepallygudem, West Godavari District. They were initially appointed Assistant Professors in the respondent university between the years 1998 and 2001. Subsequently, they were appointed Associate Professors by direct recruitment on different dates between the years 2007 and 2009. While they were continuing in the service, the Government of Andhra Pradesh, the second respondent, issued G.O.Ms.No.14, dt. 20.02.2010, implementing the U.G.C Revised Pay Scales, 2006 to the teaching staff in universities and colleges with effect from 01.01.2006. In course of time, the respondent university passed a resolution on 19.03.2010 for implementation of U.G.C Revised Pay Scales, as prescribed in G.O.Ms.No.14, dt. 20.02.2010. Having issued Proceedings dt. 31.03.2010, the University fixed the pay of the petitioners in the scale of 37400-67000 with an A.G.P of 9000/-. It appears that with effect from 01.01.2006, the petitioners began drawing the salaries based on the said revised pay. In the wake of the implementation of revised U.G.C. Pay Scales in terms of G.O.Ms.No.14, certain faculty members, who had been extended the benefit of Career Advancement Scheme (C.A.S) made a representation to the university authorities ventilating their grievance that they had been omitted from the purview of the revised pay scales and that there had been certain anomalies in implementing the revised U.G.C Pay Scales as per G.O.Ms.No.14. The record reveals that subsequent to the clarification sought by the respondent authorities concerned, the second respondent is said to have issued the impugned memo. Interpreting the provisions of G.O.Ms.No.14, the State Government seems to have ‘clarified’ that the Associate Professors/Readers recruited prior to 12.02.2010 shall be placed in the pay band of Rs.15600-39100 only, and that when they complete 3 years of services, they shall be placed under the pay band of Rs.37400- 67000 with A.G.P of 9000. Apprehending that in the light of the Memo in reference, the university authorities would be depriving the petitioners the benefit of the revised pay scales, apart from recovering, what was in the view of the respondent University, the excess pay that had already been paid to the petitioners since 01.01.2006, the petitioners filed the present Writ Petition. The principal contention of the petitioners is that in the name of clarification, the second respondent replaced one anomaly with another and thereby making the petitioners suffering immeasurably. PETITIONERS’ SUBMISSIONS: Sri J.R. Manohar Rao, the learned counsel for the petitioners, has strenuously contended that insofar as G.O.Ms.No.14, dt.20.02.2010 is concerned, it has the avowed objective of implementing the revised U.G.C Scales of pay, 2006. Referring to paragraphs (a) (Viii), a (Xii) and (a) (Xvi) of Annexure II to G.O.Ms.No.14, the learned counsel has contended that the petitioners have all along been the Associate Professors and that they are eligible to be moved to the pay band of 37400-67000/-. It is the contention of the learned counsel that based on the eligibility of the petitioners, especially in the light of the provisions of G.O.Ms.No.14, the petitioners have initially been extended the benefit of revised pay scales of 2006. The learned counsel has pointed out that after the year 2000, the U.G.C issued regulations revising the pay scales in 2006 and 2009 and later in June, 2010. Thus, there have been three regulations revising the pay scales since 2000. According to the learned counsel, the U.G.C revised pay scale regulations for 2010 were issued in the month of June of that year; whereas, G.O.Ms.No.14 was issued on 20.02.2010. Accordingly, the provisions of G.O.Ms.No.14 shall be interpreted in the light of the regulations, especially, of 2006, rather than those of 2010. The learned counsel for the petitioners, during the course of his submissions, however, admits that there is an anomaly in applying the revised pay scales to the teaching faculty who were appointed prior to 01.01.2006 on one hand, and those who were appointed after 01.01.2006 on the other. According to the learned counsel, the university did observe that a Reader or an Associate Professor appointed prior to 01.01.2006 would be placed in the revised pay band after his completing three years’ service from the date of appointment; a Reader or an Associate Professor, who was appointed on or after 01.01.2006, however, would be straight away entitled to the revised pay scale without any waiting period. To put it simply, a person with the same qualification having been appointed even one day prior to 01.01.2006 would be required to wait until 01.01.2009 - for three years - to have the benefit of revised pay scale; whereas, a junior, who came to be appointed subsequently, would be entitled to the revised pay scale without any waiting period. Not only in his understanding, but also that of the university authorities, as well as the second respondent-Government, it is, contends the learned counsel, an anomaly, which perhaps is required to be rectified. The singular grievance of the petitioners, as has been canvassed by their learned counsel, is that on the representation of certain alleged affected persons, the second respondent, instead of rectifying the said anomaly, displaced it with another anomaly, in the name of clarification, thereby affecting a large spectrum of teaching faculty, including the petitioners. According to the learned counsel, the impugned Memo mandates that the Associate Professors/Readers recruited prior to 20.02.2010 shall be placed in the pay band of 15600-39000 only and that they were required to complete three years of service to be placed in the revised pay band. Extending the logic as could be applied to the pay revision with effect from 01.01.2006, it can be seen, contends the learned counsel, that in the present instance those who were appointed even one day prior to 20.02.2010 would have to wait till the completion of three years’ service; whereas, the juniors getting appointed even one day thereafter would be straight away getting the benefits of the revised pay scales. According to the learned counsel, the second respondent, in the name of clarification, substituted one anomaly with another without any justification; thereby affecting the career prospects of the petitioners adversely. The learned counsel has also made elaborate submissions concerning the supposed violation of the principles of natural justice on the part of the second respondent as well as the respondent university in not putting the petitioners, the affected persons, on notice prior to taking the decision - leaving aside its invalidity - affecting the substantive rights of the petitioners. However, for the purpose of present adjudication, an elaborate reference to them may not be required. In the end, summing up his submissions, the learned counsel for the petitioners has submitted that the impugned Memo dt. 06.07.2010 is grossly inequitable and is required to be set aside, so that the petitioners may continue to take the benefit of revised U.G.C pay scales in terms of G.O.Ms.No.14, dt.20.02.2010. THE RESPONDENTS’ SUBMISSIONS: Per contra, the learned Government Pleader has strenuously opposed the claims and contentions of the petitioners. To begin with, the learned Government Pleader has submitted that all the petitioners were appointed prior to the year 2010, when the U.G.C. Regulations of 2010, as well as G.O.Ms.No.14, dt. 20.02.2014, were not in force. According to him, prior to 2010, there was no category of Associate Professors in the schedule annexed to G.O.Ms.No.208, Higher Education (UV.II) (I), Dt. 29.06.1999, as per which the petitioners have been appointed. It is the contention of the learned Government Pleader that by then the U.G.C Regulations of 2000 were holding the field. Though prior to 2000, there were only three divisions in respect of the teaching faculty in universities and colleges, only in 2010 by way of G.O.Ms.No.14, five divisions were brought into existence; namely, Associate Professor (formerly Lecturer), Associate Professor (formerly lecturer with Senior Scale), Associate Professor/Reader and Lecturer (Selection Grade with less than three years of services), Associate Professor/Reader and Lecturer ( Selection Grade) with three years of service, and Professor. The learned Government Pleader has also further pointed out that in terms of U.G.C Pay Scales, 1996, as per G.O.Ms.No.208, dt. 29.06.1999, there were only four divisions; namely, Lecturer, Lecturer (Senior Scale), Lecturer (Selection Grade), Reader and Professor. The learned Government Pleader has repeatedly stressed the aspect that the terminology of Assistant Professor or Associate Professor and Professor in the revised U.G.C Scales was introduced only in 2006, whereas the petitioners had been appointed much prior to that time. According to the learned Government Pleader, the respondent university committed a mistake of fixing the pay of the petitioners, i.e., the direct recruitees, in the cadre of Reader, after 01.01.2006, in the revised pay scale without insisting on the completion of three years of service. In further justification of the stand adopted by the Government, the learned Government Pleader has contended that the revised pay band is applicable to those who were either appointed as Associate Professors as per the U.G.C Regulations, 2010 or completed three years of service as Readers after their appointment, apart from fulfilling the other conditions as prescribed in the U.G.C Regulations of 2010. The learned Government Pleader has also contended that even with regard to the appointment of the faculty, the U.G.C Regulations of 2000 and those of 2010 have marked differences regarding the entry level qualifications of the candidates. In other words, as per the Government, there is no justification in equating the academic faculty, who had been appointed prior to 2010 with those who were appointed in or after 2010. Further justifying the supposed clarification supplied by the respondent Government through the impugned Memo, the learned Government Pleader would contend that the assistance of the Government of India in implementing the Pay Scales would be there for only 4 ½ years i.e., from 01.01.2006 to 31.03.2010 and that there afterwards, the State Government should bear the entire expenditure. As such, it is the State Government, which is competent to oversee the implementation of the revised pay scales and thereby supply the missing links in implementing the scheme by issuing necessary administrative instructions. The learned Government Pleader has also contended that the Government has not diluted the G.O.Ms.No.14, dt. 20.02.2010 by issuing the impugned Memo; on the contrary, it has only clarified the true intention of the State in implementing the scheme of revised pay scales. The learned Standing Counsel for the respondent university, on his part, after adopting the submissions of the learned Government Pleader, has elaborated on the distinctions between the appointments made under the Career Advancement Scheme (C.A.S), 1996 regulations, and the direct recruitment, as in the case of the petitioners. Defending the impugned Memo, the learned Standing Counsel has also submitted that the petitioners are not eligible for the pay band of 37400-67000 with A.G.P of Rs.9000/- as the petitioners were appointed Associate Professors under direct recruitment as per the regulations in G.O.Ms.No.208, dt. 29.06.99. In a sense, the learned Standing Counsel has submitted that the respondent university is bound to follow the rules and regulations framed by the State Government, and a fortiori, the clarifications issued by it concerning t h e statutory rules, regulations, etc. The learned counsel representing the Director, State Audit i.e., 5th respondent, having adopted the submissions of the learned Standing Counsel and the learned Government Pleader appearing for the respondent Nos. 1 and 2 respectively, has further submitted that it is the prerogative of the Government as well as the university concerned to issue executive instructions with reference to pay fixation. The learned Standing Counsel has placed reliance on the judgments of the Hon’ble Supreme Judge in B. BHARAT KUMAR AND OTHERS V. OSMANIA UNIVERSITY AND OTHERS[1] and T.P. GEORGE AND OTHERS V. STATE OF KERALA AND OTHERS[2]. Heard Sri J. R. Manohar Rao, the learned counsel for the petitioners, the learned Government Pleaders, and the learned Standing Counsel for the respective universities, apart from perusing the record. THE ISSUE: On appreciation of the rival submissions, we can confine our discussion to the twin factors: Who are the beneficiaries under GO Ms. No.14? Whether the impugned Memo is justified in proposing to deprive the petitioners the benefit of the revised pay scales of 2006? THE DISCUSSION: We may begin our discussion with the well established legal premise that an order passed or a directive issued by the authorities should speak for itself in its justification, rather than having a prosthesis of post factum explanations coming to its rescue in the form of counter pleadings when the said order or directive is impugned. In other words, what is bad, if at all, cannot be sustained with subsequent justifications in the form of supplemental pleadings in a lis. An order, be it administrative or quasi- judicial, the distinction being ever so thin, ought to be a speaking one, thus imbued with reason. It could be seen that clause 7 of GO Ms. No.14, dt.20-02-2010 amply indicates that the UGC Revised Pay Scales, 2006 are applicable to the University and College Teachers, Librarians, Directors of Physical Education admitted to the privileges of the Universities. The scales shall be applicable to the faculty of all the State funded universities, which have been established through State Act and which receive Block Grants, Government and Aided Colleges, where UGC Scales of pay of 1996 were implemented/ extended. It is further made clear that the scales are applicable to those university and college teachers who were under the UGC scales of pay as on 1.1.2006 and recruited thereafter and fulfilled all the eligibility criteria laid down by the UGC for the purpose in the UGC Revised Pay Scales, 2006. We may further observe that Appendix-II to the GO Ms. No.14 provides the details of the revised pay scales, service conditions and Career Advancement Scheme for teachers and equivalent positions. Sub-clauses (viii), (xii) and (xvi) of clause (a), which are extracted herein below, provide in detail the pay band and other particulars for the Assistant Professor/Associate Professors/Professors in Colleges & Universities. “(viii) Posts of Associate Professor shall be in the pay Band of Rs.37400-67000, with AGP of Rs.9000. Directly recruited Associate Professors shall be placed in the Pay Band of Rs.37400-67000 with an A.G.P of Rs.9000, at the appropriate stage in the Pay Band in terms of the conditions of appointment. (xii) The incumbent Reader who is selected on or after 01.01.2006, shall be redesignated as Associate Professor from the date of his/her selection, and will be placed in the Pay Band IV of Rs.374000-67000 with AGP of Rs.9000. (xvi) The pay of a directly recruited Professor shall be fixed at a stage not below Rs.43000 in the Pay Band of Rs.37400-67000, with the applicable AGP of Rs.10000.” In this regard, the anomaly pointed out is that as per sub-clause (x) of Appendix-II of G.O.Ms.No.14, the incumbent Readers and Lecturers (Selection Grade) who have completed 3 years in the current pay scale of Rs.12000-18300 as on 01.01.2006 shall be placed in the pay band of Rs.37400-67000. Further in sub-clause (xii) of Appendix-II (a), it is stated that the incumbent Reader who was selected on or after 01.01.2006 shall be re- designated as Associate Professor from the date of his/her selection and shall be placed in the pay band-IV of Rs.37400-67000 with an AGP of Rs.9000. A Reader, appointed by direct recruitment prior to 01.01.2006 i.e., between 01.01.2003 and 31.12.2005, having less than three years service, shall be in the pay band of Rs.15600-39100. This gives rise to an anomaly since a directly recruited Associate Professor with longer service, having his entry prior to 01.01.2006, draws lesser pay than his junior who was recruited on or after 01.01.2006. The so-called clarification given by the 2nd respondent, as could be seen from the impugned Memo, runs on the following lines: “The existing designation of Associate Professor of A.P universities is NOT equal to the Associate Professor of UGC RSP-2006, in terms of pay. Thus, the existing Associate Professor of the Andhra Pradesh Universities either recruited directly or promoted under CAS shall be extended the pay band of Rs.15600-39100, with AGP of Rs.8000 irrespective of the date of promotion or selection. The Associate Professor/Readers with AGP Rs.8000 are eligible for the pay band of Rs.37400-67100 with AGP Rs.9000 after completion of three years of service in the pay band of Rs.15600-39100 with AGP Rs.8000 or in the pay scale of Rs.12000-18300 in pre-revised pay scale. Therefore, the Associate Professor/ Readers recruited prior to 20.02.2010 as per Rules (G.O.Ms.No.208, Higher Education (UE.II) Department, Dt. 29.06.1999) shall be placed in the pay band of Rs.15600 -39100 only, as and when they complete 3 years of service they will be placed in the pay band of Rs.37400-67000., AGP 9000. Further, it is clarified that the pay of directly recruited Professor, who have been recruited prior to 20.02.2010 shall be fixed as per fitment table in the pay band of Rs.37400-67000, as per the rules in G.O.Ms.No.208, HE (UE.II) Department, 29.06.1999. Further it is clarified that the pay of directly recruited Professor shall be fixed at Rs.43000/- in the pay band of Rs.37400-67000 with the AGP Rs.10000/- if the recruitment is made as per rules in G.O.Ms.No.14, HE (UE.II), Dept, dt. 20.02.2010. From the above ‘clarification’, the following things emerge: (1) that the existing designation of Associate Professor of A.P universities is not equal to that of the Associate Professor of UGC RSP-2006, in terms of pay; (2) that the existing Associate Professors of the A P Universities, either recruited directly or promoted under CAS, shall be extended the pay band of Rs.15600-39100, with AGP of Rs.8000/-, irrespective of the date of promotion or selection; (3) that the Associate Professors/Readers with AGP Rs.8000/- are eligible for the pay band of Rs.37400-67100 with AGP Rs.9000/- after completion of three years of service in the pay band of Rs.15600-39100 with AGP Rs.8000/- or in the pay scale of Rs.12000-18300 in pre-revised pay scale; and (4) that the Associate Professors/ Readers recruited prior to 20.02.2010 as per Rules, i.e., G.O.Ms.No.208, dt. 29.06.1999, shall be placed in the pay band of Rs.15600 -39100, and only as and when they complete 3 years of service, they shall be placed in the pay band of Rs.37400-67000., AGP 9000/-. Now, in the first place, as has been contended by the learned counsel for the petitioners, the anomaly continues in a different garb, and in a differed manner. To dilate, it could be seen that once again those Associate Professors/Readers recruited prior to 20.02.2010 were required to wait for three years to get the revised pay band; whereas those who have been appointed subsequent thereto, need not. Now coming to the substantive part of the ‘clarification’, I am afraid it is fallacious for the 2nd respondent to contend that that the existing designation of Associate Professor of A.P universities is not equal to that of the Associate Professor of UGC RSP-2006, in terms of pay. At least, such a distinction is not discernible either from the UGC RSP-2006 or from its off-shoot - GO Ms. No.14. It can further be seen that in sub-clause (xii) the nomenclature of reader has been employed as an equivalent of Associate Professor. It has provided for the re- designation of Reader as Associate Professor. It is further pertinent to observe that the sub-clause makes it clear in no uncertain terms that the re-designated Associate Professor is entitled to the revised pay band from the date of his/her selection. It is equally important to observe that GO Ms. No.14, in its entirety, has not made any finer distinction, in the manner of logomachy, concerning the nomenclature of designations. What cannot be lost sight of is that the UGC desired the universities, etc., to have the revised pay scales to the existing set up of academic faculty, albeit with a mere change in the nomenclature of certain posts. Neither the UGC regulations, nor GO Ms. No.14 has created a separate cadre of posts to be eligible for the revised pay scales. At least, neither of them spells it out. In the light of the above discussion, it inevitably leads to a question: Whether the ‘clarification’ is interpretative in nature or amendatory in reality? In the legal hierarchy, it is axiomatic that an administrative instruction cannot displace a rule or a Governmental Order. An executive instruction or direction inconsistent with or in derogation of a statutory rule cannot be sustained. It will otherwise have the effect of abridging the solemn statutory mandate by a mere executive fiat. Indeed, an executive instruction or direction is only supplementary in nature, thereby filling up the legislative lacunae, if any,