1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION No. 7364 OF 2008 1] Dr. Balaji s/o. Ramrao Kawathekar Age 59 years, Occ. Service in Marathwada Agricultural University Parbhani, R/o. Vivek Nagar, Vasmat Road, Parbhani, Dist. Parbhani. 2] Dr. Sudhakar s/o. Nagorao Kulkarni Age 58 years, Occ. Service in Marathwada Agricultural University Parbhani, R/o. Ramkrishna Nagar, Parbhani, Dist. Parbhani. 3] Dr. Digambar s/o. Wamanrao Wadnerkar Age 57 years, Occ. Service in Marathwada Agricultural University Parbhani, R/o. Shivram Nagar, Parbhani, Dist. Parbhani. 4] Dr. Dadarao s/o. Shankarrao Suryawanshi Age 59 years, Occ. Service in Marathwada Agricultural University Parbhani, R/o. Shivram Nagar, Parbhani, Dist. Parbhani. 5] Dr. Vitthal S/o. Deorao Pawar, Age 59 years, Occ. Service in Mahatma Phule Krishi Vidyapith Rahuti, Taluka Rahuri District Ahmednagar. 2 6] Dr. Ashok S/o. Narayanrao Kulkarni Age 57 years, Occ. Service in Marathwada Agricultural University Parbhani, R/o. Vidya Nagar, Parbhani, Dist. Parbhani. 7] Dr. Kalyan s/o. Rambhau Mitkari Age 57 years, Occ. Service in Marathwada Agricultural University Parbhani, R/o.Ramdas Nagar, Parbhani, Dist. Parbhani. 8] Dr. Renukadas S/o. Purushottam Barbind Age 56 years, Occ. Service in Marathwada Agricultural University Parbhani, R/o. Kalyan Nagar, Parbhani, Dist. Parbhani. 9] Dr. Manik S/o. Balaji Misal Age 58 years, Occ. Service in Marathwada Agricultural University Parbhani, R/o. Bhagyalaxmi Nagar, Parbhani, Dist. Parbhani. 10] Dr. Anil s/o. Shrikrishna Ansinkar Age 60 years, Occ. Service in Marathwada Agricultural University Parbhani, R/o. C/o. Mr. Bhatmbrikar, Sharda Nagar, Parbhani, Dist. Parbhani. 11] Dr. Anil S/o. Namdeorao Gite, Age 58 years, Occ. Service in Marathwada Agricultural University Parbhani, R/o. Krishi Sarthi Nagar, Parbhani, Dist. Parbhani. 3 12] Dr. Indradas S/o. Ambadasrao Madrap, Age 57 years, Occ. Service in Marathwada Agricultural University Parbhani, R/o. Krishi Sarthi Nagar, Parbhani, Dist. Parbhani. 13] Dr. Purushottam S/o. Ranba Khapre, Age 57 years, Occ. Service in Marathwada Agricultural University Parbhani, R/o. Lokmaya Nagar, Parbhani, Dist. Parbhani. 14] Dr. Ashok Appasaheb Chavan Age 57 years, Occ. Service in Marathwada Agricultural University Parbhani, R/o. Shivram Nagar, Parbhani, Dist. Parbhani. 15] Dr. Shivraj s/o. Sangappa Bhatade Age 58 years, Occ. Service in At present working in Cotton Research Center, Nanded, under Marathwada Agricultural University Parbhani, R/o. Shivaji Nagar, Nanded, Dist. Nanded. 16] Dr. Raosaheb S/o. Ramrao Chole Age 58 years, Occ. Service in Marathwada Agricultural University Parbhani, R/o. Ramkrishna Nagar, Parbhani, Dist. Parbhani. 17] Dr. Shyamsundar s/o. Dattopant Wangikar Age 57 years, Occ. Service in Marathwada Agricultural University Parbhani, 4 R/o. Krishi Sarthi Nagar, Parbhani, Dist. Parbhani. 18] Dr. Vilas S/o. Trimbakrao Wattamwar Age 58 years, Occ. Service in Marathwada Agricultural University Parbhani, R/o. Vishnu Nagar, Parbhani, Dist. Parbhani. 19] Dr. Balasaheb S/o. Manikrao Thombre Age 57 years, Occ. Service in College of Agriculture Latur, under Marathwada Agricultural University Parbhani, R/o. Near Medical College, Ambajogai Road, Latur Dist. Latur. 20] Dr. Balaji S/o. Panditrao Kurundkar Age 58 years, Occ. Service At present working at Wheat Research Station, Mahabaleshwar, Under Mahatma Phule Krishi Vidyapith, Rahuri Taluka Rahuri, Dist. A'nagar. 21] Dr. Ramakant S/o. Ramrao Kulkarni Age 63 years, Occ. Pensioner, R/o. Station Road, Parbhani, Dist. Parbhani. 22] Dr. Mahadeo S/o. Annarao Patil Age 61 years, Occ. Pensioner, R/o. Village Bhangali Taluka and Dist. Latur. 23] Dr. Dnyanoba S/o. Dhondiba Nirmal, Age 60 years, Occ. Pensioner, R/o. Shivaji Nagar, Parbhani Dist. Parbhani. 5 24] Dr. Sharad S/o. Sahebrao Deshmukh (Died through LRs) Rukhminibai w/o. Sharad Deshmukh Age 56 years, Occ. Household R/o. Narayan Chal, Parbhani Dist. Parbhani. .. Petitioners Versus 1] The State of Maharashtra through Secretary Agriculture, Animal Husbandry Dairy Development and Fisheries Department, Mantralaya Annexe, Mumbai 32. 2] Marathwada Agriculture University through Registrar, Marathwada Agriculture University, Parbhani Dist. Parbhani. 3] Maharashtra Council of Agriculture Education and Research through its Chairman, the Minister for Agriculture, Animal Husbandry, Dairy Development and Fisheries Department, 132/B, Bhamburda, Bhosle Nagar, Pune-07. .. Respondents. --- Mr. P.R. Katneshwarkar, Advocate for petitioner. Mr. S.K. Kadam,AGP for the respondent NO.1 Mr. Vinod Patil, Advocate holding for Mr. M.N. Navandar, Advocate for respondent No.2 Mr. S.R. Deshpande, Advocate for the respondent No.3 CORAM : A.P. DESHPANDE & N.D. DESHPANDE,JJ. 6 DATE OF RESERVING THE JUDGMENT: 16th FEBRUARY, 2010. DATE OF PRONOUNCING THE JUDGMENT :- 26TH FEBRUARY, 2010. ORAL JUDGMENT : - [PER A.P. DESHPANDE,J.] 1] Rule. Rule made returnable forthwith. Taken up for final hearing by consent of parties. The State of Maharashtravide Govt. Resolution dated 30th December, 1999, decided to extend the benefit of revised University Grant Commission pay scales, as adopted by the Indian Council of Agricultural Research and Education, to the academic staff working in all the Agricultural Universities and affiliated colleges in the State with retrospective effect from 1st January, 1996. The revised UGC pay scales are indicated in Annexure -I to the said Government Resolution. The revision of pay scale was in response to the communication dated 3rd March, 7 1999 from the Ministry of Agricultural, Department of Agriculture Research and Education, Government of India, New Delhi, wherein, the Government of India informed the State Government that, if the State Government adopts the revised UGC Pay Scales for agricultural universities in the State, the Central Government will provide 80% of the additional expenditure involved for giving effect to the revised pay scales. The central assistance was to be available for the period commencing from 1/1/1996 to 31/3/2000. The remaining 20% of the expenditure was to be borne by the State Government. 2] Amongst other incentives, the Govt. Resolution also introduced a career advancement scheme, which is contained in Clause No.4 of the Govt. Resolution which reads thus :- a) Minimum length of service for eligibility to move into the grade of Assistant Professor (Senior Scale)/Lecturer (Senior Scale) would be 8 four years for those with Ph.D., five years for those with M.Phil. And six years for others as Assistant Professor/Lecturer and for eligibility to move into the grade of Assistant Professor (Selection Grade)/Lecturer(Selection Grade)/Associate Professor, the minimum length of service as Assistant Professor (Senior Scale)/Lecturer (Senior Scale) shall be uniformly five years. b) For movement into grades of Associate Professor and above, the minimum eligibility criterion would be Ph.D. Those teachers without Ph.D. Can go upto the level of Assistant Professor (Selection Grade)/Lecturer (Selection Grade). d) An Associate Professor with a minimum of eight years service will be eligible for consideration for appointment as a Professor. 3] The petitioners in this petition were initially appointed as Assistant Professors, who are claiming the benefit under the Career Advancement Scheme. The 9 Career Advancement Scheme clearly indicate that an Assistant Professor would move into the grade of Assistant Professor (Senior Scale) after 4 years if possessed of Ph.D., 5 years for those with M.Phil. and 6 years for others. The eligibility to move into the grade of Assistant Processor (Selection Grade)/Associate Professor, would be minimum length of service as Assistant Professor (Senior Scale) for 5 years uniformly. It is undisputed that all the petitioners are possessing qualification of Ph.D. The scale provided for the post of Assistant Professor is 8000-275-13500, for Assistant Professor (Senior Scale) is 1000-325-15200, and for Assistant Professor (Selection Grade) it is 12000-420-18300, whereas, for Associate Professor the scale is 12000-420-18300, which is equal to the scale provided to Assistant Professor (Selection Grade). The next higher post to that of Associate Professor is of Professor and the pay scale admissible to the post of Professor is Rs.16,400-4500-20900-500-22400. 10 The petitioners under Career Advancement Scheme, were granted the scale of Assistant Professor (Selection Grade) which pay scale is equivalent to that of pay scale of Associate Professor. The question that arises for consideration in the present petition is, as to whether the petitioners who are holding the post of Assistant Professor substantively could be granted the pay scale of the post of Professor. 4] Few facts, which are necessary to adjudicate the controversy, are narrated hereinbelow :- . Prior to the revision of pay scales, the Government, vide Govt. Resolution dated 20th March, 1997, decided that such of the Assistant Professors, who are in the pay scale of 3700-5700 ( as per the 4th pay commission), possessing Ph.D. Qualification, they be granted the nomenclature or designation as “Associate Professor”. However, the Govt. Resolution dated 20th 11 March, 1997 clarified that such Assistant Professors even after grant of designation for name sake as “Associate Professors” will continue to carry on the same duties and responsibilities and there will be no change in the working hours and/or nature of the job. It is also clarified that their seniority in the cadre of Assistant Professor would remain the same. In clause No.4, it is categorically stated that the Assistant Professors who would be named/designated as Associate Professors, would stand below the Associate Professors. In para.5, it is also clarified that just because the Assistant Professors holding Ph.D. Qualification are to be designated/named as Associate Professors, they would not be entitled to claim the post of Professor. Thus, on close scrutiny of the Government Resolution dated 20th March, 1997, it is crystal clear that though the Assistant Professors with Ph.D. Qualifications in the Scale of 3700-5700 (as per 4th pay commission) were named/designated as Associate Professors, there would 12 be no change in their status, barring the change in nomenclature, they continue to hold the post of Assistant Professor substantively. . It is in this background the petitioners came to be designated as Associate Professors and hence have described themselves as Associate Professors, in the writ petition and are claiming benefit of pay scale admissible to the post of Professor. The respondent No.2 University, acting in pursuance of the Government Resolution dated 20th March, 1997, changed the nomenclature of the petitioner's post from Assistant Professors to that of Associate Professors, which is for name sake only. 5] After the introduction of the revised pay scales, the revised pay scales were not automatically made applicable to the incumbents. However, the same were subject to a selection process. It is the case of the petitioners that on 16/11/2003, the petitioners were called 13 for interviews and came to be awarded higher pay scale admissible to the post of Professor, it being Rs. 16400-22400 under the Career Advancement Scheme, with effect from the date, from which they became eligible. Perusal of the order awarding pay scale of Professor to the present petitioners would indicate that the higher pay scales were granted subject to the Post-fact approval of Maharashtra Council of Agricultural Education and Research (MCAER for short), viz. the respondent No.3. The order issued by the University granting higher pay sale to the petitioners dated 26th October, 2004, further makes it clear “ the above orders are issued subject to post facto approval of MCAER and in case of suitability/eligibility of any of the persons referred to above as assessed by the University Level Selection Committee is not agreed to by the authority concerned, the orders in respect of such candidate will be treated as withdrawn and the payment, if any , made will be recovered from the concerned's pay 14 and or pensionary benefits. The candidate will have to execute an undertaking to this effect in the enclosed form and without such undertaking no benefits of Professor's scale will be allowed.” It is thus clear that though the petitioners were granted the scale of the post of Professor under the Career Advancement Scheme, the same was subject to the post facto approval by the MCAER and subject to furnishing of an undertaking that in the event, the decision is not approved by the authority, the petitioners will have to return the amount received in excess. 6] Thus, the petitioners started drawing the salary in the pay scale admissible to the post of Professor though none of the petitioners had ever entered the cadre of Associate Professors substantively and were only for name sake designated as Associate Professors under the earlier Govt. Resolution dated 20th March, 1997. 15 7] The University, thereafter forwarded a proposal wherein, higher pay scale of Professor was granted to the Associate Professors working substantively in that cadre, so also, the present petitioners, who were not holding the post of Associate Professor substantively, however, were granted the said designation. . On receipt of the proposal from the University for post facto approval, the respondent No.3, vide its communication dated 5th August, 2005, turned down the approval to the grant of pay scale of Professor to the petitioners/Assistant Professors (Selection Grade). It is seen that the letter dated 5th August, 2005,issued by the respondent No.3, invited attention of the University to a letter received from the Additional Secretary, Government of India, dated 19/4/2004, and more particularly, to the clarification at Sr.No.5., and the respondent No.2 was directed to prepare a proper proposal in the light of the 16 clarification at Sr. No. 5(B). After introduction of the pay revision, certain anomalies and difficulties had arisen in the implementation of the Career Advancement Scheme and hence, in regard to the doubts expressed and references received, seeking clarification, the letter dated 19th April, 2004 was addressed by the Ministry of Agriculture, department of Agricultural Research and Education, to the Chief Secretaries of all the States. The relevant query and the clarification is at item No. 5(b) which reads thus :- Sr.No. Points of Doubt Clarification 5(b) Whether a Lecturer (Selection Grade) on acquiring Ph.D. Degree would be promoted as Principal Professor irrespective of the date of acquiring the Ph.D. Degree Since 8 years of service as Associate Professor/Reader is mandatory for being considered for the post of Professor, a Lecturer (Selection Grade) would be promoted as Professor only after he completes eight years service after he becomes Associate Professor/Reader on acquiring Ph.D. Degree. 17 . On the advise of the respondent No.3, the University proceeded to withdraw the higher scale granted to the present petitioners of the post of Professor vide orders dated 30/1/208 and 4/2/2008. Aggrieved thereby, the present writ petition came to be filed. In similar situation, the Registrar of Dr. Balasaheb Sawant Konkan Krishi Vidyapith, Ratnagiri, had sought clarification from the Ministry of Agriculture, Government of India. The clarification issued on 22/8/2007, in regard to point N.8, is very relevant. In the said communication, it is stated that it has been clarified that for promotion to the post of Professor (promotion) 8 years service as Reader/Associate Professor with Ph.D. In the revised pay scale of Rs. 12000-18300 must remain the minimum eligibility. Thereafter, it is stated that “ In other words, only the Readers/Associate Professors in the scale of Rs. 12,000-18300, with Ph.D. Degree are eligible for placement 18 in the scale of Professor after completion of 8 years service in the grade.” It is then stated that, “There is no provision in the revised Career Advancement Scheme notified by the UGC, whereby, the Assistant Professors (Selection Grade) could be given the scale of Professor.” 10] It is to be seen that the revised pay scales are to be uniformly applied, in accordance with the scales notified by the UGC. Career Advancement Scheme itself provides for redressal of anomalies. Clause 6 thereof, reads thus :- “.Redressal of Anomalies : Anomalies arising after implementation of this order/notification shall be brought to the notice of ICAR which will be considered in consultation with DOPT/Dept. Of Expr. Ministry of Finance..” . We are also informed by the learned counsel appearing for the respondents, that no other agricultural university in the State of Maharashtra has 19 granted revised scale of Professor to the Assistant Professors ( Selection Grade). 11] In the above factual matrix, two fold submissions are made by Shri Katneshwarkar, the learned counsel for the petitioners. [i] That, the present petitioners having been granted the status of Associate Professors in the year 1997 itself, they are entitled to be paid in the scale admissible to the post of Professor at par with the Associate Professors who are holding the said post substantively. . Reverting back to clause 4 of the Govt. Resolution,it is seen that the minimum length of service for eligibility to move into the Grade of Assistant Professor (Senior Scale) and minimum length of service for eligibility to move into the grade of Assistant Professor (Selection Grade) is stipulated for, in sub-clause (a). However, sub- 20 clause (C) lays down that Associate Professor with a minimum 8 years service will be eligible for consideration for appointment as Professor. It is nowhere stipulated in the said Govt. Resolution that an Assistant Professor would be eligible to the pay scale admissible to the post of Professor. . As stated hereinabove, only for name sake, the Assistant Professors with Ph.D. Qualification were designated as Associate Professors, all other conditions of service such as duties, responsibilities, working hours, seniority etc., remaining the same. 12] The decision of the State Government to change the nomenclature of the post occupied by the Assistant Professors with Ph.D. Degrees to that of Associate Professors or in other words designating the petitioners as Associate Professors, in our considered opinion, does not confer or bestow a status of Associate 21 Professor on the Assistant Professors. At no stretch of imagination can it be said that, on conferring a new nomenclature , there had occasioned change in the cadre of the petitioners. Their cadre remained the same i.e. of Assistant Professors. In that view of the matter, we reject the contention of the learned counsel for the petitioners that the present petitioners are covered by clause 4(c) of the Career Advancement Scheme. 13] It is next contended that the respondent No.3 MCAER, has no role to play under the scheme of the Act or the Government Resolution in the matter of grant or refusal of approval to the decision of the University to grant higher pay scale. . We are not in agreement with the said submission. 14] Perusal of Section 12 of the Maharashtra Agricultural Universities Act, 1983, provides for constitution 22 of State Council and its powers and functions, which reads thus :- 12.(1) For the purposes of effective coordination in the activities of all Agricultural Universities in the State, particularly in relation to teaching, research, extension education and other matters of common interests and for having periodical evaluation of the functioning of the Universities and supervision over the Universities and their academic and financial activities and programmes, the State Government shall constitute a Council to be called “ the Maharashtra Council of Agricultural Education and Research”. 12(2) (a) the Minister for Agriculture, Maharashtra state, shall be the Chairman of the State Council; (b) The State Government may appoint a person who in its opinion, has expertise in any 23 aspect of agricultural development, to be the Vice-Chairman of the Council. (c) The Council shall consist of the following other members, namely :- (i) the Vice-Chancellors of the Agricultural Universities in the State as ex-officio members; (ii) the Chief Secretary to the Government and the Agriculture, Finance and Planning Secretaries to Government as ex-officio members; (iii) one representative of the Indian Council of Agricultural research to be appointed by the State Government; (iv) four non-official members of the Executive Councils concerned to be appointed by the State Government, one from each Agricultural University area; (v) one member to be appointed by the Chancellor; (vi) two agricultural scientists to be appointed by the State Government; 24 (vii) the member-secretary, a whole time officer, to be appointed by the State Government. 12 (3) Without prejudice to the generality of the provisions of sub-section (1), the Council shall have the following powers and functions, namely :- (a) to approve the annual plans of the Universities and the schemes forming part of such plans; (b) subject to the provisions of Section 54, to approve the annual financial estimates of the Universities; (c) to grant approval to any proposals by the Universities for re-appropriation of budget grants; (d) to grant permission to the Universities for starting any new faculties, courses or disciplines or departments, as well as introduction of additional elective subjects for any curriculum; (e) to grant administrative approval to any building proposed to be constructed by any 25 University, the cost of which is estimated to be three lakhs rupees or more ; (f) to grant administrative approval to any equipment proposed to be purchased by any University, the cost of which is estimated to be five lakhs rupees or more; (g) to review, from time to time, the work done in the Universities relating to agricultural education, teaching, research and extension education programmes including the work connected with animal husbandry, horticulture, forestry, dairy science and food technology and fisheries with a view to achieving effective co- ordination in the activities of the Universities and to give them suitable guidance and directions; (h) to apprise the Chancellor of the functioning of the Universities in the light of the periodical evaluation made by it; (i) to move the State Government to release funds to the Universities, both plan and non-plan at such intervals as may be found necessary, on the basis of the decisions taken by the Councils; 26 (j) to advise the State Government on any matters relating to the activities of the Universities, which may be referred to it by the State Government. (k) to exercise such other powers and to discharge such other function as are incidental to or requisite to give effect to the provisions of this Act. 12(4)(a) The council, in the exercise of its powers and the discharge of its functions, shall have the power to issue necessary directions to the Universities, under intimation to the Chancellor, which shall be final and binding on the Universities. (b) It shall be the duty of the Vice-Chancellor concerned to ensure that such directions are promptly and properly implemented, and for this purpose the Vice-Chancellor shall have and exercise all the necessary powers as provided in sub-section (6) of Section 18.” 27 15] Placing reliance on the provisions of Section 12, the learned counsel Shri S.R. Deshpande, appearing for the respondent No.3 MCAER, has rightly submitted that the State Council ( MCAER ) is a high powered Authority having supervisory power over the functioning of the Universities. The Vice Chancellors of all the Agricultural Universities in the State are Ex-officio Members. 16] We have no iota of doubt that for the purpose of effective coordination in the activities of the Agricultural Universities in the State, particularly in relation to Academic and financial activities, the MCAER has been constituted. The University on its own, cannot grant higher pay scale without the sanction of the respondent No.3 - MCAER. All Annual financial estimates and budget appropriation is made subject to the supervision of the respondent NO.3. The university has rightly sought post facto approval from the respondent No.3 – State council in the matter of grant 28 of higher pay scale to the present petitioners after granting higher pay scales provisionally. The University has also rightly withdrawn the higher pay scale granted to the petitioners in compliance of the directions issued by the respondent No.3. We do not see any merit in the contention raised by the learned counsel for the petitioners that the respondent No.3 has no power, authority or jurisdiction to refuse the approval sought for, by the University. 17] In the result, there being no merit in the petition, the same is dismissed. Rule is discharged. [N.D. DESHPANDE,J.] [A.P. DESHPANDE.J.] Grt/-