IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.2.2010 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.103 of 2008 N.Aruna Giri .. Petitioner Vs. 1. The Chairman University Grants Commission Bahadur Shah Zafar Marg New Delhi – 110 002. 2. The Registrar Pondicherry University Pondicherry – 605 014. .. Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of writ of Mandamus as stated therein. For Petitioner : Mrs.G.Thilakavathi For Respondents : Mr.P.R.Gopinathan for 1st respondent Mrs.A.V.Bharathi for 2nd respondent ORDER The writ petition is filed for a direction against the respondents to grant financial upgradation to the next scale of Rs.16,400-450-22,400/- to the isolated post of Public Relations Officer under the second respondent/ University as per memorandum dated 9.8.1999 of the Ministry of Personnel, Public Grievances and Pensions with effect from 13.7.2000 with interest at the rate of 18% per annum by the second respondent. 2.1. The second respondent is a Central University established by an act of Parliament under the Pondicherry University Act, 1985. The first respondent determines the norms regarding the scales of pay to be granted to various teaching and non-teaching, administrative and ministerial positions in the University and therefore, the periodical regulations of the University Grants Commission are applicable to the second respondent/University. https://hcservices.ecourts.gov.in/hcservices/ 2.2. The first respondent by notification dated 24.12.1998, based on the recommendations of the Ministry of Personnel, Public Grievances and Pension, has undertaken to regulate the various schemes, including the Assured Career Progression Scheme (for brevity "the ACP Scheme"). Accordingly, in respect of the isolated posts of the Group 'A' categories, where the promotional avenues are remote, to avoid stagnation, one financial upgradation was proposed as per the memorandum dated 9.8.1999 formulating the ACP Scheme and the same was subject to certain conditions. 2.3. It is stated that after the memorandum was issued in August, 1999, the first respondent in the year 2000 has called upon the second respondent to implement the same and in spite of the same, the second respondent has not proceeded further and thereby, the petitioner who has been holding the post of Public Relations Officer, which is an isolated post, is put to prejudice. It is stated that in respect of Group 'A' category posts in the second respondent/University, namely Deputy Registrar, Public Relations Officer (isolated post), Planning and Development Officer, Deputy Finance Officer, etc., the scale of pay is Rs.12,000-420-18,300/- and the next higher grade as per the hierarchy is Rs.16,400-450- 22,400/-. Therefore, according to the petitioner, as per the scheme the petitioner is automatically entitled to be granted financial upgradation at the scale of Rs.16,400-450-22,400/- and as a person holding the isolated post, the financial benefits should have been given from 13.7.2000. However, the said benefit has not been given in spite of the first respondent making periodical query regarding details. 2.4. The benefits extended as per the scheme dated 9.8.1999, as reiterated by the first respondent, was not conferred and therefore, the petitioner filed W.P.No.31469 of 2007 for granting the next financial upgradation available in the University, namely Rs.16,400- 450-22,400/- with effect from 13.7.2000. By order dated 28.9.2007, this Court has directed the University to cause necessary deliberations and pass appropriate orders within three weeks. 2.5. It is stated that after the said order certain proposals were sent on 8/19.10.2007 seeking permission from the Ministry to extend the next higher scale of pay of Rs.16,400-450-22,400/- to the petitioner, since the Executive Committee of the University has resolved to extend the said benefit. 2.6. The complaint of the petitioner is that delay has been caused deliberately only to avoid the said benefits to the petitioner and the same is questioned on the grounds that it is violative of Articles 14, 19(1)(g) and 21 of the Constitution of India; that in spite of the direction given by this Court, in the guise of availing permission from the Ministry of Human Resources https://hcservices.ecourts.gov.in/hcservices/ Development Department which has nothing to do with the issue, the matter is being dragged on; and that the upgradation of scale of pay for the isolated post is to be considered as per the resolution of the Executive Committee. 3.1. In the counter affidavit filed by the second respondent, a preliminary objection is raised regarding non-inclusion of necessary parties, viz., Government of India (Department of Personnel and Training) and the Ministry of Human Resource Development. It is stated that as per the ACP scheme formulated by the Government of India the maximum ceiling prescribed under the ACP scheme is Rs.14,300-18,300/-, and therefore, a decision on the request of the petitioner for a scale of pay of Rs.16,400-450-22,400/-, which is above the maximum ceiling, can be taken only by the Government of India (Department of Personnel and Training) and the Ministry of Human Resource Development. 3.2. While it is admitted that in the memorandum dated 9.8.1999, the Ministry of Personnel, Public Grievances and Pensions has formulated the said ACP scheme to the isolated posts in Group 'A' where no promotional avenues are available, it is stated that the first financial upgradation shall be after 12 years of regular service and the second upgradation shall be after 12 years of regular service from the date of the first financial upgradation subject to fulfillment of prescribed conditions. It is stated that the highest pay scale up to which the financial upgradation under the Scheme shall be available will be Rs.14,300-400-18,300/- and beyond this level, there is no financial upgradation. 3.3. It is stated that as far as the second respondent/University, the scheme came into operation only on 18.12.2000 and the highest pay scale to which the petitioner is eligible as per the scheme is Rs.14,300-400-18,300/-. Since the petitioner's claim was for more than the highest pay as per the scheme, the matter was referred to the Ministry of Human Resource Development, which in turn referred the matter to the University Grants Commission and the University Grants Commission has approved only the permissible scale of Rs.14,300-18,300/- to the petitioner under the ACP Scheme. 3.4. It is stated that as per the procedure the University has convened the meeting of the Executive Committee to consider the case of the petitioner, however no decision was taken. It is stated that the case of the petitioner would be considered again in the next meeting of the Committee and if the Committee recommends, he will be granted scale of pay of Rs.14,300-18,300/- with effect from the date of eligibility under the ACP Scheme with full financial benefits. It is stated that in the meantime the petitioner has already been given the new pay scale as per the VI Pay Commission, viz., https://hcservices.ecourts.gov.in/hcservices/ Rs.37,400-67,000/- with effect from 1.1.2006, which is equivalent to the pre-revised scale of Rs.14,300-18,300/-. The petitioner was also paid arrears from 1.1.2006 till date. What remains to be paid is arrears in respect of the pre-revised scale of Rs.14,300- 18,300/-, viz., from the date of his eligibility to 31.12.2005. Effective from 1.1.2006, the petitioner has also been receiving the new pay scale equivalent to the pre-revised eligible ACP scale of Rs.14,300-18,300/-. 3.5. It is stated that the request of the petitioner would amount to claim of more amount than what is prescribed by the scheme. It is also the case of the second respondent that the next higher scale of pay as per the University hierarchy is Rs.16,400- 450-22,400/-, which is the scale of pay of the University Registrar, Finance Officer and Controller of Examinations, which are not promotional posts. It is stated that the petitioner is entitled to the pay scale of Rs.14,300-18,300/- only, which has been paid and arrears have also been paid to him and that the maximum ceiling prescribed in the original ACP scheme has been paid. 3.6. It is stated that for the purpose of awarding higher scale of pay as claimed by the petitioner, the matter has been referred to the Ministry of Human Resource Development and they have not agreed to the request and ultimately, the University Grants Commission has approved the scale of Rs.14,300-18,300/- to the petitioner under the ACP Scheme. The contention of the petitioner that the Ministry of Human Resource Development has nothing to do with the implementation of the ACP scheme is denied. It is stated that the very implementation of ACP Scheme is as per the approval of the said Department dated 6.10.2000, which in turn is based on the orders of the Department of Personnel and Training, Government of India. Unless the Ministry of Human Resource Development and the Department of Personnel and Training amends the ACP Scheme making provision for the scale of pay of Rs.16,400-22,400/-, the claim of the petitioner cannot be entertained. 3.7. It is also stated that the University has taken all necessary steps and action in dealing with the ACP issue with respect to the petitioner and the claim of the petitioner for payment of Rs.16,400-22,400/- was not approved as per the scheme and therefore, the University has no power unless and until the Government of India amends the provision of the scheme making the scale as Rs.16,400-22,400/-. 4. It is reiterated by the petitioner that the scale of Rs.14,300-18,300/- is not available with the University as approved by the University Grants Commission and the next pay scale beyond Rs.12,000-420-18,300/- is Rs.16,400-450-22,400/-. It is stated that the petitioner was granted only the benefit of Rs.12,400-420- 18,300/-. https://hcservices.ecourts.gov.in/hcservices/ 5.1. It is the contention of the learned counsel for the petitioner that in the Pondicherry University the scale of pay in respect of the Public Relations Officer was Rs.12,400-420-18,300/- and there is no scale of pay as Rs.14,300-18,300/- and that it is only the pay scale of Rs.12,400-420-18,300/- which has been made as per the revision as Rs.37,400-67,000/- and therefore, it is her case that under the scheme after Rs.12,400-420-18,300/-, the next scale of pay should be taken as Rs.16,400-450-22,400/-. 5.2. It is her case that the Government of India is not a party to the scheme at all and therefore, there is no necessity to make the Government of India as a party. 6. On the other hand, it is the contention of the learned counsel for the respondents that the scale of pay claimed by the petitioner is not permissible under the ACP scheme. 7. A reference to the Assured Career Progression Scheme formulated by the University Grants Commission which has come into effect from 9.12.2000 shows that the scheme which was in existence in the Government of India, Ministry of Personnel, Public Grievances and Pensions was decided to be extended to the employees in quasi- government organizations, autonomous organizations, etc. in consultation with the Department of Personnel and Training and guidelines were issued which were similar to those guidelines issued by the Government of India. The said scheme also makes it clear that in case of any doubt, a reference has to be made to University Grants Commission for seeking clarification from the Ministry of Human Resource Development before the scheme is implemented. 8. The scheme formulated by the Government, Ministry of Personnel, Public Grievances and Pensions, which is made applicable to the quasi-governmental organizations like Universities states that the two financial upgradations under the ACP scheme shall be available only if no regular promotions during the prescribed period (12 and 24 years) have been availed by an employee and in cases where two prior promotions on regular basis have already been received by an employee, no benefit under the ACP scheme should accrue to him. 9. The financial upgradation under the scheme is subject to certain conditions, one of the conditions, viz., condition No.(7) is as follows: "7. Financial upgradation under the Scheme shall be given to the next higher grade in accordance with the existing hierarchy in a cadre/category of posts without creating new posts for the purpose. However, in case of isolated posts, in the absence of defined hierarchical grades, financial upgradation shall be https://hcservices.ecourts.gov.in/hcservices/ given by the Ministries/Departments concerned in the immediately next higher (standard/common) pay-scales as indicated in Annexure-II which is in keeping with Part- A of the First Schedule annexed to the Notification dated September 20, 1997 of the Ministry of Finance (Department of Expenditure). For instance, incumbents of isolated posts in the pay scale S-4, as indicated in Annexure-II will be eligible for the proposed two financial upgradations only to the pay-scales S-5 and S-6. Financial upgradation on a dynamic basis (i.e. without having to create posts in the relevant scales of pay) has been recommended by the Fifth Central Pay Commission only for the incumbents of isolated posts which have no avenues of promotion at all. Since financial upgradations under the Scheme shall be personal to the incumbent of the isolated post, the same shall be filled at its original level (pay-scale) when vacated. Posts which are part of a well-defined cadre shall not qualify for the ACP Scheme on 'dynamic' basis. The ACP benefits in their case shall be granted conforming to the existing hierarchical structure only;" 10. As per the said condition No.(7), the standard/common pay- scales is as per Annexure-II which is as follows: S.No. Revised pay scales (Rs.) 1 S-1 2550-55-2660-60-3200 2 S-2 2610-60-3150-65-3540 3 S-3 2650-65-3300-70-4000 4 S-4 2750-70-3800-75-4400 5 S-5 3050-75-3950-80-4590 6 S-6 3200-85-4900 7 S-7 4000-100-6000 8 S-8 4500-125-7000 9 S-9 5000-150-8000 10 S-10 5500-175-9000 11 S-12 6500-200-10500 12 S-13 7450-225-11500 13 S-14 7500-250-12000 14 S-15 8000-275-13500 15 S-19 10000-325-15200 16 S-21 12000-375-16500 17 S-23 12000-375-18000 18 S-24 14300-400-18300 Therefore, as per the said scheme, which is applicable to the case on hand, the maximum scale of pay granted is Rs.14,300-400-18,300/- and it is not in dispute that the said scale has been paid to the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 11. As correctly submitted by the learned counsel for the respondents, when once the scheme has been formulated by the University Grants Commission in which the maximum scale has been fixed as Rs.14,300-400-18,300/- as seen in the Annexure-II, and if in a particular case of doubt, for instance in the second respondent/University the pay scale fixed for the said post is Rs.14,300-18,300/- and the next scale is only Rs.16,400-450- 22,400/-, insofar as it relates to the second respondent/University if the ACP scheme has to be implemented with regard to the petitioner, the same has to be decided only by way of clarification by the University Grants Commission from the Ministry of Human Resource Development as it forms part of the scheme itself. Therefore, it cannot be said as if the Human Resource Development Department of the Government of India is not a necessary party. 12. In any event, it is the categoric stand of the first respondent that pursuant to the claim made by the petitioner as stated above, a reference has been made to the Ministry of Human Resource Development, who have not agreed for payment beyond the scale granted under Annexure-II. In fact, the Executive Committee of the second respondent/ University has taken note of the situation in respect of other universities and decided that the next hierarchal scale of promotion is Rs.14,300-400-18,300/- and there is no post in existence in this scale of pay and the next higher post is in the scale of pay of Rs.16,400-450-22,400/-, which is only for promotional avenues for the next post and therefore, the decision was deferred. 13. It is relevant to point out, as submitted by the learned counsel for the second respondent, that in fact the second respondent has forwarded the proposal of granting the upgraded pay scale of Rs.16,400-450-22,400/- to the petitioner and other similarly situated persons in the proposal dated 8.10.2007 to the Ministry of Human Resource Development and the Ministry, in its turn, in the letter dated 1.11.2007 has referred it to the first respondent/University Grants Commission in the following words: "I am directed to forward herewith a letter No.PU/ESTT/NT-1-MHRD/2007-08/181, dated 8.10.2007 received from the Registrar, Pondicherry University for award of higher pay scale of Rs.16400-22400 to Deputy Registrars and other equivalent officers stagnating in the same grade for a period of 12 to 19 years without any promotional avenues, for your consideration and necessary action." 14. On receipt of the same, the University Grants Commission has considered the case of the petitioner and passed the orders granting the first ACP to the petitioner, who was in the pay scale of Rs.12,000-18,300/-, to the scale of pay under the ACP scheme as https://hcservices.ecourts.gov.in/hcservices/ Rs.14,300-18,300/- and that was the order passed by the University Grants Commission on 22.5.2008. It is seen that the second respondent is still taking efforts for getting the higher scale of pay under the ACP Scheme to the petitioner and others, as it is seen in the representation of the second respondent to the University Grants Commission dated 10.9.2009. 15. Considering the above said facts and circumstances of the case and the overall situation that the scheme mutatis mutandis is as that of the ACP Scheme given to the Central Government Civilian Employees, subject to the conditions applicable; that under the scheme the maximum sale of pay is Rs.14,300-400-18,300/-; and that the scheme is subject to further variation only after the Ministry of Human Resource Development gives consent, I am of the considered opinion that so long as the Ministry has not taken any decision to increase the pay scale under the ACP Scheme as it is in existence today based on which the petitioner is making the claim, the petitioner is certainly not entitled to more than what is granted under the Scheme. Simply because under the second respondent/University the scale of pay after Rs.12,400-420-18,300/- is Rs.16,400-450-22,400/-, that itself is not a ground to have the effect of increasing the pay scale under the ACP Scheme and that is possible only after the Ministry takes a decision to effect change in the scheme itself by altering the scale of pay and unless and until such decision is taken by the Ministry, the petitioner as on date is not entitled to the claim made in this writ petition. However, as it is seen on record that the second respondent is repeatedly making proposals to the University Grants Commission as well as the Government, if and when the authorities under the scheme take a decision for giving higher scale of pay, it is for the petitioner to work out his remedy at that time. For the reasons aforesaid, the writ petitioner is not entitled to any relief. The writ petition fails and the same is dismissed. No costs. Consequently, M.P.No.1 of 2008 is closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. sasi https://hcservices.ecourts.gov.in/hcservices/ To: 1. The Chairman University Grants Commission Bahadur Shah Zafar Marg New Delhi – 110 002. 2. The Registrar Pondicherry University Pondicherry – 605 014. 1 cc to M/s. G. Thilagavathi, Advocate, SR. 12259 1 cc to Mr.A.vg. Bharathi, Advocate, Sr. 12057 W.P.No.103 of 2008 KGK (C) kk 4/3 https://hcservices.ecourts.gov.in/hcservices/