IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 26TH JUNE 2009 / 5TH ASHADHA 1931 WP(C).No. 32242 of 2008(L) ------------------------------------- PETITIONER(S): ------------------------- DR.MANOHARAN NAIR, S/O.KRISHNAN NAIR, HINDU, AGED 47, RESIDING AT LEKHA NIVAS, JAB HANE, KUMARAPURAM, THIRUVANANTHAPURAM. BY ADVS. MR.M.RAMASWAMY PILLAI MR.P.M.JOSEPH RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, HIGHER EDUCATION DEPARTMENT,GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM. 2. THE DIRECTOR, COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR, COLLEGIATE EDUCATION, KOLLAM. 4. THE UNIVERSITY GRANTS COMMISSION, REPRESENTED BY ITS SECRETARY, UNIVERSITY GRANTS COMMISSION, BAHARDURSHAH ZAFMARGH, NEW DELHI-110002. BY GOVERNMENT PLEADER FOR R1 TO R3 BY ADV. MR.S.KRISHNAMOORTHY FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/06/2009, THE COURT ON 26/06/2009 DELIVERED THE FOLLOWING: W.P.(C) NO.32242/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE NOTIFICATION DT. 27.7.98 ISSUED BY THE DIRECTOR, MINISTRY OF HUMN RESOURCE DEVELOPMENT TO THE EDUCATION SECRETARIES. P2:- COPY OF THE CIRCULAR NO.F1-22/97 U1 DT. 27.7.98 ISSUED BY THE DIRECTOR, MINISTRY OF HUMAN RESOURCE DEVELOPMENT TO THE EDUCATION SECRETARY. P3:- COPY OF THE APPENDIX IN CIRCULAR NO.F1-22/97 U1 DT. 27.7.98. P4:- COPY OF THE DIRECTIONS NO.F3-1/94(PS) DT. 24.12.98 ISSUED BY THE 4TH RESPONDENT. P5:- COPY OF THE ORDER G.O.(P) NO.17/90/H.EDN. DT. 21.12.99 ISSUED BY PRINCIPAL SECRETARY TO GOVERNMENT , HIGHER EDUCATION DEPARTMENT. P6:- COPY OF THE LETTER DT. 31.8.01 SENT BY THE JOINT SECRETARY OF 4TH RESPONDENT COMMISSION . P7:- COPY OF THE JUDGMENT DT. 12.10.04 IN WPC. NO.29838/04 PASSED BY THIS HONOURABLE COURT. P8:- COPY OF THE JUDGMENT DT. 31.7.06 IN WA. NO.1044/05 PASSED BY THIS HONOURABLE COURT. P9:- COPY OF THE JUDGMENT IN WPC. 23895/05 DT. 6.10.05 PASSED BY THIS HONOURABLE COURT. P10:- COPY OF THE ORDER NO.UGC. CELL.1(2) 10517/04/COLL. EDN. DT. 30.1.06 PASSED BY THE DIRECTO OF COLLEGIATE EDUCATION. P11:- COPY OF THE ORDER G.O.(P) NO.44/01/H.EDN. DT. 29.3.01 ISSUED BY THE HIGHER EDUCATION (C) DEPARTMENT. P12:- COPY OF THE OF THE JUDGMENT DT. 20.6.07 IN WPC. NO.5412/06 PASSED BY THIS HONOURABLE COURT. P13:- COPY OF THE LETTER NO.F1/3289/08 DT. 28.7.08 SENT BY THE 3RD RESPONDENT TO THE PRINCIPAL. P14:- COPY OF THE LETTER DT. 8.8.08 SENT BY THE PRINCIPAL TO THE 3RD RESPONDENT. P15:- COPY OF THE LETTER DT. 11.8.08 SENT BY THE PETITIONER TO THE 3RD RESPONDENT. P16:- COPY OF THE LETTER NO.F1/3289/08 DT. 23.9.08 SENT BY THE 3RD RESPONDEDNT TO THE PRINCIPAL. TRUE COPY P.S. TO JUDGE TSS T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.32242 of 2008-L - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of June, 2009. JUDGMENT The petitioner herein is aggrieved by the order Ext.P16 by which his claim for advance increments as per para 6.16 of Ext.P5 Scheme stands rejected. The short facts leading to the dispute are the following: 2. The petitioner is working as a Reader in Commerce in VTM NSS College, Dhanuvachapuram in Trivandrum District. He entered service on 19.1.1994 as Lecturer in Commerce. Prior to his appointment, in the year 1991 he had acquired Ph.D. After his appointment he was placed in the prevailing State scale. At that point of time the U.G.C. scale was not extended to him. 3. Exts.P1 to P5 are the relevant orders concerning the grant of various benefits by the Government of India, as per the UGC Scheme. Particular reference is made to clause 1.(ii) of Exts.P2 and P3 as well as para 6.16 of Ext.P5 to the effect that four and two increments will be admissible to those who hold Ph.D. and M.Phil Degrees, respectively at the time of recruitment as Lecturers. .According to the petitioner, he was entitled for four advance increments as he was having Ph.D. at the time of wpc 32242/2008 2 his recruitment. By Ext.P6, the University Grants Commission informed all authorities concerned that teachers who acquired Ph.D. during service prior to 1.1.1996 and who were not given the benefit of any advance increment as per the earlier Career Advancement Scheme, may now be given the benefit of two advance increments. 4. Exts.P7 and P8 are judgments of this court with regard to the interpretation of the said particular clause in Ext.P6, wherein this court has taken the view that those passed Ph.D. on or after 1.1.1996 are also eligible to get two advance increments with effect from 1.1.1996. The petitioner accordingly approached this court by filing Writ Petition No.23895/2005 along with four others, wherein this court directed the petitioners to file comprehensive representation in the matter. Accordingly, by Ext.P10 the representation filed by the petitioner was rejected stating that the incentives specified in clauses 6.16 and 6.18 of the Govt. Order are not eligible simultaneously. The said proceedings was under challenge in Writ Petition No.5412/2006 which was disposed of by Ext.P12 judgment, taking the view that the issue raised by the petitioner is squarely covered in favour of the petitioners by the Bench decision of this court in W.A.No.1044/05 and connected cases (Ext.P8 judgment). Still, the petitioner contends that by Ext.P16, the same stands rejected. wpc 32242/2008 3 5. Heard learned counsel for the petitioner Shri K. Ramaswamy Pillai, learned Govt. Pleader Shri K. Ramesh appearing for respondents 1 to 3 and Shri S. Krishnamoorthy, learned Standing Counsel for the 4th respondent. 6. The second respondent has filed a counter affidavit opposing the prayers. The substantial contention raised in the counter affidavit is that the benefit under para 6.16 of the Govt. Order for four advance increments is applicable with effect from 1.1.1996 only and enjoyable by those Lecturers who are posted after 1.1.1996 in a UGC Scheme vacancy and as the petitioner was appointed in service prior to 1.1.1996 and was granted the State Scale, he is not entitled for the said benefit. Reliance is also placed on 29.3.2001, viz. clause 4 therein in which it is stated that incentives specified in para 6.16 to 6.18 of the Government Order dated 21.12.99 are not eligible simultaneously. The petitioner was granted two advance increments with effect from 27.7.1998 already. 7. Learned counsel for the petitioner submitted that it is evident from para 1.(ii) of Exts.P2 and P3 and para 6.16 of Ext.P5 that four and two advance increments will be admissible to those who hold Ph.D. and M.Phil degrees, respectively at the time of recruitment as Lecturers. The petitioner was having Ph.D. even prior to his appointment as Lecturer. It is therefore wpc 32242/2008 4 submitted that he is entitled for grant of four increments, but the petitioner has been granted only two increments. It is submitted that the respondents have not considered the benefit of para 6.16 and Ext.P16 is liable to be quashed. 8. Learned Standing Counsel for the University Grants Commission submitted that the matter is covered by the dictum laid down in Ext.P8 judgment of the Division Bench wherein it was held that persons like the petitioner are entitled for two advance increments only. It is vehemently argued by the learned Standing Counsel that in fact the petitioner had approached this court earlier and by Ext.P12 judgment a learned Single Judge had categorically found that he is entitled for the benefit of Ext.P8 judgment and his claim was directed to be considered in the light of the said judgment. Since he is a party to the said judgment, he can claim only the benefit that flows from the judgment itself, i.e. claim for payment of two advance increments. Since the said judgment has become final, it is submitted that by a separate writ petition he cannot re-agitate the entire issue. 9. Learned Government Pleader also submitted that the claim of the petitioner cannot be supported, since the details of the scheme have been elaborately considered by the Division Bench while rendering Ext.P8 wpc 32242/2008 5 judgment. 10. In fact, it is for the first time in Ext.P6 that the University Grants Commission took a decision that teachers who acquired Ph.D. during service prior to 1.1.1996 and who were not given the benefit of any advance increments as per the earlier Career Advancement Scheme will be given the benefit of two advance increments. It was made clear that the same shall be applicable from 27.7.1998. This court in the judgment in O.P.No.32727/2001 declared that those who passed Ph.D. prior to 1.1.1996 are also eligible to get two advance increments with effect from 1.1.1996. The Division Bench was considering the very same question in various cases, while rendering Ext.P8 judgment. In fact, in the appeal filed by the University Grants Commission, the main challenge was against the finding that even persons who have acquired the qualification prior to 1.1.1996 are entitled to the benefit of advance increments as in the case of those who acquired such qualification on or after 1.1.1996. In para 11 of the judgment, the letter dated 14.11.2005 produced as Ext.R1(a) in Writ Appeal No.118/2005 was extracted and thereafter the crucial findings have been rendered in para 12 as follows: “From the above, it can be seen that whatever little doubt one had in the matter of extending the benefit to those who acquired Ph.D. wpc 32242/2008 6 prior to 1.1.1996 and also as to whether such benefits are applicable to Readers, the answer is to be beyond doubt that all teachers including Readers, Professors and Principals who required Ph.D. during their service even prior to 1.1.1996 and those who were not given the benefit of advance increment as per the earlier Career Advancement Scheme shall also be given the benefit of two advance increments. So, however, the same will be applicable from 27.7.1998.” Even prior to the said judgment, the petitioner had filed a writ petition seeking various reliefs, which was disposed of by Ext.P9 judgment dated 6.10.2005, whereas the Division Bench judgment was rendered on 31.7.2006. By Ext.P9, the petitioner was also directed to file representation. Ext.P10 is the resultant order. Meanwhile, the Government had issued an order dated 29.3.2001 clarifying that the incentives specified in para 6.16 to 6.18 of the Government Order dated 21.12.99 are not eligible simultaneously. The said Govt. Order is produced as Ext.P11 and para 4 is extracted below: “(4) The incentives specified in para 6.16 to 6.18 of the Government Order dated 21.12.99 are not eligible simultaneously.” In fact, the petitioner had challenged Ext.P10 by filing a subsequent writ petition which was disposed of by Ext.P12 judgment. This court was of the wpc 32242/2008 7 view that the claim of the petitioner is covered by the judgment of the Division Bench. Accordingly, it was directed that the concerned authority will take a decision in the light of the judgment of the Division Bench. 11. Going by para 9 of the counter affidavit, the petitioner was granted two advance increments, pursuant to the said judgment. 12. Therefore, plainly whatever might have been the claim of the petitioner, he will be entitled only for the benefit that was allowed by the Division Bench in Ext.P8. This is so, since Ext.P12 judgment has attained finality and the petitioner had no grievance against the said judgment. 13. There is one more aspect to be considered. Para 6.16 of Ext.P5 concerns the case of persons who were holding Ph.D. at the time of recruitment. It can only be a recruitment made in terms of the U.G.C. Scheme and after the scheme has come into force. The crucial date is 1.1.1996. As contended by the respondents in the counter affidavit, it is only reasonable to hold that the benefit as per para 6.16 is applicable only from 1.1.1996 and enjoyable by the Lecturers who were posted after 1.1.1996 in an appropriate vacancy. Otherwise, if the claim of the petitioner for four advance increments is accepted, then he will be eligible for such benefit as per para 6.16 and another two advance increments which he has already been granted. Such a consequence is not envisaged by the relevant wpc 32242/2008 8 provisions of Ext.P5. In fact, Ext.P10 clarification issued by the Government shows that the Government was also of the view that the incentives specified in para 6.16 to 6.18 cannot be claimed simultaneously. Therefore, it is only reasonable to hold that as Ext.P3 takes effect from 1.1.1996, para 6.16 of Ext.P5 will be applicable only to those who entered service with effect from 1.1.1996 with a Ph.D. in an appropriate vacancy covered by the U.G.C. Scheme. 13. Therefore, as the petitioner is not a person who is covered by the above said clause, his claim for four advance increments cannot be sustained. The writ petition is thus dismissed. No costs. (T.R. Ramachandran Nair, Judge.) kav/