Violation of fundamental principles of equality with regard to the wages being paid to the petitioners, on comparison with the pay being paid to the juniors who were appointed subsequently under a different notification, is the subject matter of challenge in these writ petitions.
2. Pleadings and proceedings are referred to, as given in WP(C) No.29492/2012, which is stated as the leading case, for convenience.
3. The petitioner herein came across an advertisement issued by the 2nd respondent for recruitment to the post of 'Lecturer', who applied for the same. After completion of the selection process, she came to be selected and appointed as per order dated 28.11.2007 as 'Lecturer' in the Chemical Engineering Department. Ext.P2 is the pay fixation order, assigning the scale of pay `8,000-13,500/-. Pursuant to adoption of the 6th pay revision commission's recommendations, it was made applicable retrospectively, as per Ext.P3 order dated 31.12.2008 by the U.G.C. with effect from 01.01.2006 and the entry cadre of the 'Lecturer' came to be re-designated as 'Assistant Professor'.
4. In fact, the said order as such is not applicable in the case of the 2nd respondent, being a separate entity of its own and governed by the provisions of the National Institutes of Technology Act, 2007 which was brought into effect from 06.06.2007. Pursuant to the selection as above, the petitioner joined service and is continuing as above. While so, the 2nd respondent issued Ext.P5 Notification for further selection and appointment of Lecturers. The candidates who succeeded in the selection were given placement as 'Assistant Professors' fixing the entry level salary at `30,000/- in the pay scale of `15,600 -
`39,100/- with an AGP (Academic Grade Pay) of `8,000/-. It was because, re-designation of the post at entry level, changing the same from 'Lecturer' to 'Assistant Professor', had already come in to effect, though Ext.P5 notification. It is pointed out that, instead of appointing the selected persons in the pre-revised scale as notified by Ext.P5, and thereafter bringing them to the corresponding substituted scale/revised scale, the selection committee appointed the persons (juniors) fixing their salary in the revised scale, also awarding the AGP of `8,000/- which gave rise to an anomaly. By virtue of this exercise, the petitioner started drawing a lesser salary than the juniors appointed subsequently. Here started the heart burn for the petitioner, who took necessary steps to collect necessary factual data as to the process of selection and appointment of the juniors; simultaneously seeking for equalization of pay, awarding higher 'AGP', as given to the juniors. Though various representations were preferred before the respondents, the same did not evoke any positive response and hence the writ petition. Almost similar contentions have been raised by the petitioners in WP(C) No. 1806/2013 as well.
5. The 2nd respondent has filed a counter affidavit seeking to justify the course and events, contending that the so called juniors appointed pursuant to Ext.P5 are not liable to be called as juniors, as it was a different course of selection and appointment that too, to a different post of 'Assistant Professor' and not as 'Lecturer' as in the case of the petitioner. The factual position is sought to be rebutted by the petitioner by filing a reply affidavit.
The concerned respondent has filed an additional affidavit/counter affidavit as well.
6. Heard the learned counsel appearing for the petitioners and the learned standing counsel appearing on behalf of the respondents.
7. It is brought to the notice from the part of the petitioners that Ext.P5 notification had clearly mentioned the post notified for appointment was of 'Lecturer' and that, it was in the 'pre-revised' scale of pay. It was with this understanding, that the concerned applicants submitted their application, which could only be to the post of 'Lecturer'. The selection was finalised for the post of 'Lecturer', though the order of appointment came to be issued placing the selected candidates as 'Assistant Professors', by virtue of the change in the scenario occurred in the meanwhile, as mentioned herein before.
8. A specific case has been put up to the effect that the subsequent appointee by name Dr.Malladi V. Pavan Kumar, who was appointed as 'Assistant Professor' pursuant to Ext.P5 had submitted application for appointment to the post of 'Assistant Professor', as conceded by the 2nd respondent (while seeking to justify the higher pay with reference to the different nature of post he had applied for). It is conceded that such application was preferred by the said person, against Ext.P5 notification, which specified the terms including the relevant qualifications for the post. With reference to Ext.P20, it is brought to the notice of this Court that, the qualification prescribed for the post of 'Assistant Professor', very much insisted a minimum experience of 'three years'. A person who was having no experience as above, could not have aspired for the post, nor could have been considered by the respondents under any circumstances. Ext.P9 is the application filed by Dr.Malladi V. Pavan Kumar, which clearly revealed that the said person did not have the requisite 'three years' experience. Instead of rejecting the application, the selection committee considered him for the post of 'Lecturer' and gave appointment as 'Assistant Professor' granting higher pay, referring to the change in the nomenclature of post.
9. It is true that the appointment of Dr.Malladi V. Pavan Kumar is not the subject matter of challenge in this writ petition. But at the same time, the sequence of events leading to the selection and appointment of Dr.Malladi V. Pavan Kumar is very relevant, in view of the nature of the case projected from the part of the petitioners. There is no dispute for the 2nd respondent that, the notification and selection as per Ext.P5, was for the post of 'Lecturer'. If Dr.Malladi V. Pavan Kumar did not have the requisite experience, there was no chance to aspire appointment to the post of 'Assistant Professor' and he could not have been appointed as 'Assistant Professor' by the 2nd respondent based on the qualification possessed. This only points out that, the placement given to Dr.Malladi V. Pavan Kumar was just by virtue of 're-designation' of the post at the entry level and not by virtue of any better qualifications of the said person. The question that arises for consideration at this juncture is, whether the petitioners could be mulcted with a differential treatment, on comparison with the traits of subsequently appointed persons pursuant to Ext.P5 Notification.
10. During the course of hearing, it is brought to the notice of this Court that, there is absolutely no consistency of case for the 2nd respondent, with regard to the course and proceedings pursued by them. Another person by name Dr.Manu who participated in the selection process was given a different treatment with regard to the total pay. He had approached this Court by filing WP(C) No.16822/2011, which was disposed of, directing the respondent Institution to consider the representation and to pass appropriate orders after giving an opportunity of hearing. After considering the same, the anomaly was found as liable to be rectified and accordingly, as per proceedings dated 18.05.2012, 'stepping up' of the pay was ordered with reference to the level drawn by Dr.Sathyanantha Panda, 'Assistant Professor' in the Department of Mathematics and also granting AGP at the rate of `8,000/- with effect from joining duty. Referring to the said incident, this Court passed an interim order on 26.08.2014 directing the respondents to explain the position with reference to the above proceedings as well; apart from the necessity to explain the position, as to how granting of higher benefits and fixation in the case of Dr.Malladi V. Pavan Kumar and others would be justified. It was also brought to the notice of this Court during the course of hearing that, the course adopted by the 2nd respondent was per se wrong and illegal in all respects and also in the light of the law declared by the Apex Court as per the decision in Gurcharan Singh Grewal and Another V.
Punjab State Electricity Board and Others (2009 (3) SCC 94 and a Division Bench of this Court in Kamala Devi V. Kerala State Financial Enterprises Ltd. (2002 (1) KLT 157). The factual position disclosed from the materials on record reveals that, several other persons who were appointed subsequently, pursuant to Ext.P5 Notification, were also enjoying similar benefits as Dr.Malladi V. Pavan Kumar, with advantage over and above the petitioner herein, inspite of the fact that the petitioners were standing on a higher pedestrial, with no lesser traits than the above persons. The selection proceedings in respect of the said persons are produced before this Court as Exts.P22 to P31 minutes, which show that the selection proceedings were only for the post of 'Lecturer' and not for 'Assistant Professor'.
11. Pursuant to the interim order passed by this Court on 26.08.2014, an affidavit dated 29.09.2014 has been filed by the 2nd respondent. Paragraph 6 of the said affidavit is reads as follows:
“It is however submitted that in a meeting of the Board of Governors on 13th October, 2004 at CV Raman Centre, Banglore, the Board had inter-alia taken the decision which reads as under:-
“Professor, Senior Lecturer at the pre-revised scale of 10,000 - 325 - 15,200 may be offered to candidates with Ph.D from Central University's, Centrally funded institutions and institutions with comparable standing, on the basis of recommendations of the faculty selection committee. For those who are already selected/appointed with above minimum qualifications that required, the performance may be assessed duly and recommendations may be sent to the Board for an out of turn promotion.”[Exbt.R2(a)]”
12. The learned counsel for the petitioners submits that the stand now sought to be justified is with reference to the benefits given to Professors/Senior Lecturers at the pre-revised scale of `10,000-325-15200/- to the candidates with Ph.D from Central Universities, Centrally Funded Institutions and the like as mentioned therein. It is stated that the petitioners having their Ph.D from such Central Universities/ Centrally Funded Institutions they are equally eligible to have the benefits flowing from Ext.R2 (a) resolution.
13. After hearing both the sides, this Court finds that, the explanation offered from the part of the 2nd respondent, to treat the petitioners in a different manner and on a lesser advantageous position than the persons considered for selection to the post of 'Lecturers' notified as per Ext.P5, but later appointed as 'Assistant Professors', is not at all satisfactory and there is no tenable ground to deny them equal benefit and parity of pay, particularly with regard to the AGP payable. If the matter is considered by the 2nd respondent in the light of Ext.R2(a), the petitioners who are situated under similar circumstance, can be found as fully and more eligible for the benefit flowing therefrom to have their grievances redressed. In the above circumstances, the impugned proceedings are set aside and the 2nd respondent is directed to consider the claim of the petitioners in the light of the above observations and also as to the eligibility to have the benefits flowing from Ext.R2(a), after hearing, which shall be done at the earliest, at any rate, within 'three months' from the date of receipt of a copy of this judgment. The benefits, if any, flowing from such exercise shall be disbursed to the petitioners without any further delay.
14. It is also made clear that it would only be proper if the 2nd respondent considers whether any other similarly situated case is there and if so, to extend similar benefits to all the eligible persons concerned, so that they need not be driven to this Court for extending similar benefits; as a gesture of goodwill.
Both the writ petitions stand allowed to the said extent. No cost.
Sd/-
P.R. RAMACHANDRA MENON, JUDGE.
Pn