REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.  2540-2542 OF 2009 [ARISING OUT OF S.L.P. (CIVIL) NOS. 15930-15932 OF 2008]

KERALA AGRICULTURAL UNIVERSITY     … APPELLANT

Versus

B.K. JAYACHANDRAN ETC.    … RESPONDENTS

J U D G M E N T

S.B. SINHA, J.

1. Leave granted.

2. Whether respondents are entitled to obtain the benefit of Scale of

Pay in  terms of  the University Grants  Commission (for  short,  “UGC”)

guidelines is the question involved in these appeals.  They arise out of a

judgment and order dated 3.4.2008 passed by a Division Bench of the

High Court of Kerala at Ernakulum in Writ Appeal Nos. 660, 680 and

748  of  2008,  dismissing  the  appeals  preferred  by the  appellant  herein

against  the  judgment  and  order  dated  14.11.2007  passed  by a  learned

single judge of the said Court in Writ Petition (Civil) Nos. 13572, 10496

and 13543 of 2006.  

3. Respondents herein were appointed as Junior Assistant Professors

on  14.08.1973,  21.1.1977  and  4.10.1977.   They  were  appointed  as

Assistant  Professors  on,  02.12.1982  and  12.01.1983,  11.05.1979

respectively.  

4. In the year 1988, appellant – University issued an order whereby

and whereunder the decision taken by the State of Kerala upon accepting

the recommendations of the Fourth Pay Commission directing grant of

time-bound grade promotion to the teaching staff;  pursuant whereto and

in  furtherance  whereof,  the  scales  of  pay  of  Assistant  Professor  and

Associate Professor were revised to Rs.1500-2685/- and Rs.1950-2950/-

respectively.  Clause VI of the Pay Revision Order provided for grant of

time bound higher grade promotion (Non-cadre) to those having total ten

years’ of service in the first two grades taken together where there are

four  levels  from the  entry cadre to  the  Professor  Cadre.   On or  about

23.3.1988, appellant – University, in terms of the said direction, ordered

for grant of 1st higher grade non-cadre promotion as Assistant Professor

(Higher Grade) with pay of Rs.1950-2950/-, stating:

“The  matter  has  been  considered  by  the Executive  Committee  and  in  consonance  with the  decision  of  the  195th meeting  of  Exe. Committee  held  on  25.2.1988  the  following orders are issued.

i) The clause (VI) of para (10) of G.O. (P) 515/85/Fin dated 16.9.85 is made applicable to

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the Assistant Professors  of Kerala Agricultural University  subject  to  the  condition  that  while computing  the  combined  length  of  10  years service in the cadre, at least two years should be in the cadre of Asst. Professor.”

Pursuant to or in furtherance of the said decision, concededly the

designation of the Assistant Professor (Higher Grade) was changed to that

of Associate Professor (Non-Cadre).  They were placed in the pay scale of

Rs.1950-2950/-  by  an  order  dated  20.4.1988  subject  to  the  conditions

mentioned  therein.   By an  order  issued by the  appellant  –  University,

thirty  five  Assistant  Professors  including  the  contesting  respondents

herein were granted time bound higher grade non-cadre promotion to the

posts of Associate Professor (Non-Cadre)  with effect  from 04.10.1987,

01.04.1987 and 12.01.1987 respectively.   

On or about 25.6.1990, a Scheme as recommended by UGC/Indian

Council of Agricultural Research ( for short, “ICAR”) and approved by

the Government of Kerala was accepted by the University subject to the

terms  and  conditions  mentioned  therein  with  retrospective  effect  from

1.1.1986, the relevant provisions whereof read as under:

“3.01.  The  revised  scales  (Appendix  I)  are inclusive of Basic Pay (as on 1.1.1986 in the  1973  U.G.C./I.C.A.R.  Scale),  the Dearness  Pay,  Dearness  Allowances, Additional  Dearness  Allowance  and

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Interim  Relief  if  any,  admissible  to teacher as on 1.1.1986.

3.02. The existing scale of  pay of  teachers  in the  University  to  whom  the  scheme  is applicable and the corresponding revised scale  of  pay for  which  they are  entitled are given in Appendix II.

xxx xxx xxx

5.04 Promotion  to  the  post  of  Associate Professor  will  be  through  a  process  of selection by a selection committee to be set  up  under  the  Statutes/  Ordinance  of the University and in accordance with the guidelines laid down by the I.C.A.R. from time  to  time.   Posts  of  Associate Professors will be created for this purpose wherever  necessary  by  upgrading  a corresponding  numbers  of  posts  of Assistant Professors in the University.

xxx xxx xxx

5.06. Teachers in the University will be placed at  the  appropriate  stage  in  the  revised scales in accordance with the pay fixation formula  under  this  scheme.   Existing Assistant Professors who have completed or will complete a total period of sixteen years  of  service  as  on  1.1.1986  or thereafter  will  be eligible  for  promotion to the post of Associate Professors in the selection  grade  as  per  the  provisions contained in para 5.03 to 5.05.  They will also be entitled to the relaxation in years of service by 3 years if  they hold Ph.D. degree.

5.07 Promotions  made  before  the announcement  of  the  revised  scales  of pay on 1.2.1988 by the I.C.A.R. will not be reopened.  However, in such cases the

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benefit  of  revision  will  be  available  to teachers only from the date of promotion. The  existing  merit  promotion  scheme viz.,  Assessment,  norms  and  Non-cadre promotion  made  after  1.2.1988  will  be treated as cancelled.  No such promotion schemes shall be in vogue from the date of issue of these orders.”

Appendix  I  referred  to  in  paragraph  3.01  provided  for  the

following:

“Appendix - I

“University Grants Commission/Indian Council of  Agricultural  Research  (I.C.A.R.)  Scales  of Pay of Teachers in the Universities.

“ Sl. No.

Designation Existing Scale

Revised Scale

1. … …. …..

2. …..

4. Associate Professor  

1200- 1900

3700-125-4950- 150-5700

5. …. 6. ….. .

”

Appendix  II  thereof  containing  the  scales  of  pay  of  teachers  in

University also provided for the scales of pay of Associate Professor in

the following terms:

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“Sl. No.

Designation Existing Scale  of pay  as on 1.1.198 6

Revised Scale of pay

(U.G.C./I.C.A.R. Scheme with designation

1. ….. 2. ….. 3. Associate

Professor  1950- 70- 2100- 85-2950

3700-125-4950- 150-5700

5. ….

Indisputably,  the  contesting  respondents  acquired  their  Ph.D

Degrees in the years 1991, 1994 and 1999 respectively.   

5. It is furthermore not in dispute that a notification was issued by the

appellant  –  University  on  or  about  21.3.1995  pursuant  whereto  or  in

furtherance whereof, inter alia the following was provided:

“h) Teachers in the University will be placed at the appropriate stage in the revised scales in accordance with the pay fixation formula under this scheme.  Existing Assistant Professors who have completed or will complete a total period of  sixteen  years  of  service  as  on  1.1.1986  or thereafter  will  be eligible for promotion to the post of Associate Professor or placement in the selection  grade  as  per  provisions  contained  in Clause  II.   They  will  also  be  entitled  to  the relaxation in years of service by 3 years if they hold Ph.D. Degree.

i) Promotions  made  before  the announcement  of  the  revised  scales  of  pay on

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25.6.1990 by the  ICAR will  not  be  reopened. However, in such cases the benefit  of revision will be available to teachers only from the date of  promotion.   The  existing  merit  promotion scheme viz.,  assessment,  norms and non-cadre promotion made after 25.6.90 will be treated as cancelled.  No such promotion schemes shall be in  vogue  after  25.6.1990.   However  all  the service  conditions  existed  before  the introduction  of  UGC/ICAR  scheme  will  be available to those teachers who opt out of ICAR Scheme.”

6. An Original Petition was filed by one K. Viswambharan, who was

an Assistant Professor questioning the aforementioned orders.  

7. Indisputably,  a  Government  Order  No.  G.O.  (MS) 190/93  dated

22.9.1993 was issued granting higher scale of pay to the teachers in the

category of Assistant Professors.   

Questioning the validity of the said G.O. (MS) no. 190/93 dated

22.9.1993, several writ applications were filed by Assistant Professors of

other disciplines in the said University before the High Court.

A  learned  Single  Judge  of  the  said  Court  by  his  order  dated

25.7.1994 while disposing of the Original Petition Nos. 13624/1993-V,

15938/1993-V  and  16337/1993-T  filed  under  Article  226  of  the

Constitution of India wherein two of the contesting respondents, namely,

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Dr.  B.K.  Jaychandran,  and  B.  Balakrishnan  had  been  impleaded  as

respondents inter alia held that :

(i) the orders  of  the  University whereby Assistant  Professors,

including the contesting respondents herein, were given non-

cadre  promotion  as  Associate  Professor  (Non-Cadre)  was

without authority of law;

(ii) however, no further directions was necessary to cancel such

promotions; and  

(iii) the Associate  Professors  who  were promoted as  Associate

Professors (Non-Cadre) would not be entitled to be placed in

the UGC/ICAR scale of pay of Associate Professors, namely,

Rs.3700-5700/-,  and  they  could  only  be  placed  in  the

UGC/ICAR scale of pay of Assistant Professors.   

8. Writ  appeals  were preferred thereagainst  and by a judgment and

order dated 11.9.2002, a Division Bench of the said court reversed the

said judgment, opining :

“Therefore,  we  are  of  the  opinion  that  the challenge to Ext. P 4 in so far as it protects the salary  to  be  given  to  the  Associate  Professor (non-cadre)  who  were  getting  higher  salary  at the time of introduction of ICAR scale by Ext. P.2 cannot stand.  We also note that as held by the Supreme Court in Dr. Rashmi Srivastava vs.

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Vikram University (1995) 3 SCC 653, the non- cadre  promotees  will  not  get  any  seniority because  of  their  very  placement  in  the  non- cadre.   Merit  promotions  under  the  I.C.A.R. Scheme will be governed by the seniority in the cadre in which they were appointed and not in the non-cadre post.   In view of the above,  we are of the opinion that the learned Single Judge went  wrong  in  not  accepting  Ext.  P  4  and holding that the creation of the post of Assistant Professor (non-cadre)  is  illegal.   We also note that  since  the  Petitioners’  right  for  promotion and other benefits are not affected, no prejudice is caused to them.”

9. It is of some significance to note the stand taken by the appellant –

University in their counter affidavit filed in the said Original Petition No.

13624 of 1993V, which reads as under:-

“Various grounds raised in the Original Petition are  neither  legal  nor  sustainable  in  law.   Non cadre  promotions  are  based  on  the  IV Kerala Pay Revision orders extended to the teachers of the Kerala Agricultural University.  Promotions were made only after obtaining the approval of the authorities  of the  University i.e.  Executive Committee/General  Council.   Further  there are directions  from  UGC/ICAR  to  allow  such promotions before the cut off date specified in Government  order  implementing  UGC/ICAR package.   Ext.  P4  does  not  nullify  the promotions,  it  only  protects  the  promotions made  by  the  University  upto  25.6.1990.   The personnel to whom non cadre promotions given were  having  the  requisite  general  educational qualifications prescribed in the statutes and also the length of service.”

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Reliance was also placed on the resolution passed by the General

Council at its meeting held on 28.11.1992; Clause (vi) whereof reads as

under:

“To place/induct all Associate Professors (NC) as  regular  Associate  Professors  on  Rs.3700- 5700 in UGC on the ground that the non cadre promotions were not out of way promotions but it  was  part  of  IV  Kerala  Government  Pay Revision Orders.”

10. As despite the aforementioned judgment the said scheme was not

implemented in the case of the respondents, they filed a Writ Petition in

the  High  Court  of  Kerala  at  Ernakulam,  which   was  marked  as  Writ

Petition (Civil) No. 26689/2004-B praying inter alia for issuance of a writ

of  mandamus  against  appellant  –  University  to  place  them  in  the

UGC/ICAR  scale  of  pay  of  Rs.  3700-5700  with  effect  from  their

respective dates of promotion as Associate Professors (Non-Cadre) and to

grant all consequential benefits including arrears of salary.  

By reason of  a  judgment  and order  dated  24.09.2004,  a  learned

single judge of the High Court  allowed the said writ  petition directing

appellant to take appropriate action, stating:

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“It  is  the  contention  of  the  petitioners  that  in view  of  Ext.  P  7  judgment  of  the  Division Bench of this Court in W.A. No. 1182/94, there is no impediment now in granting the placement in the UGC scale of Associate Professors (Non Cadre) (Rs. 3700-5700) as per Ext.P.6.  Learned standing counsel submits that the issue is being actively considered by the Executive Committee of the University.  Once the sole impediment in the  matter  of  implementation  of  the  scale  has been cleared by the judgment in the Writ Appeal referred  to  above,  there  is  no  justification  in delaying justice to the Petitioners.  In the above circumstances,  I  dispose  of  the  Writ  Petition directing  the  Respondent  to  take  appropriate action  in  the  light  of  the  judgment  dated 11.9.2002 in  Writ  Appeal  No. 1182/94,  in  the matter of implementation of Exts. P 5 and P 6 in the case of the Petitioners, within a period of six weeks from the date of production of a copy of this  judgment  along  with  a  copy  of  the  Writ Petition by the Petitioners.   The consequential benefits  for  which  the  Petitioner  are  found eligible,  including  arrears,  shall  be  disbursed within a period of four months thereafter”  

11. However, the appellant  - University passed an order on or about

25.6.2005 rejecting  the said  claim of  the respondents  in  the  following

terms:

“1. The pay drawn in the State Scale of Pay by those teachers, who were granted the time bound higher  grade for  completing 10  years  as  per  University  proceedings read as 1st paper above and re-designated as Associate Professor (non-cadre) as per University proceedings read as 2nd paper

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above,  is  protected in the UGC scale of pay into which they are inducted.

2. Their pay will be fixed at the corresponding stage in the  UGC  scale  of  pay  into  which  cadre  they  are inducted.

3. They will  not  get  any seniority  in  the  cadre  merely because of their drawing higher pay by way of this pay protection.

4. The teachers,  who were senior  to  them in  the cadre and drawing lower pay as a result of this protection of pay to the juniors, are not eligible for any step up or protection of pay on par with that of their juniors.

5. The Comptroller, Kerala Agricultural University will fix the pay of the incumbents as per the rules for pay fixation.”

12. The validity and/or legality of the said order was questioned by the

respondents by filing writ petitions before the High Court marked as W.P.

(C) No. 10496 of 2006(Y), W.P. (C) No. 13543 of 2006 (K) and W.P. (C)

No. 13572 of 2006 (N) and by a judgment and order dated 14.11.2007,

the same was allowed, directing:

“I  have  considered  the  rival  contentions  in detail.  May be there would be an anomaly as contended by the learned standing Counsel for the University.  But the question is because of that anomaly, the Petitioners can be denied the benefits  as  per  Ext.  P.4  itself,  perhaps  the persons,  who  drafted  Ext.  P  4  may have  lost sight of the fact that there are certain Associate Professors  (non-cadre)  existing  in  the  service for whom they failed to  make provision while granting revised scales of pay.  However, when

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a  teacher  is  actually  drawing  the  salary  in  a particular scale of pay and scales of pay of all posts are revised as per Ext. P 4, in view of Sub Clause 3.02 quoted above, the Petitioners would be entitled to the scale of pay corresponding to the scale of pay which they are holding although they may not  be entitled to claim induction as Associate Professors.  It cannot be disputed that the scale of pay corresponding to Rs.1950-2950, as  per  Ext.  P  4  is  Rs.3700-5700.   Therefore, notwithstanding  the  anomaly  noted  above, unless  orders  are  passed  to  remove  that anomaly,  the  Petitioners  cannot  be  denied  the benefit of sub clause 3.02 read with Appendix II of  Ext.  P4.   They  would  be  so  entitled  with effect from 1.1.86 or the date of promotion as Associate  Professors  (non-cadre)  whichever  is later.  Therefore, the Petitioners in Writ Petition Nos.  10496/06,  13543/06,  13572/06  have become entitled  to  the  scale  of  pay  Rs.3700- 125-4950-150-5700  with  effect  from  1.1.86, 12.1.87  and  4.10.87.   It  is  so  declared.   The University  shall  pass  appropriate  orders  in accordance with the above finding and disburse monetary benefits  thereof  within  three  months from  the  date  of  receipt  of  a  copy  of  this judgment.”

13. Writ  appeals  preferred  thereagainst  by  the  appellant  have  been

dismissed by reason of the impugned judgment.  

14. Mr.  B.V.  Deepak,  learned  counsel  appearing  on  behalf  of  the

appellant in support of these appeals would submit:

i. The UGC/ICAR scales of pay had no application in respect

of  Associate  Professor  (Non-Cadre)  with  effect  from

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1.1.1986 as the eligibility criteria laid down therein were not

fulfilled by the respondents.

ii. Having  regard  to  the  scheme  of  the  Act  and  the  Statute

governing  the  terms  and  conditions  of  service  of  the

respondent, purported promotion of the Assistant Professors

to the posts of Associate Professor (Non-cadre) must be held

to be illegal.

iii. In  view  of  the  fact  that  the  respondent  having  not  been

appointed in a regular establishment of the University, were

not  entitled to  the  UGC scale  of  pay,  and,  thus,  the  High

Court committed a serious illegality in following the earlier

Division Bench judgment passed in Writ Appeal Nos. 1102,

1400, 1430 and 1176 of 1994 that too without arriving at a

finding  that  the  respondents  were  entitled  to  the  grant  of

UGC scale of pay.

iv. In  any  event,  clause  3.01  being  applicable  to  the  case  of

appellant,  the  conditions  laid  down  in  Appendix  I  was  to

apply and not those contained in Appendix II thereof which

was  a  surplusage.    In  any event,  respondents  having  not

fulfilled the criteria of promotion as contained in clause 5.04,

5.05, 5.06 and 5.07 thereof, the respondents were not eligible

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for promotion as on 1.1.1986, the impugned judgment cannot

be sustained.

15. Mr.  K.  Rajeev,  learned  counsel  appearing  on  behalf  of  the

respondents, on the other hand, would urge:

i. Appellant  –  University  itself  having  accepted  the  Scheme

and having supported the case of the respondents could not

take a new stand in the writ petition filed by the respondent.

ii. In any event, in terms of the Notification itself issued by the

appellant  – University the promotion made upto 25.6.1990

having  been  protected,  the  impugned  judgment  does  not

suffer from any legal infirmity.  

iii. ICAR having deposited the entire amount with University, it

is  not,  in  any  event,  a  fit  case  where  this  Court  should

exercise  its  discretionary jurisdiction  under  Article  136  of

the Constitution of India.

16. The contesting respondents were appointed / promoted to the post

of Associate Professor (Non-Cadre).  The Scheme did not exclude their

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cases.  Indisputably, they were promoted to the said posts on the basis of

the decision taken by the University itself.   

17. We  do  not  find  any  anomaly  in  clauses  3.01  and  3.02  of  the

Scheme.   Clause  3.01  merely  limits  the  starting  scale  of  pay  to  be

inclusive of the elements stated therein; whereas clause 3.02 provides for

substitution of one scale of pay by another as contained in Appendix II

thereto.   It is, therefore, not correct to contend that the scales of pay of

teachers  in University as substituted in terms of the said Scheme were

wrongly noted in Appendix II thereof.  

18. It  is  not  in  dispute  that  in  terms  of  order  dated  2.8.1988  the

respondents were promoted to the post of Associate Professor, with effect

from 1987.  The conditions for promotion laid down in the Scheme were

to  apply  to  future  promotions  and  not  to  the  promotions  which  had

already been granted.   Keeping that  fact  only in view, the promotions

made  upto  1.2.1988  were  protected  in  terms  of  the  UGC  Scheme

providing that the existing merit promotion scheme, namely, Assessment,

norms and Non-cadre promotion made after 1.2.1988 would be treated as

cancelled.   We  have  noticed  hereinbefore  that  in  terms  of  the

aforementioned Notification dated 4.4.1995 such protection in regard to

the promotion was extended upto 25.6.1990 subject to the condition that

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in such cases the benefit  of revision will  be available to teachers only

from the date of promotion.

19. The  learned  single  judge  of  the  High  Court  by  reason  of  its

judgment  and  order  dated  14.11.2007  categorically  held  that  the

respondents would be entitled to the benefit of revised scale of pay with

effect from 1.1.1986 or from the date of promotion as Associate Professor

(Non-Cadre), whichever is later.  We, therefore, are not in a position to

agree with the contention of Mr. Deepak that the criteria laid down in

terms  of  the  aforementioned  UGC/ICAR Schemes  must  be  considered

having regard to the cut  off  date  specified  therein,  i.e.,  1.1.1986 only.

Appellant-University itself, as noticed hereinbefore, supported the case of

the respondents.   It itself raised a contention that such promotions were

made in terms of the resolutions passed by the General Council.   

20. We may also notice that a similar stand was taken by the University

in a letter dated 1.1.93 addressed to the Secretary to Government, which

is to the following effect:

“It may be noted that the non cadre promotion as Associate Professor (NC) was not an out of way promotion as it was part of the IV Kerala pay  Revision  Orders.   It  was  specified  that where there exist  4  levels  from entry cadre  to Professors as in professional Colleges, 10 years service  in  the  lower  two  cadres  put  together entails  an  incumbent  to  the  third  level  viz. Associate Professor (NC).

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In  Engineering  Colleges  and  Calicut University,  the  non  cadre  promotions  upto 28.2.1989  and  31.3.1990  respectively  were reckoned.   Therefore  the  Teachers  of  KAU demanded  that  the  non  cadre  Associate Professorship may also be reckoned and a scale to scale induction may be granted placing them in  the  scale  of  Rs.3700-5700.   It  was  under these  circumstances  that  the  General  Council resolved to request the Government that all the Associate  Professor  in  the  scale  of  Rs.1950- 2750 (pre revised) may be placed in the scale of Rs.3700-5700 irrespective of whether they were cadre  Associate  Professor  or  non  cadre Associate Professor.”

By a letter dated 20.3.1991, it was stated:

“The  meeting  of  the  Executive  Committee  on 13.3.1991  decided  to  recommend  to  the Government  to  give  permission  to  induct  all Assistant  professors  both  directly selected  and selected from among Junior Asst. Professors in senior  scale  as  on  1.1.86  or  the  date  of  their selection whichever is later and also to induct of Associate Professor (NC) as Assoc. Professor in the Scheme.  The induction of Asst. Professor to senior scale is highly essential since protection of cadre seniority would be difficult otherwise. For  instance,  an  Asst.  professor  directly recruited in 1987 will  become junior to Junior Asst. Professor as on 1.1.86.  It is evident that the former had been enjoying cadre seniority as on  date  of  appointment  and  till  the  date  of induction.  This may cause much heart burns to the Asst. Professors who were recruited directly by  the  University.  It  may  go  against  the provisions  of  KSSR  which  protect  cadre seniority.

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I  request  that  this  anomaly  may  be rectified  by  sanctioning  senior  scale  to  all directly recruit Asst. Professors as on 1.1.86 or from the date of their recruitment whichever is later.”

21. Pursuant to or in furtherance of the said request only the statutes

were amended.   Such amendment in the statute was indisputably made

pursuant  to  the  recommendations  made  by  UGC/ICAR  which  was

accepted by the appropriate authorities of appellant – University.  It  is

from that point of view only the Scheme framed by the UGC should be

taken into consideration.

22. There  cannot  be  any  doubt  whatsoever  that  the  Associate

Professors (Non Cadre) were, in fact, included within the purview of the

said Scheme. The amendments made by the State in terms of the request

made  by  appellant  –  University,  in  our  opinion,  should  be  construed

having  regard  to  the  grounds  on  the  basis  whereof  the  request  for

amendment of statute was made.

23. Promotions  of  the  respondents,  therefore,  having  received  the

statutory protection and the High Court having directed that the benefit of

the revised scale of pay should be extended to the contesting respondents

only  from  the  date  of  their  promotion,  in  our  considered  view,  the

impugned judgment does not suffer from any legal infirmity.

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24. These appeals, therefore, being devoid of any merit are dismissed

with costs.  Counsel’s fee assessed at Rs.10,000/- to be paid to each of the

counsel appearing on behalf of the contesting respondents.

……………….…..………….J. [S.B. Sinha]

..………………..……………J.        [Cyriac Joseph]

New Delhi; April 15, 2009

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