AI Structured Summary
Not yet generated for this judgment
Judgment
This petition, under Article 226 of Constitution of India, has been filed seeking the following relief (s):-
“(a)to call for the relevant records of the case from the respondents;
(b)to quash the impugned order dated 1.4.2025 (Annexure P/5) issued by Respondent No. 1 in so far as it sanctions the pay scale of Rs. 37400-67000/- + AGP 10000/- to the petitioners from the date of assumption of the charge by them on the post of Professor, by a writ of CERTIORARI or any other appropriate writ, direction or order;
(c)to command the Respondents to fix the pay of the petitioners in the pay scale of Rs. 37400-67000/- + AGP 10000/- from the date of their entitlement i.e. 1.1.2006, 1.1.2007, 1.1.2008, 1.1.2009, 1.1.2010 (as the case may be) as depicted against their names in the Table in Para 5.2 of the petition and to refix their pay and post retiral benefits (if any and as the case may be) and to release arrears thereof alongwith interest @ 12% p.a., by a writ of MANDAMUS or any other appropriate writ, direction or order;
(d)to allow this petition with costs.”
Learned counsel for the petitioner submits that the petitioners, who are substantive Professors in Government colleges (including Petitioner No. 27, who represents her deceased husband), were initially promoted/designated as Professors by order dated 13.06.2018, which was subsequently modified on 20.06.2018 to grant them promotion from the date of their entitlement. Under the UGC Pay Revision Scheme, adopted by the State Government, Professors were entitled to the pay scale of Rs. 37,400–67,000 with AGP Rs. 10,000 with effect from 01.01.2006; however, the State later reduced the AGP to Rs.9,000/- through a circular dated 14.09.2012, which was quashed by the High Court in Dr. Ramlala Shukla & Others v. State of M.P. and others [2013 (4) MPLJ 212], holding that Professors were entitled to AGP Rs.10,000/- from the date of enforcement of scheme of revision of pay, i.e., w.e.f. 01.01.2006. Although writ appeals were filed, the State eventually resolved on 04.03.2024 to extend the benefit of AGP Rs.10,000/- to promoted/designated Professors from 01.01.2006, issued orders dated 06.09.2024 and upon withdrawal of writ appeals, respondent No. 1 issued an order dated 23.12.2024, and the High Court subsequently deprecated the State's delay in extending the benefit. Despite this, by the impugned order/circular dated 01.04.2025 (Annexure P-5), the State directed that AGP Rs.10,000/- be granted only from the date the petitioners assumed charge as Professors rather than from the date of their entitlement, and their pay was accordingly fixed from 13.06.2018 instead of the due date, causing financial prejudice and giving rise to the present writ petition. Learned counsel for the petitioners further submitted that the petitioners are aggrieved by illegal, arbitrary and malafide order dated 01.04.2025 (Annexure P/5) issued by Respondent No. 1, contrary to the provisions of UGC Regulations, 2010, M.P. Educational Service (Collegiate Branch) Recruitment Rules, 1990, as also the judgment rendered by this Hon'ble Court in the case of Dr. Ramlala Shukla (supra), in so far as it extends the benefit of pay scale of Rs.37400-67000/AGP 10,000/- to the petitioners from the date of assumption of the charge on the post of Professor i.e. w.e.f. 13.06.2018 by completely overlooking the order dated 20.06.2018 issued by Respondent No. 1.
Per contra, learned counsel appearing for the respondents/State, while inviting attention to the reply filed on behalf of the respondents, submitted that the circular/order dated 01.04.2025 (Annexure P-5) is legal, valid, and free from mala fides, noting that the petitioners have neither pleaded specific facts constituting mala fides nor impleaded any individual, against whom such allegations are made. It is further submitted that Clause 2(i) of the circular dated 01.04.2025 clearly provides that the UGC Sixth Pay Scale of Rs.37,400–67,000 with AGP Rs.10,000/- is admissible to directly recruited, promoted, or designated Professors only from the date they assume charge on the post of Professor and the petitioners were promoted as Professors vide order dated 13.06.2018, with the promotion taking effect from the date of joining, as reflected in the promotion order itself. Learned counsel relied on FR 17(1) and submitted that an employee becomes entitled to the pay and allowances of a post only from the date of assuming its duties, and therefore the petitioners cannot claim the Professor's pay scale from the date of eligibility. Learned counsel also distinguished the decision in Dr. Ramlala Shukla (supra) by submitting that it dealt with parity between directly recruited and promoted Professors and not with the issue of granting pay from the date of eligibility. The petitioners have failed to identify any provision of the UGC Regulations, 2010 or the M.P. Educational Services (Collegiate Branch) Recruitment Rules, 1990 that is violated by the circular dated 01.04.2025, therefore, learned counsel submitted that the writ petition is devoid of merit and liable to be dismissed.
Heard the learned counsel for the parties and perused the record.
Whether the petitioners, whose promotion as Professors was subsequently granted retrospective effect from their respective dates of entitlement by order dated 20.06.2018, are entitled to fixation of pay in the UGC pay scale of Rs.37,400–67,000/- with Academic Grade Pay (AGP) of Rs.10,000/- from the date of such entitlement together with all consequential monetary benefits, or whether such benefits can be restricted only from the date on which they physically assumed charge of the promotional post by virtue of the executive instructions dated 01.04.2025?
In the Scheme of revision of pay of Teachers and equivalent cadres in Universities and Colleges following the revision of pay scales of Central Government employees on the recommendations of the Sixty Central Pay Commission (Letter No.1-32/2006-UII/U.I(i). Government of India, Ministry of Human Resource Development, Department of Higher Education, New Delhi dated 31st of December, 2008), revised pay scales and other provisions of the Scheme have been given. Relevant Clause 2(a)(xiii) reads as under:-
“2. Revised Pay Scales, Service Conditions and Career Advancement Scheme for teachers and equivalent positions:
(a) Assistant Professor/Associate Professors/Professors in Colleges & Universities:
(xiii)Associate Professor completing 3 years of service in the AGP of Rs.9,000 and possessing a Ph.D. degree in the relevant discipline shall be eligible to be appointed and designated as Professor, subject to other conditions of academic performance as laid down by the UGC and if any by the university. No teacher other than those with a Ph.D. shall be promoted, appointed or designated as Professor. The Pay Band for the post of Professors shall be Rs.37400-67000 with AGP of Rs.10000.”
From perusal of the record, it is gathered that petitioners, who are substantive Professors in Government colleges (including the legal representative of a deceased Professor), were promoted as Professors by order dated 13.06.2018, which was modified on 20.06.2018 to grant promotion from the date of their entitlement. Under the UGC Pay Revision Scheme, adopted by the State, Professors were entitled to the pay scale of Rs.37,400–67,000 with AGP Rs.10,000/- w.e.f. 01.01.2006, and although the State had reduced the AGP to Rs.9,000/- through a circular dated 14.09.2012, the same was quashed by this Court in Dr. Ramlala Shukla (supra), holding that Professors were entitled to AGP Rs.10,000/- from 01.01.2006. All the petitioners are holding substantive Professor in their respective subjects from the dates mentioned against their names as depicted in the following table:-
| Petitioners | Names of petitioners | Subjects | Date of Promotion to post of Professor |
|---|---|---|---|
| 1 | Dr. Anil Kumar Bajpai | Commerce | 1.1.2006 |
| 2 | Dr. O.P. Chack | Political Science | 1.1.2007 |
| 3 | Dr. Suresh Kumar Sachdeva | Economics | 1.1.2006 |
| 4 | Dr. Sushil Kumar | History | 1.1.2006 |
| 5 | Dr. Sarvapriya Sharma | Economics | 1.1.2009 |
| 6 | Dr. (Smt.) Sadhna Dixit | Hindi | 1.1.2006 |
| 7 | Dr. (Ms.) Mamta Goyal | Hindi | 1.1.2006 |
| 8 | Dr. Ravi Ranjan | Political Science | 1.1.2010 |
| 9 | Dr. (Mrs.) Neelima Shukla | Chemistry | 1.1.2008 |
| 10 | Dr. (Ms.) Prabha Chauhan | Chemistry | 1.1.2009 |
| 11 | Dr. Sudhir Sharma | Economics | 1.1.2006 |
| 12 | Dr. Dharmveer Singh | Economics | 1.1.2008 |
| 13 | Dr. Jagdish Pal Singh | English | 1.1.2008 |
| 14 | Dr. Atindra Singh Tomar | Geography | 1.1.2008 |
| 15 | Dr. (Ms.) Sita Agrawal | English | 1.1.2008 |
| 16 | Dr. (Smt.) Abha Bajpai | Political Science | 1.1.2008 |
| 17 | Dr. Arun Kumar Upadhyaya | Sociology | 1.1.2009 |
| 18 | Dr. (Smt.) Kalpana Bhadoriya | Hindi | 1.1.2006 |
| 19 | Dr. Mamta Dubey | Sociology | 1.1.2009 |
| 20 | Dr. Anil Kumar Upadhyaya | Physics | 1.1.2006 |
| 21 | Dr. Ramesh Bhardwaj | History | 1.1.2006 |
| 22 | Dr. Brajendra Singh Chauhan | Economics | 1.1.2008 |
| 23 | Dr. Shishir Kumar Kashyap | Political Science | 1.1.2009 |
| 24 | Dr. Arvind Singh Gahlaut | Chemistry | 1.1.2008 |
| 25 | Dr. Abha Mishra | Hindi | 1.1.2006 |
| 26 | Dr. Sudha Singh | Political Science | 1.1.2008 |
| 27 | Dr. Ashok Kumar Singh (Deceased) Thr. his LR Smt. Manju Singh | Philosophy | 1.1.2006 |
| 28 | Dr. (Smt.) Sarita Verma | Library Science | 1.1.2006 |
| 29 | Dr. (Ms.) Lata Mishra | English | 1.1.2008 |
| 30 | Dr. (Ms.) Charu Chitra | English | 1.1.2009 |
| 31 | Dr. (Ms.) Charu Katare | Home Science | 1.1.2007 |
Despite the State's subsequent decision and orders extending the benefit, the impugned order dated 01.04.2025 grants AGP Rs.10,000/- only from the date the petitioners assumed charge as Professors, i.e., 13.06.2018, instead of the date of their entitlement under the modified promotion order dated 20.06.2018. The impugned order is illegal, arbitrary, and contrary to the UGC Regulations, 2010, the M.P. Educational Service (Collegiate Branch) Recruitment Rules, 1990, and the judgment in Dr. Ramlala Shukla (supra), resulting in incorrect pay fixation and financial prejudice to the petitioners. In the case of Dr. Ramlala Shukla (supra), it has been held that:-
“12.Now the other issue is required to be considered, whether the UGC has prescribed the pay bands for revision of pay on the basis of pre-revised pay scale or not, and whether the intention of UGC is to give a particular pay band with AGP on different rates as per the nomenclature of post or not? It is to be seen that the object of the instructions contained in the Schemes Annx. P/2 in the writ petition is fulfilled, already in advance by the State by prescribing a post which could be designated as post of Associate Professor. Why this is held so because in the Scheme of the UGC different pay scales-are prescribed for different posts. The post of Assistant Professor formally known as Lecturer in the senior scale which were given the pay scale of Rs. 10,000-15,200/- have been given a revised pay band of Rs. 15, 600-39,100/- plus AGP of Rs. 7000/-. The distinction is made between the two pay scales; one which was given to those lecturers who were having less than three years of service in selection grade, which was as per prerevised pay scale of Rs. 12,000-18,300/- and which post was also given the pay band of Rs. 15,600-39,100/- with slightly higher AGP of Rs. 8,000/-. This was categorically indicated in Table III. Table IV was made applicable for those readers and lecturers selection grade who were having three years of service and those who were working in the pay scale of Rs. 12,000-18,300/- they were given the pay band of Rs. 37, 400-67,000 plus AGP of Rs. 9000/-. Now these posts are to be declared or treated as Associate Professors. The specific pay scale was given to the post of Professors which according to the UGC were earlier given the pay scale of Rs. 16, 400-22,400/-. The revised pay band given to this post was Rs. 37, 400-67,000/- plus AGP of Rs. 10,000/-, as was indicated in Table V. If the different pay scale mentioned in the different Tables referred to herein above are taken into consideration, those Assistant Professors, Lecturers or Readers working in the selection grade pay scale, who were given the benefit of pay scale of Rs. 12,000-18,300/-, they were given the revised pay band of Rs. 15, 600-39,100/- with AGP of Rs. 8,000/-, which was not comparable with the pay scale of the post of Professor as the post of Professor was not only independently shown, but it was further said that the pre-revised pay scale of the same was slightly higher than the pay scale of the aforesaid Readers, Lecturers and Assistant Professors. The Scheme specifically prescribes different standard for designating a Professor, but it nowhere prescribes that the said person should be working only in the pre-revised scale as mentioned in Table V, otherwise the revised pay band plus AGP would not be applicable. This leaves this Court with no option, but to accept that the post of Professor was separately designated and irrespective of the pre-revised pay scale, a pay band similar to the pay band of the Assistant Professors selection grade (or Associate Professors) with slightly higher AGP was sanctioned by the UGC to the said post. This has to be noted that in some other post, the incumbents who were working in the lesser pre-revised pay scale were given this revised pay band plus AGP as is referable from Table VI of the Scheme.
In view of this, if the entire Scheme is looked into, no rider was put by the UGC in its Scheme that a particular revised pay band with AGP would be applicable to a post only if the incumbent on the said post was getting the salary in the pre-revised pay scale indicated in the appropriate table appended to the Scheme. Different considerations were done by the UGC in the matter of prescribing the revised pay band, as it was categorically provided in paragraph 2 of the Scheme where the revised pay scales, Service conditions and Career Advancement Scheme was formulated by the UGC. It was categorically said that incumbents working as Assistant Professor, herein the case of State of Madhya Pradesh which post is treated to be-equivalent to the post of Reader and Lecturers selection grade and those who have completed three years of service shall be placed in the pay band of Rs. 37, 400-67,000 with AGP of Rs. 9,000/- and shall be redesignated as Associate Professor. This was for those who were not promoted to the post of Professor and were in fact working in the selection grade pay scale. The designation or redesignation of such a post as Associate Professor, would not change the status of the persons like petitioners as they have already been promoted as per the Scheme of the Gazetted Rules long back, before even coming into force of the Scheme formulated by the UGC. It will not be out of place to mention here again that though the Scheme was made applicable with effect from 1-1-2006 by the UGC, but it was formulated only on 31-12-2008 and subsequently converted into a Regulation in the year 2010. The right of designation as full fledged Professor accrued in favour of petitioners thus was not to be affected by such a Scheme which was applicable with effect from 1-1-2006 only. It was reiterated in the entire Scheme that the pay band for the post of Professor shall be Rs. 37, 400-67,000/- with AGP of Rs. 10,000/-. There is no restriction put by the UGC that the said benefit would be available only to the direct recruits Professors and not to the promotees. According to the law, it was rightly done so because once the recruitment is done by two different sources, the recruitees become a part of one cadre and there cannot be a distinction in the matter of grant of pay only on the basis of the source of recruitment of such incumbents. Further, it has to be seen that the UGC has not insisted on prerevised scale for grant of specific pay band and AGP for a simple reason that there may be different pay scale prescribed by the State Governments of different States of the country looking to their financial capability, and if the post though higher in nomenclature has been given a lesser pay scale to the teaching posts in higher education institutes by a particular State in comparison to the pay scale given by the other States, an anomaly would be created in such a manner if any restriction is put for grant of revised pay band with AGP on the basis of prerevised pay scale. If this is allowed, it would be squarely hit by Articles 14, 16 and 39(d) of the Constitution of India and would be a hostile discrimination of a group within the group. A class within the class cannot be created without there being a reasonable nexus to achieve an object justifiedly. This particular aspect is also taken care of by UGC as would be clear from the memo sent by UGC to the Principal Secretary of the department which would be referred to herein after.
As has been put-forth by learned counsel for the petitioners, this Scheme was taken note of by the State Government and in a Public Interest Litigation filed before this Court, a categorical statement was made that the decision is taken by the State Cabinet to implement the said Scheme and orders in this respect have been issued on 16-4-2010. Before issuing the said orders, certain policy decisions were taken by the Cabinet of Ministers, pursuance to which an affidavit was filed before the Division Bench of this Court and these facts were categorically pointed out. Since such an aspect was considered by the Division Bench and this particular aspect was also noted down, the order dated 16-4-2010 was issued. Now it is not proper for the respondent-State to say that there were no post of Associate Professor and therefore, the persons like petitioners who were in fact working in the lesser pay scale should not have been given the higher revised pay band of Rs. 37, 400-67,000/- plus AGP of Rs. 10,000/-. It is tried to canvass by the learned Advocate General that in fact something was added in the Table appended to such an order which in fact was not prescribed by the UGC at all and, therefore, such a higher rate of AGP was not available to the persons like petitioners. This Court after examining such facts in the light of Scheme of UGC is not impressed by such submission of learned Advocate General. In fact, such note was not appended incorrectly or by mistake, but it was deliberately added because there was no distinction made by the UGC in the matter of grant of revised pay scale with higher AGP to the post of Professors, on the basis of source of their recruitment and, therefore, it cannot be said that it was a folly or a mistake crept in the order dated 16-4-2010 passed by the respondent-Stae. What in fact is intended by the impugned order dated 14-9-2012 is change of the AGP to the post of Professor which is not prescribed by the UGC. In terms of the specific instructions issued by the UGC, in fact such a change was not to be made as it would be completely in violation to the Scheme of revision of pay prescribed by the UGC. What in fact intended by the UGC while intimating the respondent-State vide memo dated 8-1-2010 was that a change can be made to introduce the scale of pay higher than those mentioned in the Scheme of UGC, but not to reduce the pay scale or the AGP. For the purposes of convenience, the letter sent by the UGC to the Principal Secretary of the Department of Higher Education, Government of Madhya Pradesh on 8-1-2010 is reproduced in toto, which reads thus:—
“No. F. 11-37/2009-U. II
Government of India Ministry of Human Resource Development Department of Higher Education New Delhi, 8th January, 2010
To, The Principal Secretary, Higher Education Department, Government of Madhya Pradesh, Mantralaya, Bhopal.
Subject:— Reimbursement of financial burden due to implementation of U.G.C. Pay Scales on the basis of 6th Pay Commission recommendation to Teachers and equivalent Cadres in Universities and Colleges from 1-1-2006.
Sir,
I am directed to refer to your letter No. 2558/PS/HE/09 dated 20-11-2009 requesting for reimbursement of 80% of the additional requirement of the State Government consequent on revision of pay scales of the teachers in universities and colleges under the State Government, in pursuance of this Ministry's letter No. 1-32/2006-U. II/U. 1(i) dated 31-12-2008. In this context, the Notification No. F. 1-124/2009/1/38 dated 29-10-2009 issued by the State Government of Madhya Pradesh has been examined. It is observed that the State Government has not implemented this Ministry's Scheme of revision of pay of teachers and equivalent cadres in universities and colleges as contained in this Ministry's letter dated 31-12-2008 as a composite package. The following modifications have been noted:—
(a)Pay Band-4 (Rs. 37, 400-67000) plus Academic Grade Pay of Rs. 9000 has been made applicable to teachers and equivalent positions after completing 5 years service in the Selection Grade (pre-revised scale of Rs. 12000-18300). This is not in conformity with the provisions contained in this Ministry's letter No. F. 1-32/2006-U. II/U. 1 (i) dated 31-12-2008, wherein 3 years service has been prescribed.
(b)Designation of Associate Professor has not been mentioned for those who have been placed in Pay Band-4 (Rs. 37400-67000) with AGP of Rs. 9000.
(c)The provision for special allowance of Rs. 2000 and Rs. 3000 to the Principals of Undergraduate and Post-graduate colleges respectively as per guidelines, has not been implemented.
(d)The State Government has also provided for pay scale of Rs. 37, 400-67,000 plus AGP of Rs. 9,000 for the so called post of “Professors” in colleges against the pre-revised scale of Rs. 12,000-18,300. No such post of Professors in the pre-revised pay scale of Rs. 12,000-18,300/- was prescribed by the Ministry of Human Resource Development.
2.The applicability of the scheme has been indicated in para 8(p)(v) of this Ministry's letter dated 31-12-2008, which, inter alia, provides that the Scheme may be extended to universities, Colleges and other higher educational institutions coming under the purview of the State legislatures, provided State Governments wish to adopt and implement the Scheme subject to the following terms and conditions:
(a)Financial assistance from the Central Government to State Governments opting to revise pay scales of teachers and other equivalent cadre covered under the Scheme shall be limited to the extent of 80% (eighty percent) of the additional expenditure involved in the implementation of the revision.
(b)The State Government opting for revision of pay shall meet the remaining 20% (twenty percent) of the additional expenditure from its own sources.
(c)Financial assistance referred to as (a) above shall be provided for the period from 1-1-2006 to 31-3-2010.
(d)The entire liability on account of revision of pay scales etc. of university and college teachers shall be taken over by the State Government opting for revision of pay scales with effect from 1-4-2010.
(e)Financial assistance from the Central Government shall be restricted to revision of pay scales in respect of only those posts which were in existence and had been filled up as on 1-1-2006.
(f)State Governments, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme, and may give effect to the revised bands/scales of pay from a date on or after 1-1-2006; however, in such cases, the details of modifications proposed shall be furnished to the Central Government and Central assistance shall be restricted to the Pay Bands as approved by the Central Government and not to any higher scale of pay fixed by the State Govemment(s).
(emphasis supplied)
(g)Payment of Central assistance for implementing this Scheme is also subject to the condition that the entire Scheme of revision of pay scales, together with all the conditions to be laid down by the UGC by way of Regulations and other guidelines shall be implemented by State Governments and Universities and Colleges coming under their jurisdiction as a composite scheme without any modification except in regard to the date of implementation and scales of pay mentioned herein above.
3.Thus as per the terms and conditions of the Ministry's letter dated 31-12-2008, the State Governments are required to implement the scheme as a composite one, including the age of superannuation (mentioned in para 8(f) of this Ministry's letter dated 31-12-2008), together with all the conditions to be laid by University Grants Commission (UGC) by way of regulations and other guidelines. The UGC has not so far notified the Regulations in this regard. Therefore, the State Governments shall have to adopt-the scheme including the regulations as may be prescribed by UGC, for being eligible for appropriate central assistance. However, it is mentioned that the various allowance applicable to teachers and equivalent cadres in State Governments shall be governed the respective State Government rules. The Central assistance of 80% covers only the additional requirements towards revision of pay and does not include any amount paid towards allowances.
4.It is provided in Para 8(p)(v)(f) of this Ministry's letter dated 31-12-2008, that the State Governments taking into consideration other local conditions may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme. This implies that State Governments cannot make modifications lowering the pay package prescribed by this Ministry. Also after adoption of the Central Scheme as a composite package, the State Government shall be required to furnish detailed calculations in support of its claim for central assistance, for which a proforma is being devised by this Ministry,
(emphasis supplied)
5.Release of the central assistance shall be considered by this Ministry in accordance with the provisions of the Scheme only after the State Government have adopted and implemented the scheme as a composite scheme, including adoption of the age of superannuation, and have disbursed the salary based on revised pay scales, and after scrutiny of the detailed proposal as may be received from the State Government, necessary rectifications may be made by the State Government in its notification dated 29-10-2009, before being eligible for central assistance.
6.This issues with the approval of Secretary, Department of Higher Education.
Yours faithfully, (Rajender Kalwani) Under Secretary to the Government of India”
15.With this background and the law, the controversy involved in the present petitions is to be examined. It is the case of the petitioners that the benefit of higher AGP was granted after due consideration by the State Government and the matter was finally decided by the Cabinet of Ministers. It is, thus, to be seen whether under the rules of business, such an order passed on the basis of approval of the Cabinet of Ministers was to be recalled or even modified by the respondent-State without placing the same before the Cabinet of Ministers. The rules of business of Executive Government have been made by Governor of the State in exercise of power conferred by Clause (ii) and (iii) of the Article 166 of the Constitution of India, which prescribe the matters to be placed before the Cabinet of Ministers. Rule 7 in Part-I of the Rules prescribes which cases are to be placed before the Cabinet of Ministers. It is categorically provided that in accordance with the general directions or by a special direction issued by the Chief Minister, the Minister In-charge of the case with the consent of the Chief Minister, or the Governor under Article 167-C are to be brought before the Cabinet of Ministers. Part-II of the Rules deals with the business or the cases which are normally to be placed before the Cabinet of Ministers. Clause (iv) of the said part specifically provided that any proposal affecting the finances of the State or for re-appropriation within a grant in which the Minister In-charge of the Finance Department has not concurred, are required to be placed before the Cabinet of Ministers. Similarly Clauses (viii) and (ix) deal with the cases where the proposal to vary or reverse a decision previously taken at the meeting of the council is to be considered, or proposal involving any important change of policy and practice are to be placed before the Cabinet of Ministers. Similarly, Clause (xiv) specifically prescribes that Service Rules and their amendments when the General Administration Department has not agreed to such Rules or amendment and the concerned department deems it necessary to submit such cases before the Council, is required to be placed before the Council. Similarly Clause (xxvi) prescribes that cases where any circular embodying any important changes in the administrative system of the State is required to be issued, are to be placed before the Council for consideration. It is not in dispute as it is admitted by the respondents that the order dated 16-4-2010 was issued only after taking a policy decision by the state Government in the Cabinet of Ministers. That being so, it was necessary on the part of respondents to place such a matter before Cabinet of Ministers. If a decision is taken without placing such a matter before the Cabinet of Ministers, it would be a nullity as has been held by the Apex Court in the case of MRF Limited v. Manohar Parrikar, (2010) 11 SCC 374. The Apex Court dealing with such a situation has categorically held in paragraphs 90 and 91 of the report, which read thus:—
“90.Before the High Court as also before us it was contended by the appellants herein, that, the Rules framed under Article 166(3) are only directory in character and failure to comply with them does not vitiate the decision taken by the State Government. The High Court after considering the various judgments cited before it has repelled the said contention to hold that the said Rules are mandatory and non-compliance thereof would be disastrous. The reasoning adopted by the High Court to arrive at such a conclusion is sound and in accordance with the constitutional mandate. The decisions of the State Government have to be in conformity with the mandate of Articles 154 and 166 of the Constitution as also the Rules framed thereunder as otherwise such decision would not have the form of a Government decision and will be a nullity.
91.The Rules of Business framed under Article 166(3) of the Constitution are for convenient transaction of the business of the Government and the said business has to be transacted in a just and fit manner in keeping with the said Business Rules and as per the requirement of Article 154 of the Constitution. Therefore, if the Council of Ministers or Chief Minister has not been a party to a decision taken by an Individual Minister, that decision cannot be the decision of the State Government and it would be non-est and void ab initio. This conclusion draws support from the Judgment of this Court in the case of Haridwar Singh v. Bagun Sambrui, (1973) 3 SCC
889.This Court in the said case was dealing with the Business Rules of the State of Bihar framed under Article 166 (3) of the Constitution of India and the observations of this Court on the issue apply to the case on hand in all force. This Court observed:
“14.Where a prescription relates to performance of a public duty and invalidate acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, such prescription is generally understood as mere instruction for the guidance of those upon whom the duty is imposed.
15.Where however, a power of authority is conferred with a direction that certain regulation or formality shall be complied with, it seems neither unjust nor incorrect to exact a rigorous observance of it as essential to the acquisition of the right or authority.
16.Further, Rule 10(2) makes it clear that where prior consultation with the Finance Department is required for a proposal, and the department on consultation does not agree to the proposal, the department originating the proposal can take no further action on the proposal. The Cabinet alone would be competent to take a decision. When we see that the disagreement of the Finance Department with a proposal on consultation, deprives the Department originating the proposal of the power to take further action on it, the only conclusion possible is that prior consultation is an essential prerequisite to the exercise of power.”
Thus, it has to be held that the order passed by the respondents without obtaining the approval from the Cabinet of Ministers cannot be said to be a valid order.
16.The respondents have categorically admitted that they have issued the order impugned only to remedy the mistake committed in issuing the order dated 16-4-2010 and have further said that the order dated 14-9-2012 is not a new order making any change in the order passed by the State Government after taking a policy decision in the Cabinet of Ministers. Such a contention of the respondents cannot be accepted in view of the fact that there was a departure from the Scheme and the Regulations made by the UGC by proposing a lesser amount of AGP to the post of Professors, which was not permissible in terms of law laid down by the Apex Court and this was done even without placing the matter before the Cabinet of Ministers. The fact remains that section 21 of the M.P. General Clauses Act, 1957, categorically prescribes that where under any Act, a power to issue Notification, orders, rules or bye-laws is conferred then that power includes a power, exercisable in the like manner and subject to the like sanctions and conditions, if any, to add, to amend, vary or rescind any notifications, orders, rules or bye-laws, so issued. Admittedly, the power was exercised by the State in making a policy under the executive Rules of business. The said Rules itself prescribe making of a policy as has been discussed herein above. If there was a mistake either in making the policy or issuing the order in consonance to the policy, amendment in the said policy or the consequential order was required to be made in the like manner. The matter should have been placed before the Cabinet of Ministers indicating any such mistake if at all, crept in issuing the order dated 16-4-2010 and the Cabinet of Ministers was required to adjudicate whether there was a mistake committed in making the policy or with a purpose, the order was so issued after making of policy. It was not open to the Secretary of the department to propose something and to accept by the Minister Incharge of the department to make a change in the order so issued after making of policy. This Court has examined these aspects on number of occasions and in the case of Rajkumar Dawar v. State of M.P., 2001 (1) MPLJ 368 and in the case of A.K. Shrivastava v. Union of India, (2002) 3 MPHT 1 and in the case of Kishore Samrite v. State of M.P., I.L.R. (2013) MP 138 has categorically held that such a pov/er could not have been exercised in any other manner to amend an order, notification or rule without following the same procedure as was required to be followed for issuing such order or notification and making of a rule. The Apex Court has also looked into these aspects and has categorically held that power conferred under section 21 of the Act aforesaid is only a rule of construction and cannot be construed to widen the statutory limit or the power given by the statute. This aspect has again been considered by the Full Bench of this Court in the case of Heavy Electrical Majdoor Trade Union v. State of M.P., 2006 (1) MPHT 551 (FB). Thus, it is clear that at any rate, even if there was a mistake committed in issuing the order dated 16-4-2010 prescribing any higher rate of AGP to the post of Professor, within the State, any change could have been done in the said grant of AGP after placing the same before the Cabinet of Ministers. This has already been held that there was a complete departure from the Scheme made by the UGC duly formulated in regulations, giving a particular AGP to the post of Professor. As per the law laid down by the Apex Court discussed herein above, such a departure would be de horse the Scheme and Regulations of the UGC, which is not permissible, specially when this fact was brought to the notice of the respondents vide letter dated 8-1-2010, referred to hereinabove.
17.In view of the discussions made herein above at length and in view of all these facts, that the petitioners are to be treated as Professor and that the revised pay band is granted by the UGC under its Scheme solely on the basis of post and not on the basis of pre-revised pay scale, as is generally done by the Pay Commissions, the stand taken by the respondents is to be repudiated outrightly, the writ petitions are bound to be allowed.
18.Consequently, both these writ petitions are allowed. The order impugned dated 14-9-2012 Annx. P/20, in so far as it relates to reduction of the AGP to the Professors working in the Universities and Colleges in the State of Madhya Pradesh is concerned is hereby quashed. The petitioners will get the AGP of Rs. 10,000/- per month from the date the Scheme of revision of pay has come in force.”
It is an undisputed position that the State Government adopted the UGC Pay Revision Scheme under which the post of Professor carries the pay scale of Rs.37,400–67,000 with AGP of Rs.10,000/-. Equally undisputed is the fact that although the petitioners were initially promoted vide order dated 13.06.2018, the competent authority itself modified the said order on 20.06.2018 and categorically directed that the promotion of each petitioner shall relate back to his respective date of entitlement. Thus, the competent authority consciously conferred retrospective effect upon the promotion after examining the service records of the petitioners.
Once retrospective promotion has been validly granted by the competent authority, such promotion cannot be treated as an empty formality or merely a notional declaration. A promotion carries with it not only a higher status but also all legal incidents attached to the promotional post unless expressly excluded by the governing statutory rules or by the promotion order itself. If the retrospective effect granted by the competent authority is ignored for the purpose of pay fixation, the retrospective promotion itself would become meaningless.
The respondents by placing reliance upon Fundamental Rule 17(1), contended that salary becomes payable only from the date an employee assumes charge of the higher post and the impugned circular dated 01.04.2025 is proper. Fundamental Rule 17 embodies the general principle of "no work, no pay". However, the said principle is neither absolute nor capable of mechanical application irrespective of the facts of each case. The Supreme Court in Union of India v. K.V. Jankiraman, (1991) 4 SCC 109, while dealing with the effect of retrospective promotion, categorically held that where an employee was kept away from the promotional post because of reasons attributable to the employer and not because of any fault on the part of the employee, the principle of "no work, no pay" cannot be invoked to deny consequential benefits. The Court observed that an employee cannot be penalized for the inaction or illegality committed by the employer.
It is a settled position of law that the principle of "No Work, No Pay" does not apply in the case of promotion. The petitioner has already performed duties on the inferior/previous post and, due to the fault of the respondents, was unable to work on the promoted post. Since the petitioner has actually performed the duties of the promoted post as in-charge, he cannot be denied the monetary and other consequential benefits on the ground of "No Work, No Pay."
The petitioners were granted proforma promotion to the post of Professor vide order dated 13.06.2018. As per order of Division Bench this Court in the matter of R.B. Guhe Vs. The State of M.P. reported in 2008(5) MPHT 291 (DB) , it was contended that the principles of "No Work No Pay" shall not apply to a case where the lapses are on the part of the Government in not promoting a particular person.
The respondents have not shown any fault of the employees for non consideration of their case for promotion. Thus, non-consideration for promotion of the petitioners at the relevant time is solely attributable to the department and there is no fault on the part of the employee, therefore, the employee cannot be denied the consequential benefits after promotion. In the case of K.V. Jankiraman (Supra), the Apex Court held that where the employee was not at fault and the department deprived him to perform the promotional post, the principle of "No Work No Pay" would not be applicable. The said principle has been followed by the Apex Court in the subsequent judgment in the case of State of Kerala Vs. E.K.Bhaskaran Pillai, (2007) 6 SCC 524, followed by the Division Bench of this Court in the case of C.B.Tiwari Vs. State of M.P. & others, 2015(2) MPHT 132. A similar view has been taken by Division Bench at the Principal Seat, Jabalpur in WA No.1287/2017 (State of MP and Ors Vs. Jham Singh Pandre) decided on 02.01.2018.
The Division Bench of this Court in the matter of R.B. Guhe Vs. The State of M.P. reported in 2008(5) MPHT 291 (DB) has held as under:
"12.The principles of ‘No Work No Pay’ shall not apply to a case where the lapses are on the part of the Government in not promoting a particular person. A proper and correct seniority list is to be maintained by the Government and if a particular person is not assigned correct position in the seniority list then again the lapses would be on the part of the State Government. The learned Single Judge was unjustified in holding that a juxtapose reading of Fundamental Rule 31-A and Paragraph 5 of the Government order dated 25-4-1974 can be treated to be a statutory rule.
14.It will also be necessary to observe that there would be a vast distinction between an ‘erroneous’ promotion as referred to in Fundamental Rule 31-A and case of ‘no-promotion’ as referred to in Paragraph 5 of the Government order dated 25-4-1974. If the benefits are flowing from erroneous promotion then the Government certainly would be entitled to recover the money which has been wrongly paid toits employees but Government, in case of non-promotion which is found to be bad in the eyes of law cannot refuse to pay the rightful dues to its own employees. If Paragraph 5 of Government order dated 25-4- 1974 is allowed to be read in favour of the Government then it will lead to an impossible situation because the Government in such case would become arbitrator in its own case and would arbitrarily deny the benefits to the persons who are rightfully entitled to the claim. Hypothetically, we take a case, ‘a person who because of wrong placement in the seniority list is denied his promotion, comes to the Court and the Court finds that he was wrongly denied the promotion, can in such a case Court refuse to extend the benefits’. The answer certainly would be ‘No’."
It is well settled that where an employee is granted retrospective promotion after the competent authority finds that he was entitled to promotion from an earlier date, he cannot be denied the consequential service and monetary benefits merely because the promotion order was issued later. Such benefits can be denied only if there is a specific provision under the statutory rules.
In the present case, there is nothing on record to show that the delay in granting promotion was attributable to the petitioners. On the contrary, the State itself, by issuing the modification order dated 20.06.2018, has accepted that the petitioners were entitled to promotion from an earlier date. Once such entitlement has been recognized, the respondents cannot deny the consequential monetary benefits attached to such promotion. To do so, would render the retrospective promotion meaningless and ineffective.
The respondents have failed to point out any provision either under the UGC Regulations, 2010, the M.P. Educational Services (Collegiate Branch) Recruitment Rules, 1990, or any statutory rule which authorizes the State to deny the monetary consequences flowing from a retrospective promotion. In absence of any statutory bar, an executive instruction cannot curtail a vested service right created by a lawful promotion order.
It is equally significant that the controversy regarding grant of AGP Rs.10,000/- no longer survives. This Court in Dr. Ramlala Shukla (supra) categorically held that Professors are entitled to AGP of Rs.10,000/- under the UGC Pay Revision Scheme from the date of implementation of the Scheme. The State has accepted the said legal position by issuing policy decisions dated 04.03.2024, 06.09.2024 and 23.12.2024 extending the benefit to similarly situated Professors.
Once the State accepted the entitlement of promoted Professors to AGP Rs.10,000/- and also recognized that the petitioners stood promoted from their respective dates of entitlement, it could not, by issuing an executive circular dated 01.04.2025, artificially postpone the monetary consequences to the date of assumption of charge. Executive instructions cannot override statutory rules, judicial pronouncements or a valid order passed by the competent authority. Any such instruction is liable to be ignored to the extent of inconsistency.
Acceptance of the respondents' submission would lead to anomalous consequences. An employee would stand promoted from an earlier date for purposes of seniority and status, yet would be denied the very financial benefits attached to that promotion. Such a construction would render the retrospective promotion wholly ineffective and would defeat the object behind granting promotion from the date of entitlement.
The action of the respondents is also arbitrary and violative of Articles 14 and 16 of the Constitution of India. Once the State itself has accepted that the petitioners were entitled to promotion from an earlier date, it cannot deny them the consequential monetary benefits without any provision under the statutory rules. The petitioners cannot be made to suffer because of the administrative delay or mistake on the part of the respondents. The respondents have also failed to point out any statutory provision prohibiting the grant of consequential monetary benefits. On the contrary, once retrospective promotion has been granted, the employee is entitled to be placed in the same service and financial position in which he would have been if the promotion had been granted on the due date. This Court, therefore, finds no justification for denying the petitioners the consequential benefits flowing from their retrospective promotion.
Accordingly, this Court is of the considered opinion that once the promotion order dated 20.06.2018 conferred retrospective promotion upon the petitioners from their respective dates of entitlement, they became entitled to fixation of pay in the UGC pay scale of Rs.37,400–67,000 with AGP Rs.10,000/-from the very same dates together with all consequential monetary, retiral and service benefits. The impugned circular dated 01.04.2025, insofar as it restricts such benefits only from the date of assumption of charge, is arbitrary, contrary to settled principles of service jurisprudence, violative of Articles 14 and 16 of the Constitution of India and cannot be sustained in law.
Consequently, the writ petition deserves to be and is hereby allowed. The impugned order/circular dated 01.04.2025 is quashed to the extent it restricts the grant of the pay scale of Rs.37,400–67,000 with AGP Rs.10,000/- from the date of assumption of charge.
The respondents are directed to re-fix the pay of the petitioners from their respective dates of entitlement as reflected in the modified promotion order dated 20.06.2018 and extend all consequential service benefits, including arrears of salary, annual increments, pensionary and retiral benefits (if any) within a period of three months from the date of receipt of a certified copy of this order.
In case the aforesaid exercise is not completed within the stipulated period, the outstanding amount shall carry interest at the rate of 6% per annum from the date it became due till actual payment.
With aforesaid, this petition is allowed and disposed of.
Pending interlocutory applications, if any, shall stand disposed of. No order as to costs.