Dr. Labangalata Bisoi vs State of Odisha and Another

Facts:

Hearing:

Relevant provisions:

“1.

Short title and commencement.—

(1)

These Rules may be called the Odisha Education Service (College Branch) Recruitment Rules, 1990.

(2)

They shall be deemed to have come into force with effect from the 1st day of January, 1986.

2.

Definitions.—

In these Rules, unless tile context otherwise requires—

(a)

AUTONOMOUS COLLEGE means any College declared as such by the University constituted under the Odisha Universities Act, 1989;

(b)

COLLEGE means a Government College imparting teaching of +3 EDUCATION and of above standard;

(c)

COMMISSION means the Odisha Public Service Commission;

(d)

COMMITTEE means the Screening Committee constituted under these Rules;

(e)

DISCIPLINE means a subject in which teaching is imparted in a College;

(f)

GOVERNMENT means the Government of Odisha;

(g)

LEAD COLLEGE means any College declared as such by Government from time to time;

(h)

REGULAR APPOINTMENT means the appointment of a Lecturer made by the Government on the recommendation of the Commission.^{33.Substituted clause (h) of Rule 2 with effect from 01.01.1993 by virtue of the Odisha Education Service (College Branch) Recruitment (Amendment) Rules, 1995, being published in the Odisha Gazette, Extraordinary No.1427, dated 18.12.1995. Prior to substitution, said clause stood thus: "[(h) REGULAR APPOINTMENT means the appointment of a Lecturer made by the competent authority on the recommendation of the Commission and the appointment of Lecturers regularised from a particular date by Government Order;"}

(i)

SERVICE means the Odisha Education Service (College Branch);

(j)

UGC means the Universities Grants Commission of India;

(k)

Year means the Calendar Year.

3.

Constitution of the service.—

(1)

The service shall comprise of the following categories of posts:

Lecturer

Lecturer (Senior Scale)

Assistant Directors in the Directorate of Education

Reader^{44.Omitted "/Lecturer (Selection Grade)" vide Higher Education Department Notification No.5442-II-E/A(1)-9/91-HE, dated 26.02.1993.}

Principals of Degree College other than a Lead College or an Autonomous College

Vice-Principals of Colleges

Deputy Directors in the Directorate of Education

Secretary, Selection Board

(2)

The service shall also comprise of such other categories of posts as the State Government may determine from time to time.

(3)

The scale of pay of the posts in different grade and posts of the service shall be such as may be determined by the Government from time to time.

9.

Appointment in the Grade of Reader.—

(1)

The provisions of sub-rules (1) and (2) of Rule 8 shall be followed mutatis mutandis, in the matter of selection and appointment of Readers.

(2)

A Lecturer in order to be eligible for consideration by the Screening Committee constituted under Rule 11 must have completed—

(a)

sixteen years of service as such under the Odisha Education Service after regular appointment; or

(b)

thirteen years of service as such under the Odisha Education Service after regular appointment and have acquired a Ph.D., D.Litt. or D.Sc. degree from a recognised University in the concerned discipline, or fifteen years of service as such under the Odisha Education Service after regular appointment and acquired a M.Phil. or M.Litt. degree in the concerned discipline; or

(c)

eight years of service in the Grade of Lecturer (Senior Scale); or

(d)

five years of service in the Grade of Lecturer (Senior Scale) and acquired a Ph.D., D.Litt. or D.Sc. degree in the concerned discipline or seven years of service in the Grade of Lecturer (Senior Scale) and acquired a M.Phil. or M.Litt. degree in the concerned discipline while continuing in the said Grade;

(e)

consistently good performance appraisal reports;

(f)

made some work in the areas of scholarship and research as evidenced by the self-assessment reports, quality of publications, contribution to educational innovations and design of new courses and curricula; and

(g)

participated in two refresher courses or Summer Institutes each of approximately four weeks duration, or engaged in other appropriate continuing education programme of comparable quality as may be specified by the University Grants Commission on being sponsored by Government or Director, Higher Education, after placement in the Senior Scale:

Provided that in respect of cases due for consideration up to 31st December, 1993, Government may relax the applicability of this provision.”

“1.

Short title and commencement.—

(1)

These Rules may be called the Odisha Education (Professors’ Grade) Recruitment Rules, 1990.

(2)

They shall be deemed to have come into force with effect from the 1st day of January, 1986.

2.

Definitions.—

In these Rules, unless the context otherwise requires—

(a)

COLLEGE means any Government Institution imparting Post Graduate Education;

(b)

COMMISSION means the Odisha Service Commission;

(c)

DISCIPLINE means a subject in which teaching is imparted in a College;

(d)

GOVERNMENT means the Government of Odisha;

(e)

RECRUITMENT YEAR means the Calendar Year;

(f)

SERVICE means the Odisha Education Service (Professors’ Grade).

(g)

UNIVERSITY means the University incorporated by or under an Act of the Central or State Legislature.^{77.Inserted with effect from 21.09.2001 by virtue of the Odisha Education Service (Professors’ Grade) Recruitment Amendment Rules, 2001 being published in the Odisha Gazette, Extraordinary No.1735, dated 21.09.2001.}

3.

Other conditions of service not specifically provided for in these Rules shall be such as provided in other Statutory Rules and Orders issued from time to time by the Government for similar class of employees.

4.

Constitution of service.—

The service shall consist of the posts of Professors in different discipline in the College or the State.

5.

Recruitment to the post of Professor.—

(1)

The post of Professor in the Service shall be filled up by selection through the Commission from among the eligible Readers in Government Colleges of Odisha on merit and suitability with due regard to seniority.^{88.Substituted sub-rule (1) with effect from 20.07.2006 by virtue of the Odisha Education Service (Professors’ Grade) Recruitment Amendment Rules, 2006 being published in the Odisha Gazette, Extraordinary No.1023, dated 20.07.2006. Prior to substitution sub-rule (1) stood thus: "(1) The post of Professor in the service shall be filled up by direct recruitment on the basis of merit through all-India advertisement and through the selection made by the Commission."}

(2)

In order to be eligible for recruitment to the posts in the service, a person shall be a scholar of eminence in the concerned discipline and shall have the following qualification, namely:

(a)

He/she shall be a citizen of India;

(b)

He/she shall have minimum of Ph.D. Degree in the concerned discipline either from an Indian University or from a Foreign University recognised equivalent thereto and published research work of excellence.

(c)

He/she shall be an eminent scholar with published work of high quality, actively engaged in research with ten years of experience in Post-Graduate teaching, and/or experience in research at the University/National Level Institutions, including experience of guiding research by at doctoral level;^{99.Substituted clause (c) of sub-rule (2) with effect from 21.09.2001 by virtue of the Odisha Education Service (Professors’ Grade) Recruitment Amendment Rules, 2001 being published in the Odisha Gazette, Extraordinary No.1735, dated 21.09.2001. Prior to substitution clause (c) of sub-rule (2) stood thus: "(c) He/she shall possess at least ten years’ experience in research and/or teaching in the concerned discipline or related area at the degree or post graduate level in any Indian University, or a College affiliated to such University or a Research Institution of repute or a Foreign University, and should have guided adequate number of scholars in doctoral research."}

Provided that in exceptional cases, the teachers with fifteen years of under Graduate teaching/research experience shall also be considered:

Provided further that an outstanding scholar with established academic reputation who has made significant to the concerned branch of teaching or research may be considered by the Commission eligible for appointment to the service;

Provided also that for the purpose of selection of a candidate to the service the Commission shall follow the system of evaluation as prescribed under Schedule ‘A’ of the University First Statutes, 1990, subject to the following:

(a)

For Graduation Degree to marks will be awarded for the ‘pass’ category.

(aa)

For Graduation Degree with Distinction ‘two’ marks will be awarded irrespective of a candidate passing with or without Honours.^{1010.Inserted with effect from 20.07.2006 by virtue of the Odisha Education Service (Professors’ Grade) Recruitment Amendment Rules, 2006 being published in the Odisha Gazette, Extraordinary No.1023, dated 20.07.2006.}

(b)

Interview marks will be fifteen instead of twenty-five.

6.

The Government, whenever the occasion to fill up the post in a particular or different disciplines in the service arises, shall send requisition to the Commission to furnish the name of suitable persons.”

“No.8075-HE-GCET-POLlCY-0002/2020/HE.—

In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India and in supersession of the Odisha Education Service (College Branch) Recruitment Rules,1990, the Odisha Education Service (Senior Administrative Grade) Recruitment Rules,1990 and the Odisha Education Service (Professors’ Grade) Recruitment Rules, 1990, except as respect things done or omitted to have done before such supersession, the Governor of Odisha is pleased to make the following Rules to regulate the method of recruitment and conditions of service of the persons appointed to the Odisha Education Service (College Branch), namely:

1.

Short title and Commencement.—

(1)

These Rules may be called the Odisha Education Service (College Branch) Recruitment Rules, 2020.

(2)

They shall come into force on the date of their publication in the Odisha Gazette.

2.

Definitions.—

(1)

In these Rules, unless the context otherwise requires,—

(a)

COLLEGE means a Government college imparting under graduation education or post-graduation education or both and coming under the administrative control of Higher Education Department of Government of Odisha;

(b)

COLLEGE TEACHERS means the Lecturers, Lecturers (Senior Scale) and Readers who shall be re-designated as Assistant Professor (Stage-I), Assistant Professor (Stage-II), Assistant Professor (Stage-III) respectively and including Associate Professors and Professors;

(c)

COMMISSION means the Odisha Public Service Commission;

(d)

COMMITTEE means the Departmental Promotion Committee constituted under sub-rule (1) or (2) of Rule 14, as the case may be;

(e)

FOREIGN UNIVERSITY means a University or Institution, located outside India, with a ranking among the top 500 in the World University Ranking system as accepted by UGC;

(f)

GOVERNMENT means the Government of Odisha;

(g)

Indian University means a University or Institution, located in India, duly recognized by UGC;

(h)

***

(n)

SERVICE means the Odisha Education Service (College Branch);

(o)

SUBJECT means a subject of study in which teaching is imparted in a college;

(p)

UGC means the University Grants Commission of India;

(q)

YEAR means the Calendar Year.

(2)

All other words and expressions used in these rules but not specifically defined shall, unless the context otherwise requires, have the same meaning as respectively assigned to them in the Odisha Service Code.

3.

Constitution of Service and Service condition.—

(1)

The service shall comprise of college teachers of following ranks, namely:

(a)

Assistant Professor (Stage-I);

(b)

Assistant Professor (Stage-II);

(c)

Assistant Professor (Stage-III);

(d)

Associate Professor; and

(e)

Professor.

(2)

The Government shall be competent to appoint college teachers of the rank of Assistant Professor (Stage-III) and above in administrative and semi-academic posts.

(3)

All college teachers of all subjects and all ranks shall constitute the single Odisha Education Service (College Branch) Cadre (herein after referred as OES (CB) Cadre) and the number of posts in the Cadre shall be sanctioned by the Government from time to time and the sanctioned posts of the Cadre can be filled up by college teachers of any rank provided that entry into the OES (CB) Cadre, by way of direct recruitment as per Rule 5 or placement as per Rule 8, shall be made only in the rank of Assistant Professor (Stage-I).

(4)

The scale of pay of different ranks of college teachers of the service and other service conditions such as allowances, leave rules, superannuation age, superannuation benefit, shall be determined by the Government from time to time or shall be such as provided in other Statutory Rules, Resolutions, Notifications or Orders issued by the Government from time to time for similar class of employees.

10.

Promotion to the Rank of Assistant Professor (Stage III).—

(1)

To be eligible for promotion to the rank of Assistant Professor (Stage-III), an Assistant Professor (Stage-II) must,—

(a)

have completed eight years of regular service as Assistant Professor (Stage-II) or in equivalent rank having equivalent scale of pay;

(b)

have participated, during the assessment period, in at least two physical or online refresher/orientation courses, or equivalent courses of minimum two weeks duration recognized by the UGC.

(2)

Selection for promotion shall be made as per the select list made under Rule 17 and selected Assistant Professors (Stage-II) shall be promoted to the rank of Assistant Professor (Stage-II) ^{1313.Substituted for the words "from the date of eligibility" by virtue of the Odisha Education Service (College Branch) Recruitment (Amendment) Rules, 2022, vide Government of Odisha in Higher Education Department Notification No.23352— HE-GCET-POLICY-0002-2020/HE, dated 04.06.2022.}[from the date of eligibility or from the date of commencement of these Rules, i.e., 18^th February, 2021 whichever is later].

11.

Promotion to the Rank of Associate Professor.—

(1)

candidates of Assistant Professor (Stage-III) to be eligible for promotion to the rank of Associate Professor must,—

(a)

have completed five years of regular service as Assistant Professor (Stage-III), or in equivalent rank having equivalent scale of pay;

(b)

have participated, during the assessment period, in at least two physical or online refresher/orientation courses, or equivalent courses, of minimum two weeks duration recognized by the UGC.

Provided that this condition shall be relaxed till two years from the date of publication of this Notification in the Odisha Gazette in case of those college teachers who otherwise become eligible for promotion to the rank of Associate Professor.

(2)

Selection for promotion shall be made as per the select list made under Rule 17 and the selected Assistant Professors (Stage-III) shall be promoted to the rank of Associate Professor ^{1414.Substituted with effect from 08.06.2022 for the words "from the date of eligibility" by virtue of the Odisha Education Service (College Branch) Recruitment (Amendment) Rules, 2022, vide Government of Odisha in Higher Education Department Notification No.23352— HE-GCET-POLICY-0002-2020/HE, dated 04.06.2022, being published in the Odisha Gazette, Extraordinary No.1975, dated 08.06.2022.}[from the date of eligibility or from the date of commencement of these Rules, i.e., 18^th February, 2021 whichever is later].

12.

Advance Promotion Benefit for Possessing Higher Degree.—

(1)

The minimum number of years of regular service prescribed in sub-rule (1)(a) of Rule 9, sub-rule (1)(a)of Rule 10 and sub-rule (1)(a) of Rule 11, as an eligibility condition for promotion of college teachers from one rank to another, shall be reduced by three years if the college teacher possesses Ph.D., D.Sc. or D.Litt. Degree, or by one year if he possesses M.Phil., M.Litt. or Post-Graduate Degree in Professional Courses such as LL.M., M.Tech., etc. besides Post Graduation; from an Indian or Foreign University in the concerned/relevant allied subject.

(2)

However, if a college teacher has availed advance promotion benefit of one year for possessing M.Phil., M.Litt. or PG Degree in Professional Courses as per sub-rule (1) above and subsequently acquires Ph.D., D.Sc. or D.Litt. Degree; he will be entitled for availing advance promotion benefit of only two years (not three years) for his subsequent promotion on account of possessing Ph.D., D.Sc. or D.Litt. Degree.

(3)

Advancement of promotion under sub-rule (1) and sub-rule (2) above shall be limited to a maximum of 3 (three) years only during one’s entire service period irrespective of the number of higher degrees one may possess or acquire.

13.

Promotion to the rank of Professor.—

(1)

To be eligible for promotion to the rank of Professor, an Associate Professor must,—

(a)

possess a Ph.D. Degree in concerned/relevant/allied subject from an Indian or Foreign University.

(b)

have completed five years of regular service in the rank of Associate Professor.

(c)

possess a minimum score point of 80 as per the academic and research performance assessment parameters given in Schedule-I appended to these Rules:

Provided that this condition shall be relaxed in case of college teachers on completion of twelve years of regular service in the rank of Associate Professor or equivalent rank having equivalent scale of pay:

Provided further that this relaxation shall be valid till five years from the date of publication of this notification in the Odisha Gazette.

(2)

Selection for promotion shall be made as per the select list made under Rule 17 and selected Associate Professors shall be promoted to the rank of Professor from the date of their eligibility or from the date of coming into force of these Rules, whichever is later.

15.

Procedure for Selection by the Committee.—

(1)

The Committee shall meet at least once in a year, preferably in the month of January, to prepare a list of teachers, as are held by them, suitable for placement to the rank of Assistant Professor (Stage-I) or promotion to the next higher ranks.

(2)

The Committee, while considering the placement or promotion cases of suitable teachers and preparing the list, shall follow the provisions of the Odisha Civil Services (Criteria for Promotion) Rules, 1992.

16.

Consultation with the Commission.—

(1)

The recommendations of the Committee under sub-rule (a) of Rule 14 shall be referred to the Commission for concurrence along with a list of all eligible candidates, including those who have not been recommended, together with the service particulars and their academic qualification and experience, if any.

(2)

The Commission shall consider the list along with the service and other particulars received under sub-rule (1) and shall furnish its recommendations to the Government.

19.

Relaxation.—

Where the State Government is of the opinion that for the interest of public service, it is necessary and expedient to do so, it may, by order, and for reasons to be recorded in writing and after consultation with the Commission, relax any of the provisions of these rules for any person or class of persons.

20.

Interpretation.—

If any question arises relating to the interpretation of these rules, it shall be referred to the Government for decision.”

^{1515.Published in the Odisha Gazette, Extraordinary No.633, dated 05.04.2016.}“[No.7889–HE-FEIB-MISC-43/2016/HE.]

Higher Education Department

Resolution

The 4^th April, 2016

Subject: Re-designation of Lecturers and Readers of Universities and Colleges of the State.

The question of re-designation of Lecturers and Readers of Universities and Colleges of the State was under active consideration of Government. After careful consideration, the State Government have been pleased to re-designate the Lecturers and Readers of Universities and Colleges subject to fulfilling the minimum eligibility standard as per U.G.C. Regulation, 2010 and 2013 as follows:

Sl. No.	Designation	Existing Scale of Pay	Re-designated as
1	Lecturer	Rs. 15600-39100/- + AGP- Rs. 6000/-	Assistant Professor (Stage-I)
2	Lecturer Sr. Scale	Rs. 15600-39100/- + AGP- Rs. 7000/-	Assistant Professor (Stage-II)
3	Readers (with less than 05 (five) years of Service)	Rs. 15600-39100/- + AGP- Rs. 8000/-	Assistant Professor (Stage-III)
4	Readers (with 05 (five) years of Service)	Rs. 37400-67000/- + AGP- Rs. 9000/-	Associate Professor

Promotion to Associate Professor Grade shall be subject to fulfilment of minimum Academic Performance Index (API) score involving research publications, research projects, research guidance, attending national/international conferences etc. which shall be calculated as per UGC Regulation, 2010 and 2013 respectively, as amended from time to time.

The other terms and conditions of service and Career Progression shall remain unaltered.

This has been concurred in by the Finance Department vide their U.O.R. No.26-PCC, dated the 15th March, 2016.

ORDER

Ordered that this Resolution be published in the Extraordinary issues of Odisha Gazette and copy forwarded to all Departments of Government/Accountant General (A&E), Odisha, Bhubaneswar/Secretary to Government of India, Ministry of Human Resource Development (Higher Education Department), New Delhi/Secretary, University Grants Commission, Bahadur Saha Zafar Marg, New Delhi/Registrars of all Universities in the State/Principals of all Government and Non-Government Aided Colleges.

By Order of the Governor

G.V.V. SARMA

Principal Secretary to Government”

Arguments advanced by the counsel representing respective parties:

“1.0

These shall apply to every University established or incorporated by or under a Central Act, Provincial Act or a State Act, every institution including a constituent or an affiliated college recognized by the Commission, in consultation with the concerned University under Clause (f) of Section 2 of the University Grants Commission Act, 1956, and every institution Deemed to be a University under Section 3 of the said Act.

2.0

These shall come into force with immediate effect.”

“Sub.: Revision of Pay Scales, Minimum Qualifications for the Appointment of the Teachers in the Universities and Colleges and other Measures for Maintenance of Standards

The State Government has decided to extend the University Grants Commission Pay Scales to the College Teachers and University Teachers with effect from 01.01.1986 vide erstwhile Education and Youth Services Department Resolution No.44032-EYS, dated 06.10.1989 and No.44038/EYS, dated 06.10.1989.

2.

The Government of India after considering the various recommendation the U.G.C. on Revision of Pay Scales of University and College Teacher communicated their decision to State Government in their Letter No.F.1-22/97/UI dated 27.07.1998 and requested to implement the scheme in the State after taking local conditions into consideration, and with all conditions to be laid down in this regard by the U.G.C. by way of Regulations. Accordingly U.G.C. has communicated their Notification on “Revision of Pay Scales, Minimum Qualifications for appointment of Teachers in Universities and Colleges and Other Measures for the Maintenance of Standards, 1998” in their Letter No. F.3-1/94 (PS), 24.12.1998 and requested to implement the same for Universities and Colleges.

3.

The question of Revision of Pay Scales for University and College Teachers the basis of the recommendations of Government of India and the U.G.C. was under consideration of Government for some time past. After careful consideration the State Government has been pleased to implement the Scheme of Revision of Scales for University and College Teachers with the following terms and conditions.

***

4.9.0.

Career Advancement.—

(a)

Minimum length of service for eligibility to move into the Grade of Lecturer (Senior Scale) would be four years for those with Ph.D., five years for those with M.Phil., and six years for others at the level of Lecturer, and for eligibility to move into the Grade of Lecturer (Selection Grade)/Reader, the minimum length of service as Lecturer (Senior Scale) shall be uniformly five years.

(b)

For movement into Grades of Reader and above, the minimum eligibility criterion would be Ph.D. Those without Ph.D. can go up to the level of Lecturer (Selection Grade).

(c)

A Reader with a minimum of eight years of service in that Grade will be eligible to be considered for appointment as a Professor.

(d)

Selection Committees for Career Advancement shall be the same as those for Direct Recruitment for each category.”

Analysis:

“Issue a writ in the nature of mandamus or any other writ/writs, direction/directions directing the opposite parties more particularly opposite party No.1 to place the petitioner from Associate Professor to the Scale of Professor under the Career Advancement Scheme in terms of the Order dated 27.11.2024 passed in W.P.(C) No.36285 of 2021 (Dr. Dhirendra Kumar Dalai Versus State of Odisha) under Annexure:10 “the UGC Notification on Revision of Pay Scales, Minimum Qualifications for Appointment of Teachers in Universities and Colleges and Other Measures for the Maintenance of Standards, 1998” under Annexure-6 and the consequential Notification dated 31.12.1999 (Government of Orissa Notification on Revised U.G.C. Scales of Pay) under Annexure- 7 from the date of completion of eight years of service as an Associate Professor.”

“8.

Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that the present batch of writ petitions have been filed inter alia with the prayer to consider the claim of the Petitioners to get the benefit of the Professor Scale of Pay under Career Advancement Scheme. Such a claim has been made basing on the Notification issued by the UGC on 24.12.1998 and the acceptance of the said resolution by the Government in the Department of Higher Education vide resolution dated 31.12.1999.

8.1.

Though it is the stand of the opposite parties that the Notification issued by the UGC on 24.12.1998 has not been accepted by the Government as yet and the Resolution dated 31.12.1999 is on a different context, but this Court after going through the benefit extended in favour of similarly situated Associate Professors vide Notification dated 30.09.2021 and the information provided under RTI vide Letter dated 19.04.2023, is of the view that benefit of promotion to the rank of Professor has been extended in favour of Associate Professors vide Notification dated 30.09.2021 under the Career Advancement Scheme.

8.2.

Therefore, this Court while disposing the writ petition, directs opposite party No.1 to consider the claim of the present petitioners to get the benefit of Professor Scale of Pay under Career Advancement Scheme. It is observed that while taking such a decision, benefit extended in favour of similarly situated Associate Professors vide Notification dtd.30.09.2021 and the information provided by the Department vide letter dtd.19.04.2023 to the effect that such benefit has been extended under Career Advancement Scheme be taken into consideration in its proper perspective. Opposite party No.1 is directed to take a decision on the claim of the Petitioners within a period of three (3) months from the date of receipt of this order.

9.

All the writ petitions are accordingly disposed of.”

“*** It is well known that a judgment is an authority for what it decides and not what may even logically be deduced therefrom.

***

While analysing different decisions rendered by this Court, an attempt has been made to read the judgments as should be read under the rule of precedents. A decision, it is trite, should not be read as a statute.

A decision is an authority for the questions of law determined by it. While applying the ratio, the court may not pick out a word or a sentence from the judgment divorced from the context in which the said question arose for consideration. A judgment, as is well known, must be read in its entirety and the observations made therein should receive consideration in the light of the questions raised before it. [See Haryana Financial Corpn. Vrs. Jagdamba Oil Mills, (2002) 3 SCC 496, Union of India Vrs. Dhanwanti Devi (1996) 6 SCC 44, Nalini Mahajan (Dr.) Vrs. Director of Income Tax (Investigation), (2002) 257 ITR 123 (Del), State of U.P. Vrs. Synthetics and Chemicals Ltd. (1991)4 SCC 139, A-One Granites Vrs. State of U.P. (2001) 3 SCC 537, and Bhavnagar University Vrs. Palitana Sugar Mill (P) Ltd. (2003) 2 SCC 111].

Although decisions are galore on this point, we may refer to a recent one in State of Gujarat Vrs. Akhil Gujarat Pravasi V.S. Mahamandal, (2004) 5 SCC 155, wherein this Court held:

“It is trite that any observation made during the course of reasoning in a judgment should not be read divorced from the context in which it was used.”

It is further well settled that a decision is not an authority for the proposition which did not fall for its consideration.”

“A judicial decision is an authority for what it actually decides and not for what can be read into it by implication or by assigning an assumed intention to the judges, and inferring from it a proposition of law which the judges have not specifically laid down in the pronouncement.”

“14.

Before examining the first limb of the question, formulated above, it would be instructive to note, as a preface, the well-settled principle of law in the matter of applying precedents that the Court should not place reliance on decisions without discussing as to how the fact situation of the case before it fits in with the fact situation of the decision on which reliance is placed. The observations of the courts are neither to be read as Euclid's theorems nor as provisions of statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Disposal of cases by blindly placing reliance on a decision is not proper because one additional or different fact may make a world of difference between conclusions in two cases. [Ref. Bharat Petroleum Corpn. Ltd. Vrs. N.R. Vairamani, (2004) 8 SCC 579; Sarva Shramik Sanghatana (KV) Vrs. State of Maharashtra, (2008) 1 SCC 494 and Bhuwalka Steel Industries Ltd. Vrs. Bombay Iron & Steel Labour Board, (2010) 2 SCC 273.”

“4.

Having heard learned counsel for the parties and having perused the petition papers, this Court declines indulgence in the matter for the following reasons:

4.1.

Petitioners were the Members of Odisha Education Service (College Branch) Cadre and therefore, they were governed by the provisions of Odisha Education Service (College Branch) Recruitment Rules, 1990. These Rules did not provide for promotion to the post of Professor at all. However, promotion to the post of Professor was governed by the provisions of Odisha Education Service (Professor’s Grade) Recruitment Rules, 1990. These Rules provided for promotion by selection through the Odisha Public Service Commission from among eligible Readers, if vacancies were available. They did not contemplate automatic promotion under the CAS. This aspect has been in a way treated by the impugned orders.

4.2.

True it is that the benefit of CAS does not depend upon availability of vacancies in the cadre of Professors. The UGC Notification of 1998, whereby CAS was promulgated, was not internalized by the State Government Resolution dated 31.12.1999 and therefore, the CAS does not operate proprio vigore. Any financial benefit otherwise availing under the CAS, cannot be claimed as a matter of right, unless the same has been made a part of State Policy in terms of extant Rules that govern conditions of service of class of employees like the petitioners. Therefore, the repeated contention, that for claiming benefit of CAS, vacancy in the cadre of Professors is irrelevant, though is true, would not enure to the benefit of petitioners.

4.3.

The Government in the impugned orders has specifically stated that these Petitioners were superannuated long before the promulgation of the Odisha Education Service (College Branch) Recruitment Rules, 2020, which came into effect on 18.02.2021. The promotions granted to seventy-six Associate Professors were under these Rules and all they were in service. Those who had retired before the promulgation of these Rules, constitute a separate class that is not contemplated under these new Rules for the grant of benefit of the kind. Apparently, no challenge is laid to these Rules, either. The observation of Co-ordinate Bench at Paragraph 8.2 of the judgment that while considering petitioners’ claim, the benefit granted to these persons should be kept in view, does not mean petitioners should be treated on par with them, regardless of apparent difference, i.e., the promulgation of the new Rules with effect from 18.02.2021 and superannuation of the petitioners anterior to the same. Service Jurisprudence more than recognizes the pensioners as a class apart qua those who are still in service. Therefore, the reasoning of the impugned orders cannot be faltered on the grounds, such as equality & reasonableness.

4.4.

The vehement reliance of learned Senior Advocate on the Government Notification dated 31.12.1999 would not come to the aid of his clients. Despite turning its pages, it is not demonstrated that this Notification internalizes Paragraph 7.1.3 of the CAS, which reads as under:

“A Reader with a minimum of eight years of service in that Grade will be eligible to be considered for appointment as a Professor.”

The text of the above provision only speaks of eligibility to be considered for appointment as a Professor and not as to entitlement for such appointment. Eligibility is one thing and entitlement is another. If the CAS 1998 intended entitlement, in its wisdom it would have employed the very same word. To put it metaphorically, eligibility is the starting point of the journey, whereas entitlement is the destination point.

In the above circumstances, these petitions being devoid of merits are liable to be rejected, and accordingly they are, costs having been made easy.”

“62.

In view of the discussion as made above, we hold:

62.1.

To the extent the State legislation is in conflict with the Central legislation including subordinate legislation made by the Central legislation under Entry 25 of the Concurrent List shall be repugnant to the Central legislation and would be inoperative.

62.2.

The UGC Regulations being passed by both the Houses of Parliament, though a subordinate legislation has binding effect on the universities to which it applies.

62.3.

The UGC Regulations, 2010 are mandatory to teachers and other academic staff in all the Central universities and colleges thereunder and the institutions deemed to be universities whose maintenance expenditure is met by UGC.

62.4.

The UGC Regulations, 2010 are directory for the universities, colleges and other higher educational institutions under the purview of the State legislation as the matter has been left to the State Government to adopt and implement the Scheme. Thus, the UGC Regulations, 2010 are partly mandatory and is partly directory.

62.5.

The UGC Regulations, 2010 having not been adopted by the State of Tamil Nadu, the question of conflict between the State legislation and the Statutes framed under the Central legislation does not arise. Once they are adopted by the State Government, the State legislation to be amended appropriately. In such case also there shall be no conflict between the State legislation and the Central legislation.”

“5.

Aggrieved by the denial of the benefits flowing from promotion, respondent No. 1 approached the Tribunal by filing O.A. No. 555 of 2017. ***

6.

The appellants challenged this order before the High Court in WPST No. 157 of 2019. The High Court, vide judgment dated 1st February, 2023 dismissed the writ petition, concurring with the Tribunal that retrospective promotion was impermissible but noting that notional financial benefits were justified given that no fault can be attributed to respondent No. 1. Aggrieved, the State has preferred this appeal by special leave.

***

8.

He further submitted that service jurisprudence does not recognize retrospective promotion without a specific enabling provision, therefore, notional promotion cannot be granted retrospectively unless there exists a specific rule or exceptional circumstances. In the present case, Rule 54(1)(a) of the West Bengal Service Rules, precludes retrospective promotion.

9.

Learned counsel further submitted that the final approval for the Chief Scientific Officer position was granted on 4th January, 2017, after the respondent’s superannuation on 31st December, 2016, thus, the promotion could not be effected during his service tenure and therefore, in the absence of any specific rule permitting retrospective promotion, the effective date of promotion should be the date on which it is granted, not the date of the vacancy.

***

12.

E-converso, learned counsel for respondent No.1 submitted that respondent No.1 had been serving as Principal Scientific Officer since 24th March, 2008, and could have been promoted to Chief Scientific Officer as early as in the year 2013, had the Department submitted a timely proposal to fill up the vacancy. It was submitted that the Department failed to timely provide the confidential reports and other details of respondent No.1 to the PSC by 13th April, 2016, as required under the Rules. This inaction, for reasons best known to the officials concerned, led to a significant delay in the promotion process and thus, respondent No.1 was deprived of this rightful claim to the fruits of promotion from the date of occurrence of vacancy as per his entitlement.

***

15.

The primary question that arises for our consideration in the present appeal is whether respondent No.1, who was recommended for the promotion before his retirement but did not receive actual promotion to the higher post due to administrative delays, is entitled to notional financial benefits of the promotional post after his retirement?

***

17.

The relevant provision i.e., Rule 54(1)(a) of the West Bengal Service Rules, is extracted hereinbelow for the sake of ready reference:

“Pay on Officiating Appointment.— 54(1)(a):

Subject to the provisions of Chapter VII, a Government employee who is appointed to officiate in a post shall not draw pay higher than* “his substantive pay” in respect of a permanent post, other than a tenure post, unless the officiating appointment involves the assumption of duties and responsibilities of greater importance than those attaching to the post, other than a tenure post, on which he holds a lien, or would hold a lien had it not been suspended:

Provided that the Governor may specify posts outside the ordinary line of a service the holders of which may, notwithstanding the provisions of this rule and subject to such conditions as the Governor may prescribe, be given any officiating promotion in the cadre of the service which the authority competent to order promotion may decide, and may thereupon be granted the same pay as they would have received if still in the ordinary line.” (emphasis supplied)

18.

Upon a bare perusal of Rule 54(1)(a) of the West Bengal Service Rules, it is clear that promotion cannot be retrospectively granted after retirement, as it requires the actual assumption of duties and responsibilities of the promotional post. In the present case, since respondent No. 1 superannuated before the final approval of his promotion, he could not have formally assume the charge of the promotional post of Chief Scientific Officer. Therefore, although respondent No. 1 was recommended for promotion, Rule 54(1)(a) of the West Bengal Service Rules precludes him from getting the financial benefits of the promotional post without having taken on the responsibilities of the said post, i.e., Chief Scientific Officer.

19.

It is a well settled principle that promotion becomes effective from the date it is granted, rather than from the date a vacancy arises or the post is created. While the Courts have recognized the right to be considered for promotion as not only a statutory right but also a fundamental right, there is no fundamental right to the promotion itself. ***

20.

In the instant case, it is evident that while respondent No. 1 was recommended for promotion before his retirement, he could not assume the duties of the Chief Scientific Officer. Rule 54(1)(a) of the West Bengal Service Rules, clearly stipulates that an employee must assume the responsibilities of a higher post to draw the corresponding pay, thus, preventing posthumous or retrospective promotions in the absence of an enabling provision.

21.

While we recognize respondent No.1’s right to be considered for promotion, which is a fundamental right under Articles 14 and 16(1) of the Constitution of India, he does not hold an absolute right to the promotion itself. The legal precedents discussed above establish that promotion only becomes effective upon the assumption of duties on the promotional post and not on the date of occurrence of the vacancy or the date of recommendation. Considering that respondent No. 1 superannuated before his promotion was effectuated, he is not entitled to retrospective financial benefits associated to the promotional post of Chief Scientific Officer, as he did not serve in that capacity.”

“19.

It is a well settled principle that promotion becomes effective from the date it is granted, rather than from the date a vacancy arises or the post is created. While the Courts have recognized the right to be considered for promotion as not only a statutory right but also a fundamental right, there is no fundamental right to the promotion itself. In this regard, we may gainfully refer to a recent decision of this Court in the case of Bihar State Electricity Board and Others Vrs. Dharamdeo Das, 2024 SCC OnLine SC 1768, wherein it was observed as follows:

‘18. It is no longer res integra that a promotion is effective from the date it is granted and not from the date when a vacancy occurs on the subject post or when the post itself is created. No doubt, a right to be considered for promotion has been treated by courts not just as a statutory right but as a fundamental right, at the same time, there is no fundamental right to promotion itself. In this context, we may profitably cite a recent decision in Ajay Kumar Shukla Vrs. Arvind Rai, (2022) 12 SCC 579 where, citing earlier precedents in Director, Lift Irrigation Corporation Ltd. Vrs. Pravat Kiran Mohanty, (1991) 2 SCC 295 and Ajit Singh Vrs. State of Punjab, (1999) 7 SCC 209, a three-Judge Bench observed thus:

‘41. This Court, time and again, has laid emphasis on right to be considered for promotion to be a fundamental right, as was held by K. Ramaswamy, J., in Director, Lift Irrigation Corpn. Ltd. Vrs. Pravat Kiran Mohanty in para 4 of the report which is reproduced below:

‘4. *** There is no fundamental right to promotion, but an employee has only right to be considered for promotion, when it arises, in accordance with relevant rules. From this perspective in our view the conclusion of the High Court that the gradation list prepared by the corporation is in violation of the right of respondent-writ petitioner to equality enshrined under Article 14 read with Article 16 of the Constitution, and the respondent-writ petitioner was unjustly denied of the same is obviously unjustified.’

42.

A Constitution Bench in Ajit Singh Vrs. State of Punjab, (1999) 7 SCC 209, laying emphasis on Article 14 and Article 16(1) of the Constitution of India held that if a person who satisfies the eligibility and the criteria for promotion but still is not considered for promotion, then there will be clear violation of his/her’s fundamental right. Jagannadha Rao, J. speaking for himself and Anand, C.J., Venkataswami, Pattanaik, Kurdukar, JJ., observed the same as follows in paras 22 and 27:

‘22. Articles 14 and 16(1): is right to be considered for promotion a fundamental right? Article 14 and Article 16(1) are closely connected. They deal with individual rights of the person. Article 14 demands that the ‘State shall not deny to any person equality before the law or the equal protection of the laws’. Article 16(1) issues a positive command that:

‘there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State’.

It has been held repeatedly by this Court that clause (1) of Article 16 is a facet of Article 14 and that it takes its roots from Article 14. The said clause particularises the generality in Article 14 and identifies, in a constitutional sense “equality of opportunity” in matters of employment and appointment to any office under the State. The word “employment” being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment. Article 16(1) provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be “considered” for promotion. Equal opportunity here means the right to be “considered” for promotion. If a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be “considered” for promotion, which is his personal right. “Promotion” based on equal opportunity and seniority attached to such promotion are facets of fundamental right under Article 16(1).

***

27.

In our opinion, the above view expressed in Ashok Kumar Gupta [Ashok Kumar Gupta Vrs. State of U.P., (1997) 5 SCC 201, and followed in Jagdish Lal Vrs. State of Haryana, (1997) 6 SCC 538, and other cases, if it is intended to lay down that the right guaranteed to employees for being “considered” for promotion according to relevant rules of recruitment by promotion (i.e. whether on the basis of seniority or merit) is only a statutory right and not a fundamental right, we cannot accept the proposition. We have already stated earlier that the right to equal opportunity in the matter of promotion in the sense of a right to be “considered” for promotion is indeed a fundamental right guaranteed under Article 16(1) and this has never been doubted in any other case before Ashok Kumar Gupta [Ashok Kumar Gupta Vrs. State of U.P.], right from 1950.’

***

20.

In State of Bihar Vrs. Akhouri Sachindra Nath, 1991 Supp.1 SCC 334, it was held that retrospective seniority cannot be given to an employee from a date when he was not even borne in the cadre, nor can seniority be given with retrospective effect as that might adversely affect others. The same view was reiterated in Keshav Chandra Joshi Vrs. Union of India, 1992 Supp.1 SCC 272, where it was held that when a quota is provided for, then the seniority of the employee would be reckoned from the date when the vacancy arises in the quota and not from any anterior date of promotion or subsequent date of confirmation. The said view was restated in Uttaranchal Forest Rangers’ Assn. (Direct Recruit) Vrs. State of U.P., (2006) 10 SCC 346, in the following words:

‘37. We are also of the view that no retrospective promotion or seniority can be granted from a date when an employee has not even been borne in the cadre so as to adversely affect the direct recruits appointed validly in the meantime, as decided by this Court in Keshav Chandra Joshi Vrs. Union of India held that when promotion is outside the quota, seniority would be reckoned from the date of the vacancy within the quota rendering the previous service fortuitous. The previous promotion would be regular only from the date of the vacancy within the quota and seniority shall be counted from that date and not from the date of his earlier promotion or subsequent confirmation. In order to do justice to the promotes, it would not be proper to do injustice to the direct recruits.

***

38.

This Court has consistently held that no retrospective promotion can be granted nor can any seniority be given on retrospective basis from a date when an employee has not even been borne in the cadre particularly when this would adversely affect the direct recruits who have been appointed validity in the meantime. (emphasis supplied)’ ***”

“7.

Whereas Anil Kapoor was in the grade of Senior Technician, Gulshan Lal and Kashmir Singh were in the Technician Grade I. The said suits were decreed, subject to the decision of the aforementioned RSA No. 800 of 1992.

8.

On or about 13.01.1986, for the purpose of implementing the staffing pattern vis-a-vis recruitment and promotion policy for thermal power plants of the Board, inter alia a decision was taken to re-designate the regular technical posts in the thermal organization of Faridabad with effect from 15.01.1986 in the respective trades; the relevant entries thereof are as under:

***

28.

Submission of Mr. Salman Khurshid that the right to obtain same remuneration would carry with it the designation also is not correct. Promotion to a higher post cannot be claimed as a matter of right. Before a person claims promotion, subject of course to just exceptions, the prevailing rules must be followed. If the employee concerned while working in a particular grade does not acquire experience of working therein, he cannot be promoted to the next higher grade although experience in the immediately below post forms part of an essential qualification. A person, thus, who is ineligible to hold the post cannot be directed to be promoted thereto only on the ground of so called equality doctrine or otherwise.

29.

We have noticed hereinbefore that even in Kashmir Singh’s case, the High Court committed a serious illegality in treating the Senior Technicians and Technicians together. Similar reliefs were granted to both the categories of employees which was impermissible.

30.

The basis on which the other judgments were passed, viz., the decision of the High Court in the second appeal is subject matter of one of the SLPs. The Trial Judge following the case of Anil Kapoor and Kashmir Singh had evidently not only directed grant of scale of pay but also an additional relief, viz., designation. It was also, in our opinion, wholly impermissible in law.

31.

It is one thing to say that having regard to the provisions contained in Article 39(d) of the Constitution of India read with Article 14 thereof, a court invokes the doctrine of equal pay for equal work but the same would not mean that a person is not only granted the same relief but also granted a higher status to which he was not otherwise entitled to.”

“We have heard learned counsel for the parties. It was argued by learned counsel for the respondent that when a retrospective promotion is given to an incumbent normally he is entitled to all benefits flowing therefrom. However, this Court in the case of State of Haryana & Ors. Vrs. D.P. Gupta & Ors., (1996) 7 SCC 533 and followed in the case of A.K Soumini Vrs. State Bank of Travancore, JT (2003) 8 SC 35 has taken the view that even in case of a notional promotion from retrospective date, it cannot entitle the employee to arrears of salary as the incumbent has not worked in the promotional post. These decisions relied on the principle of no work no pay. The learned Division Bench in the impugned judgment has placed reliance on the case of State of Andhra Pradesh Vrs. K.V.L. Narasimha Rao & Ors., (1999) 3 SC 205. In our view, the High Court did not examine that case in detail. In fact, in the said judgment the view taken by the High Court of grant of salary was set aside by this Court. Therefore, we are of the view that in the light of the consistent view taken by this Court in the abovementioned cases, arrears of salary cannot be granted to the respondent in view of the principle of no work no pay in case of retrospective promotion. Consequently, we allow this appeal and set aside the impugned order of the High Court dated 17.05.2000 passed by the Division Bench of the High Court as also the order dated 11.01.2000 passed by the Central Administrative Tribunal, Principle Bench.”

“In Kulwinder Pal Singh and another Vrs. State of Punjab and others, (2016) 6 SCC 532, this Court while relying upon State of U.P. Vrs. Rajkumar Sharma, (2006) 3 SCC 330, observed as under:

‘16. The learned counsel for the appellants contended that when the other candidates were appointed in the post against dereserved category, the same benefit should also be extended to the appellants. Article 14 of the Constitution of India is not to perpetuate illegality and it does not envisage negative equalities. In-State of U.P. Vrs. Rajkumar Sharma, (2006) 3 SCC 330 it was held as under (SCC p. 337, para 15)

‘15. Even if in some cases appointments have been made by mistake or wrongly, that does not confer any right on another person. Article 14 of the Constitution does not envisage negative equality, and if the State committed the mistake it cannot be forced to perpetuate the same mistake. (See Sneh Prabha Vrs. State of U.P, (1996) 7 SCC 426; Jaipur Development Authority Vrs. Daulat Mal Jain, (1997) 1 SCC 35; State of Haryana Vrs. Ram Kumar Mann, (1997) 3 SCC 321; Faridabad CT Scan Centre Vrs. DG, Health Services, (1997) 7 SCC 752; Jalandhar Improvement Trust Vrs. Sampuran Singh, (1999) 3 SCC 494; State of Punjab Vrs. Rajeev Sarwal, (1999) 9 SCC 240; Yogesh Kumar Vrs. Government (NCT of Delhi), (2003) 3 SCC 548; Union of India Vrs. International Trading Co., (2003) 5 SCC 437 and Kastha Niwarak Grahnirman Sahakari Sanstha Maryadit Vrs. Indore Development Authority, (2006) 2 SCC 604.)’

Merely because some persons have been granted benefit illegally or by mistake, it does not confer right upon the appellants to claim equality.’

In Arup Das and others Vrs. State of Assam and others, (2012) 5 SCC 559, this Court observed as under:

‘19. In a recent decision rendered by this Court in State of U.P. Vrs. Rajkumar Sharma, (2006) 3 SCC 330, this Court once again had to consider the question of filling up of vacancies over and above the number of vacancies advertised. Referring to the various decisions rendered on this issue, this Court held that filling up of vacancies over and above the number of vacancies advertised would be violative of the fundamental rights guaranteed under Articles 14 and 16 of the Constitution and that selectees could not claim appointments as a matter of right. It was reiterated that mere inclusion of candidates in the select list does not confer any right to be selected, even if some of the vacancies remained unfilled. This Court went on to observe further that even if in some cases appointments had been made by mistake or wrongly, that did not confer any right of appointment to another person, as Article 14 of the Constitution does not envisage negative equality and if the State had committed a mistake, it cannot be forced to perpetuate the said mistake.’

In State of Orissa and another Vrs. Mamata Mohanty, (2011) 3 SCC 436, it was observed:

‘56. It is a settled legal proposition that Article 14 is not meant to perpetuate illegality and it does not envisage negative equality. Thus, even if some other similarly situated persons have been granted some benefit inadvertently or by mistake, such order does not confer any legal right on the petitioner to get the same relief. (Vide Chandigarh Admn. Vrs. Jagjit Singh, (1995) 1 SCC 745, Yogesh Kumar Vrs. Govt. of NCT of Delhi, (2003) 3 SCC 548, Anand Buttons Ltd. Vrs. State of Haryana, (2005) 9 SCC 164, K.K. Bhalla Vrs. State of M.P., (2006) 3 SCC 581, Krishan Bhatt Vrs. State of J&K, (2008) 9 SCC 24, State of Bihar Vrs. Upendra Narayan Singh, (2009) 5 SCC 65 and Union of India Vrs. Kartick Chandra Mondal, (2010) 2 SCC 422).”

“The promotions granted to seventy-six Associate Professors were under these Rules and all they were in service. Those who had retired before the promulgation of these Rules, constitute a separate class that is not contemplated under these new Rules for the grant of benefit of the kind. Apparently, no challenge is laid to these Rules, either. The observation of Co-ordinate Bench at Paragraph 8.2 of the judgment that while considering petitioners’ claim, the benefit granted to these persons should be kept in view, does not mean petitioners should be treated on par with them, regardless of apparent difference, i.e., the promulgation of the new Rules with effect from 18.02.2021 and superannuation of the petitioners anterior to the same. Service Jurisprudence more than recognizes the pensioners as a class apart qua those who are still in service. Therefore, the reasoning of the impugned orders cannot be faltered on the grounds, such as equality & reasonableness.”

Conclusion:

“50.

It cannot be disputed that the UGC Regulations are enacted by the UGC in exercise of powers under Sections 26(1)(e) and 26(1)(g) of the UGC Act, 1956. Even as per the UGC Act every rule and regulation made under the said Act, shall be laid before each House of Parliament. Therefore, being a subordinate legislation, UGC Regulations becomes part of the Act. In case of any conflict between the State legislation and the Central legislation, Central legislation shall prevail by applying the rule/principle of repugnancy as enunciated in Article 254 of the Constitution as the subject “education” is in the Concurrent List (List III) of the Seventh Schedule to the Constitution. Therefore, any appointment as a Vice-Chancellor contrary to the provisions of the UGC Regulations can be said to be in violation of the statutory provisions, warranting a writ of quo warranto.”

“25.

Regulation 7.4.0 mandates that the universities/State Governments shall modify or amend the relevant Acts/Statutes of the universities concerned within six months of adoption of these Regulations.”

“And whereas the petitioner retired from service well before the promulgation of the Odisha Education Service (College Branch) Recruitment Rules, 2020 which came into effect on 18.02.2021. The promotion of seventy-six Associate Professors cited by the petitioner was made under the 2020 Rules, which have prospective operation. As such, the petitioner, having retired prior to the enforcement of the new Rules, is not entitled to claim parity with Officers promoted under the said Rules.”

“11.

Ordinarily, a person retiring from service on a pensionable post would obtain the benefit of the revision in the scale of pay. This was so held in U.P. Raghavendra Acharya Vrs. State of Karnataka, (2006) 9 SCC 630 wherein this Court opined:

‘19. The fact that the appellants herein were treated to be on a par with the holders of similar posts in government colleges is neither denied nor disputed. The appellants indisputably are governed by the UGC scales of pay. They are entitled to the pensionary benefits also. They had been given the benefits of the revision of scales of pay by the Tenth Pay Revision Committee with effect from 01.01.1986. The pensionary benefits payable to them on attaining the age of superannuation or death were also stated to be on a par with the employees of the State Government. The State of Karnataka, as noticed hereinbefore, for all intent and purport, has treated the teachers of the Government-aided colleges and the regional engineering colleges on the one hand and the teachers of the colleges run by the State itself on the other hand on a par. Even the financial rules were made applicable to them in terms of the notifications, applying the rule of incorporation by reference. Although Rule 296 of the Rules per se may not be applicable so far as the appellants are concerned, it now stands admitted that the provisions thereof have been applied to the case of the appellants also for the purpose of computation of pensionary benefits.’

The services of the appellant being not a pensionable one, in our opinion, U.P. Raghavendra Acharya, (2006) 9 SCC 630 has no application to the fact of the present case. In that case, the amount of pension was to be calculated. On what basis the same was required to be done was considered in the following terms: (U.P. Raghavendra Acharya case, (2006) 9 SCC 630, paras 22-23)

‘22. The State while implementing the new scheme for payment of grant of pensionary benefits to its employees, may deny the same to a class of retired employees who were governed by a different set of rules. The extension of the benefits can also be denied to a class of employees if the same is permissible in law. The case of the appellants, however, stands absolutely on a different footing. They had been enjoying the benefit of the revised scales of pay. Recommendations have been made by the Central Government as also the University Grants Commission to the State of Karnataka to extend the benefits of the Pay Revision Committee in their favour. The pay in their case had been revised in 1986 whereas the pay of the employees of the State of Karnataka was revised in 1993. The benefits of the recommendations of the Pay Revision Committee with effect from 01.01.1996, thus, could not have been denied to the appellants.

23.

The stand of the State of Karnataka that the pensionary benefits had been conferred on the appellants with effect from 01.04.998 on the premise that the benefit of the revision of scales of pay to its own employees had been conferred from 01.01.1998, in our opinion, is wholly misconceived. Firstly, because the employees of the State of Karnataka and the appellants, in the matter of grant of benefit of revised scales of pay, do not stand on the same footing as revised scales of pay had been made applicable to their cases from a different date. Secondly, the appellants had been given the benefit of the revised scales of pay with effect from 01.01.1996. It is now well settled that a notification can be issued by the State accepting the recommendations of the Pay Revision Committee with retrospective effect as it was beneficent to the employees. Once such a retrospective effect is given to the recommendations of the Pay Revision Committee, the employees concerned despite their reaching the age of superannuation in between the said dates and/or the date of issuance of the notification would be deemed to be getting the said scales of pay as on 01.01.1996. By reason of such notification, as the appellants had been deprived of a vested right, they could not have been deprived therefrom and that too by reason of executive instructions.’

***

13.

We have noticed hereinbefore that both the Central Government as also the State of Kerala categorically stated that the notification had not come into force on the dates on which the representations of the appellant dated 01.01.1996 and 14.02.1996 were rejected by them in terms of their Letters dated 31.01.1996 and 30.07.1996, respectively. In this view of the matter, it is difficult to agree with the contention of the learned counsel for the appellant that the benefit of recommendation of his pay revision committed stood implemented on the day on which the appellant resigned. This aspect of the matter has also been considered in State of T.N. Vrs. Seshachalam, (2007) 10 SCC 137 stating:

‘15. It is one thing to say that the State had come up with a policy decision which is beneficial to all the employees irrespective of the fact as to whether they had reached the age of superannuation or not, the only criterion being that they were recruited to the Tamil Nadu Secretariat Service on or before 28.01.1994 but it is another thing to say that the claim petitions filed by the respondents were based on the success of their colleagues before the Administrative Tribunal in the year 1994. The employees working in the Finance Department had been promoted long back. We have noticed hereinbefore that some of them retired as Additional Secretaries whereas the respondents retired as merely Assistants. Presumably, promotions to the employees of the Finance Department were given systematically over a long period of time but no such grievance was made nor was any application filed before the appropriate forum. Such grievance, in our opinion, should have been raised or proper application before the Tribunal should have been filed long long back. It was in the aforementioned situation, the Tribunal was of the opinion that their applications were barred by limitation. Assuming that the cause of action for filing such applications arose in view of the observations made by the Tribunal in its order dated 16.04.1993 passed in Original Application No. 166 of 1990, but then in terms of the Act and the Rules, the respondents were required to file a proper application within a period of one year only. It is borne out from the records that, in fact, 62 such applications were already pending when GOMs No. 126 was issued.’

Therein U.P. Raghavendra Acharya, (2006) 9 SCC 630 was distinguished, stating: (Seshachalam case, (2007) 10 SCC 137, pp. 149-50, para 28)

‘28. Reference has also been made by Mr Venkataramani to a decision of this Court in U.P. Raghavendra Acharya Vrs. State of Karnataka, (2006) 9 SCC 630 wherein it was held that pension is not a bounty and it is a deferred salary. This Court is not concerned herein with such a situation. In the said decision, this Court was concerned with a case where an employee retiring on a particular date was to receive 50% of the pension on the enhanced salary. In the fact situation obtaining therein that as the revision of pay and consequent revision in pension had come into force and by reason of a notification, the modality of computing the pension was required to be determined, those who had fulfilled the conditions laid down therein were held to be entitled to the benefits provided for thereunder holding that the employees concerned had a vested right therein.’

14.

The question as to whether the scale of pay would be revised or not is a matter of policy decision for the State. No legal right exists in a person to get a revised scale of pay implemented. It may be recommended by a body but ultimately it has to be accepted by the employer or by the State which has to bear the financial burden. This aspect of the matter has been considered by this Court in HEC Voluntary Retd. Employees Welfare Society Vrs. Heavy Engg. Corpn. Ltd., (2006) 3 SCC 708 p. 716, para 19):

‘19. It is not in dispute that the effect of such voluntary retirement scheme is cessation of jural relationship between the employer and the employee. Once an employee opts to retire voluntarily, in terms of the contract he cannot raise a claim for a higher salary unless by reason of a statute he becomes entitled thereto. He may also become entitled thereto even if a policy in that behalf is formulated by the Company.’

(See also LIC Vrs. Retired LIC Officers Assn., (2008) 3 SCC 321).”

“43.

Further, in the case of Management of Narendra & Company Pvt. Ltd. Vrs. Workmen of Narendra & Company, (2016) 3 SCC 340, while considering the scope of the intra court appeal, this Court has held that, unless Appellate Bench concludes that findings of the learned Single Judge are perverse, it shall not disturb the same.”

“Be that as it may, in an intra-court appeal, on a finding of fact, unless the appellate Bench reaches a conclusion that the finding of the Single Bench is perverse, it shall not disturb the same. Merely because another view or a better view is possible, there should be no interference with or disturbance of the order passed by the Single Judge, unless both sides agree for a fairer approach on relief.”

“14.

The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court’s exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. Vrs. Pothan Joseph, (1960) 3 SCR 713 = AIR 1960 SC 1156: (SCR 721)

‘*** These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. Vrs. Jhanaton, 1942 AC 130:

‘*** the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case’. ***’ …”

“*** Let us first examine the power of the Division Bench while entertaining a Letters Patent appeal against the judgment/order of the Single Judge. This writ appeal has been nomenclatured as an application under Article 4 of the Orissa High Court Order, 1948 read with clause 10 of the Letters Patent Act, 1992. Letters Patent of the Patna High Court has been made applicable to this Court by virtue of Orissa High Court Order, 1948. Letters Patent Appeal is an intra-Court appeal where under the Letters Patent Bench, sitting as a Court of Correction, corrects its own orders in exercise of the same jurisdiction as vested in the Single Bench. (Ref: (1996) 3 SCC 52, Baddula Lakshmaiah Vrs. Shri Anjaneya Swami Temple). The Division Bench in Letters Patent Appeal should not disturb the finding of fact arrived at by the learned Single Judge of the Court unless it is shown to be based on no evidence, perverse, palpably unreasonable or inconsistent with any particular position in law. This scope of interference is within a narrow compass. Appellate jurisdiction under Letters Patent is really a corrective jurisdiction and it is used rarely only to correct errors, if any made.

In the case of B. Venkatamuni Vrs. C.J. Ayodhya Ram Singh reported in (2006) 13 Supreme Court Cases 449, it is held that in an intra-Court appeal, the Division Bench undoubtedly may be entitled to reappraise both questions of fact and law, but entertainment of a letters patent appeal is discretionary and normally the Division Bench would not, unless there exist cogent reasons, differ from a finding of fact arrived at by the Single Judge. Even a Court of first appeal which is the final Court of appeal on fact may have to exercise some amount of restraint. Similar view was taken in the case of Umabai Vrs. Nilkanth Dhondiba Chavan reported in (2005) 6 SCC 243. In the case of Commissioner of Income Tax Vrs. Karnataka Planters Coffee Curing Work Private Limited reported in (2016) 9 SCC 538, it is held that the jurisdiction of the Division Bench in a writ appeal is primarily one of adjudication of questions of law. Findings of fact recorded concurrently by the authorities under the Act concerned (Income Tax Act) and also in the first round of the writ proceedings by the learned Single Judge are not to be lightly disturbed. Thus a writ appeal is an appeal on principle where the legality and validity of the judgment and/or order of the Single Judge is tested and it can be set aside only when there is a patent error on the face of the record or the judgment is against established or settled principle of law. If two views are possible and a view, which is reasonable and logical, has been adopted by a Single Judge, the other view, howsoever appealing may be to the Division Bench; it is the view adopted by the Single Judge, which would, normally be allowed to prevail. If the discretion has been exercised by the Single Judge in good faith and after giving due weight to relevant matters and without being swayed away by irrelevant matters and if two views are possible on the question, then also the Division Bench in writ appeal should not interfere, even though it would have exercised its discretion in a different manner, were the case come initially before it. The exercise of discretion by the Single Judge should manifestly be wrong which would then give scope of interference to the Division Bench.”