Goutam Saha And Ors vs State Of Tripura And Ors

Heard Mr. K. Nath, learned counsel appearing for the petitioners as well as Ms. M. Chakraborty, learned counsel appearing for the respondents.

All these writ petitions are consolidated for disposal by a common judgment inasmuch as there is consensus in the bar that these writ petitions are covered by a previous decision of this court in Dr. Anindita Begum (Kusari) vs. State of Tripura and two others (the common judgment and order dated 08.03.2018 delivered in W.P.(C) No.675 of 2017). Since this court discovers a divergence in the fact a little bit, the fundamental facts would be placed in a short capsule at the beginning.

The petitioners namely Dr. Goutam Saha and Dr. Sandip Chakraborty were appointed as the Assistant Professor on 21.04.2008 in the entry level. In the notification dated 02.02.2010 issued by the Principal Secretary, Government of Tripura, Education (Higher) Department under No.F.4(11-4)-DHE/DGT/08(L-III) dated 02.02.2010, it has been prefaced that Ministry of Human Resource Development, Department of Education, Government of Tripura by their letter dated 31.12.2008 had requested the State Government to adopt and implement the revised pay structure as recommended by the UGC for the teachers in colleges in the State w.e.f. 01.01.2006, following the revision of pay scale of the Central Government employees on recommendation of the 6th Central Pay Commission w.e.f. 01.01.2006 with modification, if considered necessary, to suit the local conditions.

In the notification dated 02.02.2010, it has been further provided that the scheme of revision of pay structure communicated by the Ministry of Human Resource Development shall be extended to the teachers who are recruited in the regular scale of pay through prescribed recruitment process in the universities, colleges and higher educational institutions coming under the purview of the State Government subject to the terms and conditions provided in the notification dated 02.02.2010. In para-3 of the said notification, it has been provided that in some higher educational institutions, the revised pay structure will be introduced. In the said notification dated 02.02.2010, it has been further provided that [see para-4] the incentive would be provided for acquiring Ph.D. degree and M. Phil. Degree and other higher qualifications. It has been laid down therein that 5 non-compounded advance increments will be admissible at the entry level of recruitment as Assistant Professors for possessing the degree of Ph.D., awarded in the relevant discipline following the laid-down procedure. It has been provided that for obtaining Ph.D., the process of registration and external evaluation as prescribed by the UGC would be required. It has been distinctly stated that Assistant Professors who have entered in the service having M. Phil. Degree be provided with 2 non-compounded advance increments and the Assistant Professors who will acquire Ph.D. degree in the course of the service will be provided with 3 non-compounded advance increments, making 5 non-compounded advance increments in total.

The petitioners [in W.P.(C) No.72 of 2019] in terms of the notification dated 02.02.2010 got 2 compounded increments for their M. Phil. degree at the entry level on 21.04.2008. In the course of service, the petitioners acquired Ph.D. degree in conformity to the terms as laid down in Annexure-1 of the notification dated 02.02.2010 and thus the petitioners have become entitled to 3 more non-compounded advance increments for acquiring Ph.D. degree. The petitioner No.1 got the benefit of 3 non-compounded advance increments w.e.f. 02.04.2012 and his pay was fixed at Rs.25,630/-. Similarly, the petitioner No.2 on his acquiring the Ph.D. degree got the similar benefit from the date of his acquiring the Ph.D. degree. By a subsequent notification dated 21.05.2011, it has been held that advance increments for Ph.D./M. Phil. degree for the incumbent college teachers would be restricted for the period from 01.01.2006 to 31.01.2008. Pursuant to the said notification dated 21.05.2011, Annexure-9 to the writ petition, the Director of Higher Education issued a further memorandum dated 04.01.2013, Annexure-10 to the writ petition, whereby it has been provided that 3 non-compounded advance increments were wrongly given to the faculty members who did not acquire the Ph.D./M. Phil. degree during the period from 01.01.2006 to 31.01.2008. Following the notification dated 21.05.2011, the Special Secretary to the Government of Tripura, Education (Higher) Department directed the concerned Heads of Office (the Principals of the colleges) to realise the excess amount that has been drawn by the petitioners on account of their obtaining the Ph.D. degree. In terms of the said notification dated 21.05.2011, the purported excess amount drawn by the petitioners has been deducted from their salary bills.

For purpose of reference, the clause relating to incentives for Ph.D/M. Phil and other higher qualifications as adopted and made effective by the notification dated 02.02.2010, Annexure-7 to the writ petition being W.P.(C) No.72 of 2019, is extracted hereunder:

"4. Incentives for Ph. D/M. Phil and other higher qualifications:

(i) Five non-compounded advance increments shall be admissible at the entry level of recruitment as Assistant Professor to persons possessing the degree of Ph. D awarded in the relevant discipline by a university following the process of registration, course work and external evaluation as prescribed by the UGC. (ii) M. Phil degree holders at the time of recruitment to the post of Assistant Professor shall be entitled to two non-compounded advance increments.

(iii) Teachers who complete their Ph. D degree while in service shall be entitled to three non-compounded increments if such Ph. D. is in the relevant discipline and has been awarded by a university complying with the process prescribed by the UGC for enrolment, course-work and evaluation etc.

(iv) However, teachers in service who have been awarded Ph. D at the time of coming into force of this Scheme or having been enrolled for Ph. D. have already undergone course-work, if any, as well as evaluation, and only notification in regard to the award of Ph. D. is awaited, shall also be entitled to the award of three non-compounded increments even if the university awarding such Ph. D. has not yet been notified by the UGC as having complied with the process prescribed by the Commission.

(v) In respect of every other case, a teacher who is already enrolled for Ph.D shall avail the benefit of three non-compounded increments only if the university awarding the Ph.D has been notified by the UGC to have complied with the process prescribed by the Commission for the award of Ph.D in respect of either course work or evaluation or both, as the case may be.

(vi) Teachers in service who have not yet enrolled for Ph.D shall, therefore, derive the benefit of three non-compounded increments in award if Ph.D. while in service only if such enrolment is with a university which complies with the entire process, including that of enrolment as prescribed by the UGC.

(vii) Teachers who acquire M. Phil degree or a post graduate degree in a professional course recognized by the relevant Statutory Body/Council while in service, shall be entitled to one advance increment. If post graduate qualification in a particular subject is not a mandatory requirement at entry level of recruitment, acquisition of such a qualification for in-service candidates shall also entitle them to one advance increment.

(viii) Notwithstanding anything in the foregoing paras, those who have already availed the benefits of advance increments for possessing Ph. D./M. Phil at the entry level or during service under the earlier scheme shall not be entitled to the benefit of advance increment under the scheme."

When the respondents deducted the benefit that was granted to the petitioners for their acquiring Ph.D. degree, the petitioners filed their representations raising serious objection to such deduction. But the respondents have not given any response to such representation. Being aggrieved thereof, the petitioners have approached this court and illustrated an equal case where such benefit was extended by this court by the judgment dated 15.10.2015 delivered in the writ petition being W.P.(C) No.374 of 2011 titled as Dr. Pallab Kanti Ghoshal and others versus State of Tripura and others. Pursuant to the said judgment dated 15.10.2015, by the memorandum dated 26.11.2015 three non-compounded advance increments in favour of those petitioners were released. One Dr. Amitabha Saha who joined the service having Ph.D. degree at the entry level was provided with five non-compounded advance increments for Ph.D. by the communication dated 16.08.2016, Annexure-26 to the writ petition. The petitioners have further submitted that similar benefits had been extended to Dr. Anjali Chakraborty and Dr. Shyamal Debnath in terms of the notification dated 02.02.2010. Initially, their benefits were denied. The letters dated 12.03.2014 and 23.01.2014 (respectively Annexure-27 and Annexure-28) are the letters of release of their non-compounded advance increments. Similarly, one Bal Kishan Choudhary, Assistant Professor who entered in the service having only M. Phil. degree at the entry level. He was given two non-compounded advance increments in terms of the letter dated 04.05.2016, Annexure-29 to the writ petition. Thus, the petitioners have contended that the deduction of the benefit that was released in their favour are absolutely arbitrary and cannot be sustained in law.

In reply, the respondents have stated that the petitioners were provided non-compounded advance increments for acquiring Ph.D./M. Phil degree, according to the notification in force at that time. Para 4 (viii) of the notification dated 02.02.2010, as reproduced clearly provides that who have already availed the benefits of advance increments for possessing Ph.D./M. Phil at the entry level or during the service under the earlier scheme shall not be entitled to the benefit of advance increment under the scheme. Thereafter, they have also admitted that by the judgment dated 15.10.2015 as delivered in W.P.(C) No.374 of 2011 or in some other cases the benefits were given in respect of the petitioners of those writ petitions. Therefore, the petitioners herein cannot automatically get such benefit.

By this writ petition, the petitioners namely Dr. Pranabjit Bardhan Roy, Dr. Kali Charan Jha, Dr. Goutam Bhattacharjee and Dr. Saumen Chakrabarti have challenged the action of the respondents by denying their five non-compounded advance increments for their having the Ph.D. degree at the time of entry in the service. Since the relevant provisions of the notification dated 02.02.2010, facts related to the judgment dated 15.10.2015 and some other illustrations have been reproduced above, those will not be replicated here.

Briefly stated, the case of the petitioners is that they entered the service on 21.04.2008 having Ph.D. degree at the entry level. As they were entitled to five non-compounded advance increments for having the Ph.D. degree, they were allowed to the said benefit but later on, the said benefit had been withdrawn arbitrarily by the memorandum dated 04.01.2013, Annexure-9 to this writ petition, which was issued in terms of the notification dated 21.05.2011, Annexure-8 to the writ petition. According to the said notification dated 04.01.2013, 5/2 non-compounded advance increments allowed to the college teachers recruited to the post of Assistant Professor during the period from 01.01.2006 to 31.08.2008 for acquiring Ph.D./M. Phil degree respectively and also allowed 3/2 non-compounded advance increments to the existing faculty members, possessed of Ph.D./M. Phil degree w.e.f. 01.01.2006 to 31.08.2008 which is not at all admissible according to the notification dated 21.05.2011 as the incentive of non-compounded advance increments for acquiring Ph.D./M. Phil degree at the entry level. But due benefits were deducted from the petitioners.

The petitioners filed the representation raising the objection and claiming the release of the said benefit forthwith. In addition to the documents, as relied in the earlier writ petition being W.P.(C) No.72 of 2019 (Dr. Gautam Saha and Anr. vs. The State of Tripura and Ors.), those petitioners have relied on a memorandum under No.F.4(11-4)-DHE/BGT/12/1828(4) dated 31.10.2018, Annexure-17 to this writ petition, whereby three non-compounded advance increments to the petitioners from the date of acquiring the degree in service has been released in terms of the judgment dated 08.03.2018 delivered in writ petition being W.P.(C) No.675 of 2017 and W.P.(C) No.676 of 2017. The operational part of the said judgment (in para-11) reads as under:

"Having appreciated the submissions made by the learned counsel for the parties, the respondents are directed to grant the petitioners 3(three) non-compounded advance increments in the revised rate in terms of the notification No.F.4(11-4)-DHE/BGT/08(L-III) dated 02.02.2010 read with the communication under No.1-32/2006-U.II/U.I(1) dated 31-12-2008 from the date when they acquired the degree of Ph.D, after due adjustment, if any. The petitioners shall be paid the arrears on account of the said 3 (three) non-compounded advance increments within a period of 3(three) months from the day when the petitioner shall place a copy of this order to the respondents No-2 and 3."

The respondents have adopted the same reply as they filed in W. P.(C) No.72 of 2019.

In this context, the petitioners have urged this court to direct the respondents to release the benefits of five non-compounded advance increments for their having the Ph.D. degree at the entry level in terms of para 4(i) of the notification dated 02.02.2010 as reproduced above. Further, they have urged this court to interfere with the notification dated 21.05.2011, Annexure-8 to the writ petition and the memorandum dated 04.01.2013 to pave the way for the said benefit.

By means of this writ petition the petitioners namely Dr. Syamal Adhikari, Dr. Subrata Deb, Dr. Jaydip Bhattacharya, Dr. Abhijit Bhattacharya and Dr. Debjani Bhattacharyya have urged this court to direct the respondents to release the five non-compounded advance increments for having Ph.D. degree at the entry level in terms of para 4(i) of the Annexure-1 of the notification dated 02.02.2010. Similarly, they have also urged to quash the notification dated 21.05.2011, Annexure-10 to the writ petition being W.P.(C) No.74 of 2019 and the memorandum dated 04.01.2013, Annexure-11 to the writ petition being W.P.(C) No. 74 of 2019 for paving the way the relief as sought for.

The petitioners were appointed as the Assistant Professor under the respondents on 21.04.2008 having Ph.D. degree at the entry level. Thus, they are entitled to get five non-compounded advance increments in terms of the para-4(i) of the Annexure-1 of the notification dated 02.02.2010 but the petitioners were not given the said benefit despite their repeated representations being filed to achieve that benefit. Hence, they have approached this court. According to them, the respondents have acted arbitrarily whereas similarly situated Assistant Professors have been given the benefits. They have also referred the judgment, the notification as referred and extracted above. For purpose of brevity, those are not being replicated.

The respondents have filed their reply and taken the similar stand as taken in the earlier two writ petitions. They have stated that those who have already availed the benefit of the advance increment for possessing the Ph.D./M. Phil at the entry level or during service under the earlier scheme shall not be entitled to the benefit of the advance increment under the revised scheme. But they have nowhere stated that after the petitioners' acquiring the Ph.D. degree either at the entry point or afterwards, they were given the benefit of five/three non-compounded increments. However, in their reply, they have stated that the petitioners had joined the post of Assistant Professor under the Government Degree Colleges on 21.04.2008. They had obtained their M. Phil degree prior to entry in the post of Assistant Professor which transpires clearly from their original documents, but they have not stated whether for their M. Phil degree they were given any benefit of advance increments or not. In para 8 of their reply the respondents have stated as follows:

"8. That with reference to the statements made in paragraph No.5,(B), (C), (D), (E) & (F) of the Writ Petition, I say that the Petitioner No-2 obtained the Degree of Doctor of philosophy from Jamia Milia Islamia a central University, new Delhi on 22/04/2007 but the university awarded the Ph.D on 13/10/2008 vide F/"B", while he joined to the Post of Assistant Professor on 21/04/2008. So I say that it is an established fact that the petitioner No-2 was awarded his Ph.D Degree while in service and it cannot be said that the petitioner No-2 has completed his Ph.D prior to entry in the service."

In a way, the claim of the petitioners No.1 and 2 that at the time of entry in the service they were having the Ph.D. degree has been disputed by the respondents but so far the other two petitioners are concerned, no such dispute has been raised even by the respondents in their reply. Therefore, their contention that since they had the benefits of advance increments for possessing Ph.D./M. Phil at the entry level or during service under the earlier scheme, they will not be entitled to the scheme does not hold any substance and accordingly stands rejected by this court. The petitioners have also as well given some illustrations based on the judgment dated 15.10.2015 delivered in W.P.(C) No.374 of 2018 as referred above.

Having referred to the grievance of all the petitioners in these batch of writ petitions this court is of the view that the respondents had not applied their mind to the provisions and created unnecessary embargo for the petitioners denying their legitimate due in terms of the para 4(i) to (viii) of the Annexure-1 of the notification dated 02.02.2010. The said provision has been reproduced above. There is no ambiguity in understanding the said provision. Para 4 (i) supra, clearly provides that five non-compounded advance increments shall be admissible at the entry level of recruitment as Assistant Professor to persons possessing the degree of Ph.D. awarded in the relevant discipline by a University following the process of registration, course work and external evaluation as prescribed by the UGC. Similarly, M. Phil degree holders at the time of recruitment to the post of Assistant Professor shall be entitled to two non-compounded advance increments and the teachers who completed their Ph.D. degree while in service shall further be entitled to three non-compounded advance increments if such Ph.D. is in the relevant discipline and has been awarded by a University complying with the process prescribed by the UGC for registration, course work and evaluation etc. But the respondents have been given undue interpretation to the non-obstante clause, para 4 (viii) where it has been provided that notwithstanding anything in the foregoing paras, those who have already availed the benefits of advance increments for possessing Ph. D./M. Phil at the entry level or during service under the earlier scheme shall not be entitled to the benefit of advance increment under the scheme. It is not the case of the respondents that any petitioner had got the similar benefits for possessing the Ph.D./M. Phil at the entry level or during service under the earlier scheme. All the petitioners have claimed their benefits under the present scheme as given effect by the notification dated 02.02.2010. Hence, the position taken by the respondents in their reply is liable to be discarded on the face of it. Thus, this court is persuaded to direct the respondents as under:

(1) The petitioners who have entered in the service as Assistant Professors and have not been granted the incentive for having the Ph. D. and M. Phil shall be entitled to have the five or two non-compounded advance increments from the date of their appointment in terms of the said notification dated 02.02.2010.

(2) The petitioners who have entered in the service with M. Phil degree in the post of Assistant Professor shall get two non-compounded advance increments from the date of their appointment and the petitioners who had entered in the service with M. Phil in the post of Assistant Professor and in the course of service had obtained the Ph.D. degree shall get additional three non-compounded advance increments from the date when their Ph.D. is notified in terms of the guidelines as provided under Para-4 of Annexure-1 of the said notification dated 02.02.2010.

(3) The interpretation given in the notification under No.F.4(11-4)-DHE/BGT/08(L-III)/568(25) dated 21.05.2011 and in the memorandum under No.F.4(11-4)-DHE/BGT/12/3475(26) dated 04.01.2013 stand quashed and those notification/memorandum are therefore set aside.

In terms of the above directions, the respondents shall release the financial benefits in favour of the petitioners within a period of three months after due adjustment, if any, from the date when the petitioners shall place a copy of this order to the Principal Secretary Department of Higher Education, Government of Tripura and to the Director of Higher Education, Government of Tripura, Agartala.

Having observed thus, all these writ petitions stand allowed to the extent as indicated above.

There shall be no order as to costs.