R.S. Dhukia And Ors. vs State Of Haryana And Ors.
- Court
- Punjab and Haryana High Court
1
CWP-13561-2011
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-13561-2011
R.S. Dhukia and others
....Petitioners
VERSUS
State of Haryana and others
...Respondents
1. Date when judgment was reserved 18.09.2026
2. Date of pronouncement of judgment 05.11.2026
3. Date of uploading judgment 05.11.2026
Whether operative part or full
4. Full
judgment is pronounced
5. Delay, if any, in pronouncing of full Not applicable
judgment and reasons thereof
CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR
Present:- Mr. Gunjan Mehta, Advocate for the petitioner.
Mr. Aakash Singla, Addl. AG Haryana.
Mr. Sailender Singh, Advocate for the respondents.
HARPREET SINGH BRAR , J.
1. The present writ petition has been filed under Article 226 of the
Constitution of India for issuance of a writ in the nature of certiorari for
quashing the order dated 15.03.2011 (Annexure P-24), whereby the claim of
the petitioners for two advance increments on acquiring a Ph.D. degree
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during service was rejected. A declaration is further sought that the
condition in notification dated 31.05.2007 (Annexure P-7), which confines
the benefit to teachers under the Career Advancement Scheme (CAS), is
discriminatory, arbitrary and ultra vires Clause 4(ii)(d) of the ICAR/DARE
instructions dated 03.03.1999 (Annexure P-1) read with the clarification
dated 14.11.2005 (Annexure P-3), and that the Merit Promotion Scheme
(MPS) or CAS route cannot be a criterion for denying the incentive. The
petitioners also seek a writ in the nature of mandamus directing the
respondents to grant two advance increments w.e.f. 27.07.1998, on the same
parity as CAS teachers, with consequential benefits including re-fixation of
pay, arrears, revision of pension and interest.
CONTENTIONS
2. Learned counsel for the petitioners, inter alia, contends that the
impugned action of the respondents in denying the benefit of two advance
increments to the petitioners on acquiring a Ph.D. degree during service is
arbitrary, discriminatory, and constitutionally impermissible. The claim of
the petitioners flows from the clear and unambiguous mandate of Clause
4(ii)(d) of the instructions issued by the Indian Council of Agricultural
Research (ICAR) / Department of Agricultural Research and Education
(DARE), Government of India dated 03.03.1999 (Annexure P-1), which
categorically made a teacher eligible for two advance increments as and
when acquiring a Ph.D. degree in their service career. This was reaffirmed
by DARE’s subsequent clarification dated 14.11.2005 (Annexure P-3)
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directing the uniform grant of the incentive to all teachers who acquired
Ph.D. during service even prior to 01.01.1996, with actual benefits from the
cut-off date of 27.07.1998. Once the petitioners satisfied the substantive
criterion of acquiring an in-service Ph.D., their right to the incentive stood
crystallized. Altering or withdrawing this benefit after decades of service
and post-retirement violates the well-settled principle of service
jurisprudence that accrued conditions of service cannot be varied to the
grave detriment of employees, as ruled in K.C. Arora v. State of Haryana,
1984 (2) SLR 97.
3. It is submitted that the respondents' attempt to carve out an
artificial distinction between teachers governed by the Career Advancement
Scheme (CAS) and those who continued under the Merit Promotion Scheme
(MPS) is a mere administrative subterfuge. Reliance is placed on the
judgement in the case of Sree Sankaracharya University of Sanskrit v. Dr.
Manu, 2023 SCC OnLine SC 640 and V. Vincent Velankanni v. Union of
India, 2024 SCC OnLine SC 2642, to argue that an administrative authority
cannot alter the scope of governing provisions under the guise of an
explanation or clarification, nor saddle employees with unanticipated
burdens or divest them of anticipated benefits. It is argued that in the DARE
directive dated 14.11.2005 (Annexure P-3), the operative expression
employed was "earlier career advancement schemes" in plural, referencing
the generic umbrella of all promotional/career progression schemes
operating across State Agricultural Universities. The respondent-University
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deliberately mutated the plural "schemes" to the singular "scheme (CAS)" in
its notification dated 31.05.2007 (Annexure P-7) and agenda items, creating
an invidious and unauthorized exclusion of MPS teachers. It is contended
that both CAS and MPS were promotional progression avenues; the
acquisition of higher educational qualifications during service is an
independent academic incentive which has no rational nexus with the mode
or channel of promotion.
4. It is further argued that the principle of long-standing past
practice and contemporaneous administrative understanding assumes critical
weight in construing service conditions, as settled by the Hon'ble Supreme
Court in M.B. Joshi v. Satish Kumar Pandey, 1993 Supp (2) SCC 419 , D.
Stephen Joseph v. Union of India, (1997) 4 SCC 753 , and T. Valsan v. K.
Kanagaraj, 2023 SCC 614. When the University itself sought clarification,
DARE vide communication dated 25.06.2007 (Annexure P-10) expressly
clarified that MPS was an existing career progression scheme prior to
01.01.1996 and recommended considering the request of MPS teachers. The
University repeatedly affirmed that since its inception, Ph.D. increments had
been granted to all faculty without discrimination. Furthermore, the State’s
own High-Powered Committee, in its report dated 13.08.2009 (Annexure P-
18), established that extending the benefit to MPS teachers entailed no
double benefit, and the Special Secretary (Finance), Government of Haryana
in his report (Annexure P-19), explicitly recorded that there was no valid
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ground for the State to maintain such an artificial distinction and deny the
MPS teachers the benefit of these increments.
5. It is argued that the stand taken by the respondents in their
written statements that CAS teachers suffered financial loss and that MPS
teachers opted for MPS 30 years ago to gain rapid promotion to the post of
Professor is demonstrably misleading and false. An Assistant Professor in
CAS was granted up to six advance increments upon placement as Associate
Professor and enjoyed higher initial pay scales, whereas the petitioners
under MPS required a minimum of 13 years of rigorous service (including
study leave) to attain the same rank. More egregiously, when MPS was
abolished w.e.f. 03.03.1999, 23 leftover teachers were converted to CAS and
granted the two advance increments, while senior professors who had
already rendered exemplary service under MPS were singled out and denied
the same incentive. Invoking an option exercised three decades earlier to
deny an academic incentive introduced decades later by the 5th Pay
Commission is arbitrary and irrational.
6. It is also submitted that the justification in the State
Government's letter dated 11.11.2010 (Annexure P-21) denying the benefit
because parallel increments were unavailable in traditional universities like
MDU Rohtak, Kurukshetra University, and GJU Hisar proceeds on an
erroneous premise. Under the binding Standing Committee decision dated
19.09.2001 (Annexure P-2), UGC regulations governing traditional general-
stream universities and ICAR regulations governing State Agricultural
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Universities operate in watertight, distinct compartments and cannot be
cross-applied. Sister Agricultural Universities governed by ICAR including
Punjab Agricultural University (PAU) Ludhiana (from which CCS HAU
was bifurcated), JNKVV Jabalpur, and MPUAT Udaipur (Annexures P-25,
P-26, P-27) have uniformly released these two advance increments to all in-
service Ph.D. teachers irrespective of their promotional route.
7. It is further submitted that the preliminary objection raised
regarding non-joinder of the Finance Department and financial incapacity is
untenable. CCS HAU is an autonomous statutory corporation established
under the Haryana & Punjab Agricultural Universities Act, 1970. For
Central Pay Commission revisions, approximately 80% of the arrear funding
is borne by ICAR/Central Government. Moreover, the State Government
had already accorded in-principle administrative and budgetary approval
vide Memo dated 14.02.2007 (Annexure P-5) and revised estimates were
duly computed and approved by the University and the State Government as
discernible from Annexures P-12 and P-15, making the subsequent
backtracking legally unsustainable. Consequently, the impugned order dated
15.03.2011 (Annexure P-24), was passed dismissing the representations by
completely ignoring the committee recommendations, cryptically recording
"After consideration the matter has been filed," making it an unreasoned,
non-speaking communication showing complete non-application of mind.
Disposing of crystallized service claims in such a cavalier manner violates
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the basic tenets of natural justice and cannot withstand judicial scrutiny
under Article 226 of the Constitution of India.
8. Per contra, learned State counsel appearing on behalf of the
respondents contends that the initial directive dated 03.03.1999 (Annexure
P-1) issued by the Ministry of Agriculture/DARE was addressed only to the
Chief Secretaries of States and was neither adopted by the State Government
nor by the respondent-University. Under Clause 16(11) read with Clause 13
of the Haryana and Punjab Agricultural Universities Act, 1970, salaries,
allowances, and financial incentives payable to university employees are
determined by the Vice-Chancellor with the mandatory approval of the
Board of Management and the State Government. Since the State
Government is the funding agency of the University, no financial benefit or
incentive can be unilaterally created or extended by the University without
prior concurrence of the Finance Department and explicit approval of the
State. The notification dated 04.11.1999 (Annexure R-3) revising pay scales
w.e.f. 01.01.1996 contained no provision for extending advance increments
to teachers for acquiring a Ph.D. during service.
9. Learned state counsel submits that the benefit of two advance
increments was extended by the State Government vide memo dated
14.02.2007 (Annexure P-5) strictly in terms of the instructions issued by
DARE vide letter dated 14.11.2005 (Annexure P-3). A bare perusal of the
operative text of Annexure P-3 reveals that the incentive of two advance
increments w.e.f. the cut-off date of 27.07.1998 was sanctioned exclusively
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to those teachers who "were not given the benefit of any advance increments
as per earlier Career Advancement Schemes (CAS)" . The said governing
instructions nowhere contemplate extending this benefit to teachers working
under the Merit Promotion Scheme (MPS). Therefore, notification dated
31.05.2007 (Annexure P-7) limiting the benefit to CAS teachers was in strict
conformity with the central guidelines adopted by the State and Board of
Management.
10. It is contended that the Merit Promotion Scheme (started in
1982) and the Career Advancement Scheme (started w.e.f. 01.01.1986) were
two entirely distinct promotional frameworks operating under separate
criteria, pay scales, and career avenues. Under the old CAS, promotional
avenues were capped only up to the level of Associate Professor (scale of
Rs. 3700–5700) with no further channel to the post of Professor, and
teachers suffered a relative financial disadvantage in progression. In
contrast, Assistant Professors who consciously opted to continue under the
old MPS enjoyed an accelerated pathway to Associate Professor (scale of
Rs. 3000–5000) and subsequently had a clear avenue of promotion to the
rank of Professor in the pay scale of Rs. 4500–5700 / 4500–7300. The
petitioners, after carefully evaluating the relative pros and cons of both
schemes, exercised their conscious option to remain under the MPS and
reaped all promotional advantages flowing from it. Having elected to remain
in MPS, which had no provision for Ph.D. advance increments, the
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petitioners cannot now claim parity with CAS teachers after having enjoyed
the benefits of their chosen scheme throughout their careers.
11. Learned counsel further points out that the transition of certain
teachers (35/23 faculty members) from MPS to CAS was necessitated
because, upon the abolition of MPS w.e.f. 03.03.1999 and the introduction
of ICAR's revised requirements on 19.04.2001 (requiring 8 years in the scale
of Rs. 3700–5700 for promotion to Professor), those teachers who were in
the scale of Rs. 3000–5000 faced complete stagnation. The ICAR and State
Government allowed them to switch over to CAS prior to the cut-off date to
protect their future career progression. Once converted to CAS, they became
entitled to the benefits permissible under CAS. Conversely, the petitioners,
who had already earned promotions up to the rank of Professor under MPS,
remained substantive MPS beneficiaries and cannot seek retrospective
conversion or selective transplantation of CAS benefits.
12. It is submitted that the State Government, vide communication
dated 11.11.2010 (Annexure P-21), rightly considered that no parallel
facility of two advance increments on acquiring in-service Ph.D. was
available in traditional State universities, namely Maharishi Dayanand
University (Rohtak), Kurukshetra University, and Guru Jambheshwar
University (Hisar). Under the recommendations of the Standing Committee
dated 19.09.2001, parity and uniformity across State universities must be
maintained. Conceding an unapproved financial benefit to MPS retirees of
CCS HAU would cause severe fiscal anomalies and provoke discriminatory
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demands across other State educational institutions. It is further contended
that the petitioners’ reliance on internal file notings of the Special Secretary
(Finance) (Annexure P-19) or departmental communications (Annexure P-
20) is wholly misplaced. File notings and intermediate committee
deliberations do not constitute a final, enforceable executive decision of the
Government until approved and formally communicated by the competent
authority. The State Government, after full consideration of the financial
liabilities and policy ramifications, consciously decided to reject/file the
matter on 15.03.2011 (Annexure P-24), which is valid, reasoned, and fully
within its sovereign financial discretion.
OBSERVATIONS & ANALYSIS
13. I have heard learned counsel for the parties and after perusal of
the record with their able assistance, the issue that arises for adjudication is
that whether the petitioners, having exercised their option to remain under
the Merit Promotion Scheme (MPS), are precluded by the doctrine of
election from claiming the incentive of two advance increments for
acquiring a Ph.D. degree during service?
14. It is trite law that the doctrine of election, and the related
doctrine of waiver, require a voluntary and intentional relinquishment of a
right that exists when the choice is made. An individual cannot be deemed to
have waived, abandoned, or foregone a statutory benefit, incentive, or
entitlement that had not yet materialized in law or was entirely outside
contemplation at the time an agreement was executed or an initial choice
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was made. The three-Judge bench of the Hon’ble Supreme Court in P. Dasa
Muni Reddy v. P. Appa Rao, (1974) 2 SCC 725, speaking through Justice
A.N. Ray, observed as under:
“13. Abandonment of right is much more than mere waiver,
acquiescence or laches. The decision of the High Court in the
present case is that the appellant has waived the right to evict
the respondent. Waiver is an intentional relinquishment of a
known right or advantage, benefit, claim or privilege which
except for such waiver the party would have enjoyed. Waiver
can also be a voluntary surrender of a right. The doctrine of
waiver has been applied in cases where landlords claimed
forfeiture of lease or tenancy because of breach of some
condition in the contract of tenancy. The doctrine which the
courts of law will recognise is a rule of judicial policy that a
person will not be allowed to take inconsistent positions to gain
advantage through the aid of courts. Waiver sometimes
partakes of the nature of an election. Waiver is consensual in
nature. It implies a meeting of the minds. It is a matter of
The doctrine does not depend on
mutual intention.
misrepresentation. Waiver actually requires two parties, one
party waiving and another receiving the benefit of waiver.
There can be waiver so intended by one party and so
understood by the other. The essential element of waiver is
that there must be a voluntary and intentional relinquishment
of a right. The voluntary choice is the essence of waiver.
There should exist an opportunity for choice between the
relinquishment and an enforcement of the right in question. It
cannot be held that there has been a waiver of valuable rights
where the circumstances show that what was done was
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involuntary. There can be no waiver of a non-existent right .
Similarly, one cannot waive that which is not one's as a right
at the time of waiver. Some mistake or misapprehension as to
some facts which constitute the underlying assumption without
which parties would not have made the contract may be
sufficient to justify the court in saying that there was no
consent.”
(Emphasis added)
15. The said proposition stands reinforced by the Hon’ble Supreme
Court in Municipal Corporation of Greater Bombay v. Dr. Hakimwadi
Tenants' Assn., 1988 Supp SCC 55, wherein it was held that waiver
requires a voluntary and intentional relinquishment of a known right, and
that waiver and estoppel are questions of conduct. It necessitates both
complete knowledge of the right's existence and an intentional choice to
forego it. The two-Judge bench of the Hon’ble Supreme Court, speaking
through Justice A.P. Sen, observed as under:
“14. In order to constitute waiver, there must be voluntary and
intentional relinquishment of a right. The essence of a waiver is
an estoppel and where there is no estoppel, there is no waiver.
Estoppel and waiver are questions of conduct and must
necessarily be determined on the facts of each case.”
16. Similarly, elucidating the parameters of Doctrine of Election as
a branch of Doctrine of Estoppel, the two-Judge bench of the Hon’ble
Supreme Court in National Insurance Co. Ltd. v. Mastan, (2006) 2 SCC
641, speaking through Justice S.B. Sinha held:
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“23. The 'doctrine of election' is a branch of 'rule of estoppel',
in terms whereof a person may be precluded by his actions or
conduct or silence when it is his duty to speak, from asserting a
right which he otherwise would have had. The doctrine of
election postulates that when two remedies are available for the
same relief, the aggrieved party has the option to elect either of
them but not both.”
17. Further, because the Doctrine of Election is rooted in equity
and the prohibition against approbating and reprobating, it fundamentally
requires full knowledge of all material facts and existing legal avenues. The
two-Judge Bench of the Hon’ble Supreme Court in Union of India v. N.
Murugesan, (2022) 2 SCC 25, mentioning the rule against approbate and
reprobate, speaking through Justice M.M. Sundresh explicitly recorded as
under:
“ 26. These phrases are borrowed from the Scott's law. They
would only mean that no party can be allowed to accept and
reject the same thing, and thus one cannot blow hot and cold.
The principle behind the doctrine of election is inbuilt in the
concept of approbate and reprobate. Once again, it is a
principle of equity coming under the contours of common law.
Therefore, he who knows that if he objects to an instrument,
he will not get the benefit he wants cannot be allowed to do so
while enjoying the fruits. One cannot take advantage of one
part while rejecting the rest. A person cannot be allowed to
have the benefit of an instrument while questioning the same.
Such a party either has to affirm or disaffirm the transaction.
This principle has to be applied with more vigour as a
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common law principle, if such a party actually enjoys the one
part fully and on near completion of the said enjoyment,
thereafter questions the other part. An element of fair play is
inbuilt in this principle. It is also a species of estoppel dealing
with the conduct of a party.”
18. The legal character of executive instructions and administrative
circulars, particularly the impermissibility of giving retrospective effect to
substantive amendments under the guise of mere "clarification," stands
firmly settled. As laid down by the Hon'ble Supreme Court in Dr. Manu
(supra), an executive authority cannot contract, dilute, or restrict the
substantive scope of a beneficial directive by labelling a restrictive
instrument as an explanatory circular or administrative clarification. A
genuine clarification can only elucidate existing provisions; it cannot
introduce artificial exclusions or withdraw an anticipated or conferrable
benefit. In examining whether a subsequent government order curtailing
advance increments for Ph.D. holders was truly "clarificatory" or in fact a
substantive amendment, the Court affirmed that the executive's label is not
determinative. The true nature of an instrument must be judged by its
substantive effect; if an order alters the scope of an entitlement, restricts
eligibility, or reduces a benefit, it is a substantive amendment in character,
not an interpretation. Consequently, such an executive order cannot operate
retrospectively to divest employees of accrued or vested rights in the
absence of explicit statutory empowerment under the parent rules. The two-
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Judge Bench of the Hon’ble Apex court, speaking through Justice B.V.
Nagarthna held as follows:
“ 8.3. This Court in Commissioner of Income Tax, Bombay v.
Podar Cement Pvt. Ltd., (1997) 226 ITR 625 (SC) noted that
circumstances under which an amendment or modification
was introduced and the consequences thereof would have to
be borne in mind while deciding the issue as to whether the
amendment was clarificatory or substantive in its nature and
whether it would have retrospective effect or not.
xxx xxx xxx
9.2. From the aforesaid authorities, the following principles
could be culled out:
i) If a statute is curative or merely clarificatory of the previous
law, retrospective operation thereof may be permitted.
ii) In order for a subsequent order/provision/amendment to be
considered as clarificatory of the previous law, the pre-
amended law ought to have been vague or ambiguous. It is
only when it would be impossible to reasonably interpret a
provision unless an amendment is read into it, that the
amendment is considered to be a clarification or a declaration
of the previous law and therefore applied retrospectively.
iii) An explanation/clarification may not expand or alter the
scope of the original provision.
iv) Merely because a provision is described as a
clarification/explanation, the Court is not bound by the said
statement in the statute itself, but must proceed to analyse the
nature of the amendment and then conclude whether it is in
reality a clarificatory or declaratory provision or whether it is
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a substantive amendment which is intended to change the law
and which would apply prospectively.
xxx xxx xxx
10. Applying the law as discussed hereinabove to the facts of
the present case, we are of the view that the subsequent
Government Order dated 29th March, 2001 cannot be declared
as a clarification and therefore be made applicable
retrospectively. The said order has substantively modified the
Government Order dated 21st December, 1999 to the extent of
stating that teachers who had already got the benefit of
advance increments for having a Ph.D. degree, would not be
eligible for advance increments at the time of their placement in
the selection grade. As noted above, the law provides that a
clarification must not have the effect of saddling any party
with an unanticipated burden or withdrawing from any party
an anticipated benefit. However, the Government Order dated
29th March, 2001 has restricted the eligibility of lecturers for
advance increments at the time of placement in the selection
grade, only to those who do not have a Ph.D. degree at the time
of recruitment and subsequently acquire the same.
xxx xxx xxx
10.3. Further, merely because the subsequent Government
Order has been described as a clarification/explanation or is
said to have been issued following a clarification that was
sought in that regard, the Court is not bound to accept that
the said order is only clarificatory in nature. On an analysis of
the true nature and purport of the subsequent Government
Order dated 29th March, 2001, we are of the view that it is not
merely clarificatory, but is a substantial amendment which
seeks to withdraw the benefit of two advance increments in
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favour of a certain category of lecturers. The benefit
withdrawn was not anticipated under the previously existing
scheme. Therefore, such an amendment cannot be given
retrospective effect.”
(Emphasis added)
19. The aforesaid principles were reaffirmed in
V. Vincent
Velankanni (supra), wherein the two-Judge bench of the Hon’ble Supreme
Court, speaking through Justice Sandeep Mehta observed as under:
“43. If a Government Order is treated to be in the nature of a
clarification of an earlier Government Order, it may be made
applicable retrospectively. Conversely, if a subsequent
Government Order is held to be a modification/amendment of
the earlier Government Order, its application would be
prospective as retrospective application thereof would result in
withdrawal of vested rights which is impermissible in law and
the same may also entail recoveries to be made.”
20. It is settled law that any classification attempted by the
executive must withstand the rigorous scrutiny of Article 14, which
proscribes arbitrariness and discriminatory treatment among equals. As
expounded by the Hon’ble Supreme Court in D.S. Nakara & Others v.
Union of India , (1983) 1 SCC 305 , Article 14 strikes at arbitrariness in State
action and forbids class legislation; while it permits reasonable
classification, such classification must satisfy the twin tests of being founded
on an intelligible differentia distinguishing persons grouped together from
those left out, and having a direct, rational nexus to the object sought to be
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achieved. The Constitution Bench of the Hon’ble Apex Court, speaking
through Justice D.A. Desai observed as under:
“ 11. The decisions clearly lay down that though Article 14
forbids class legislation, it does not forbid reasonable
classification for the purpose of legislation. In order, however,
to pass the test of permissible classification, two conditions
must be fulfilled, viz., (i) that the classification must be
founded on an intelligible differentia which distinguishes
persons or things that are grouped together from those that
are left out of the group; and (ii) that that differentia must
have a rational relation to the objects sought to be achieved by
the statute in question. (See Ram Krishna Dalmia v. S.R.
Tendolkar, 1959 SCR 279 at P. 296 ). The classification may
be founded on differential basis according to objects sought to
be achieved but what is implicit in it is that there ought to be
nexus i.e. causal connection between the basis of
classification and object of the statute under consideration. It
is equally well settled by the decisions of this Court that Art .14
condemns discrimination not only by a substanstive law but
also by a law of procedure.”
(Emphasis Added)
21. Applying these principles to service law, the Hon’ble Supreme
Court in Col. A.S. Iyer & Others v. V. Balasubramanyam & Others, (1980)
1 SCC 634 , held that once persons from different sources of recruitment
have fused into one common service, they cannot be differentiated for
purposes of salary, seniority or promotion on the basis of the source.
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Consequently, treating similarly situated members of a unified cadre
discharging identical duties, unequally, by creating an artificial divide to
deny increments or financial benefits on fortuitous or extraneous grounds is
wholly arbitrary and impermissible. Equals cannot be treated unequally
within a common cadre, and any mini-classification lacking a rational nexus
to the object of the rule stands vitiated under Articles 14 and 16. The
Constitution Bench of the Hon’ble Apex Court, speaking through Justice
V.R. Krishna Iyer, established as under:
“ 45. Let us eye the issue from the egalitarian angle of Articles
14 and 16. It is trite law that equals shall be treated as equals
and, in its application to Public services, this simply means
that once several persons have become members of one
service they stand as equals and cannot, thereafter, be
invidiously differentiated for purposes of salary, seniority,
promotion or otherwise based on the source of recruitment or
other adventitious factor. Birth-marks of public servants are
obliterated on entry into a common pool and our country does
not believe in official casteism or blue blood as assuring
preferential treatment in the future career. The basic
assumption for the application of this principle is that the
various members or groups of recruits have fused into or
integrated as one common service. Merely because the sources
of recruitment are different, there cannot be apartheidisation
within the common service.”
(Emphasis Added)
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22. Furthermore, the legitimacy of granting financial and service
incentives for acquiring higher professional or academic qualifications while
in service stands firmly recognized by the Hon’ble Supreme Court in Food
Corporation of India & Ors. v. Bhartiya Khadya Nigam Karmchari Sangh
. The Apex Court held that incentive schemes
& Anr., (2012) 1 SCC 53
formulated by public employers to reward in-service educational
advancements fulfill a vital administrative objective by encouraging
professional self-improvement and enhancing institutional excellence. Once
an employer adopts a welfare measure or qualification incentive to reward
academic degrees acquired during service, it forms an independent
beneficial regime. Consequently, selectively denying these benefits to a
section of employees belonging to the same homogeneous cohort through
arbitrary administrative distinctions creates an impermissible classification
that violates Article 14 of the Constitution. The two-Judge bench of the
Hon’ble Supreme Court speaking through Justice D.K. Jain observed as
follows:
“13. It is manifest from a bare reading of the above-mentioned
portions of Circular that the fundamental objective of the
Circular is to provide an incentive to the in-service employees
in order to motivate and encourage them to acquire
professional qualifications in various courses, spelt out in the
Circular, for their career progression and at the same time
enable the FCI to build a reserve of qualified professionals
from within the organisation to back up key positions.
Evidently, the incentive will not only improve their overall
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performance and efficiency in the organisation, but also, in the
final analysis would strengthen the management with the
advent of an atmosphere of professionalism in the FCI.”
23. It has also been well-established that financial burden cannot be
set up as a shield to bypass mandatory duties or water down the uniform
service conditions of public servants. The Hon'ble Supreme Court has
categorically ruled that when the duty to implement service conditions or
welfare measures is mandatory, the State cannot take refuge behind an
empty treasury or administrative financial inconvenience. In All India
Judges' Association v. Union of India , ( 1993) 4 SCC 288, the three-Judge
bench of the Hon’ble Supreme Court, speaking through Justice P.B. Sawant,
observed as follows:
“ 16. The contention with regard to the financial burden likely
to be imposed by the directions in question, is equally
misconceived. Firstly, the Courts do from time to time hand
down decisions which have financial implications and the
Government is obligated to loosen its purse recurrently
pursuant to such decisions. Secondly, when the duties are
obligatory, no grievance can be heard that they cast financial
burden. Thirdly, compared to the other plan and non-plan
expenditure, we find that the financial burden caused on
account of the said directions is negligible. We should have
thought that such plea was not raised to resist the discharge of
the mandatory duties. The contention that the resources of all
the States are not uniform has also to be rejected for the same
reasons. The directions prescribe the minimum necessary
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service conditions and facilities for the proper administration
of justice. We believe that the quality of justice administered
and the calibre of the persons appointed to administer it are not
of different grades in different States. Such contentions are ill-
suited to the issues involved in the present case.”
(Emphasis added)
24. Adverting to the facts of the present case, the respondents'
reliance on the doctrine of election is untenable. It is well settled by the
Hon'ble Supreme Court in P. Dasa Muni Reddy (supra), Dr. Hakimwadi
(supra), Mastan (supra) and N. Murugesan (supra), that the very
foundation of Doctrine of Election and Waiver is a voluntary, informed
choice presupposing a meeting of minds, full awareness of all material
alternatives, and an intentional relinquishment of one right in favor of
another. A person cannot waive or elect out of a benefit that was neither
available nor within contemplation at the time the choice was made. When
the petitioners opted for the Merit Promotion Scheme (MPS) in the late
1980s, the incentive of two advance increments for pre-1996 in-service
Ph.D. holders did not exist. It was introduced in 1999 through the
DARE/ICAR instructions dated 03.03.1999 (Annexure P-1), and later
clarified by the letter dated 14.11.2005 (Annexure P-3). In the absence of an
existing right, there could be no conscious intention to surrender it.
Therefore, a promotional option exercised in the 1980s cannot operate as an
implied forfeiture of an academic incentive created years later. The relevant
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extract of DARE/ICAR circular dated 03.03.1999 (Annexure P-1) reads as
under:
“ 4. (i) Pay Scales
A statement showing the existing and revised scales of pay is attached
as Annexure Ⅲ.
( ii) Incentives for Ph.D/M.Phil
(a) Four and two advance increments will be admissible to those
who hold Ph.D and M.Phil degrees, respectively, at the time of
recruitment as Assistant Professor/Lecturer.
(b) One increment will be admissible to those teachers with M.Phil
who acquire Ph.D within two years of recruitment.
(c) A Lecturer /Assistant Professor with Ph.D will be eligible for
two advance increments when he moves into Selection Grade as
Associate Professor/Reader.
(d) A teacher will be eligible for two advance increments as and
when he acquires a Ph.D degree in his service career.”
(Emphasis Added)
25. Moreover, applying the principles enunciated in Dr. Manu
(supra) and V. Vincent Velankanni (supra) , the respondent-University had
no authority, under the garb of an implementation order, to confine the
benefit by item (iv) of notification dated 31.05.2007 (Annexure P-7) to
teachers “in Career Advancement Scheme”. A clarification or
implementation order cannot have the effect of withdrawing an anticipated
or already vested benefit, nor can it saddle employees with unanticipated
burdens. Vide Annexure P-3, the benefit of two advance increments was
extended to all teachers who acquired a Ph.D. degree during service, even
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prior to 01.01.1996, and who were not given advance increments under the
earlier Career Advancement Schemes, an expression the University itself
repeated in its letter dated 27.09.2006 (Annexure P-4). Item (iv) of
Annexure P-7 restricts this eligibility and takes away from MPS teachers a
benefit they could expect under Annexure P-3. It is therefore, a substantive
modification of Annexure P-3 and cannot be treated as a mere clarification
of it. The relevant extract of Annexure P-3 reads as under:
“ The matter regarding grant of advance increments to the teachers
for acquiring Ph.D. degree during service career was reviewed in
consultation with the Ministry of Finance, Deptt. Of Expenditure in
terms of UGC notification No.F-5-3(2001-PS dated 31.08.01. It has
now been decided to allow the incentive to all those who acquired
Ph.D. degree during service career in an uniform manner, with actual
benefits from the cut off date viz. 27.07.98. Accordingly, all the
teachers (including Readers, Professors and Principals) who
acquired Ph.D. degree during service even prior to 1.1.96 and who
were not given the benefit of any advance increments as per earlier
Career Advancement Schemes (CAS) may now be given the benefits
of two advance increments …”
(Emphasis added)
25.1 The relevant extract of Annexure P-7 reads as under:
“5- In brief, the following are the salient features of the above
benefit: -
(i) The benefit of two advance increments is to be given to all the
teachers (including Readers/Assoc. Professors/equivalent, Professors
& Principals) who acquired Ph.D. degree during service even prior to
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CWP-13561-2011
1.1.1996 and who were not given the benefit of any advance
increment as per earlier Career Advancement Schemes (CAS).
(ii) This benefit has been given with a cut off date viz. 27.7.1998.
(iii) This benefit has been given to the teachers who were in
SAUS/CAU, Imphal service as on 27.7.1998.
(iv) This benefit is admissible to only those teachers who are in
Career Advancement Scheme.”
(Emphasis added)
26. The legitimacy of the petitioners' claim is further fortified by
Annexure P-10, being the official communication dated 25.06.2007 issued
by the Ministry of Agriculture, Department of Agricultural Research and
Education (DARE), Government of India, to the Registrar of CCS HAU. By
its communication dated 25.06.2007 (Annexure P-10), addressed to the
Registrar of the University, DARE clarified that the Merit Promotion
Scheme (MPS) was a career progression scheme existing before 01.01.1996,
and recommended that the request of MPS teachers be considered by the
University in consultation with the State Government. The refusal to extend
the benefit to MPS teachers is not in consonance with the said clarification.
The relevant extract reads as under:
“... The matter regarding grant of incentive of two advance
increments for acquiring Ph.D. degree during service period has been
clarified vide DARE's letter No.1(15)98-Per-IV dated 14.11.05.
According to this, teachers who acquired Ph.D. degree during service
even prior to 1.1.96 are also eligible for the benefit of two advance
increments for acquiring Ph.D. during service. The MPS was a
career progression existing before 1.1.96 to those who opted for it.
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The request of MPS teachers may therefore be considered by the
University in consultation with the State Government.”
(Emphasis added)
27. The respondents’ attempt to link the incentive for a Ph.D.
degree to a promotional option exercised earlier is misconceived. Statutory
incentives formulated to reward the acquisition of higher educational
qualifications (such as a doctoral research degree) are designed to foster
academic excellence, specialized research, and institutional upgrading as
affirmed in the case of Bhartiya Khadya Nigam Karmchari Sangh (supra) .
They operate in an entirely distinct legal and functional sphere from
promotional avenues. Promotional channels regulate vertical hierarchy,
seniority, and rank progression within an organization. In sharp contrast,
advance increments are monetary incentives granted as a direct recognition
of scholarly achievement. To treat a promotion scheme option exercised in
the 1980s as an implied forfeiture of an academic research incentive
introduced in 1999 is to impose a penalty that defeats the very object of the
DARE/ICAR scheme, which is to honor and reward every qualified teacher
who advanced human knowledge through a Ph.D. degree.
28. Furthermore, the MPS teachers and the CAS teachers of the
respondent-University who acquired a Ph.D. during service are similarly
situated for the purpose of the incentive of two advance increments. They
are teachers of the same University, discharge identical teaching and
research responsibilities, and hold the same qualification, namely an in-
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service doctoral degree, which is the sole criterion under Clause 4(ii)(d) of
Annexure P-1. Such teachers cannot be differentiated in matters of salary
and benefits on the basis of the promotional route through which they
advanced, as laid down in Col. A.S. Iyer (supra) . The distinction sought to
be maintained by the respondents between teachers under the Merit
Promotion Scheme (MPS) and those under the Career Advancement Scheme
(CAS) must also satisfy the twin tests of permissible classification laid down
in D.S. Nakara (supra) . The promotional route may serve as an intelligible
differentia to identify the historical stream. However, it has no rational
relation to the object of the incentive, which is to reward the acquisition of a
higher qualification during service and thereby promote research and
academic excellence. The incentive does not concern the vertical hierarchy
of promotion.
29. This differentiation is further established by the fact that 23
leftover teachers transitioned from MPS to CAS were released the advance
increments without any alteration in their qualifications, exposing that the
benefit was granted solely on the fortuitous label of the scheme rather than
any academic attribute. The respondents’ submissions that CAS teachers
suffered a financial disadvantage and that MPS teachers had a faster route to
Professor concern promotion prospects, a matter the incentive does not
address. The differentia also does not serve any purpose of avoiding a
double benefit, as the report of the State’s own High-Powered Committee
(Annexure P-18) found no such duplication in extending the incentive to
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MPS teachers. The classification in Annexure P-7, which confines the
incentive to CAS teachers, therefore has no rational relation to the object of
the incentive. It fails the second test in D.S. Nakara (supra) and, to that
extent, is discriminatory and violates Article 14 of the Constitution.
30. Furthermore, the incongruity of the respondents' stand is starkly
exposed by the University’s own communication dated 12.07.2007
(Annexure P-11), addressed to the Financial Commissioner & Principal
Secretary to Government, Haryana, requesting the State to extend the benefit
to all teachers who are or were under the Merit Promotion Scheme (MPS),
as applicable to teachers under the Career Advancement Scheme (CAS). In
the said communication, the University officially detailed the operational
history of both the Merit Promotion Scheme (MPS) and the Career
Advancement Scheme (CAS), explicitly recognizing that faculty members
under MPS had risen to the ranks of Associate Professors and Professors.
Having formally acknowledged that teachers under MPS form an integral
part of the same teaching faculty possessing identical doctoral qualifications,
the respondents cannot turn around and rely upon a restrictive interpretation
of promotional channels to deny legitimate Ph.D. advance increments to a
section of the same homogeneous cadre. The relevant extract reads as under:
“ 6. In view of the position explained by the Deptt. of Agril.
Research & Education, New Delhi as stated above, you are
requested to consider this issue for extending the benefit of
aforesaid two advance increments to all teachers who are/were
in Merit Promotion Scheme (MPS) as is applicable to the
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teachers who are working under Career Advancement Schemes
and convey the decision to this University early.”
31. As regards the State's defense of financial constraints and
reliance on traditional universities, the same stands firmly answered by the
principles laid down in All India Judges' Association (supra). Financial
constraints cannot justify hostile discrimination among equals, and when
duties arising from beneficial Central policy directives are obligatory, no
grievance regarding financial burden can be entertained. Furthermore, the
State's own Joint Committee reported on 13.08.2009 (Annexure P-18) that
extending increments to MPS teachers entails no double benefit, and the
Special Secretary (Finance) (Annexure P-19) found no basis to withhold the
incentive. The relevant part of Annexure-19 dated 23.02.2010 reads as
under:
“ … A reference was made to the Ministry of Agriculture,
Government of India (flag 'B') on the issue. The GOI clarified that
"all teachers who acquire Ph.D degree during service even prior to
1.1.1996 and were not given the benefit of two advance increments
as per the earlier Career Advancement Scheme, may now be given
the benefit of two advance increments ". Later in June, 2007, the GOI
again clarified that the MPS was also a Career Progression Scheme
existing before 1.1.1996 to those who opted for it. They referred to the
Department of Agriculture letter dated 14.11.2005 which has been
approved by the State Department of Agriculture, which states that
te ache rs who acquire Ph.D degree during service even prior to
1.1.1996 are also eligible for grant of two advance increments for
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acquiring Ph.D degree during service. However, they left the final
decision on the State Government.
Apparently, there is no justification for an artificial distinction. Jo
give the benefit to particular category of teachers i.e CAS and leave
out the MPS stream of teachers. Also it is incorrect to say that the
State will be burdened by the entire liability if it is decided to give
two increments to the MPS teachers. As clarified by the Controller
Agriculture University vide his letter dated 12.12.2008, the liability
will depend on the kind of scheme for which the teacher is working.
For instance, if it is an ICAR scheme or funded by the World Bank,
the entire liability will shift on these two agencies. However, if it is a
State Scheme, then the State Government will have to bear the
liability. The same criteria was applicable when the benefit was
extended to the CAS teachers. The University has also clarified in the
same letter that no benefit of advance increments in the MPS scheme
over and above the CAS has been availed by the teachers with regard
to their acquiring Ph.D degree during service. The Vice Chancellor
has separately written that the Hon'ble CM had in principle agreed to
the proposition that MPS scheme teachers should also be allowed the
benefit of grant of two advance increments on completing a Ph.D
degr ee, during service.
In this background, it appears justified that we give our
concurrence to the case recommended by the AD and reportedly
agreed to by the Hon'ble CM. It may also be mentioned that the
HAUTA, Hisar have given copies of notifications of other
Universities which follow the ICAR/UGC guidelines where no such
distinction has been made between MPS & CAS schemes, while
giving two advance increments. The notifications of Punjab
Agriculture University, Ludhiana dated 14.1.2005, Agriculture
University Udaipur dated 31.10.2001 and Jawahar Lal Nehru Krishi
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Vishavvidyalaya, Jabalpur dated 22.12.2005 have been enclosed.
Therefore, there is no ground for the State Government to have
such a distinction and deny the MPS stream of teachers the benefit
of these increments.”
(Emphasis Added)
32. The petitioners filed the present writ petition on 25.07.2011. In
terms of the principle laid down in Union of India v. Tarsem Singh, (2008)
8 SCC 648 , the benefit of pay fixation shall be granted notionally w.e.f.
27.07.1998 for calculating the last pay drawn and revising pension, but
actual arrears shall be restricted to the three years immediately preceding the
filing of the petition.
CONCLUSION
33. In light of the above discussion, this Court concludes that the
petitioners, having exercised their option to remain under the Merit
Promotion Scheme (MPS) at a time when the incentive of two advance
increments for in-service Ph.D. holders did not exist, are not precluded by
the doctrine of election from claiming that incentive. The issue framed
above stands answered accordingly. Consequently, the present petition is
allowed in the following terms:-
a) The impugned communication/order dated 15.03.2011
(Annexure P-24) passed by Respondent No. 1 is hereby
quashed and set aside.
b) The condition in item (iv) of notification dated 31.05.2007
(Annexure P-7), restricting the benefit of two advance
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increments to teachers under the Career Advancement
Scheme, is hereby set aside to the extent it excludes teachers
who were under the Merit Promotion Scheme.
c) The respondents are directed to grant the benefit of two
advance increments to the petitioners on acquiring their Ph.D.
degree during their service career w.e.f. the cut-off date of
27.07.1998, on the same analogy and parity as extended to
teachers under the Career Advancement Scheme.
d) The respondents shall notionally refix the pay of the
petitioners w.e.f. 27.07.1998 up to the date of their respective
superannuation, and consequently revise their pension and
retiral benefits based on the last pay so refixed. Actual
financial arrears shall be restricted to a period of three years
immediately preceding the filing of the writ petition.
e) The entire exercise of pay/pension refixation, computation,
and disbursement of admissible arrears shall be completed by
the respondents within a period of three months from the date
of receipt of a certified copy of this order, failing which the
arrears shall carry interest at the rate of 6% per annum until
actual payment.
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34. Pending miscellaneous applications, if any, shall also stand
disposed of.
(HARPREET SINGH BRAR)
JUDGE
05.11.2026
PC
Whether speaking/reasoned. : Yes/No
Whether Reportable. : Yes/No
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