Holding

The respondents’ promotions are protected by the scheme and they are entitled to the revised UGC/ICAR pay scale, but the benefit of the revision applies only from the date of their promotion.

Summary

The respondents, appointed as Assistant Professors in the 1970s and early 1980s, were promoted to Associate Professor (Non‑Cadre) under a time‑bound grade promotion scheme approved by the Kerala Government and based on the Fourth Pay Commission recommendations. The University later adopted a UGC/ICAR pay‑scale scheme, which provided that promotions made before the revised scales were not to be reopened, but the benefit of the revised pay would be available only from the date of promotion. The respondents sought placement in the UGC/ICAR associate‑professor pay scale (Rs 3700‑5700) with arrears, arguing that their promotions were protected by the scheme. The High Court directed that they be placed in the revised scale, and the University appealed. The Supreme Court held that the respondents’ promotions were indeed covered by the scheme and that the benefit of the revised pay scale could be granted, but only from the date of their promotion, as stipulated in the scheme. Consequently, the appeals were dismissed.

Issues considered

Whether promotions of the respondents to Associate Professor (Non‑Cadre) under the time‑bound scheme are covered by the UGC/ICAR pay‑scale scheme.
Whether the respondents are entitled to the revised UGC/ICAR pay scale (Rs 3700‑5700) and associated arrears.
Whether the benefit of the pay revision is available only from the date of promotion as per the scheme.
Whether the creation of the non‑cadre post and the promotion orders are legally valid.

Subjects

promotionnon‑cadreUGC pay scaleICAR schemeKerala Agricultural Universityservice lawtime‑bound promotionpay revisionseniority

Judgment

• i •I·

[2009] 6 S.C.R. 76

A KERALA AGRICULTURAL UNIVERSITY
v.
B.K. JAYACHANDRAN ETC.
(Civil Appeal No. 2540-2542 of 2009)
APRIL 15, 2009
B
[S.B. SINHA AND CYRIAC JOSEPH, JJ.]

Service law: Promotion - Grant of time bound grade
promotion to teaching staff upon accepting recommendation
C of Fourth Pay Commission - Scheme for promotion
recommended by UGC!ICAR and accepted by University -
Under the Scheme, benefit of revision available from date of
promotion only - Associate Professor (non cadre) included
within the purview of said scheme - Held: Their promotion
o received statutory protection - High Court was correct in
directing that benefit of revised scale of pay should be
extended only from date of promotion.
The respondents were appointed as Assistant
Professors in 1979, 1982 and 1983. In 1988, appellant·
E University issued an order whereby decision was taken
by the State of Kerala directing grant of time-bound
grade promotion to the teaching staff upon accepting the
recommendations of the Fourth Pay Commission. "'
Pursuant to this, the scales of pay of Assistant Professor .-
F and Associate Professor were revised to Rs.1500-26851- 1
and Rs.1950-29501- respectively. Clause VI of the Pay
Revision Order provided for grant of time bound higher
grade promotion (Non-cadre) to those having total ten
years' of service in the first two grades taken together
G where there were four levels from the entry cadre to the : _..
Professor Cadre. On 23.3.1988, appellant-University, in
terms of the said direction, ordered for grant of 1st higher
grade non-cadre promotion as Assistant Professor
(Higher Grade) with pay of Rs.1950-29501-. Pursuant to
H 76
KERALA AGRICULTURAL UNIVERSITY v. B.K. 77
JAYACHANDRAN ETC.
the said decision, the designation of the Assistant A
Professor (Higher Grade) was changed to that of
Associate Professor (Non-Cadre). They were placed In
the pay scale of Rs.1950-2950/· subject to conditions
mentioned therein. By an order issued by the appellant·
University, thirty five Assistant Professors including the B
contesting respondents were granted time bound higher
grade non-cadre promotion to the posts of Associate
-~
Professor (Non-Cadre) with effect from 04.10.1987,
!)1 .04.1987 and 12.01.1987 respectively. On 25.6.1990, a ·,
Scheme as recommended by UGC/ICAR and approved ·c
by the Government of Kerala was accepted by the
University subject to the terms and conditions mentioned
therein with retrospective effect from 1.1.1986. One of the
terms was that promotions made before the
announcement of the revised scales of pay on 1.2.1988 D
by the l.C.A.R. would not be reopened. However, in such
cases the benefit of revision would be available to
teachers only from the date of promotion. The existing
merit promotion sctieme viz., assessment, norms and
Non-cadre promotion made after 1.2.1988 would be E
treated as cancelled. No such promotion schemes would
be in vogue from the date of issue of these orders. A
Government Order No. G.O. (MS) 190/93 dated 22.9.1993
was issued granting higher scale of pay to the teachers
in the category of Assistant Professors. Questioning the . F ·
validity of the said G.O., several writ applications were
filed by Assistant Professors of other disciplines in the
said University before the High Court. Single Judge of··
High Court held that the Associate Professors who were
promoted as Associate Professors (Non-Cadre) would G
not be entitled to be placed in the UGC/ICAR scale of pay
of Associate Professors, namely, Rs.3700-5700/-, and
they could only be placed in the UGC/ICAR scale of pay
of Assistant Professors.
H
78 SUPREME COURT REPORTS [2009] 6 S.C.R.

A On appeal, Division Bench of High Court reversed the
judgment of Single Judge of High Court, holding that
merit promotions under the l.C.A.R. scheme would be
governed by the seniority in the cadre in which they were
appointed and not in the non-cadre post and the creation
B of the post of Assistant Professor (non-cadre) was illegal.
•
The scheme was still not implemented in case of
respondents. They filed writ petition praying for issuance
of a writ of mandamus against appellant - University to
~ C . place them in the UGC/ICAR scale of pay of Rs. 3700-
5700 with effect from their respective dates of promotion
as Associate Professors (Non-Cadre) and to grant all
consequential benefits including arrears of salary.

The High Court allowed writ petition opining that
D matter was cleared by judgment of Division Bench of
High Court in earlier writ appeal, hence there was no ·~
justification in delaying justice to respondents. However,
appellant rejected the claim of respondents on the ground
of anomaly. Respondents again filed writ petitions, which
E was allowed holding that there may be an anomaly but
because of that respondents should not be denied the
benefits. Writ appeals by appellant were dismissed.
Hence these appeals.

F Dismissing the appeals, the Court

HELD:1. The contesting respondents were
appointed I promoted to the post of Associate Professor
(Non-Cadre). The Scheme did not exclude their cases.
Indisputably, they were promoted to the said posts on the
G basis of the decision taken by the University itself. [Para
16] [92-C-I)]

2. There is no anomaly in clauses 3.01 and 3.02 of the
Scheme. Clause 3.01 merely limits the starting scale of
H
KERALA AGRICULTURAL UNIVERSITY v. B.K. 79
JAYACHANDRAN ETC.
;, pay to be inclusive of the elements stated therein; A
whereas clause 3.02 provides for substitution of one
scale of pay by another as contained in Appendix II
thereto. It is, therefore, not correct to contend that the
scales of pay of teachers in University as substituted in
terms of the said Scheme were wrongly noted in B
Appendix II thereof. [Para 17] [92-D-F]

3. It is not in dispute that in terms of order dated
2.8.1988 the respondents were promoted to the post of
Associate Professor, with effect from 1987. The C
conditions for promotion laid down in the Scheme were
to apply to future promotions and not to the promotions
which were already granted. Keeping that fact only in
view, the promotions made upto 1.2.1988 were protected
in terms of the UGC Scheme providing that the existing
0
merit promotion scheme, namely, Assessment, norms
and Non-cadre promotion made after 1.2.1988 would be
treated as cancelled. In terms of the Notification dated
4.4.1995 such protection in regard to the promotion was
extended upto 25.6.1990 subject to the condition that in E
such cases the benefit of revision would be available to
teachers only from the date of promotion. [Para 18] [92·
F-H; 93-A-B]

4. The High Court by reason of its judgment and
order dated 14.11.2007 categorically held that the F
respondents would be entitled to the benefit of revised
scale of pay with effect from 1.1.1986 or from the date of
promotion as Associate Professor (Non-Cadre),
whichever is later. Pursuant to or in furtherance of the
request of University only the statutes were amended. G
Such amendment in the statute was indisputably made
pursuant to the recommendations made by UGC/ICAR~
which was accepted by the appropriate authorities of
appellant-University. It is from that point of view only the
Scheme framed by the UGC should be taken into H
.. ;
80 SUPREME COURT REPORTS [2009) 6 S.C.R.

A consideration. There cannot be any doubt whatsoever
that the Associate Professors (Non Cadre) were, In fact,
Included within the purview of the said Scheme. The
amendments made by the State in terms of the request
made by appellant-University should be construed having
B regard to the grounds on the basis whereof the request
for amendment of statute was made. Promotions of the
respondents, therefore, having r~~eived the statutory
protection and the High Court having direc;ted that the
benefit of the revised scale of pay should be extended
c to the contesting respondents only from the date of their
promotion, the Impugned judgment does not suffer from
any legal infirmity. [Paras 19, 21 and 23] [93-B-C; 94-G·
H; 95·A·D]
D CIVIL APPELLATE JURISDICTION : Civil Appeal
No.2540-2542/2009.
From the Judgement & Order dated 03.04.2008 of the
High Court of Kerala at Ernakulam in W.A. No. 660/2008.

B.V. Deepak (for T.T.K Depak & Co.) for the Appellant.
E
K. Rajeev and P.V. Jaychandran for the Respondents.
The Judgment of the Court was delivered by

S.B. SINHA, J. 1. Leave granted.
F
2. Whether respondents are entitled to obtain the benefit
of Scale of Pay in terms of the University Grants Commission
(for short, "UGC") guidelines is the question involved in these
appeals. They arise out of a judgment and order dated 3.4.2008
G passed by a Division Bench of the High Court of Kerala at
Ernakulum in Writ Appeal Nos. 660, 680 and 748 of 2008,
dismissing the appeals pr~ferred by the appellant herein
against the judgment and order dated 14.11.2007 passed by
a learned single judge of the said Court in Writ Petition (Civil)
H Nos. 13572, 10496 and 13543 of 2006.
KERALA AGRICULTURAL UNIVERSITY v. B.K. 81
JAYACHANORAN ETC. [S.B. SINHA, J.]
A 3. Respondents herein were appointed as Junior Assistant A
Professors on 14.08.1973, 21.1.1977 and 4.10.1977. They
.". were appointed as Assistant Professors on, 02.12.1982 and
12,01.1983, 11.05.1979 respectively.

4. In the year 1988, appellant-University issued an order B
whereby and whereunder the decision taken by the State of
Kera la upon accepting the recommendations of the Fourth Pay
Commission directing grant of time-bound grade promotion to
the teaching staff; pursuant whereto and in furtherance whereof,
the scales of pay of Assistant Professor and Associate c
Professor were rl'vised to Rs. 1500-2685/- and Rs.1950-2950/
" respectively. Clause VI of the Pay Revision Order provided
for grant of time bound higher grade promotion (Non-cadre) to
those having total ten years' of service in the first two grades
- taken together where there are four levels from the entry cadre
D
to the Professor Cadre. On or about 23.3.1988, appellant -
~ University, in terms of the said direction, ordered for grant of
1st higher grade non-cadre promotion as Assistant Professor
(Higher Grade) with pay of Rs.1950-2950/-, stating:
"The matter has been considered by the Executive E
Committee and in consonance with the decision of the
195th meeting of Exe. Committee held on 25.2.1988 the
following orders are issued.
,,.
(i) The clause (VI) of para (10) of G.O. (P) 515/85/Fin F
dated 16.9.85 is made applicable to the Assistant
Professors of Kerala Agricultural University subject to the
condition that while computing the combined length of 10
years service in the cadre, at least two years should be in
the cadre of Asst. Professor." G
:. Pursuant to or in furtherance of the said decision,
concededly the designation of the Assistant Professor (Higher
Grade) was changed to that of Associate Profess.or (Non-
Cadre). They were placed in the pay scale of Rs.1950-2950/-
H
82 SUPREME COURT REPORTS [2009] 6 S.C.R.

A by an order dated 20.4.1988 subject to the conditions
mentioned therein. By an order issued by the appellant -
••
University, thirty five Assistant Professors including the
contesting respondents herein were granted time bound higher
grade non-·cadre promotion to the posts of Associate Professor
B (Non-Cadre) with effect from 04.10.1987, 01.04.1987 and
12.01.1987 respectively.

On or about 25.6.1990, a Scheme as recommended by
UGC/lndian Council of Agricultural Research (for short, "ICAR")
C and approved by the Government of Kerala was accepted by
the University subject to the terms and CO!lditions mentioned
therein with retrospective effect from 1.1.1986, the relevant
provisions whereof read as under:

"3.01.The revised scales (Appendix I) are inclusive of
D Basic Pay (as on 1.1.1986 in the 1973 U.G.C./
l.C.A.R. Scale), the Dearness Pay, Dearness
Allowances, Additional Dearness Allowance and
Interim Relief if any, admissible to teacher as on
1.1.1986.
E
3.02. The existing scale of pay of teachers in the
University to whom the scheme is applicable and
the corresponding rP.vised scale of pay for which
they are entitled are given in Appendix II.
F xxx
xxx xxx
5.04. Promotion to the post of Associate Professor will
be through a process of selection by a ~election
committee to be set up under the Statutes/
G Ordinance of the University and in accordance with
the guidelines laid down by the l.C.A.R. from time
to time. Posts of Associate Professors will be
created for this purpose wherever necessary by
upgrading a corresponding numbers of posts of
H Assistant Professors in the University.
KERALA AGRICULTURAL UNIVERSITY v. B.K. 83
JAYACHANDRAN ETC. [S.B. SINHA, J.]
xxx xxx xxx ·A

5.06. Teachers in the University will be placed at the
appropriate stage in the revised scales in
accordance with the pay fixation formula under this
scheme. Existing Assistant Professors who have 8
completed or will complete a total period of sixteen
years of service as on 1.1.1986 or thereafter will be
eligible for promotion to the post of Associate
Professors in the selection grade as per the
provisions contained in para 5.03 to 5.05. They will C
also be entitled to the relaxation in years of service
by 3 years if they hold Ph.D. degree.

5.07. Promotions made before the announcement of the
revised scales of pay on 1.2.1988 by the l.C.A.R.
will not be reopened. However, in such cases the D
benefit of revision will be available to teachers only
from the date of promotion. The existing merit
promotion scheme viz., Assessment, norms and
Non-cadre promotion made after 1.2.1988 will be
treated as cancelled. No such promotion schemes E
shall be in vogue from the date of issue of these
orders."

Appendix I referred to in paragraph 3.01 provided for the
following: F

"Appendix - I

"University Grants Commission/Indian Council of
Agricultural Research (l.C.A.R.) Scales of Pay of Teachers
G

H
84 SUPREME COURT REPORTS [2009] 6 S.C.R.

A in the Universities.

SI. No. Designation Existing Revised Scale
Scale
B
1. ... .... I I I 00

2. .....
c
4. Associate 1200-1900 3700-125-
Professor 4950-150-5700
5. ....
D
6. ..... "

Appendix II thereof containing the scales of pay of teachers
in University also provided for the scales of pay of Associate
E Professor in the following terms:
"SI. Designation Existing Scale Revised Scale
of pay as on of pay
1.1.1986 (U.G.C./l.C.A.R.
Scheme with
F designation

1. .....

2. .....
G
3. Associate 1950-70- 3700-125-
Professor 2100-85-2950 4950-150- 5700

5. ....
H
KERALA AGRICULTURAL UNIVERSITY v. B.K. 85
JAYACHANDRAN ETC. [S.B. SINHA, J.]
"
Indisputably, the contesting respondents acquired their · A
Ph.D Degrees in the years 1991, 1994 and 1999 respectively.

5. It is furthermore not in dispute that a notification was
issued by the appellant - University on or about 21.3.1995
pursuant whereto or in furtherance whereof, inter alia the
8
following was provided:

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

(i) Promotions made before the announcement of the
revised scales of pay on 25.6.1990 by the ICAR will not
be reopened. However, in such cases the benefit of
revision will be available to teachers only from the date of E-
promotion. The existing merit promotion scheme viz.,
assessment, norms and non-cadre promotion made after
'r 25.6.90 will be treated as cancelled. No such promotion
-"· schemes shall be in vogue after 25.6.1990. However all
the service conditions existed before the introduction of F
UGC/ICAR scheme will be available to those teachers who
opt out of ICAR Scheme."
6. An Original Petition was filed by one K. Viswambharan,
who was an Assistant Professor questioning the G
aforementioned orders.
7. Indisputably, a Government Order No. G.O. (MS) 190/
93 dated 22.9.1993 was issued granting higher scale of pay
to the teachers in the category of Assistant Professors.
H
86 SUPREME COURT REPORTS [2009] 6 S.C.R.

A Questioning the validity of the said G.O. (MS) no. 190/93
dated 22.9.1993, several writ applications were filed by
Assistant Professors of other disciplines in the said University
before the High Court.

A learned Single Judge of the said Court by his order
8 dated 25.7.1994 while disposing of the Original Petition Nos.
13624/1993-V, 15938/1993-V and 16337/1993-T filed under
Article 226 of the Constitution of India wherein two of the 'r
contesting respondents, namely, Dr. B.K. Jaychandran, and B.
Balakrishnan had been impleaded as respondents inter alia
C held that:

(i) the orders of the University whereby Assistant
Professors, including the contesting respondents
herein, were given non-cadre promotion as
D Associate Professor (Non-Cadre) was without
authority of law;

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

E (iii) the Associate Professors who were promoted as
Associate Professors (Non-Cadre) would not be
entitled to be placed in the UGC/ICAR scale of pay
of Associate Professors, namely, Rs.3700-5700/-,
and they could only be placed in the UGC/ICAR
F scale of pay of Assistant Professors.
8. Writ appeals were preferred thereagainst and by a
judgment and order dated 11.9.2002, a Division Bench of the
said court reversed the said judgment, opining :

G 'Therefore, we are of the opinion that the challenge to Ext.
P 4 in so far as it protects the salary to be given to the
Associate Professor (non-cadre) who were getting higher
salary at the time of introduction of ICAR scale by Ext. P.2
cannot stand. We also note that as held by the Supreme
H
KERALA AGRICULTURAL UNIVERSITY v. B.K. 87
)I.
JAYACHANDRAN ETC. [S.B. SINHA, J.]
Court in Dr. Rashmi Srivastava v. Vikram University A
(1995) 3 sec 653, the non-cadre promotees will not get
any seniority because of their very placement in the non-
cadre. Merit promotions under the l.C.A.R. Scheme will be
governed by the seniority in the cadre in which they were
appointed and not in the non-cadre post. In view of the B
above, we are of the opinion that the learned Single Judge
went wrong in not accepting Ext. P 4 and holding that the
creation of the post of Assistant Professor (non-cadre) is
illegal. We also note that since the Petitioners' right for
promotion and other benefits are not affected, no prejudice c
is caused to them."

9. It is of some significance to note the stand taken by the
appellant - University in their counter affidavit filed in the said
· Original Petition No. 13624 of 1993V, which reads as under:-
D
.. "Various grounds raised in the Original Petition are neither
legal nor sustainable in law. Non cadre promotions are
based on the IV Kerala Pay Revision orders extended to
the teachers of the Kerala Agricultural University.
Promotions were made only after obtaining the approval E
- of the authorities of the University i.e. Executive Committee/
'
·• General Council. Further there are directions from UGC/
' ICAR to allow such promotions before the cut off date
~ specified in Government order implementing UGC/ICAR
package. Ext. P4 does not nullify the promotions, it only F
protects the promotions made by the University upto
/ .
25.6.1990. The personnel to whom non cadre promotions
given were having the requisite general educational
qualifications prescribed in the statutes and also the length
of service." G
Reliance was also placed on the resolution passed by the
General Council at its meeting held on 28.11.1992; Clause (vi)
whereof reads as under:

"To place/induct all Associate Professors (NC) as regular H
88 SUPREME COURT REPORTS [2009] 6 S.C.R.

A Associate Professors on Rs.3700-5700 in UGC on the
ground that the non cadre promotions were not out of way
promotions but it was part of IV Kerala Government Pay
Revision Orders."

10. As despite the aforementioned judgment the said
8
scheme was not implemented in the case of the respondents,
they filed a Writ Petition in the High Court of Kerala at
Ernakulam, which was marked as Writ Petition (Civil) No.
26689/2004-B praying inter alia for issuance of a writ of
C mandamus against appellant - University to place them in the
UGC/ICAR scale of pay of Rs. 3700-5700 with effect from their
respective dates of promotion as Associate Professors (Non-
Cadre) and to grant all consequential benefits including arrears
of salary.

D By reason of a judgment and order dated 24.09.2004, a
learned single judge of the High Court allowed the said writ
petition directing appellant to take appropriate action, stating:

"It is the contention of the petitioners that in view of Ext. P
7 judgment of the Division Bench of this Court in W.A. No.
E
1182/94, there is no impediment now in granting the
placement in the UGC scale of Associate Professors (Non
Cadre) (Rs. 3700-5700) as per Ext.P.6. Learned standing

F
counsel submits that the issue is being actively considered .
by the Executive Committee of the University. Once the
1 '
sole impediment in the matter of implementation of the
scale has been cleared by the judgment in the Writ Appeal
referred to above, there is no justification in delayihg justice
to the Petitioners. In the above circumstances, I dispose
of the Writ Petition directing the Respondent to take
G appropriate action in the light of the judgment dated
11.9.2002 in Writ Appeal No. 1182/94, in the matter of •
implementation of Exts. P 5 and P 6 in the case of the
Petitioners, within a period of six weeks from the date of
production of a copy of this judgment along with a copy of
H the Writ Petition by the Petitioners. The consequential
KERALA AGRICULTURAL UNIVERSITY v. B.K. 89
JAYACHANDRAN ETC. [S.B. SINHA, J.]
benefits for which the Petitioner are found eligible, including A
arrears, shall be disbursed within a period of four months
thereafter"

11. However, the appellant - University passed an order
on or about 25.6.2005 rejecting the said claim of t.he B
respondents in the following terms:

~
"1. The pay drawn in the State Scale of Pay by those
teachers, who were granted the time bound higher
grade for completing 10 years as per University
proceedings read as 1st paper above and re- c
designated as Associate Professor (non-cadre) as
per University proceedings read as 2nd paper
above, is protected in the UGC scale of pay into
which they are inducted.
D
.. 2. Their pay will be fixed at the corresponding stage
in the UGC scale of pay into which cadre they are
'\ inducted.

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

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

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

12. The validity and/or legality of the said order was
questioned by the respondents by filing writ petitions before the
High Court marked as W.P. (C) No. 10496 of 2006(Y), W.P.
(C) No. 13543 of 2006 (K) and W.P. (C) No. 13572 of 2006 H
90 SUPREME COURT REPORTS [2009] 6 S.C.R.
..
A (N) and by a judgment and order dated 14.11.2007, the same
was allowed, directing:

"I have considered the rival contentions in detail. May be
there would be an anomaly as contended by the learned
standing Counsel for the University. But the question is
B
because of that anomaly, the Petitioners can be denied the
benefits as per Ext. P.4 itself, perhaps the persons, who
:;...
drafted Ext. P 4 may have lost sight of the fact that there
are certain Associate Professors (non-cadre) existing in
the service for whom they failed to make provision while
c granting revised scales of pay. However, when a teacher
is actually drawing the salary in a particular scale of pay
and scales of pay of all posts are revised as per Ext P 4,
in view of Sub Clause 3.02 qyoted above, the Petitioners
would be entitled to the scale of pay c:mesponding to the
D scale of pay which they are holding although they may not
be entitled to claim induction as Associate Professors. It
cannot be disputed that the scale of pay corresponding to
Rs.1950-2950, as per Ext. P 4 is Rs.3700-5700.
Therefore, nptwithstanding the anomaly noted above,
E unless orders are passed to remove that anomaly, the
Petitioners cannot be denied the benefit of sub clause 3.02
read with Appendix II of Ext. P4. They would be so entitled
with effect from 1.1.86 or the date of promotion as
Associate Professors (non-cadre) whichever is later.
F Therefore, the Petitioners in Writ Petition Nos. 10496/06,
13543/06, 13572/06 have become entitled to the scale of
pay Rs.3700-125-4950-150-5700 with effect from 1.1.86,
12.1.87 and 4.10.87. It is so declared. The University shall
pass appropriate orders in accordance with the above
G finding and disburse monetar:y benefits thereof within three
months from the date of receipt of a copy of this judgment."

13. Writ appeals preferred thereagainst by the appellant
have been dismissed by reason of the impugned judgment.
H 14. Mr. B.V. Deepak, learned counsel appearing on behalf
KERALA AGRICULTURAL UNIVERSliY v. B.K. 91
JAYACHANDRAN ETC. [S.B. SINHA, J.J
~·
of the appellant in support of these appeals would submit: A
i. The UGC/ICAR scales of pay had no application
in respect of Associate Professor (Non-Cadre) with
effect from 1.1.1986 as the eligibility criteria laid
down therein were not fulfilled by the respondents.
B
ii. Having regard to the scheme of the Act and the
Statute governing the terms and conditions of
service of the respondent, purported promotion of
the Assistant Professors to the posts of Associate
Professor (Non-"cadre) must be held to be illegal. c
iii. In view of the fact that the respondent having not
been appointed in a regular establishment of the
' University, were not entitled to the UGC scale of
pay, and, thus, the High Court committed a serious 0
illegality in following the earlier Division Bench
judgment passed in Writ Appeal Nos. 1102, 1400,
1430 and 1176 of 1994 that too without arriving at
a finding that the respondents were entitled to the
grant of UGC scale of pay.
E
iv. In any event, clause 3.01 being applicable to the
case of appellant, the conditions laid down in
., Appendix I was to apply and not those contained
in Appendix II thereof which was a surplusage. In
any event, respondents having not fulfilled the F
criteria of promotion as contained in clause 5.04,
5.05, 5.06 and 5.07 thereof, the respondents were
not eligible for promotion as on 1.1.1986, the
impugned judgment cannot be sustained.
G
,. 15. Mr. K. Rajeev, learned counsel appearing on behalf
of the respondents, on the other hand, would urge:
i. Appellant - Uni~ersity itself having accepted the
Scheme and having supported the case of the
.respondents could not take a new stand in the writ H
KERALA AGRICULTURAL UNIVERSITY v. B.K~ 93
JAYACHANDRAN ETC. [S.B. SINHA, J.]
>' as cancelled. We have noticed hereinbefore that in terms of the A
aforementioned Notification dated 4.4.1995 such protection in
regard to the promotion was extended upto 25.6.1990 subject
to the condition that in such cases the benefit of revision will
be available to teachers only from the date of promotion.
B
19. The learned single judge of the High Court by reason
of its judgment and order dated 14.11.2007. categorically held
that the respondents would be entitled to the benefit of revised
scale of pay with effect from 1.1.1986 or from the date of
promotion as Associate Professor (Non-Cadre), whichever is C
later. We, therefore, are not in a position to agree with the
contention of Mr. Deepak that the criteria laid down in terms of
the aforementioned UGC/ICAR Schemes must be considered
having regard to the cut off date specified therein, i.e., 1.1.1986
only. Appellant-University itself, as noticed hereinbefore,
supported the case of the respondents. It itself raised a 0
contention that such promotions were made in terms of the
resolutions passed by the General Council.
20. We may also notice that a similar stand was taken by
the University in a letter dated 1.1.93 addressed to the E
Secretary to Government, which is to the following effect:
"It may be noted that the non cadre promotion as Associate
Professor (NC) was not an out of way promotion as it was
part of the IV Kerala pay Revision Orders. It was specified F
that where there exist 4 levels from entry cadre to
Professors as in professional Colleges, 10 years service
in the lower two cadres put together entails an incumbent
to the third level viz. Associate Professor (NC).
In Engineering Colleges and Calicut University, the G
non cadre promotions upto 28.2.1989 and 31.3.1990
respectively were reckoned. Therefore the Teachers of
KAU demanded that the non cadre Associate
Professorship may also be reckoned and a scale to scale
' H
94 SUPREME COURT REPORTS (2009] 6 s. c. R.

A induotl~n may bo grnntod piecing thsm In the ocalo of "
Rll.3700·f.1700. It wsa under those clrcumatoncoa that tho
Gonen:tl Council resolved to request the Government that
all the Associate Professor in the scale of Rs. 1950-2750
(pre revised) may be placed In the scale of Rs.3700-5700
B irrespective of whether they were cadre Associate
Professor or non cadre Associate Professor."

By a letter dated 20.3.1991, it was stated:

"The meeting of the Executive Committee on 13.3.1991
c decided to recommend to the Government to give
permission to induct all Assistant professors both directl1·
selected and selected from among Junior Asst. Professors
in senior scale as on 1.1.86 or the date of their selection
whichever is later and also to induct of Associate
D Professor (NC) as Assoc. Professor in the Scheme. The
induction of Asst. Professor to senior scale is highly ..>I
essential since protection of cadre seniority would be
difficult otherwise. For instance, an As&t. professor directly
recruited in 1987 will become junior to Junior Asst.
E Professor as on 1.1.86. It is evident that the former had
been enjoying cadre seniority as on date of appointment
and till the date of induction. This may cause much heart
burn:> to the Asst. Professors who were recruited directly
by the University. It may go against the provisions of KSSR 'f
F which protect cadre seniority.

I request that this anomaly may be rectified by
sanctioning senior scale to all directly recruit Asst.
Professors as on 1.1.86 or from the date of their
recruitment whichever is later."
G
21. Pursuant to or in furtherance of the said request only
"
the i;tatutes were amended. Such amendment in the statute
was indisputably made pursuant to the recommendations made
by UGC/ICAR which was accepted by the appropriate
H authorities of appellant - University. It is from that point of view
KERALA AGRICULTURAL UNIVERSITY v. B.K. 95
JAYACHANDRAN ETC. [S.B. SINHA, J.]
r only thfll Schf!ma frsmsd by the UGO should ba taken Into A
eona!derstlon.
22. There cannot be any doubt whatsoever that the
Associate Professors (Non Cadre) were, In fact, included within
the purview of the said Scheme. The amendments made by the B
State in terms of the request made by appellant - University,
in our opinion, should be construed having regard to the
grounds on the basis whereof the request for amendment of
statute was made.

23. Promotions of the respondents, therefore, having C
received the statutory protection and the High Court having
directed that the benefit of the revised scale of pay should be
extended to the contesting respondents only from the date of
their promotion, in our considered view, the impugned judgment
does not suffer from any legal infirmity. D
24. These appeals, therefore. being devoid of any merit
are dismissed with costs. Counsel's fee assessed at
Rs.10,000/- to be paid to each of the counsel appearing on
behalf of the contesting respondents. E
D.G. Appeals dismissed.