JUDGMENT (PER SUNIL P. DESHMUKH, J.):

Rule. Rule made returnable forthwith and heard finally by consent.

2. Petitioners assail, in this group of writ petitions, propriety, legality and validity of communications/letters dated 14.02.2013, 06.06.2013 and 26.06.2013 [dated 25.02.2013 Exhibit-G1 in Writ Petition No. 5272/2013, dated 21.02.2013 and 26.02.2013 Exhibit-F2 and Exhibit-F1 in Writ Petition No. 5810/2013], Exhibit-G1, Exhibit-G2 and Exhibit-I respectively to rest of the the writ petitions, issued by respondents No. 3 and 6 respectively, communicating that pay fixation of the lecturers under the list appended to the same, has been done taking into account the dates of their appointment and accordingly giving them benefit of “Career Advancement Scheme” (herein after ‘CAS’ for brevity). The CAS benefits given are not according to the Government Resolution dated 18.10.2001 whereunder the benefits would be available from the date of acquiring requisite qualifications and as such their pay fixation needs revision. It is further communicated that accordingly their pay be fixed and the revised pay fixation be recorded in their service books and the same be sent for certification and further that pay bills in respect of such teachers be submitted according to the revised fixation else pay bills will not be accepted.

3. Petitioners were appointed as lecturers by the respondent management, by following due procedure viz, issuing advertisement, selection by duly constituted selection committee and their appointments were also approved by the University. The petitioners possess all other qualifications, save and except that they have not passed National Eligibility Test (NET) or State Eligibility Test (SET), as was required. Since no candidate having NET/SET qualification was available the petitioners came to be appointed. Petitioners continued in service without any interruption.

4. In due course of time, the petitioners were granted benefits of senior pay scale so also selection grade and accordingly entries were taken in their respective service books. Pay fixation of the petitioners was done by the Joint Director of Higher Education, after following due procedure.

5. The petitioners contend that suddenly, vide communications impugned in the petitions, respondent Joint Director of Higher Education directed the respective colleges to re-fix the pay scale over again, pursuant to Government Resolution dated 18.10.2001 According to the petitioners, GR dated 18.10.2001, would not govern their case, as their services are approved by the University so also it would not be made applicable wherein appointments have been made during the period from 19.09.1991 to 03.04.2000 The impugned communications have been issued without notice to the petitioners and without giving any opportunity of hearing. On the basis of the impugned communications, salary of the petitioners have been revised and scaled down. According to the petitioners, said action is illegal and unsustainable and has resulted into pecuniary loss to them.

6. The petitioners contend that they have been exempted from passing NET/SET and as such, the purported action of revising their pay fixation, after such a huge time gap is unsustainable. The authorities are not empowered to take such an action.

7. The petitioners place strong reliance on the order dated 10.05.2013 in Writ Petition (Lodging) No. 1326/2012 passed by a Division Bench at Principal Seat wherein one of us (the Hon'ble the Chief Justice) was a member and on the decision of Division Bench at Aurangabad in Writ Petition No. 11477 of 2010 in case of Smt. Asha Ramdas Bidkar v. The State of Maharashtra decided on 1st August 2013.

8. Respondents No. 1 to 3 have filed affidavit in reply in Writ Petition No. 5271/2013 and have submitted that the same stand is being taken in other connected writ petitions also. It is contended that since the petitioners did not possess essential qualifications prescribed by the UGC, temporary approvals on ‘ad hoc’ basis, were given to them each year. It has been submitted that pursuant to Government Resolution dated 18.10.2001, the candidates, who have passed NET/SET during their service, were held eligible for CAS and were considered eligible from the date of passing NET/SET. It has also been submitted that exemption in respect of NET/SET to Ph.D holders for availing benefit of CAS would be effective from the date of award of the Ph.D It is further contended that benefit of CAS to the candidates, who are exempted from NET/SET, would be available from the date of grant of exemption by the UGC and as the UGC has not referred to any specific date of exemption, the service period for eligibility for the benefit of CAS would be computable from the date of issuance of the order by UGC. The respondents as such justify the impugned communications directing refixation of pay of the petitioners. The respondents also rely on an order passed by the Apex Court in Special Leave Petition (C) No. 30858 of 2011, in the case of “Chandi Prasad Uniyal v. State of Uttarakhand”.

9. The affidavit in reply also makes reference to the Government Resolution dated 27.06.2013, which is issued after taking into consideration interim orders passed in several writ petitions.

10. Factual position that all the petitioners, in this group of petitions, are appointed as lecturers in their respective subjects during the period from 1991 to 2000, by a duly constituted selection committee and after following the requisite procedure and that initial approval to their appointments has been culminated into permanent in 2006 is undisputed. It is also not disputed that the petitioners possess all other requisite qualifications, except National Eligibility Test (NET) or State Eligibility Test (SET), as was required and further that since no candidate having NET/SET qualification was available the petitioners were appointed. In due course of time, the petitioners were granted benefits of senior pay scale so also selection grade and accordingly entries were taken in their respective service books. Pay fixation of the petitioners was done by the concerned, accordingly, after following due procedure.

11. The factual position indisputably shows that all the petitioners have been continuously and uninterruptedly working since the dates of their initial appointment which are during 1991 to 2000 and that their services have been permanently approved by the University. It is also an undisputed fact that UGC has exempted the candidates who were appointed during the period from 1991 to 2000, from acquiring NET/SET qualifications. The petitioners possess Ph.D or M.Phil and thus stand exempted from NET/SET. Even the Assessment Committee of the University had selected the petitioners for senior scale/selection grade. The University had accepted and recommended the petitioners, pursuant to the report of the said Committee comprised also with a government nominee.

12. It further appears that in Writ Petition No. 4908/2010, a Division Bench of this Court at Nagpur, under its order dated 20.04.2011, had directed the University Grants Commission to communicate to the State Government as to the date from which exemption would become effective pursuant to its notification dated 05.11.2008 granting exemption from NET/SET. It appears that thereafter by letter dated August 16, 2011, addressed to the Principal Secretary, Government of Maharashtra, Higher and Technical Education Department, it came to be communicated by UGC that in its meeting held on 08.07.2011, Commission had passed a resolution and requested further action accordingly. In furtherance of the same, the UGC, vide its communication dated 16.08.2011, addressed to the General Secretary of Maharashtra Federation of University and College Teachers Organization, stated thus -

“Kindly referred to your representation dated 17th August, 2011 on the subject mentioned above. The issue raised in the representation has been examined in the UGC and this is to inform you that, the Commission in its meeting held on 08.07.2011 considered the representation received in respect of lecturers appointed in the State of Maharashtra from 19 September, 1991 till 3rd April 2000 and resolved as under:-

“The Commission deliberated on the issue regarding appointment of various teachers in the State of Maharashtra from September 19, 1991 until April 3, 2000 and resolved that, all such appointments made on regular basis by various Universities in the State of Maharashtra where the University has granted exemption to teacher from the requirement of NET in terms of the UGC Regulations, 1991 and subsequent notification dated 24.12.1998 and where the representation has been forwarded to Commission seeking further approval in relation to such regular appointment made during the said period w.e.f September 19, 1991 till April 3, 2000 is approved ……”

The above decision of the Commission has already been communicated by the UGC vide its letter No. F-1-1/2002 (PS) Exemp. Pt. File IV dated 16 August 2011 to the Principal Secretary, State of Maharashtra, Higher and Technical Education Department, Mumbai.

As may be seen from the above decision of the Commission, the Commission has taken the said decision in respect of all such appointments made on regular basis by various universities during the period from September 1991 to April 3, 2000. Therefore, the services of such teachers for all purpose should be counted from the date of their regular appointment.”

13. Despite aforesaid clear communication, it appears that the Joint Director of Higher Education issued communication dated 14.02.2013, making reference to Government Resolution dated 18.10.2001, to the effect that benefits of CAS would not be available to the teachers in the respondent No. 6 College since under said resolution the benefits would be available from the date of acquiring eligibility and as such the pay scale granted to the petitioners need to be revised and re-fixed accordingly and further communicating to furnish requisite information accordingly. Along with the said communications, the revised CAS fixation was sent to the college. Thereafter, the Joint Director of Higher Education, Nanded under communication dated 06.06.2013 directed respondent No. 6 to furnish service books, according to the revised CAS fixation in respect of the petitioners for certification and also to submit pay bills accordingly in the month of June, 2013, further stating that otherwise pay bills would not be accepted. It is against these orders the petitioners are before this Court.

14. It was also the stand of the Government, as emerging from the order dated 20.04.2011 in Writ Petition No. 4908/2010 at Nagpur wherein it was contended on behalf of the State that though exemption from NET/SET has been granted vide notification of UGC dated 05.11.2008, however the date of exemption in respect of passing of NET/SET has not been specifically mentioned and in absence of the same, the Government has not been able to decide the claims of the petitioners for grant of benefits under CAS and further that if it is made known to the State Government by UGC, same would be considered in accordance with law and the prescribed procedure.

15. It appears that in Writ Petition (Lodging) No. 1326/2012, a statement was made on behalf of the State Government that Government Resolution would be issued exempting teachers, who were appointed after following prescribed procedure during the period from 19.09.1991 to 03.04.2000, and stating that a GR will be issued granting exemption from NET/SET to those teachers who were appointed during 1991 to 2000 and the Government and the Universities would protect the pay fixation, including increments already paid to the teachers and, therefore, there will be no recovery of annual increments which the teachers have already earned. It appears that subsequently, Government Resolution dated 27.06.2013 has been issued from which it emerges that it has been decided that -

1. Notification dated 19.09.1991 of the UGC has been adopted by the State Government under a Resolution dated 23.10.1992 and, as such, the stipulations in the notification dated 19.09.1991 would not be applicable to the lecturers appointed before 23.10.1992

2. The lecturers, who are appointed during 23.10.1992 to 03.04.2000, who do not possess NET/SET/Ph.D/M.Phil, would be considered for all purposes, on fulfillment of the conditions that-

(a) Their appointments should be on regular basis.

(b) Their appointments should be made after following the prescribed procedure.

(c) The lecturers shall have all other qualifications except NET/SET.

(d) Proposals of such lecturers should have been forwarded to the UGC for approval.

16. The Government Resolution dated 27.06.2013 has been considered by the Division Bench of this Court in the order dated 01.08.2013 in Writ Petition No. 11477/2010 (Supra). It is nobody's case that the petitioners are not otherwise qualified or their appointments have not been approved by the University or they do not possess requisite qualifications except NET/SET. Government Resolution dated 27.06.2013 also makes reference to the Government Resolution dated 18.10.2001 It is also not the case of the respondent authorities that the petitioners do not fulfill the conditions referred to in the Government Resolution dated 27.06.2013

17. Under the circumstances Government Resolution dated 18.10.2001 is of little significance and cannot be relied upon or resorted to, to support the impugned actions. Having regard to the aforesaid, the recourse to government resolution dated 18.10.2001 by the concerned authorities, is of no avail to them to justify the impugned orders.

18. It is also not in dispute that the UGC has resolved to grant exemption to the teachers who were appointed during 1991 to 2000 and has also stated that ‘Therefore, the services of such teachers, for all purpose, should be counted from the date of their regular appointment’. (Vide communication of UGC dated 26.08.2011). This Court in its order dated 01.08.2013 has found that benefits of CAS cannot be denied to such teachers by considering them ad hoc appointees.

19. The decision of the Supreme Court in the case of “Chandi Prasad Uniyal v. State of Uttarakhand” (Supra) is of little benefit to the respondents in the facts and circumstances of the present matter, which are wide apart from those in the case before the Apex Court.

20. Having regard to the same, the communications impugned in the present petitions, which are issued to the petitioners affecting their pay scales adversely, are unsustainable and deserve to be quashed and set aside.

21. Consequently, all the petitions succeed. The impugned communications dated 14.02.2013, 21.02.2013 (Writ Petition No. 5810/2013) 25.02.2013 (Writ Petition No. 5272/2013), 06.06.2013 issued by Joint Director of Higher Education and further communications issued by the respondent No. 6 college dated 26.02.2013 (in Writ Petition No. 5810/2013) and 26.06.2013 pursuant thereto, stand quashed and set aside, and would be ineffective and inoperative.

22. Rule is made absolute in the aforesaid terms in each matter with no order as to costs.